Dementia describes a group of brain disorders that cause memory loss and a decline in mental function over time.  This results in mild to severe cognitive impairment – depends on number and location of brain cells destroyed or lost.  Dementia should be understood and appreciated as a terminal illness, not just a by-product of aging.

Type of dementia by percentage

[click on image to enlarge]

Dementia results in short-term memory loss coupled with poor judgment and reasoning.  Symptoms include becoming lost in familiar places, difficulty using or understanding words, and difficulty performing routine tasks that require organization (e.g., balancing a cheque book, making a grocery list, shopping).

There is a ‘dementia doubling rule’ (really just a ‘rule of thumb’):


Risk of Dementia













NOTE – so even up to 84 years of age, only 16% of the population have a risk of dementia.

Conditions Confused with Dementia





a medical illness that causes a persistent feeling of sadness and loss of interest – a common condition for people living with abuse

• emotional withdrawal

• confusion

• agitation



Sudden temporary state of mental confusion and fluctuating consciousness – Results from: high fever, intoxication, shock, malnutrition, dehydration , high/low blood sugar or even things such as bladder or urinary tract infections

• anxiety

• disorientation

• hallucinations

• delusions, and

• incoherent speech.

Abuse of Drugs/Alcohol

Abuse or misuse of prescription drugs or alcohol

• delerium can be result

• see above symptoms


mild to severe language impairment caused by injury to the brain (e.g., stroke, head trauma, tumor, infection).

• difficulty speaking

• difficulty understanding

• difficulty  reading

• difficulty writing


Irrational behaviour that may be due to:

• Social isolation (e.g. psychotic depression).

• A type of dementia (Lewy body).

• Progressive sensory decline (e.g., hearing and sight impairment).

• Irrationally suspicious

• confusion

• agitation

Other Disabling Conditions

• Cerebral Palsy (CP)

• Multiple Sclerosis (MS)

• Parkinson’s Disease

• Lou Gehrig Disease (ALS)

 we must be careful not to attribute dementia to older adults who are suffering from other disabling conditions

Note About ‘Executive Functioning’


The frontal lobe of the brain is responsible for what is called ‘executive functioning’ –  intelligence, judgment and behavior.  This includes such things as impulse control, abstract thinking and planning.  Executive dysfunction is a symptom of dementia. Executive dysfunction can turn an abstainer into a heavy drinker, or a prudent person into a gambler or target for lottery scams etc. Some elder abuse is attributed to loss of impulse control and judgment caused by dementia.

In some cases there is little damage to other parts of the brain, and this can make Identifying/assessing incapacity involving executive dysfunction very challenging.  The older adult may present as well dressed, articulate, with good recall – seem perfectly fine.  BUT – the older adult may be doing things that waste money or put them in danger – is this in their nature, or has it been caused by incapacity? It may not reflect their values, but have their values changed over time?  People do sometimes decide to ‘live a little’ after a life of prudence.   Or is this change the result of dementia?

DSM 5 – No more “dementia”?

DSM-5_3DThe most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5 – they got rid of the roman numerals from previous editions – i.e. – DSM IV, DSM III, etc.), was published by the American Psychiatric Association in May, 2013. It is the primary diagnostic manual most widely used by mental health professionals in the US and Canada.  While we say ‘most widely used,’ we should note that some mental health professionals do not take the DSM too seriously, and see it a ‘convenient fiction’ or at best a set of ‘useful constructs’ mainly used to attain insurance reimbursement. It seems that the legal profession, including courts, may take DSM diagnoses far more seriously than those skeptics in the medical profession – see this article in Psychology Today on Forensic Implication of the DSM-5.

The DSM is often used in forensic settings (areas of intersection between the medical system and the justice system – particularly ‘forensic’ as opposed to ‘therapeutic’ assessments of a patient), but this use is not without controversy.  This is largely due to the fact that none of the three primary purposes of the DSM (promoting clinical (therapeutic), research, and educational utility) addresses its frequent use in forensic settings. The DSM is read very differently by lawyers than by psychiatrists and other mental health practitioners.

“Even when the DSM criteria sets and text are written with a consistency that is sufficient for clinical, research, and educational purposes, the wording does not always stand up well to the technical rigor of precise legal dissection. By training and inclination, lawyers parse every phrase for meanings never foreseen by those writing primarily for a psychiatric audience.”

The Forensic Risks of DSM-V and How to Avoid Them – Allen Frances, MD

 The American Psychiatric Association included a cautionary statement about the forensic use of DSM-5 in the publication:

 Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals. It is also important to note that DSM-5 does not provide treatment guidelines for any given disorder.

