The assessment of psychological and existential damage

For some time now, the legal approach to personal injury has taken the overall aspect into consideration. It also considers psychic integrity and the consequences that trauma can have on quality of life.

This consideration arises from a growing social and political attention on the subject. The right to health is a fundamental right of the person that must be constitutionally guaranteed.

Compensation for damage is sanctioned by art. 2043 of the civil code and the damage can be classified as patrimonial or non-patrimonial .

Compensation for pecuniary damage

The first sentences tended to compensate the expenses as reparation for the consequences of the harmful event, especially in the presence of impaired working capacity.

This form of compensation was not favorably received by the community. It was considered inappropriate, and unfair, to consider the injured person only in relation to his work and not also in reference to his complex relationship life .

This has also led to an amplification of social discrimination due to pay differences. For the same number of injuries suffered, a more qualified profession received higher compensation.

Non-pecuniary damage

In recent times we have seen numerous legislative interventions on what concerns non-pecuniary damage . It refers to an ” injury to interests inherent in the person, not characterized by economic significance “. That is, concerning all those aspects that cannot be immediately monetized that make up the life of each individual.

We therefore slowly move away from an exclusively organicistic conception of health to move towards a bio-psycho-social vision of the individual.

By psychological damage we mean both that which causes physical damage in the psyche of a person and the mental alteration that occurs independently of the physical injuries (Franzoni, 2004). The psychological injury would be a legally accepted disturbance of the person’s psychic balance.

The possibility of obtaining compensation for psychic damage , which by now constitutes a specific category, is a recent achievement. This right has been recognized by the Supreme Court as an individual right that can be exercised in the private sector.

In confirmation of this, the same jurisprudence has often underlined the view that mental health cannot be limited to nosographically classifiable cases of illness, but includes the safeguarding of “human value” and the related functions indispensable for individual achievement (Voltorin, 2012).

Traumatic events and psychological damage

It is important to underline that the damage is always caused by the correlation between the traumatic event and the psychic structure of the individual. It can occur following three illicit events, such as: a specific physical injury (eg brain injury); a non-specific physical injury (e.g. depressive state resulting from medical responsibility); a “pure” psychic damage without any physical-organic substrate such as eg. a mourning depression (D’Angio, Recco, 2009).

This leads us to distinguish two dimensions of psychic damage : a more strictly pathological of the reactive type, in which it is easier to identify the causal link, and a more elusive and less identifiable one as in cases of pure damage.

There is therefore a picture of growing socio-cultural sensitivity towards the psychological component of the individual. It follows a normative and juridical adaptation on the fundamental rights of the person. The prerequisites for the introduction of psychological knowledge in the context of non-pecuniary damage to the person are thus revealed , as well as the need to use psychological knowledge within the legal sphere .

The role of the psychologist in non-pecuniary damage

The assessment for biological damage of a psychological type can be requested by the judge, who will appoint a consultant – Technical Consultant of the Office (CTU) – since he does not have the specialist knowledge that determines an assessment and an assessment in this area.

Therefore, tools such as an appraisal, accompanied by substantial documentation, will be needed to achieve greater scientific knowledge on the presence and importance of the damage.

Despite the importance of the psycho-diagnostic framework aimed at a greater scientific study, to date, this practice is not concretely respected in legal culture. In fact, there is still a discussion concerning the assessment of the damage to the person entrusted to the competence of a coroner or a psychiatrist.

In this way it is ignored that for a complete and exhaustive examination, in order to ascertain non-pecuniary damage, a forensic psychological investigation is necessary .

The limits of forensic psychiatry

Psychiatric evaluation is useful in determining which drug therapy is suitable for a given syndrome. Often, however, some sectors of this discipline do not refer to theories on mental illness. There is therefore no possibility of explaining the causal relationship between the harmful / traumatic event and the psychic damage .

Furthermore, the psychiatric classification prevents or makes it difficult to “personalize” the damage. The role of the coroner and the psychiatrist are certainly important in ascertaining the clinical-medical and non-psychological aspect of the damage.

But the forensic psychologist is indicated as the most suitable figure for the assessment of psychic damage. In fact, it is among his competences that of carrying out assessments on the basis of investigation tools such as the cynical interview, the appropriate tests, as well as the detection of the elements that causally connect the psychic discomfort with the traumatic event.

For all these reasons, it is desirable to appoint expert professionals to appointments in Technical Consultancy arranged by the court.

Factors to be evaluated in case of psychological damage

For the assessment of biological damage of a psychological nature, the consultant must consider the factors that contribute to the evolution of the disorder. That is, what are the events concerning the harmful fact (severity and temporal duration of the traumatic event), the antecedent events (cognitive deficits or pre-existing personality disorders and possible risk factors) and the events following the fact (access to economic, legal or therapeutic means and to emotional, social and relational resources).

This assessment can also be carried out through the acquisition of information from witnesses or, in any case, from persons informed on the facts (D’Angio, Recco, 2009). This is because it is necessary to test the content of the patient’s statements / statements and it is important to receive a description from reliable witnesses about the subject’s behavior.

Specifically, the determination of any psychic damage occurs through an investigation relating to: psychic suffering which, in the case of its intolerance, leads to a psychic disorder; to positive or negative psychic functions; to the realization of the personality.

The method of investigation must, therefore, use a “cross method”, in which the type of mental suffering, the functional decrease and the impairment of social life must be correlated in a non-contradictory way (Voltorin, 2012).

The causal link between event and damage

An essential element, in terms of ascertaining mental damage , is above all that of the causal link between the injurious event and the damage suffered.

Already in forensic medicine, with reference to organic problems, criteria that describe the causal link have long been identified (Gerin, 1954) Chronological: the cause must be prior to the damage (necessary but not sufficient condition); quantity; qualitative; modal.

Furthermore, for the demonstration of the causal link it is necessary to refer to the link between cause, contributing cause and occasion (D’Angio, Recco, 2009).

Therefore, according to the principle of equivalence of causes contained in art. 41 of the criminal code, the illicit / unjust fact is cause if it has those qualitative and quantitative characteristics such as to be able to determine the damage alone, even in the absence of other causal antecedents.

Other elements of evaluation

Finally, to assess the presence and severity of the trauma, an in-depth analysis of the subject is required with various methodological tools. These include clinical interviews, level, personality, projective and neuropsychological tests, in order to evaluate alterations in mental functions, emotional-affective states and the defense mechanisms used.

The CTU must verify the existence or not of psychic trauma by evaluating impairments, impairments, reduction of the ability to understand and accept reality. This proceeding through the collection of anamnestic data, the examination of the clinical documentation and the analysis of the testimony of witnesses.

 

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