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.