. . . (T)he use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings . . . there is a risk that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between the questions of ultimate concern to the law and the information contained in clinical diagnosis. In most situations, the clinical diagnosis . . . does not imply that an individual with such a condition meets legal criteria for . . . a mental disorder or a specified legal standard. . . . impairments, abilities, and disabilities vary widely within each diagnostic category. . . .

Use of DSM-5 to assess for the presence of a mental disorder by . . . insufficiently trained individuals is not advised. Nonclinical decision makers should be cautioned that a diagnosis does not carry any necessary implications regarding the etiology or causes of the individual’s mental disorder or the individual’s degree of control over behaviors . . . . (DSM-5 p.25)

 NCD – Neurocognitive Disorder

The DSM 5 replaces the term ‘dementia’ with two terms or conditions:

major neurocognitive disorder (major NCD)


minor neurocognitive disorder (minor NCD)

It was believed that the word dementia was stigmatizing toward older individuals and not well accepted by younger individuals with HIV dementia. The new terms set out a ‘spectrum’ and focus on the decline from a previous level of functioning as opposed to a deficit (similar as to how autism and Asperger’s syndrome are now combined into autism spectrum disorder).  As with the autism spectrum disorder, there is no ‘bright line’ dividing minor and major NCD.

Note as well that the DSM-5 distinguishes the term “diagnosis” from the term “mental disorder” and we should be careful to maintain this distinction.  The DSM-5 also refer to “other conditions” that are included primarily to assist health providers by describing common situations where a person may be seeking mental health counselling bu do not meet the criteria for a ‘mental disorder.  There are over 100 ‘conditions’ and the ones most likely to be seen in a forensic or legal context are:

  • Malingering;
  • academic or educational problems;
  • other problem related to employment;
  • homelessness;
  • target of (perceived) adverse discrimination or persecution;
  • victim of crime;
  • imprisonment or other incarceration;
  • adult antisocial behaviour;
  • child or adolescent antisocial behaviour; and,
  • non-adherence to medical treatment.

Again a diagnosis of any of these ‘conditions’ should not be labelled as a mental disorder.

No more NOS

Prior versions of the DSM included a ‘catch-all’ category for disorders that did not cause sufficient impairment to qualify for a diagnosis of dementia, known as “cognitive disorder – not otherwise specified (NOS).”   They are now defined as minor neurocognitive disorder and so are placed on a spectrum with more severe conditions.

Activities of Daily Living

Psychiatrists and other medical professionals discuss the various activities that are required to live independently.  These activities and how they are categorized are important in understanding medical diagnoses, and qualifications for example for residential care or assisted living facilities.  These activities of daily living are divided into two broad categories:

Activities of Daily Living


Instrumental Activities of Daily Living


Self-care tasks necessary for fundamental functioning:

  • Bathing/showering
  • Dressing
  • Eating
  • Personal hygeine/grooming
  • Using the toilet
  • Moving around
These are not necessary for fundamental functioning, but they are usually necessary for independent living:

  • Housework
  • Taking prescribed medications
  • Managing money
  • Shopping for food/clothing
  • Using technology (as applicable)
  • Transportation



Psychiatrists use the term “domain” to refer to different areas of functioning.  There were previously five domains, with sub-domains.

  • Perceptual-motor function;
  • Language;
  • Learning and memory;
  • Complex attention; and
  • Executive function

 The DSM 5 adds a new sixth domain of ‘social cognition.’  The following diagram shows the six neurocognitive domains and their subdomains:Domains[Click on image to enlarge]


Mild neurocognitive disorder (minor NCD) will be diagnosed if there is sufficient evidence of modest cognitive decline from a previous level of performance in one or more of these domains.  But these cognitive deficits do NOT interfere with CAPACITY for independence in everyday activities. (ADLs)  Complex instrumental activities of daily living (IADLs), such as paying bills or managing money, are also preserved but greater effort, compensatory strategies, or accommodation may be required.

Major neurocognitive disorder (major NCD) will be diagnosed where there is evidence of significant, as opposed to modest, cognitive decline from a previous level of performance in at least one of the cognitive domains, and these cognitive deficits interfere with independence in daily activities.  Evidence of impairment in standardized neuropsychological testing is required for both types of NCD’s (substantial for major NCD, modest for minor NCD)

Just to confuse things further, the DSM 5 further classifies major neurocognitive disorder by severity specifiers, which include:

  • Mild—interfering with instrumental activities of daily living (IADLs)
  • Moderate—interfering with basic activities of daily living (ADLs)
  • Severe—individual is fully dependent on others for daily living activities

Spectrum - NCD

[Click on image to enlarge]

As we can see, this new ‘spectrum’ for the ‘dementia journey’ provides a more complete set of diagnostic categories, based on functionality.  Some would argue there should be an intermediate categories or gradations between ‘moderate major’ and ‘severe major’ NCD, as a diagnosis of severe major neuro-cognitive disorder can have significant consequences for a person’s liberty and autonomy.

