Avaliação da capacidade civil de indivíduos com demência: perfil de curatelados e concordância entre perícia médica e sentença judicial no Tribunal de Justiça de Minas Gerais

Abstract

Introduction: The increase in the number of elderly people and their lifespan brings as a consequence the growth of diseases typical of this age group, such as dementia. This scenario may trigger a greater demand for guardianship requests from families of older people who have difficulties managing their own lives. The Brazilian Law for the Inclusion of Persons with Disabilities (LBIPD changed the disability regime. If the protection measures offered by the judiciary are insufficient, the desired protection may not occur or even put the person with dementia at risk, considering the course of the disease. Objectives: To verify the clinical, legal and social consequences brought about by the beginning of the LBIPD (Law nº 13.146/15) identified in the processes of guardianship of people with dementia. Identify the sociodemographic, clinical and legal profile of the person with dementia curated by the TJMG, between the period from January 1, 2016 to January 31, 2020. Investigate the level of agreement between the clinical diagnoses described in the expert report and in the court decision. Material and Methods: Retrospective cohort, composed of 165 lawsuits of individuals with dementia curated by the TJMG. The variables were described as measures of central tendency and variability. The Kappa coefficient was used to assess the agreement between the definition of clinical conditions and the conclusions about the limits of disability described in expert reports and court rulings. Results: A predominance of female elderly was identified, except for those under 60 years of age. The almost perfect agreement (Kappa coefficient 0.918, p<0.001) found between the clinical conditions indicated in the expert report and in the judicial sentence suggests that magistrates rely on expert reports to base their decisions. A poor degree of agreement (Kappa 0.05, p=0.083 after 2016) was found between the conclusions about the limits of incapacity described in the expert report and in the court decision. It is possible that the changes that took place in 2016 did not impact the experts' assessment and conclusion. Conclusion: Understanding expected outcomes for people with dementia, such as the occurrence of curatorship processes, is crucial for the instruction of public health policies, family members and judicial professionals. The identification of the profile of the curators and the agreement between clinical and legal aspects was a first step that made it possible to identify the need for greater alignment between clinical evidence on dementia and its impacts on judicial decisions. More detailed expert reports that address the assessment of civil capacity in the biopsychosocial context may produce a lower degree of discrepancy between experts. Clearer descriptions about the aspects related to the course of the neurodegenerative disease, the ―likely‖ possibilities and needs related to the subject's decision-making capacity, may favor the magistrates' understanding of dementia, contributing to the improvement of the jurisdictional provision.