Feb
11

DSM V: A Challenge To Lawyers

It was inevitable, really. A new edition of the American Psychiatric Association's Diagnostic and Statistical Manuel of mental Disorders is in the works. And with it will come yet new diagnoses and disorders. The tiny corner of psychic life reserved for the reasonable person just got smaller. Perhaps it's time to admit that we're all chained to pathologies of one sort or another.

The DSM is currently in its fourth, revised, edition. A fifth edition, the product of a board of some 160 psychiatrists – itself a frightening thought – is now available for public comment. It is expected to be published in 2013.

Spend an afternoon with the DSM some time and watch the contours of the law disappear into the fuzzy boundaries of character disorders so broadly defined that we are all, from time to time, ill. Who hasn't experienced enough anger to qualify as suffering from explosive rage disorder? And who is not self-regarding enough to be called narcissistic on a bad day?

The diagnoses in the DSM have worked their way into popular culture. An old friend disappointed in decisions I had made once called me a sociopath. I responded in kind, noting a quirk or two of hers. My diagnosis? Why she was a borderline personality. These words transformed a dispute about issues into a continental divide.

Lawyers depend on the legal fiction of the "reasonable person." We'd be lost without this lodestar. We have objective standards in evaluating evidence or conduct. At the heart of our tort system are expectations about what reasonable people should and should not do. The criminal law revolves around largely unstated assumptions about the psyche of the reasonable person: it would, after all, be unthinkable to punish a sick person.

But the DSM lays waste to the claims of reason. And the new Fifth Edition will advance the battle lines even further.

The most controversial new category of diagnosis will be a designation of "at risk" for patients not yet demented or psychotic, but well on the way to becoming so. These will be difficult judgments to make, no doubt. It strikes me that we are all at risk of all the evil the world can belch. I drive, and am at risk of an accident. The cheeseburger I consume at lunch puts me at risk of heart disease. Does the weight of sorrow I carry bearing other people's sorrow's put me at risk of depression? Probably.

I once heard a wonderful story about a student in a philosophy course. The professor asked a simple question on the final examination, no doubt expecting essays on reason, experience and expectation. "What is risk?" The professor asked. The student answered with three words of his own: "This is risk." The answer was perfect.

The new DSM does not put me at risk of suffering any new malady. I suspect the risk of dementia or psychosis is as real today as it was yesterday. What the new DSM will do, however, is create a new risk of stigmatization. Your neighbor not quite crazy? Well, she is certainly at risk of becoming so. And the odd child with eccentric tastes? He may not be a borderline personality, but he may be at risk of psychosis.

The therapeutic state is about to get a potent new tool.

We lawyers and judges, in the mean time, are still stumbling along with pre-Victorian sensibilities. We believe in reason, free will and autonomy. The judgments and decisions we make reflect this black and white vision of the world. We refuse to train lawyers on the nuances of the psyche and insist on one-size-fits-all doctrines. The justice we administer is rough, too rough, we admit when the lights are turned down low and we can be candid about our craft.

The world is not populated with reasonable men and women all striving for the good. There are darker forces present in even the most benign mind, and these forces often mock the law's sterile categories, pressing ordinary people into the courts. When they arrive on the law's turf, we lawyers and judges are unable to address the nuances of what we see. Injustices are done daily. DSM V is a challenge: Isn't it time to require mental health training for lawyers?

Reprinted courtesy of the Connecticut Law Tribune.
Comments (2)
Posted on February 13, 2010 at 9:22 am by William Doriss
Yes.
When the Dishonorable Bernadette 'My-Way-Or-...
Yes.

When the Dishonorable Bernadette 'My-Way-Or-The-Highway' Conway, GA 23, ordered me on Nov. 25, 2002 to get a psychological/psychiatric evaluation AND treatment, at my own expense, as one of eight 'conditions of probation', I went to the VA Hospital in West Haven and subsequently got a 'clean' bill of mental health. Dr. Shrihari. This was duly submitted to Probation as requested. True story!?! For what purpose?

Where did it get me? Inquiring Minds want to know. The irascible judge; the bumbling, rambling, dyslexic prosecutor-lady; and the hives-ridden lady 'public' defender were all in need of psychiatric evaluation--and treatment--themselves,...and their supervisors and superiors. (My opinion of course. Hey, I'm not exactly stew-pid.)

P.S., I have an earned 'doctorate' as well, albeit 'non-practicing'; but that apparently did not hold much weight with the kangaroo court in New Haven. I do have a VA--approved physical disability, but not a mental one. I wonder what one has to do to get a mental designation? Bribe someone? Is there such a thing as a self-induced mental regression of an acute/chronic nature where I might be of danger to no one but myself? Yossarian (Catch-22, where are you when I need you?)

Psychology and Psychiatry are way too important to be left to the psychiatrists and psychologists, a majority of whom are seriously mentally ill themselves, but unable to acknowledge. Birds of a Feather flock together and Progress is our Most Important Product. Can't wait for the new DSM V. I'll probably pick it up at a tag sale some day for a dollar or two, put it on my bookshelf and never crack it. I don't like to get my hands dirty. I'd rather work on my car, for real... or my singing. You should hear my new song: The Corrupticut Blues.

Next!?! Hi m0m.

Posted on February 11, 2010 at 2:28 pm by Anonymous
Interesting perspective, but I would prefer to loo...
Interesting perspective, but I would prefer to look at the underside of the leaf. What about all the "alleged victims" that suffer from a mental disorder where their symptoms might play a role in a defendants arrest. Categories like, "Histrionic Personality Disorder", "Borderline Personality Disorder", "Bipolar Disorder" and any of the diagnoses that have an aspect of psychosis. Furthermore, medication becomes an issue. Was the "alleged victim" taking his/her lithium or anti-psychotics, perhaps even more important maybe they were not.

I'm wondering if it might not be more important if the DSM should be mandatory reading for prosecutors and judges.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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