Conclusiones Parciales - VALIDACIÓN DE LOS RESULTADOS

CAPITULO 3. VALIDACIÓN DE LOS RESULTADOS

3.6. Conclusiones Parciales

Not all candidates for religious life are candidates for Orders. However, analogies may be drawn between the requirements for the use of experts in admission to Orders and those for admission to religious life. Analogies may also be drawn between capacity to exercise

174 CIC 1917, cc. 2147§1; and 2154§1. See Appendix III.

175 CIC 1917, c. 2148§1. See Appendix III.

176 See CCEO, c. 763, 2º, for the addition of crimes to the list of impediments. See Appendix II.

177 CCEO, c. 763, 3°. See Appendix II.

178 CIC, cc. 1740; and 1741 and CCEO, cc. 1389; and 1390, 2°. See Appendix I and Appendix II.

ordained ministry and the suitability of members of religious institutes to make further profession.

Admission to Religious Institutes: Novitiate

The law restricts admission to the novitiate of religious institutes to those who are both capable of living life in the particular institute and are suitable for it.¹⁷⁹ CIC canon 642 provides:

‘Superiors are to exercise a vigilant care to admit only those who, besides being of required age, are healthy, have a suitable disposition, and have sufficient maturity to undertake the life which is proper to the institute. This health, disposition and maturity are to be established, if necessary even by the use of experts, without prejudice to Canon 220’.

Canon 642 is clear that the health, disposition and maturity of candidates must be established positively; but, where doubt exists, the use of experts is mandated. The canon also implies that: the Superior of an Institute of Consecrated Life,¹⁸⁰ or of a Society of Apostolic Life,¹⁸¹ is both the decision-maker and the person obliged to consult the experts. Unlike the law governing admission to Orders, the canon explicitly protects candidates’ privacy.¹⁸² However, the canon does not clarify: who appoints the experts; the disciplines and

qualifications of the experts to be consulted; the number of experts required; whether, if more than one is consulted, they are to be consulted individually or collectively; or what weight is to be given to the advice.

179 For a description of the novitiate see RC, 10, 1 in Appendix VI. See also Enid Williamson, L&S, p314;

Williamson explains that each institute will have its own particular rules respecting ‘fidelity to the spirit, intentions and example of the founders and foundresses’. Smith, New Comm, p812 describes the novitiate as:

‘A preparation for life in the institute’ which is ‘an intense period of formation characterized by initiation into its life, mission, spirituality, and history; personal configuration to the paschal mystery; and discernment regarding the novice’s vocation to religious life in this particular institute’. See also CIC, c. 646 in Appendix I.

180 These institutes can be religious or secular, and are a canonically established stable form of living where members make formal profession of life according to the evangelical counsels. See L&S, p314.

181 Members live in community, but do not necessarily make formal profession of life according to the evangelical councils. See L&S, p314.

182 CIC, c. 220. See Appendix I.

Appointment of Experts: McDermott considers that ‘a doctor’ recommended by the institute and familiar with [the institute’s] life and apostolate’ should be appointed, but she does not say by whom.¹⁸³ Smith, however, although agreeing, states that ‘institutes must choose carefully’ experts who understand and respect the religious life.¹⁸⁴ Others consider that the candidates should have a choice, albeit a limited one.¹⁸⁵ Therefore, the institute is responsible for the appointment; if the candidate chooses the expert, the institute must approve that choice.

