From DSM-I to DSM-5 in the Legal System: Mental Illness Issues in the Courtroom

Submitted by Charlton Stanley (Otteray Scribe), guest blogger

Dr. Isaac Ray
Dr. Isaac Ray

The relationship between mental health and the legal system is a turbulent one at best. One major problem is they speak two different languages. For example, insanity is a legal term found nowhere in any psychiatric or psychological diagnostic manual.

There are several key words used commonly by both professions, but which have quite different meanings. The words “validity” and “reliability” are part of the vocabulary of science. To a scientist, the word validity means that a test measures what it claims to measure. When a test is intended to measure depression or anxiety, the user can assume it measures depression and anxiety.

Reliability refers to the repeatability of a test or measurement. If we give the same test to the same subject several times, all the scores will fall within the standard error of measurement 95% of the time.

When an attorney uses the word validity, it means, Binding; possessing legal force or strength; legally sufficient.

The legal interpretation of the word reliability suggests the subject matter is trustworthy, and that one can rely on it. However, when a scientist says something is reliable, it means whatever is being tested will get the same results with every retest, within the Standard Error of Measurement.

An examination of the literature of both professions reminds us of the quip attributed to George Bernard Shaw, “[We] are two peoples divided by a common language.”

When I was in graduate school, a well-known attorney gave an invited lecture to the student body. The speaker made several sweeping generalizations about the mentally ill; all of them displaying a stunning ignorance of facts. Then he turned his venom on those in the mental health professions, referring to mental health professionals scornfully as, “Soul doctors.” I would like to say people like him are rare, but they are not. I have known judges who, quite literally, did not believe in mental illness. We had one of those in our area who, mercifully, retired a few years ago.  People like that remind me of those misogynistic knuckle-draggers who don’t believe there is such a thing as rape.

Now, back to the stormy relationship between the legal system and mental illness.

In 1581, Edward II said that under English Common Law, if a defendant had no more understanding than a “wild beast,” then they should not be held responsible for crimes committed in that state. By the 18th century, British courts elaborated on this distinction and developed the “wild beast” test:

If a defendant was so bereft of sanity that he understood the ramifications of his behavior “no more than in an infant, a brute, or a wild beast,” he would not be held responsible for his crimes.

Daniel M'Naghten
Daniel M’Naghten

That was the standard until 1843, due to one of the most precedent setting trials of all time took place in England. In 1838 an American psychiatrist, Dr. Isaac Ray, published a book called, A Treatise on the Medical Jurisprudence of Insanity. Five years after the publication of Dr. Ray’s book, Daniel M’Naughten attempted to assassinate the Prime Minister of England, Sir Robert Peel. As luck would have it, Sir Robert decided to ride in the carriage of Queen Victoria that day. The only occupant of the Prime Minister’s carriage was his secretary, Mr. Edward Drummond.  M’Naughten leaped onto the Prime Minister’s carriage armed with a pistol “loaded with gunpowder and a leaden bullet.” Mistaking Drummond for Sir Robert, M’Naughten shot him. Drummond languished for a few days, whereupon he expired. M’Naughten was charged with murder. His trial was held in 1843. His attorney, Alexander Cockburn, was one of the best lawyers in England at the time.  Cockburn was familiar with Dr. Ray’s seminal work on the legal implications of mental illness and its application to an insanity defense. Cockburn’s brilliant and persuasive defense won an acquittal, standing the ‘wild beast’ principle on its head.

Queen Victoria was not pleased. Both the queen and her husband, Prince Albert, had been the target of assassination attempts. She reportedly said, “Anyone who tries to kill a government minister cannot possibly be insane.” At the Queen’s request and considerable public pressure, the House of Lords convened a panel of learned jurists, led by Lord Chief Justice Sir Nicholas Conyngham Tindal . The panel came up with what is now known as the M’Naughten Rule:

“…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

Thus was born the M’Naughten Rule. The rule set aside the subjective experience of the mentally ill defendant and substituted a purely cognitive test. It was as if the panel had undertaken to make sure no one would ever again be acquitted on the ground of insanity. Make a note of that public pressure thing; you will be seeing it again. By 1851, United States courts adopted it as the standard for determining legal insanity.

