For a while the legal approach to the person person takes into consideration the overall aspect. Also consider thepsychic integrity and the consequences that trauma can involve on the 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 who must be constitutionally guaranteed.
Compensation for damage is sanctioned by art. 2043 of the civil code and the damage can be classified as asset or non -pecuniary.
Compensation for asset damage
The first judgments tended to compensate expenses as repair to the consequences of the harmful event, especially in the presence of compromise of working capacity.
This form of compensation has not been favorably accepted by the community. It was considered unwillingly, and unfair, considering the person damaged only with respect to his work and not also in reference to his complex relationship life.
This also led to an amplification of social discrimination due to pay differences. To the same injury suffered a more qualified profession, it received higher compensation.
Non -pecuniary damage
In recent times we have witnessed numerous interventions in the legislative field on what concerns the non -pecuniary damage. We refer to a “injury of interests inherent to the person, not characterized by economic relevance“. That is, it concerns all those aspects that are not immediately monetizable that make up the life of each individual.
We slowly move away from a conception of exclusively organicistic health to go towards a bio-psycho-social vision of the individual.
For psychological damage We mean both what causes physical damage to the psyche of a person and the mental alteration that occurs regardless of physical injuries (Franzoni, 2004). The psychological injury would be a distorted disturbance of the person’s psychic balance.
The possibility of obtaining compensation for psychic damagewhich now constitutes a precise category, is a recent conquest. This right has been recognized by the Supreme Court as an individual right exercisable in the private sector.
To confirm this, the same jurisprudence has often underlined the perspective according to which mental health cannot be limited to cases of nosographically classifiable disease, but contains the safeguarding of the “man value” and the related functions essential for individual realization (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 manifest itself following three illegal events, such as: a specific physical injury (e.g. cerebral lesion); a non -specific physical injury (e.g. depressive state consequent to medical liability); “pure” psychic damage without any physical-organic substrate such as e.g. A mourning depression (of Angio, Recco, 2009).
This leads us to distinguish two dimensions of the 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 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 regulatory and legal adaptation on the fundamental rights of the person. The conditions for the introduction of the psychological knowledge in the field of non -pecuniary damage to the person, as well as the need for the use of psychological knowledge within the legal field.
The role of the psychologist in non -pecuniary damage
The assessment for biological damage of the psychological type can be requested by the judge, who will appoint a consultant – Office technical consultant (CTU) – Since the same does not have those specialist knowledge that determine an evaluation and assessment in this area.
It will therefore be necessary to tools such as the expert report, accompanied by a full -bodied documentation to achieve greater scientific knowledge on the presence and relevance of the damage.
Despite the importance of the psycho-diagnostic balance aimed at a greater scientific deepening, to date, this practice is not concretely respected in legal culture. In fact, a discussion relating to the evaluation of the damage to the person entrusted to the competence of a medical examiner or a psychiatrist persists.
In this way it is ignored that for a complete and exhaustive examination, for the purpose of ascertaining the non -pecuniary damage, A forensic psychological investigation is required.
The limits of forensic psychiatry
Psychiatric evaluation is useful in order to establish what drug therapy is suitable for a certain syndrome. Often, however, some sectors of this discipline do not refer to theories on mental illness. Therefore the possibility of explaining the causal relationship between the harmful/traumatic event and the psychic damage.
In addition, the psychiatric classification prevents or makes the work of “personalization” of the damage difficult. The role of the coroner and psychiatrist are certainly important in ascertaining the clinical-medical and non-psychological aspect of the damage.
But it forensic psychologist It is indicated as the most suitable figure to evaluate the psychic damage. In fact, among its skills 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 distress with the traumatic event.
For all these reasons, the assignment to expert professionals, of assignments in the technical consultancy ordered by the Court is desirable.
Factors to be evaluated in case of psychological damage
For the evaluation of the 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 (gravity and time duration of the traumatic event), the antecedent events (cognitive deficits or pre-existing personality disorders and possible risk factors) and the events that follow the fact (access to economic, legal or therapeutic means and for emotional, social and relational resources).
This evaluation can also be carried out through the acquisition of information by witnesses or, in any case, of people informed on the facts (of Angio, Recco, 2009). This because it is necessary to check the content of the patient’s statements/declarations And it is important to receive a description from reliable witnesses about the behavior of the subject.
Specifically, the determination of any psychic damage occurs through a relative investigation: to the psychic suffering that leads, in the case of its intolerance, in a psychic disorder; positive or negative psychic functions; to the realization of the personality.
The investigation method must therefore use a “cross method”, in which the type of psychic suffering, the functional decrease and compromise of the relationship life must be related in a non -contradictory way (Voltorin, 2012).
The causal link between event and damage
Essential element, regarding the assessment of the psychic damageis above all that of the causal link between harmful event and damage immediately.
Already in legal medicine, with reference to organic problems, criteria have long been identified that describe the link of causality (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 the cause, concausal and occasion (d’Angegio, Recco, 2009).
Therefore according to the principle of equivalence of the causes contained in art. 41 of the Criminal Code, the illegal/unjust fact is cause if it has those qualitative and quantitative characteristics that can be determined by the damage by itself, even in the absence of other causal priests.
Other elements of evaluation
Finally, to evaluate the presence and severity of the trauma, an in -depth analysis of the subject is needed with various methodological tools. Among these, clinical interviews, level, personality, projective and neuropsychological tests, in order to evaluate alterations of mental functions, the emotional-affective states and defense mechanisms used.
The CTU must verify the existence or not of the psychic trauma Evaluating compromises, 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 depositions of the witnesses.
According to scientific literature, the most used tests are:
- Wais-R (Wechsler Adult Intelligence Scale) for the evaluation of cognitive functioning in its entirety and to investigate the deterioration and interphrence indices of emotional factors on cognitive performance;
- The Mmpi-2 (Minnesota Multiphasic Personality Inventory)
- The Rorshach
All tools including indicators that allow you to identify and unmask a possible simulation by the subject (Bohm, 1969, 1995). Atri more specific tests are used for in-depth analysis such as, for example, the caps for post-traumatic stress disorder.
Bibliographic references
- F. Buzzi, M. Vanini Guide to the psychiatric and medical evaluation of the biological damage of a psychic nature. 2014 Giuffrè publisher
C. Pernicola Guide to the evaluation of the psychic damage. 2018 F. Angeli
Simla Guidelines for the medical-legal evaluation of the year to the person in the civil field. 2016 Giuffrè publisher