Disciplines, Qualifications and Functions of Experts: In order to evaluate a candidate’s capacity to fulfil the demands of the particular institute concerned, it is reasonable to assume that any experts consulted must understand these demands.¹⁸⁶ Commentators largely agree that the experts required are drawn from the disciplines of medicine and behavioural sciences but some commentators are more specific than others. Smith holds simply that candidates’

physical and mental health is ‘best attested to by professionals credentialed in the respective disciplines’ and refers to the results of ‘such tests’, although she acknowledges other authors’

reservations about requiring psychological assessment on a regular basis.¹⁸⁷ Williamson suggests that medical doctors and psychologists are appropriate experts, but acknowledges that requirements for admission ‘should not be too severe’, because, during their novitiate, candidates are only beginning their formation for religious life; thus, experts ‘are to be used only “if necessary”’ when ‘suitability cannot be established by other means’.¹⁸⁸

McDermott considers it ‘wise to require candidates to undergo a physical examination by ‘a doctor’, implying routine medical examination, but she does not suggest that any particular expertise is required, other than knowledge of the demands of life in the institute. Albeit emphasising the need to respect privacy, she acknowledges that ‘difficult’ cases ‘may require the services of an approved specialist in the behavioural sciences of high moral standards’.¹⁸⁹

183 McDermott, Text&Comm, p490. Emphases added.

184 Smith, New Comm, p807.

185 Breitenbeck, Jurist, p283, citing R Hill, ‘Denial of Profession’, Review for Religious, 47 (1988), p938, in support of the member’s freedom to choose the expert: ‘The psychiatrist or psychologist or counsellor should be someone in whom both the member and the superior have confidence, and so there should be a short list of acceptable persons from which to choose ...’.

186 CIC, c. 598§1. See Appendix I.

187 Smith, New Comm, p807.

188 Williamson, L&S, pp354-355, for example, by ‘long-term contact, interview, pre-novitiate training or postulancy’. Williamson also concedes that the requirements should not be too lax.

189 McDermott, Text&Comm, p490. Emphases added.

This, therefore, suggests that: the use of experts in behaviour sciences is not routine;

consultation with one expert suffices; and the medical doctor dealing with routine admission is not always sufficiently ‘expert’ to deal with ‘difficult cases’. Rather, a specialist, with high moral standards and knowledge of the particular institute’s demands, is required.

Breitenbeck agrees that a doctor ‘familiar with the demands of religious life’ should verify physical health.¹⁹⁰ However, mental health assessments undertaken ‘to detect serious psychological illness’ should be completed by ‘experts in behavioural sciences, especially those trained in psychological testing’.¹⁹¹ This implies that experts are required only when

‘serious psychological illness’ is suspected. Moreover: ‘[p]sychological experts should be open to the possibility of religious life as a viable life choice and not hostile or depreciative of such a choice, and be familiar with the emotional and psychological demands of religious life’.¹⁹² Breitenbeck considers that canonists confuse matters when they refer to doctors who assess the physical health of the candidate as ‘experts’; for Breitenbeck ‘expert’ opinion is only required in cases of serious psychological illness.¹⁹³ Therefore, she distinguishes the medical doctor providing the routine medical assessment from the expert required to detect serious psychological illness. Contrasting with Williamson’s contention that requirements should not be strict, Breitenbeck quotes the chairman of the commission revising the canons on religious institutes as saying that Superiors are ‘not to be easy in admitting candidates’.¹⁹⁴ She suggests that ‘guidelines for admission could state that if a prospective candidate does not undergo psychological evaluation, then the application will not be considered’.¹⁹⁵ Although implying first that consultation with experts was required ‘to detect serious psychological illness’, Breitenbeck implies here that candidates should undergo routine psychological testing; moreover, the institute’s own ‘guidelines’ should mandate this.

Compulsory psychological testing is therefore required before admission.

On the other hand, Rincón argues that the experts involved should be those from the discipline of psychiatry. He holds that the requirement to protect privacy is intended to

190 Breitenbeck, Doctoral Thesis, p287. Physical disability is not necessarily a bar to admission to religious life.

191 Breitenbeck, Jurist, p279.

192 Ibid.

193 Ibid., p280.

194 Ibid., p281, citing M Said, ‘The Present State of the Reform of the Code Concerning the Section, “De Institutia Perfectionis”’, Studia Canonica, 8 (1974), p231.

