Submitted by Charlton Stanley (Otteray Scribe), guest blogger
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.
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-IV. There 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.
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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.
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The floor is open for discussion.