DSM-5: Much ado about nothing? (Part I of II)

Ambitious "paradigm shift" fizzles 

By now, you've seen the bad press about the American Psychiatric Association's new diagnostic codebook: Media pundits are labeling it "a manual run amok," so ambitious in scope that almost everyone qualifies for some mental illness or another.

But browsing through my crisp new copy, I find myself curiously dispassionate. Sure, it's even more bloated than the DSM-IV. But mainly, they just moved the chapters around and renamed a diagnosis here and there (dysthymia, for example, is now persistent depressive disorder). Even the typefaces will look familiar.

It's downright anticlimactic.

Remember when they first announced work on the new DSM? It was going to be a revolutionary "paradigm shift," aligning diagnoses with modern science. Disorders were going to be dimensional rather than categorical. All kinds of novel proposals were in play: Parental Alienation Syndrome. Paraphilic Coercive Disorder. Psychosis Risk Syndrome.

Then came the backlash. Prominent work group members walked out over the lack of science in the revision process. Petitions were launched. Special interest groups lobbied. ("Aspies," for example, were furious that psychiatry had bequeathed them an identity and were now taking it back.) The field trials fell apart. Even the National Institute of Mental Health announced it was breaking away from the DSM's diagnostic schema (although switching to its biology-worshipping Research Domain Criteria is like jumping from the frying pan to the fire).

Ultimately, the psychiatrists retreated. With both drug money and membership numbers down, the last thing the American Psychiatric Association needed was more negative flak. Especially when the DSM rakes in a steady profit, $5 to $6 million per year, giving them "fabulous riches" over time.

So, you'll find a few notable changes: There’s disruptive mood dysregulation disorder, a belated effort to undo the damage wrought by overdiagnosis of childhood bipolar disorder. Hoarding disorder and the Big-Pharma-inspired premenstrual dysphoric disorder made the cut. But overall, it's just business as usual.

In the short term, the new manual will give the APA's coffers a big boost. The book alone retails for $130 or more, and -- like a blockbuster Disney movie -- there will be ancillary products including cell phone apps, how-to guides, trainings, and such.

Eventually, however, the DSM will become increasingly irrelevant. It's already being superseded by the World Health Organization's International Classification of Diseases, which even on the APA's home turf of the United States is now required for insurance reimbursement. While some tout ICD codes as preferable, the only real advantage of the ICD is that it is freely available online.

By design, the DSM codes are almost precisely parallel to the ICD's. And the entire diagnostic enterprise, as psychotherapist Gary Greenberg explores in The Book of Woe, is an elaborate fiction -- a shell game perpetrated by psychiatrists on patients, insurance companies, and (most critically for our purposes here) the courts. Greenberg spent two years mucking about in the DSM-5 development trenches, where work group members frankly acknowledged that psychiatric diagnoses are just "fictive placeholders" or "useful constructs" rather than real conditions that carve nature at its joints.

Tomorrow, in Part II, I will highlight some specific changes (and non-changes) potentially relevant to forensic practice. 

If you are planning to attend the American Psychological Association convention in Honolulu, I also invite you to my full-day CE training on psychiatric diagnosis in legal settings on July 31.

Military sexual assault scandal unearths "illegal" psychiatric diagnoses

If you haven't been following the sexual assault scandals in the U.S. military, tune in: It’s yet another arena where bogus psychiatric diagnoses are playing a sordid role.

Women soldiers who report sexual assault are diagnosed with psychiatric conditions such as borderline personality disorder or bipolar disorder that get them drummed out. Not only are their careers ruined, but they are denied benefits and sometimes must even repay any bonuses they got for enlisting.

Because the symptoms of these "preexisting" disorders overlap with the emotional sequelae of trauma -- anger, fear, depression, anxiety, avoidance -- it can be hard to tell the difference.

Women in every branch of the U.S. military are being disproportionately discharged with personality disorders, according to an investigative series, Twice Betrayed, in the San Antonio (Texas) Express-News. The Air Force has the widest disparity: Women make up 20 percent of the force, but 35 percent of personality discharges.

Sometimes, as in one case featured in the Express-News series, military psychologists and psychiatrists are being influenced by officers in the accused's or accuser's chain of command to view accusers as mentally unstable and/or sexually promiscuous.