To further add to the confusion, for most of the common dementia syndromes, there is not a specific diagnostic test.   So a diagnosis will be prefaced with “probable” or “possible”:  This is the case for:

  • Alzheimer’s disease
  • frontotemporal lobar degeneration
  • Lewy body disease
  • vascular disease
  • Parkinson’s disease

 Memory Impairment

The old dementia terminology required a finding of memory impairment for all dementia diagnoses. It has been recognized that memory impairment is not the first domain to be affected in all of the other diseases that cause a neuro-cognitive disorder. For instance, in frontal temporal disorder, language or executive function could be affected first. This change in terminology will require that all diagnosing healthcare professionals first establish the presence of a neurocognitive disorder and then determine whether the neurocognitive disorder is minor or major.  Note that with an Alzheimer’s diagnosis, a finding of memory impairment plus one or more other impairments is still required.

Implications for Legal Workers?

 Capacity Assessments

Some questions and issues in the area of capacity assessments that that arise with a diagnosis of mild NCD are:

  • Can mild NCD render someone incapacitated?
  • Would someone with mild NCD be more susceptible to undue influence than someone without it?
  • By definition, mild NCD does not interfere with capacity for independence in everyday activities, but does this lack of interference extend to making a contract or writing a will?
  • Someone with mild NCD and impaired executive function may appear normal but still may have terrible judgment, insight, planning
  • Mild NCD could place individuals at high risk for abuse or undue influence
  • Does mild NCD that does not interfere with IADLs mean they do not lack legal capacity (e.g. – if cognitively capable of paying the bills, do they have knowledge of their assets, heirs, for will-making capacity?)

(from a presentation to the Austin Bar Association entitled
Evaluation of Capacities in Older Adults by two doctors and two lawyers:
Brian A. Falls MD, Jaron L. Winston MD; Don Carnes JD; and Tom Ruffner JD)

Financial Exploitation

Recognition that patients with dementia can still have relatively intact memory will help in diagnoses of impaired executive function. Previously these patients would not have fit diagnostic criteria because often their memory was still very much intact, but their behaviour was highly questionable and often self-harmful. In patients whose dementia manifests in impaired judgment and executive function, but whose memory is intact, they will now be identified and diagnosed more easily.  This could be helpful in responding to financial exploitation situations where an older adult is for example wasting their money on lottery scams, or improvidently transferring their property to a ‘new best friend’ or ‘predatory spouse.’

Removal of bereavement exclusion

The exclusion criterion in DSM-IV applied to people experiencing depressive symptoms lasting less than two months following the death of a loved one.  This has been removed and been replaced by several notes within the text delineating the differences between grief and depression. This reflects the recognition that bereavement is a severe psychosocial stressor that can precipitate a major depressive episode beginning soon after the loss of a loved one.  We will often have clients who have recently suffered the loss of their loved one.  This change is likely a good thing.

Impact in Court

The DSM-5 will be used in the evaluation and diagnosis of cases in both the criminal (forensic psychiatric evaluations, treatment in correctional facilities) and civil arenas (competencies, personal injury litigation, malpractice evaluations, disability assessments, and educational evaluations of school aged children),.

Most of the forensic issues in the legal area hinge on psychiatric symptoms and mental function, not diagnosis. Criminal responsibility, competence to stand trial or do other things, and legal capacities (such as testamentary capacity), rest far more on individual function and behavior than on the labels from the DSM-5 attached to them.  Speaking of labels, a diagnosis of mild NCD is likely to be more difficult to discount in a legal context than the more nebulous “cognitive disorder –not otherwise specified (NOS).

There have also been changes to other diagnostic criteria relevant to legal matters, such as Postraumatic Stress Disorder (PTSD). PTSD is now in a new chapter in DSM-5 on Trauma- and Stressor-Related Disorders. DSM-5 pays more attention to the behavioural symptoms that accompany PTSD and proposes four distinct diagnostic clusters instead of three. PTSD will also be more developmentally sensitive for children and adolescents.The expansion of what defines a trauma in PTSD in DSM-5 may increase the importance of this diagnosis in legal arenas where it is often seen, such as personal injury and disability litigation.