During the 1900s, the insanity standard evolved. The Durham Rule was created in the 1950s. Durham tried to take into consideration psychiatric and medical standards for insanity. This proved unworkable. The brand new DSM-I had been published in 1952, listing 106 mental disorders. Defense attorneys began trying earn their clients acquittals if they had any of the diagnoses found in the DSM-I.  It did not take long for the reaction to the highly liberalized Durham rule to come under fire. Twenty-two states rejected the Durham rule outright. In 1972, a panel of Federal Judges discarded the Durham Rule. They adopted the standard created by The American Law Institute (ALI). The ALI standard allowed for a more flexible interpretation of understanding than simple cognitive knowing. The ALI model also avoided use of diagnoses found in the DSM-I, and the later DSM-II, as a legal basis for insanity. The DSM-II increased the number of diagnoses to 182, and dropped use of the term “reaction” as a diagnosis, because that implied causality. About half the states retained the M’Naughten Rule and half adopted some variation of the ALI standard. The Federal Court system adopted the ALI standard for establishing insanity.

The DSM-III was published in 1980. It was considerably different than the two previous versions. It added more detail, along with algorithms for making differential diagnoses. There was a five-axis matrix on which to report a diagnosis, including something called the Global Assessment of Functioning, or GAF. The DSM-III contained a staggering 494 pages with 265 diagnostic categories. When the DSM-IV was published in 1994, it listed 297 disorders in 886 pages. During all these iterations of the manual, some diagnoses were removed, and new ones added. Some had their names changed. Illnesses became “disorders.”  Earlier versions listed homosexuality as a mental illness or disorder.  The committee voted to change that to “egodystonic homosexuality.”  Later it was removed altogether.

DSM-5 (they have dropped the Roman numerals) was released this weekend, but don’t know anyone who has actually seen one. This version, unlike all previous versions, was conceived in almost total secrecy. There was a public comment period, but all members of the committee had to sign a non-disclosure agreement. As a result, there has been no transparency as was the norm in the past.  What we know of this new diagnostic manual is limited to what the American Psychiatric Association has released piecemeal. The new version has 947 pages and over 300 diagnoses.

Where is this going? My interest is in the forensic psychology aspect of the new manual. Previous versions of the DSM have been criticized for lack of validity. Based on what has been released about the manual so far, it appears the newest version suffers from the same flaw. I have observed problems with inter-rater reliability, when using any version of the DSM. In other words, if ten psychologists and psychiatrists examine the same patient, how often do they come to the same diagnosis? Lack of agreement on any given diagnosis is far more common than the public…and lawyers….ever suspected. I have attended countless staff meetings where a half-dozen experienced psychologists and psychiatrists argued heatedly whether a patient was one thing or another diagnostically. They all missed the main point. The question they should have been addressing was whether the defendant was competent to stand trial and criminally responsible. It made no difference whether the defendant had a personality disorder or not. Folks, it doesn’t matter what the diagnosis is. The legal criteria are not found in any diagnostic handbook.

Child custody cases present a unique problem when one or both parents have received treatment for a mental health problem.  I have seen far too many cases where a parent seeks counseling or medication for some condition. The other parent runs down to the courthouse and files a change of custody motion based on the psychiatric diagnosis. The diagnosis itself should play no role whatsoever in the custody issue, but many attorneys use the fact the parent sought help and has a diagnosis as if it were a sledgehammer.

Remember, none of the Diagnostic and Statistical Manuals has anything close to the same degree of validity found in other medical specialties.  Over the years, it dawned on me that many psychiatrists and psychologists don’t know all the diagnoses in the DSM-IV.  I referred a client with a Nightmare Disorder recently. The psychiatrist told my client I did not know what I was talking about because, “There is no such thing as a Nightmare Disorder,” without bothering to look it up in the DSM-IVThere is, of course.