In a report on "illegal" psychiatric diagnoses, the Vietnam Veterans of America say that in addition to rape victims, many combat soldiers with organic brain trauma or posttraumatic stress disorder continue to be drummed out of the military with bogus personality disorders and adjustment disorders that block their disability benefits, despite Congressional efforts to crack down on this abuse (for example, by requiring that the diagnoses be issued by psychiatrists or PhD-level psychologists).

It was a bit incongruous to find myself sitting in an Air Force courtroom, consulting on a sexual assault case, when the news broke that the chief of the Air Force's Sexual Assault Prevention and Response program had been arrested for sexually assaulting a female stranger in a parking lot.Talk about the fox guarding the hen coop.

That bizarre twist came on the heels of a headline-grabbing survey documenting skyrocketing rates of sexual assault in the military: An estimated 26,000 soldiers were sexually assaulted in 2012, up from 19,000 the year before. Women in the military face about twice the risk of sexual assault as civilian women (one in three versus about one in six). And only a tiny fraction of assaults -- 3,374 last year-- are reported.

That's likely due to the fact that women who do report rape are shunned, disbelieved, and retaliated against, and their assailants are rarely punished. The seven-month investigation by Karisa King of the San Antonio Express-News found that only about 10 percent (302 of 2,900) of the accused were court martialed, with only 177 sentenced to confinement. (The airman in my case was one of those rare few, but then again he was a low-level airman, not an officer. And it probably didn't help his case that all of these scandals were busting out that very week.)

It’s no coincidence that the San Antonio paper ran the series: Outside that city sits the sprawling Lackland base, the Air Force's basic training center for enlisted personnel. In an unfolding investigation there, at least 33 training instructors are suspected of sexually assaulting 63 or more trainees.

If this latest scandal isn't enough to convince people of the link between sexual violence and a climate of hostile masculinity (as researchers such as Neil Malamuth have been arguing for decades), I don't know what is. On the other hand, if psychologists in the sex offender treatment industry got their hands on these training officers, they'd probably label them with some fictional disorder like "paraphilia not otherwise specified (nonconsent)" that decontextualized their behaviors beyond recognition. 

Consulting in a military court martial one week and a sexually violent predator civil commitment hearing the next, I can't help but notice how mental illness strikes in clusters, afflicting sexual assault victims in one setting and offenders in the other. The clue that situational exigency is in play is that in neither case is the diagnosis about helping the supposed sufferer. It's all about punishment, with diagnosis as the weapon.

I highly recommend the series, Twice Betrayed. An in-depth report by the The Vietnam Veterans of America on the misuse of psychiatric diagnoses in the military, Casting Troops Aside, is HERE.

Miracle Village: A leper colony for bogeymen

Almost 750,000 Americans are now on sex offender registries, and the numbers just keep growing. Because the truly dangerous are mixed in with the far more numerous low-risk offenders, registries are useless from a public safety perspective. But they do have a pernicious effect on ex-offenders, who -- like the lepers of yore -- oftentimes find themselves with nowhere to go and no hope of ever reintegrating into society.

Enter "Miracle Village" in Florida. Built in 1964 for sugar cane workers (some of whom still live there), it was transformed into a haven by an evangelical pastor and his wife (both of whom, ironically, were sexually molested as children). It's now home to about 100 convicted sex offenders, a place they can be among others like themselves and feel a bit more human. Since the community was established in 2009, there has not been one reported sex crime, according to the local sheriff's office.

But it's only a drop in the bucket. The demand is extraordinary; more than 100 people per week apply for the limited housing.

The short video Sex Offender Village was put together by two people who come from what might be seen as opposite ends of the spectrum: Documentary filmmaker Lisa Jackson has spent years examining sex crimes from the victim’s point of view; David Feige is a former chief public defender from the Bronx turned TV writer. But they agree on one thing: U.S. sex offender laws are "doing more harm than good":

In the past 25 years, the laws governing sex offenses have gone from punitive to draconian to senseless. The term 'sex offender' simply covers too wide a range now, painting the few truly heinous crimes and the many relatively innocuous ones with the same broad brush. This overly broad approach wastes resources that could be better spent, for instance, on clearing the huge and unforgivable backlog of untested rape evidence kits. We see even deeper problems: the explosion of sex offender registries, stringent yet demonstrably ineffective residency restrictions, and the bizarre world of 'civil commitment,' where we punish what someone might do rather than what he or she has done. All of this suggests that our entire approach to dealing with sex offenders has gone tragically off the rails.