195 Ibid.

‘curtail abuse’ in the ‘obligation to subject’ a candidate to psychological examination, which requires the involvement of ‘a psychiatrist who is “truly expert, prudent and commendable for his moral principles” … but only in particularly difficult cases’ and with the candidate’s consent.¹⁹⁶ This not only narrows the field to psychiatry and suggests that the use of one such expert suffices, but acknowledges that psychiatrists are only required in particularly difficult cases, not routinely. Moreover, it suggests that qualification as a psychiatrist is insufficient; rather a ‘truly expert’ psychiatrist who is ‘commended for his moral principles’

is required.

In short, the commentators differ as to the precise disciplines from which the experts are drawn and whether and precisely when routine psychological testing by experts is required.

This diversity of opinion is due to the imprecision of canon 642 and the absence of guidance in norms outside the Code. As we shall see below, this lack of clarity should be addressed, and could be either by general norms or the norms of the religious institute in question.¹⁹⁷

Consultation - Individual or Collective: Commentators are divided on the number of experts to be consulted. McDermott speaks in the singular,¹⁹⁸ as does Rincón,¹⁹⁹ but

Breitenbeck and Williamson speak in the plural but do not elaborate.²⁰⁰ Given this diversity of opinion on the numbers of experts to be consulted, it is hardly surprising that

commentators do not address the issue of individual or collective consultation.

Failure to Consult and Weight of Expert Advice: Commentators do not address these issues.²⁰¹ The use of experts in admission to the novitiate is mandated if the Superior is in doubt: that is, if moral certainty of suitability is not reached. In these circumstances,

therefore, once again, canon 127 applies: the Superior who makes the decision must have an overriding reason to act against advice.

196 Thomás Rincón, Ann, p516, citing RC, II, III. See Appendix VI. This reference seems to be more applicable to admission to profession that to the novitiate.

197 Although subject to the Supreme Authority of the Pope (see CIC, c. 590), CIC, c. 586 protects the autonomy of each institute. See Williamson, L&S, p322, para 1150.

198 McDermott, Text&Comm, p490.

199 Rincón, Ann, p516.

200 Breitenbeck, Jurist, p279 and Williamson L&S, pp354-355.

201 Williamson, L&S, pp354-355; McDermott, Text&Comm, p490; Smith, New Comm, pp807-808.

Neither CIC 1917 nor CCEO require the use of experts in the process of admission to

religious life. CIC 1917 is silent on the issue.²⁰² Doyle cites a case, dated 1721, which relied on ‘experts’ to establish an alleged hermaphrodite’s suitability to join a religious order of women, but no mention is made of the type of expert; by 1894 it was established that the judgment ‘of medical men’ was ‘the most forceful argument’ in such a matter.²⁰³ CCEO provides that for admission to a monastery, ‘suitability and full freedom of a candidate’ must be evident to the Superior after investigation, without mention of the assistance of experts.²⁰⁴

Admission to Vows: Temporary and Further Profession

On completion of the novitiate, a novice in a religious institute is to be admitted to temporary profession if found suitable; otherwise the novice ‘is to be dismissed’;²⁰⁵ if doubt exists, the period of probation may be extended.²⁰⁶ The decision as to suitability is that of the

competent Superior.²⁰⁷ Expert opinion is not mandated. That a novice can be dismissed reflects the institute’s limited responsibility for those who have not yet taken vows.²⁰⁸ However, once the period of temporary vows is complete, CIC canon 689§2 provides:

‘Even though contracted after admission, a physical or psychological infirmity, which, in the judgement of experts, renders the member mentioned in §1 unsuited to lead a life in the institute, constitutes a reason for not admitting the member to renewal of profession or to perpetual profession, unless the infirmity was contracted through the negligence of the institute or because of work performed in the institute’.