For all the attorneys who read this. Next time you have a mental health professional on the witness stand who wants to talk about diagnoses in the context of legal issues, ask, “Isn’t it true the diagnoses to which you refer come from a diagnostic manual put together by a committee in secret? Isn’t it also true that diagnoses are often taken out and new ones put in based on pressure from advocacy groups?”

This is not to say diagnoses aren’t helpful. They sometimes are helpful. To know that someone is Bipolar, Schizophrenic or has a personality disorder is potentially helpful, especially when recommending a parenting plan or considering mitigation in a criminal case.  However, a ruling by a court should never be made based exclusively on a DSM diagnosis.

Any forensic psychologist or psychiatrist who knows what they are doing will talk about behaviors rather than syndromes or clinical diagnoses. That is one reason I had a serious problem with Dr. Richard Gardner’s use of the term, “Parental Alienation Syndrome.”  In fact, I read that PAS was considered for inclusion in the DSM-5, but voted down. However, parental alienation behaviors definitely exist.  Behaviors can be observed, recorded, measured, and result of the behaviors quantified. A syndrome is a group of symptoms, from which it can be inferred there are additional symptoms related to those already observed.  It does not take a critical thinking lawyer to see the problem with that.

Problems with the new DSM-5 go far beyond whether it should be accepted as the definitive diagnostic manual by the legal system.  Two weeks ago, Thomas R. Insel, M.D., Director of the National Institute of Mental Health (NIMH), delivered a sharply worded statement saying the NIMH would no longer fund research based on the DSM-5. His criticism is the same as mine,

 “The weakness” [of the DSM-5] “is its lack of validity….Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.”

Adding his voice to those criticizing the DSM-5 is Dr. Allen Frances, editor of DSM-IV, and Dr. Robert Spitzer, editor of DSM-III. Spitzer wrote an open letter to the DSM-5 committee complaining about forcing task force members to sign a non-disclosure contract, which flies in the face of proper protocols for scientific or medical projects. The DSM-5 staff rejected Drs. Frances and Spitzer’s complaints about lack of transparency, blaming their motivations as the fact both are still receiving royalties for their work on the previous editions.

In a press release three years ago, Canadian Medical Associaton Journan (CMAJ), in collaboration with the Journal of the American Medical Association (JAMA) published an article highly critical of the DSM-5 task force and its operation. The article included the following:

Some critics of the DSM process express other concerns in addition to matters of transparency. It’s been pointed out that about 70% of current task force members have ties to the pharmaceutical industry, up about 14% for DSM-IV. A study of an earlier edition of the manual found that ties to the drug industry are particularly strong in working groups focusing on diagnostic areas in which drugs are the first line of treatment (Pscyhother Psychosom 2006;75:154–60). For DSM-IV, all of the members of the working groups for mood disorders and “schizophrenia and other psychotic disorders” had ties to drug companies.

“We recommended that they limit the number of people on these working groups with industry ties, making them a minority so they won’t dominate,” says Sheldon Krimsky, a coauthor of the study and an adjunct professor in the Department of Public Health and Family Medicine at the Tufts School of Medicine in Medford, Massachusetts. “But that hasn’t happened yet.”

As far as I have been able to determine, nothing changed since that memo. Talking with both physicians and psychologists, I hear little else but skepticism that the new DSM-5 is driven more by economics than science.

A reporter interviewed me recently. He asked about the relevance and impact of the DSM-5 on forensic psychology. As I told him, it was virtually irrelevant, but had the potential to create problems. Problems that first began to arise when the legal system first tried to abuse the DSM-I a half century ago.


By way of full disclosure, I am a forensic psychologist who has been in both public and private practice for the past forty-one years. I was a founding member of the American Board of Forensic Psychology, and remain active professionally. However, my opinions are my own and I do not presume to speak for any other person or group. I speak for myself only.