CLICK ON ABOVE IMAGE TO VIEW THE 5-MINUTE VIDEO AT THE NEW YORK TIMES OP-ED WEBSITE.

Attorney-client privilege trumps child abuse reporting law, court rules

Elijah W. ruling clarifies thorny issue in California

Forensic psychologists are split as to whether we must breach confidentiality when a criminal defendant divulges child abuse or threatens physical harm to others.

On the one hand, here in California a psychologist can be criminally prosecuted under the Child Abuse and Neglect Reporting Act (CANRA) for failure to report suspected child abuse. On the other hand, a psychologist hired as a defense consultant assumes a legal duty to maintain attorney-client confidentiality.

But a welcome appellate ruling this week at least partially resolves this vexing dilemma. A psychologist hired by a criminal defense attorney is bound by the same rules as the attorney, and must uphold the client's Constitutional right to confidentiality rather than report child abuse, the court held.

"In the absence of clear legislative guidance, we decline to read into CANRA [the Child Abuse and Neglect Reporting Act] a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant’s right to a fair trial," ruled the Second Appellate District.

The question of whether, or how, to report threatened violence (as mandated under Tarasoff and related case law) remains a bit vaguer; in some cases, warning the retaining attorney might discharge the duty to protect, but in other cases it might not. 

The appellate ruling also does not clarify the reporting requirements of psychologists retained by litigants in child custody or civil cases. However, an attorney colleague said it likely extends to any situation in which the psychologist is hired to consult on a privileged matter, such as in civil or child custody cases. The colleague's opinion was based in part on the fact that the court specifically declined to decide the issue on Constitutional grounds, basing its decision instead on California laws regarding attorney-client privilege. In contrast, under California's Evidence Code (Section 1017), there is no privilege if the expert is appointed by the court as a neutral expert. Also, if the psychologist shifts from the consultant role to become a testifying expert, once-privileged information is no longer protected.

The ruling is good news for forensic practitioners in that it reduces the ethical tension between protecting the privacy rights of the accused and protecting our own skins. Psychologists who fail to report suspected child abuse may be subject to criminal and civil penalties and are often treated very harshly by licensing boards.

The ruling puts California in the lead among U.S. states in clarifying psychologists' duties in navigating a confusing mishmash of reporting laws. Maryland is an exception to the general vagueness; that state's Attorney General issued an opinion that defense-retained psychiatrists in criminal cases are exempt from mandated reporting.

Judge had nixed child's request for independent expert

The case involved Elijah W., a 10-year-old Los Angeles boy arrested on an arson charge. When the defense team requested an expert to help prepare the fourth-grader's defense, the juvenile judge limited them to a member of the local juvenile competency to stand trial (JCST) panel. However, panel members had told Elijah's attorneys that they would report to authorities any information that Elijah revealed about suspected child abuse or neglect.

In contrast, a member of the local superior court's regular panel of psychiatrists and psychologists, Dr. Catherine Scarf, had assured the defense team she would respect attorney-client privilege and only report threats or child abuse to Elijah's counsel. The judge refused to appoint Dr. Scarf, scoffing at the defense team's concerns as "merely academic" because the judge could not recall any juvenile disclosing reportable information during a competency evaluation. 

Los Angeles created the juvenile panel in response to a recent California law mandating that juvenile competency evaluators have special training and experience in child development and juvenile forensic issues. The Los Angeles court's juvenile protocol allows a minor's defense counsel to obtain an assessment and not disclose it unless a doubt is declared as to the minor's competency. 

Elijah's attorney argued that appointment of a defense expert who would not defer to lawyer-client privilege violated Elijah's Constitutional right to effective assistance of counsel.

The appellate court agreed, noting that child abuse reporting requirements might interfere with full and open communication between a minor and his defense team.