Prior consultation by the competent Superior with the institute’s council and just reasons (plural) are required before a member is excluded from making further profession on the

202 CIC 1917, cc. 538-552.

203 Doyle, Doctoral Thesis, p216, citing Sacra Congregation Episcoporum et Regularium (8 March 1894).

204 CCEO, c. 453§2. See Appendix II.

205 There appears to be some tension in the use of the word ‘dismiss’. CIC Book II, Chapter VI, Article 3 deals with ‘The Dismissal of Members’. These canons address dismissal as the consequence of offences (cc. 694-695). ‘Other causes’, which are ‘grave, external, imputable and juridically proven’ (c. 696), and for those in temporary vows, ‘less grave reasons determined in the institute’s own law’, apply. Williamson, L&S, p389, defines ‘dismissal’ as ‘a penal measure reserved for serious offences’. However, in her commentary on CIC, c.

653§1, dealing with the dismissal of a novice, she states: ‘[A] dismissed novice should never be made to feel lessened by the event – in fact, the contrary’. It appears, therefore, that the meaning of the word ‘dismiss’

differs depending on whether it applies to novices or to those who have taken vows; it is a penal measure in relation to the latter.

206 CIC, c. 653§2. See Appendix I. This concerns a novice, not a member in temporary profession.

207 CIC, c. 656, 3°. See Appendix I.

208 CIC, c. 653§1. See Appendix I.

completion of temporary profession.²⁰⁹ A physical or psychological infirmity, but not including insanity,²¹⁰ which, in the judgment of experts, renders a member unsuited to life in the particular institute, constitutes ‘a reason’ (singular) for excluding the member from further profession.²¹¹ There are, however, two exceptions: if the infirmity was caused by the institute’s negligence or by work within the institute. Canon 689§2 stipulates that the experts make a judgment on unsuitability for life in the institute;this contrasts with canon 1044 2º which, by referring to canon 1041 1°, requires that the impediment to the exercise of Orders already received be established by the bishop after prior consultation with experts.²¹² However, the decision to exclude a member from further profession remains with the Superior. A member has no personal right to further profession; the law requires that the competent authority judge the member ‘suitable’, otherwise the member must leave.²¹³

Although canon 689§2 states that more than one expert is involved in cases of physical or psychological infirmity, it does not clarify: the professional disciplines or qualifications of the experts; whether they are to be consulted individually or collectively; whether

consultation goes to validity of the refusal to admit; or what weight is to be given to the experts’ judgments. In preventing an institute from dismissing an insane member who has taken temporary vows, even though unable to make further profession, the law highlights the institute’s responsibility to care for members incapable of independent life, whether inside or outside the institute. However, it makes no reference as to how insanity might be

established.²¹⁴

Appointment of Experts: Commentators do not address the issue as to who appoints the experts. Presumably, the Superior appoints, but there is no provision as to whether the candidate is involved in choosing the experts, yet Breitenbeck’s acknowledgment that

‘[c]ommon sense and charity seem to require that the member have some degree of freedom in choosing this professional, but not unlimited freedom’,²¹⁵ applies here mutatis mutandis.

209 CIC, c. 689§1. See Appendix I.

210 The Institute has an obligation to care for a member who has become insane; CIC, c. 689§3. See Appendix I.

211 CIC, c. 689§3. See Appendix I.

212 Latin: ‘... de iudicio peritorum ...’. However, this is an advisory judgment.

213 CIC, c. 657§1. See Appendix I.

214 CIC, cc. 99; 124§1; and 689§3. See Appendix I.

215 Breitenbeck, Jurist, p283.

Disciplines, Qualifications and Functions of Experts: An Instruction, Renovationis Causam (1969), predating CIC, required that a candidate’s ‘human and emotional maturity’

be established; in ‘certain more difficult cases’ the Superior, with the agreement of the candidate, was permitted to consult ‘a prudent and qualified psychologist, known for his moral principles’ to examine the candidate, preferably ‘after an extended period of probation, so as to enable the specialist to formulate a diagnosis based on experience’.²¹⁶ This, unlike canon 689§2, therefore, permitted consultation in difficult cases with a single psychologist.