The floor is open for discussion.

40 thoughts on “From DSM-I to DSM-5 in the Legal System: Mental Illness Issues in the Courtroom”

  1. @wellcallmecrazy that is truly disgusting by the system and truly stupid on relevant or not of meds or not.

    I’m not as shocked as I would be because I recognise the pattern from a couple of recent homicides in the UK where the accused had repeatedly tried to get themselves detained in psychiaric hospitals because they could tell they were losing it and not getting enough support and weren’t properly believed despite psych histories and neither was detained properly.

    They both committed homicides – and then juries promptly sent them to prison.

    Actually the fact they had tried to get into hospital but failed was used by the prosecution against them – as a reason why they were angry! One of the cases was by the now top judge in the country.

  2. Let me weigh in here as a mental health consumer ( read officially diagnosed crazy person). The juxtaposition of the medical and legal communities here is nightmarish at best and the person who is harmed the most in the process is the patient/accused. The “solutions” that are in place right now for a person with mental illness accused of a crime are NOT working; neither side-defense or prosecution- is comfortable with the process most times. Yet, even with the dissatisfaction, a better solution has evaded all involved.
    My sister, diagnosed with dissociative identity disorder and chronic post traumatic stress disorder, was victimized by a gang of thugs and forced to make an illegal wire transfer between bank accounts that were not hers. When she regained executive control a day later, she went to four different law enforcement agencies for help and to report the crime. She was dismissed each time as a crazy attention seeking lunatic. Six weeks later, she was arrested for the crime she was trying so desperately to report as a victim. She was given a public defender who immediately tried to plead her out as not guilty by reason of insanity. Despite the circumstances of the crime, her attempts to get help, and her documented history of four Sec 302 inpatient psychiatric hospitalizations in the past 30 months, she was found guilty because “she can’t possibly fit the standard for insanity because she is not being medicated”. I guess the DSM manual used doesn’t note that best practices in treating DID does NOT include medication. She was sentenced to prison for 36 months, where she currently is not receiving any mental health treatment at all and is regressing rather than recovering. If/When she is released, she now has a felony criminal record, lost her job, lost custody of her children, lost her home…..and society wonders why the recidivism rate is so high? Or the suicide rate? While those “in control” of the system are lounging in their vacation homes for the summer. Just sad.

  3. Bron,
    A lot depends on the illness. For example, most dementias are the result of slow death of brain cells. There are many reasons for that, ranging from disease, to lack of circulation or buildup of plaque on the brain, just to name a couple.

    We know from more recent research that many mental problems are a combination of genetic, environmental and social factors. Treatment of only one of those factors is not going to do much good, because all need to be addressed. This is why a combination of medication and psychotherapy works best for many patients. Simply rolling pills at somebody is like putting a band-aid on an infected wound.

    When I was a kid and would pout, my dad always told me that if I went around long enough with my bottom lip stuck out, it would grow that way. There is a deeper truth to that. If a person goes untreated long enough, brain and neurotransmitter changes can become permanent. That is the danger of insurance dragging out approval for treatment, and then limiting doctor visits.

  4. OS:

    As we find out more about the brain do you think mental illness in most cases will be organic? Or will it be from some sort of trauma which messes with neural connections?

    Do you think a brain can heal itself? Once a person is made aware of their problem can they change the network/wiring? To either eliminate the problem by a total rewire or just jump the problem area with another circuit.

    Will plasticity help? Or are we going to be using drugs for the duration?

  5. Woosty,
    I once attended a CE seminar on ADHD, where the presenter had a theory on why the US and Australia have a higher incidence of ADHD than other nations. First of all, these were the two places where governments shipped their troublemakers.

    Also, back in the early days of exploration, a ship’s Captain would stand on the dock recruiting volunteers for the voyage. He might say, “We will sail west. No one knows what is out there. We might fall off the edge of the earth, or be eaten by dragons. We might find treasure. Now who wants to go?