"It is certainly plausible, for example, that a young child accused of setting fires is acting out following some form of traumatic experience, perhaps even child abuse…. Similarly, if the child is warned of the defense psychologist's intention to disclose information concerning child abuse or neglect prior to the assessment ... disclosures necessary for effective representation may be inhibited."

The appellate court also considered whether the attorney-client privilege trumps the so-called Tarasoff warning, or psychologists' duty to protect reasonably identifiable victims from threatened violence. The justices wrote favorably of Dr. Scarf's position that notifying the defense attorney would discharge the duty; in California, an attorney may reveal confidential information if necessary to prevent a criminal act likely to result in death or great bodily harm:

"We cannot evaluate in advance whether Dr. Scarf's intended notification of Elijah's attorney will insulate her from liability in any particular situation…. But her position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah's communications at the risk of personal liability should not have been discounted by the juvenile court."

Bottom line: The appellate court ordered that the juvenile court approve Dr. Scarf's appointment.

Practical implications

Forensic psychologists in California will want to carefully review this ruling for themselves, and tailor their consent forms based on the nature of the case and who the client is -- the court, the defense, or the prosecution. In preparing one's informed consent documents, consulting with an attorney knowledgeable in this tricky area is certainly not a bad idea.

Likewise, the case serves as a reminder for practitioners outside of California, who should determine the relevant statutes and case law in the jurisdictions in which they practice. In their book Evaluation for personal injury claims, Kane and Dvoskin opine that in jurisdictions in which attorneys are mandated to report child abuse, expert consultants likely must report as well. (The American Bar Association has an online chart listing state-by-state laws pertaining to attorneys' child-abuse reporting requirements.)

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The published case, Elijah J. versus Superior Court of Los Angeles County, can be found HERE. 

Related resources available online include: 

• Forensic evaluations and mandated reporting of child abuse, Kapoor and Zonana (2010), Journal of the American Academy of Psychiatry and Law

• Expert Opinion: Does mandatory reporting trump attorney-client opinion? Connell, Golding, Morgan and Niland (2004), American Psychology-Law Society News  

 
Hat tip: Adam Alban, PhD, JD

Spring reading recommendations -- forensic and beyond

Marauding bands of juvenile killers. Gang rapist-kidnappers. Wife beaters.

We’re talking elephants, dolphins and parrots, respectively. That's my forensic psychology angle on Animal Wise, a fascinating new book by nature journalist Virginia Morell.

Not long ago, it was taboo in science circles to claim that animal have minds. But the burgeoning field of animal cognition, having broken out of the strait jacket imposed by 20th-century behaviorism, is now mounting a full-on challenge to the notion of an evolutionary hierarchy with humans at the top. Morell, a science writer for National Geographic and Science magazines, traveled around the world interviewing animal scientists and observing their research projects on everything from architecturally minded rock ants and sniper-like archerfish to brainy birds, laughing rats, grieving elephants, scheming dolphins, loyal dogs, and quick-witted chimpanzees.

She found cutting-edge scientists who not only regard animals as sentient beings, but even refer to their study subjects as trusted colleagues. Professor Tetsuro Matsuzawa in Kyoto, for example, has set up his lab so that when the chimpanzees "come to work" each morning, they enter on elevated catwalks and sit higher than the humans, which makes them feel more comfortable. He cannot understand why humans feel so threatened by his discovery that chimpanzees are capable of holding much more information in immediate memory than can we humans.

"I really do not understand this need for us always to be superior in all domains. Or to be so separate, so unique from ever other animal. We are not. We are not plants; we are members of the animal kingdom." 

 

 

YouTube video of Alex the parrot showing his cognitive skills

Animal researchers are realizing that not only do all animals have individual personalities, but some -such as chimpanzees and dolphins - even develop cultures. This engaging and thought-provoking book can be read on many levels. It is highly informative while also being quite entertaining. But on a deeper level, it probes the moral dimensions of science.

Morell’s 2008 National Geographic article in from which the book grew is HERE. Her Slate article, "What are animals thinking?" is HERE.  My Amazon review (if you are so inclined, click on "yes," this review was helpful) is HERE.