Commentators, however, are not all specific as to the disciplines, qualification and functions of experts under canon 689§2. Williamson and McDermott are the most specific. For Williamson, ‘doctors, psychiatrists and psychologists’ are the appropriate experts; their function is to establish ‘the history, cause, development and effects of the illness’.²¹⁷ Like Breitenbeck, Williamson understands that the competent authority should question whether or not the physical or psychological infirmity is irreversible, suggesting that this must be so before a member of an institute can be lawfully excluded, although no authority is cited in support.²¹⁸ McDermott, although using the term ‘experts’ in the plural, considers a ‘doctor, psychiatrist, [or] psychologist’ as appropriate.²¹⁹ She further advises that ‘counselling during the time of temporary profession would help prevent shock at exclusion from subsequent profession’ but she does not elaborate on the counsellor’s professional discipline.²²⁰

Breitenbeck is less specific. She insists that any illness must be evidenced ‘in the opinion of experts, not in the thinking of the major superior’.²²¹ She speaks only of ‘professional experts in the human sciences’.²²² To exclude a member from further profession on psychological grounds, she says: ‘[I]t is obvious that the expert must be a highly trained professional, who possesses the requisite medical knowledge, psychological or psychiatric training which enables him or her to diagnose the physical or psychic illness’.²²³ This implies the requirement to consult a single, competent professional, but not necessarily an

216 RC, II-III. See Appendix VI. CIC, c. 653§2 allows for a limited extended period of probation if doubt about suitability exists. See Appendix I.

217 Williamson, L&S, p386.

218 Ibid., and Breitenbeck, Jurist, p282.

219 McDermott, Text&Comm, p517.

220 Ibid.

221 Breitenbeck, Doctoral Thesis, p291, citing Lamberto de Echeverria (Ed), Código de Devecho Canonico, Edición Bilingüe Comentada, Fourth Edition (Madrid, 1984), p364.

222 Breitenbeck, Jurist, p259.

223 Ibid., p282. Also Breitenbeck, Doctoral Thesis, p290.

‘expert’. This is reinforced with her comment that the member should ‘have some degree of freedom in choosing this professional, but not unlimited freedom’.²²⁴ She notes that in 1961 the Holy See warned against the use of ‘experts trained in the psychoanalytic tradition’.²²⁵ However, she attributes the fact that neither this warning, nor the suggestion during the revision of the Code in 1979, that only Catholic experts should be used,²²⁶ found their way into CIC, to ‘an enhanced appreciation of the training, expertise and contributions of experts in general’, by those involved in the revision of Code.²²⁷

Holland acknowledges the need for a ‘just cause’ (singular) to refuse further profession; in order to establish this in cases of illness, ‘appropriate’, ‘medical’ experts (plural) are

required.²²⁸ However, she then goes on to speak of the functions of the expert (singular); that is, to ‘address the individual’s suitability for the life of the institute’, noting that the

requirements of institutes will differ, as will those of individual candidates.²²⁹

In short, the commentators differ as to the precise disciplines from which the experts are drawn. This diversity is again due to the imprecision of canon 689§2 and the absence of guidance outside the Code. Once more, this lack of clarity should be addressed.

Consultation - Individual or Collective: In line with canon 689§2, Williamson speaks in the plural.²³⁰ However, Breitenbeck, Holland, and McDermott speak initially in the plural, but then, contrary to the clear wording of the canon, suggest that only one professional is required.²³¹ They do not address the specific issue of individual or collective consultation. It can be argued that the reference to canon 127 in the Circular Letter (1997) (dealing with the

In document Analisis y Diseno del Modulo Contratacion del Proyecto Convenio Integral de Cooperacion Cuba-Venezuela (CCV). (página 99-111)