    Guess which sailors would be jumping up and down, waving their hands in the air, yelling, “Pick me. Pick me.”

    In a way, it was a matter of self-selection.

  6. There was another psycho illness which pertains to internet obsession but I could not get the link to open up. Jeso, this is gonna be good. Can you imagine being a lawyer in a criminal case and your client has killed someone he did not know in person but knew them on Facebook? ” I enter a plea of Not guilty by reason of insanity by virtue of Internet Obession Phase V with delusions of grandeur, Your Honor. I offer Exhibit A which is the defendant’s laptop. Exhibit B is the statement from his Dog which was taken on the Dogologue Machine which states that the dog has not been taken for a walk in over a year due to the defendants obsession with the internet.”

    Oh the sky is the limit here with the new FIVE JIVE.

  7. If you Google: Diagnostic Statistical Manual , the website for the group which is reforming the thing will appear and there is a host of information on that site. Do you know anyone who has a tendency to yank on their hair? Check this out: *(F63.3) Trichotillomania (hair-pulling disorder)

    So for now on when itchinBayDog bites her hair on her tail I am gonna call here a Trichotillomaniac. Yeah.

    Kids in the Fourth Grade need to know about this one.

  8. I think that the rest of the world out here ought to refer to this new version as “The DSM FIVE”. Put some emphasis on the fact that they went from Roman Numeral to anglo numeral. If you refer to it as DSM 5 it looks like a name for some device to fix your laptop. If you take a deposition of some shrink and discuss DSM IV and FIVE then you ought to have a discussion with the court reporter on the record about the name game change here. Inquiring courts of appeal would want to know the whole story. In all its glory.

  9. Woosty,
    That’s my take on it. However, if it ever comes to a courtroom, it can become very….awkward…for everyone involved. Treatment should bear some resemblance to the presenting problem. This kind of thing is an ethical complaint or malpractice case just waiting to happen.

    I agree on the nebulousness of some of the diagnoses. IMHO, the task force that developed the DSM could have taken out at least half the diagnoses and people with mental problems would be better off. I am in the camp of those who were uncomfortable with the apparent cozy relationship between some members of the task force and big pharma. Between that and the secrecy, one cannot help but wonder about a hidden agenda.

    The APA will also make many millions of dollars on book sales. This creates a new demand, because at this late date, everyone I know has one or more copies of the DSM-IV. No one who owns a couple of copies of the manual is going to be buying a new one anytime soon.

    As I said, I suspect economic pressures are driving this rather than good science and good ethical practice.

  10. “I have seen many files cross my desk where the discharge diagnosis from a hospital was something like “depression” or “mood disorder,” but the prescription sent home with the patient was an antipsychotic.”
    OS, given the current climate of nebulousness surrounding the DSM, could this approach be viewed as compassionate, prudent even, (if one is concerned ultimately with outcome),rather than saddling someone who is already challenged with an additional stigma and all the societal drecht that accompanies it? Plus, it seems to me that pharmaceuticals are becoming less ‘cut and dried’ in their applications everyday as well…

  11. I will comment on how socio economics figures in. You can have three people who have done the same crime and yet come from poorest poor, lower middle class and rich suburb. For example the crime is assault on the defendant’s child. All three are saying the same things to the doctor but there are three different doctors in three settings. The poor guy is in the joint and being examined to determine if he is fit to stand trial and if he has an insanity defense to be interposed. The doctor diagnoses paranoid schizophrenia and gives it a number in the DSM IV. Middle class guy did get charged with a misdemeanor but doc at the local private hospital diagnoses him as manic depressive and his crime was committed in the manic phase and he is given some strong drugs. Rich suburb guy is diagnosed by some shrink of his chosing who is helping him fend off social workers and perhaps an assault charge and he is diagnosed with bi polar disorder and prescribed a drug not dissimilar to the manic depressive guy.

    Bi polar is more acceptable in polite society.