The Signal and the Noise

If you haven't yet read Nate Silver's important The Signal and the Noise, it’s past time to grab a copy. Silver’s analytic method is central to forensic psychology. Best known for his spot-on predictions of U.S. presidential races, Silver argues that accurate predictions are possible in some (limited) contexts -- but only when one learns how to recognize the small amount of signal in an overwhelming sea of noise. And also when one approaches the prediction using Bayes's Theorem. This is one of those engrossing books that really stays with you, and has very practical applications in forensic assessments. I find it especially useful in writing reports. Plus, it helps one understand current events involving prediction, like the story of six Italian scientists being sent to prison for failing to predict a deadly earthquake. (Earthquakes are inherently unpredictable, and Silver explains why.) 

* * * * *

Speaking of forensic report writing, if you want to tune up your own report writing skills, or you are teaching or supervising students, I highly recommend Michael Karson and Lavita Nadkami's book, Principles of Forensic Report Writing, due out at the end of this month. Karson and Nadkami take an innovative and thoughtful approach, helping us to think outside of the box about this essential aspect of our trade.


Other  recommendations

Beyond forensics, here a few other worthwhile books I've read recently:

If American history interests you, check out bestselling author Tony Horwitz's Midnight Rising, about John Brown's ill-fated raid on Harpers Ferry and its role in the abolitionist movement, or Tim Egan's The Big Burn, about the massive fire in the U.S. Northwest that helped change the political landscape and establish the national Forest Service. Both are engrossing and educational; I listened to the audio versions during lengthy road trips.

* * * * *

If you are into dystopic fiction, I recommend Hillary Jordan's When She Woke. In the not-distant future, the government has gone broke, and can no longer afford to maintain its massive prison system. So, instead of incarceration, law-breakers -- in a modern-day riff on The Scarlet Letter -- are dyed bright colors for the length of their sentences. In a globally warmed Texas ruled by Christian fundamentalists, Hannah Payne wakes up bright red, for the crime of aborting her baby. This edge-of-your-seat tale isn't too far-fetched, given current trends, as laws are being passed in Oklahoma and elsewhere to criminalize abortion, and as the public shaming of sex offenders (who in the novel are "melachromed" blue and killed on sight by vigilantes) becomes more and more entrenched.

* * * * *

Finally, I'm just launching into Gary Greenberg's hot-off-the-press book on the DSM, The Book of Woe: The DSM and the Unmaking of Psychiatry, and I can already tell it's going to be a doozy. More on that soon, time permitting....

Forensic practice: A no-compassion zone?

Murder trial prompts professional dialogue

Do empathy or compassion have a place in a forensic evaluation? Or should an evaluator turn off all feelings in order to remain neutral and unbiased?

That question is at the center of a controversy in the murder trial of Jodi Arias that I blogged about last week, with the prosecutor accusing a defense-retained psychologist of unethical conduct for giving a self-help book to the defendant.

Under heavy-artillery fire, Richard Samuels* denied prosecutor Juan Martinez's accusation of "having feelings for" the defendant, who killed her ex-boyfriend and is claiming self defense. Samuels testified he gave Arias a book because he is a "compassionate person" and thought the book would help her, but that his objectivity was never compromised. The exchange prompted a juror to ask Samuels:  "Do you believe absolutely that it is possible to remain purely unbiased in an evaluation once compassion creeps in?"

Martinez called a rebuttal witness to testify that gift-giving is a boundary violation and unethical. Newly minted psychologist Janeen DeMarte, testifying in court for only the third time, testified that a forensic evaluator should never feel compassion for a defendant, as such feelings compromise integrity (a position she modified under cross-examination).

Given these starkly divergent positions, I was curious what other forensic psychologists think. So, I initiated a conversation with a group of seasoned professionals, publishing two brief video excerpts of the relevant testimony on YouTube (click on the images below to watch the excerpts) to guide the conversation.

View the Richard Samuels excerpt (18 minutes) by clicking on the above image.

View the Janeen DeMarte excerpt (10 minutes) by clicking on the image.

Gift-giving: A bad idea

Contrary to the prosecutor’s insistence, our Code of Ethics does not prohibit gift-giving. Nor do the Forensic Psychology Specialty Guidelines (which are aspirational rather than binding). It's an ethical gray area.** As with much involving ethics, it all depends. But still, the consensus was that giving a book to a defendant is a mistake. Whether or not it affects one's objectivity, it gives the appearance of potential bias. And in forensic psychology, maintaining credibility is essential. "Gift giving," as one colleague put it, "gives the appearance of either a personal or therapeutic relationship with the defendant."

Samuels's error lay in failing to think through his action, and recognize how his blurring of boundaries could damage his credibility and thus undermine his testimony. Ultimately, by discrediting his own work, he potentially caused harm to the very client whom he was attempting to help.

The nature of the book itself further undermined the expert's credibility in this case. As another colleague pointed out, what good is a self-help book, Your Erroneous Zones: Step-by-Step Advice for Escaping the Trap of Negative Thinking and Taking Control of Your Life, going to do a woman who is in jail and facing the death penalty for stabbing and shooting someone to death?

On the other hand, although gift-giving is a slippery slope, there are times when only a curmudgeon would not give. For example, if you are conducting a lengthy evaluation and you decide to buy yourself a drink or a snack from the vending machines, do you refuse the subject a soda, for fear it would undermine objectivity or lend an appearance of bias? How rude!

Empathy: It's only human 

The general consensus was that, without some measure of empathy, one cannot hope to understand the subject or the situation. One is left with "an equally problematic perspective that dehumanizes and decontextualizes the evaluation,' in the words of another psychologist.

"There is an orientation toward forensic work that is strikingly cold," noted yet another colleague. "I have seen some highly experienced forensic examiners who use their 'objectivity' with icy precision and thereby fail to establish the kind of rapport necessary to obtain a complete account of the offense or other important information…. The absence of empathy can be just as biasing as too much of it."

Or, as Jerome Miller wrote, in one of my favorite quotes from the forensic trenches, "It takes unusual arrogance to dismiss a fellow human being’s lost journey as irrelevant."

In other words, without empathy, any claim to objectivity is illusory, because there is no true understanding. And that, too, is dangerous. DeMarte's extreme position thus errs in the opposite direction from Samuels', in advocating for forensic psychologists to be automaton-like technocrats.

Indeed, the main danger of empathy as discussed by leaders in our field, such as Gary Melton and colleagues in Psychological Evaluations for the Courts, is not that it biases the evaluator, but that it potentially seduces vulnerable subjects into revealing too much, thus unwittingly increasing their legal jeopardy. For this reason, Daniel Shuman, in a minority position in the field, argues that using clinical techniques to enhance empathy is unethical because this can -- wittingly or unwittingly -- cause harm to evaluatees. 

After all, our training as therapists makes us good at projecting understanding, and at least the illusion of compassion. Our subjects often let down their guard and experience the encounter as therapeutic, even when we clearly inform them that we are not there to help them in any way, and even when we remain vigilant to control our expressions of empathy.

"The best forensic evaluations bring all the clinical skills learned to promote self-disclosure and emotional emitting (empathy, reflective comments, attention to feelings, suspension of moral judgment, etc.)," a colleague commented. "We know how to get people to talk about things that they might otherwise wish to hide from others and themselves. Most defendants feel understood or at least feel they have been heard at the conclusion of an assessment."

Behaviors, not emotions, can be unethical

A third general consensus emerging from our professional dialogue was that feelings themselves are "almost never unethical." Which is fortunate, as we can never know for certain what another person is thinking or feeling. Rather, it is the behavior that follows that can be problematic; we must remain alert to what feelings a subject is evoking in us, lest they lead us astray. Sticking close to the data, and being transparent in our formulations, can keep us from behaving incompetently or problematically in response to our feelings, whether of empathy and compassion or -- at least as problematic -- dislike or revulsion. 

Bottom line: Do not check your empathy at the jailhouse door. You need it in order to do your job. And also to remain human.

Thanks to all of the many eloquent and insightful colleagues who contributed to this conversation.

NOTES:

*Samuels has taken down his website (svpexpertwitness.com), so I am providing a link to an old cached version.  

**Psychology ethicist Ofer Zur has written more on gift-giving in psychotherapy, with links to the gift-giving provisions of various professional ethics codes.