    Forty years ago there were a lot of Sigmund Freud wannabees in the psychology and psychiatric professions. Then the Organiscists came along and all symptoms had an organic or physical cause– none of this apCray about mommy being mean when I was a child. The psychologists have stayed in the game and work with an MD so that the diganosed critter has both in his corner. Drugs are the panacea. Forty years ago the patient would get his brain electrocuted like Tom Eagleton did. He was being treated by the Renardian School of Shrinkdom.

    If you are an attorney and you have a client charged with a serious crime and you think that he is nuts then you want a diagnosis which will hold water when it comes to positing an n.g.r.i. defense. Not guilty by reason of insanity is not something to interject lightly. The guy might get outta jail but get sent to a looney bin which is worse than any jail. So treat lightly.

    The DSM 5 is coming soon to a theatre near you. The took the Roman Numeral out of the name and went with the 5 so as to be in the 21st Century. It is beyond modern.

  12. Darren:
    The thing is, as of the release date, this is the official diagnostic manual all mental health professionals will use; not just psychiatrists. Each diagnosis carries a code, which is supposed to coordinate with the ICD-10 for HIPAA compliant insurance billing. The DSM codes have traditionally been an extension of the mental health chapter of ICD-9, with regard to clinical relevancy. The same will be true of ICD-10. The effective date for enforced compliance is Oct. 1, 2013.

    Adding to the problem, many psychiatrists either don’t or won’t follow the rules. I have seen many files cross my desk where the discharge diagnosis from a hospital was something like “depression” or “mood disorder,” but the prescription sent home with the patient was an antipsychotic. The diagnosis and treatment should match.

    The link is to the information pages from one of the companies that handles insurance filing for doctors. This is what all physicians and psychologists have to deal with. One of those things patients never know about.

  13. Nick @ 1:42, quoting Chris Rock: “There’s no money in the cure, just the drug to maintain.” Yes, this.

    I am very skeptical of the DSM, and welcome the NIMH action – said by a layperson, albeit one who has far too often seen the profit motive pervert health care and human services decisions.

    Excellent post, OS.

  14. Informative article Chuck, thank you.

    I hope this new standard isn’t so complex it becomes unworkable or error prone due to a masterly level of understanding to perform diagnosis correctly, or that it proves expensive due to the amount of certified professionals called to utilize it which might lead to efforts on behalf of prosecutors to avoid it for indigent defendants and subsequently deny them the evaluation they need.

  15. Chuck,

    Superb. As a fellow mental health professional, but certainly not anywhere near as distinguished, I’m thrilled that you did this piece, since so many layman have little understanding of the field and do confuse legal and clinical definitions. When I was in training and graduate school the DSM III was what was current. Even at that point I saw the limitations inherent in that manual. When the DSM IV came out I was dismayed that there was no real improvement. At this point, being retired, I doubt whether I’ll delve into the DSM V, so I appreciate your perspective.

    “Any forensic psychologist or psychiatrist who knows what they are doing will talk about behaviors rather than syndromes or clinical diagnoses.”

    I couldn’t agree more, but I would add any mental health professional to it. Whether making decisions about the legal issues of a perpetrator, or exploring the treatment of a patient, it is the dysfunctional behavior that is critical. What someone has done, what are they doing and what is the likelihood that their behavior will continue in the future represents for me the path of treatment. The diagnosis codes are important for getting insurance payments more than they are helpful for actual treatment.

    “Some critics of the DSM process express other concerns in addition to matters of transparency. It’s been pointed out that about 70% of current task force members have ties to the pharmaceutical industry, up about 14% for DSM-IV.”

    I agree with the critics, but think it is more of a matter of lack of real perception as opposed to conspiracy. Many in the mental health field are far from being self aware, or self critical. Easy diagnoses, done from rote using the professional “bible” are easy and time saving. Unfortunately, when you have the ability to affect the life of another, the stricture “first do no harm” is too often submerged in the exigencies of of the mental health professionals work

Comments are closed.