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Drug and Mental Health Courts have been described as “problem solving courts” and have been called the most significant criminal justice initia- tive of the 20th century [20]. Their basic philosophy is based on the premise that substance abuse problems or mental illness may predispose persons to criminal behavior. These courts target the defendant’s underlying substance use or mental illness through the provision of treatment services in conjunc- tion with judicial supervision. As a result, individuals are diverted from the criminal justice system to a treatment program with the goal of assisting the individual in recovery and preventing the occurrence of future criminal acts that are grounds for re-arrest.

Eligibility criteria for drug court treatment generally require that the individual is over the age of 18, has a drug charge that does not involve man- ufacturing or distribution, has no history of violent felony convictions, and has a demonstrated need for substance misuse treatment. The elimination of recurrent substance-related legal problems from the diagnostic criteria for a substance use disorder may prevent persons who were formerly diag- nosed with substance abuse from meeting diagnostic criteria for a substance use disorder. This change could potentially impact their eligibility for drug court diversion. The following vignette illustrates how this DSM-5 diagnos- tic change might affect drug court eligibility for some defendants.

VIGNETTE 1

A 55-year-old married male accountant is referred for possible drug court diversion after being charged with Driving Under the Influence (DUI) with an elevated blood alcohol level. According to the accountant and his spouse, he rarely drinks alcohol and does not normally drink excessively. He had been at a Super Bowl party and states he did not realize he was impaired. He has not used more than intended and has not made attempts to cut down. He denies craving, and his overall func- tioning at home and at work is not impaired. He has not had social or interpersonal problems due to drinking. Other than his current charge, there is no evidence of recurrent use in situations that are physically hazardous. He has not displayed tolerance or withdrawal. Under the new DSM-5 diagnostic criteria, the man would have no substance use disorder diagnosis.

Under the DSM-IV-TR, legal difficulty related to the use of alcohol (such as the current DUI) would qualify for a diagnosis of Alcohol Abuse.

Some drug courts exclude those with significant mental health issues. Mental health evaluators are frequently requested to assist the court in iden- tifying treatment needs. With the elimination of the distinction between Substance Abuse and Substance Dependence in DSM-5, the evaluating clini- cian will be called upon to provide the court with recommendations as to whether an individual needs medical detoxification from alcohol or illicit substances prior to entering a recovery program or participating in drug court supervision. The requirement for detoxification is not readily appar- ent from the generic diagnosis of substance use disorder, so the clinician will need to inform the court about the specific symptoms of physiological tolerance or history of withdrawal symptoms (two of the eleven diagnos- tic criteria). The specifiers of mild, moderate, or severe can be used to guide recommendations to the court about the needed frequency of random drug screens. The recognition of persons on maintenance therapy for opioid use disorder is potentially important for clinicians working with drug courts. Clinicians should be prepared to educate drug court judges and personnel about the use of methadone and buprenorphine as agonist therapy and their medically recognized role in the treatment of opioid use disorder. Finally, the recognition of cannabis withdrawal in DSM-5 may have implications for drug courts as this disorder, although not medically dangerous or requiring treatment, may lead to functional impairment [21]. Evaluators may need to educate courts about this newly recognized phenomenon.

Because most jails and detention centers do not allow many controlled substances on formulary, drug court judges should be aware that if some- one is removed from drug court while on agonist therapy, they are likely to undergo significant withdrawal if agonists are not continued. In DSM-5, Amphetamine Abuse and Dependence and Cocaine Abuse and Dependence have been combined under the category of stimulant use disorder. However, these substances have widely different pharmacokinetics and half-lives. This has particular relevance to drug testing and the ability to detect illicit drug use. Therefore, it would be important for the clinician to inform the judge about which specific substance has typically been used so that appropriate monitoring may be implemented.

Mental Health Courts seek to divert an increasingly large number of men- tally ill individuals into court mandated treatment programs instead of the prison system. Advantages of these courts include linking persons to mental

Because this legal difficulty criterion has been eliminated, this accountant would not qualify for a diagnosis of Alcohol Use Disorder. Therefore, if a substance use disorder is a requirement for drug court diversion, this indi- vidual would not qualify.

health treatment, reducing recidivism, reducing jail time, saving costs, and decriminalizing the mentally ill [22]. Disadvantages include the perceived coercion of the participants, the usual requirement of entering a guilty plea, and potential race and gender bias [23]. Since the Broward County Mental Health Court accepted its first defendant 15 years ago, over 280 mental health courts have been developed in the United States [24]. Historically, mental health courts have targeted nonviolent misdemeanor offenders. However, new mental health courts have been accepting more serious prison-bound offenders [25].

Clinicians and forensic evaluators will play an important role in assisting the mental health court in the transition to DSM-5, especially in the expla- nation of issues that have been created by the removal of the multiaxial sys- tem of diagnoses. For example, the removal of the multiaxial system will require clinicians to explain the difference between highly treatable condi- tions (most but not all conditions formerly on Axis I) and those conditions, which appear to be chronic and less resistant to change (intellectual disabil- ity and personality disorders). Experts will have to explain to jurors, lawyers, and judges how behaviors related to an acute psychiatric illness are both the same as and different from behaviors stemming from a chronic personality disorder [26]. If medical issues are relevant in the defendant’s mental health court participation, those issues will need to be presented separately as well.

In addition, the removal of Axis IV (psychosocial stressors) and the Axis V Global Assessment of Functioning (GAF) scale may eliminate one way a cli- nician might explain a particular patient’s unique stressors and their overall functioning to the court. The usefulness of the GAF in tracking court partici- pants’ functional improvement as they progress through the mental health court program is lost if no alternate measure of disability and impaired func- tioning is used. The examiner must determine how to best communicate ini- tial impairment and subsequent progress to the court, either through the forensic report or court testimony. DSM-5 proposes numerous rating scales that may be considered in evaluating illness severity and functional impair- ment, including an alternative to the GAF scale. These scales are described under Section III “Emerging Measures and Models” and therefore are not currently mandated for use.

One alternative offered by DSM-5 for measuring symptom sever- ity in individuals with psychosis is the Clinician-Rated Dimensions of Psychosis Symptom Severity Scale, which is discussed in detail in Chapter 3. In section III, DSM-5 includes the World Health Organization Disability Assessment Schedule 2.0 (WHODAS 2.0), which assesses func- tional impairment in six domains and is discussed in Chapters  1 and 3. The WHODAS 2.0 includes many items that are not directly applicable to incarcerated individuals; therefore, its use in a correctional environ- ment has significant limitations.

Some mental health courts exclude mentally ill individuals who have con- comitant intellectual disability because of concerns that they are less likely to be able to comply with the requirements imposed by the court, although research has not concluded that those with intellectual disability are less successful in completing a mental health court program [27]. If persons with intellectual disability are excluded, that determination will rely on the revised diagnostic criteria for intellectual disability as outlined in DSM-5. Therefore, the mental health practitioner will likely have to place greater emphasis on adaptive functioning as outlined in the new criteria when assisting the court with this determination.

DSM-5 CHANGES AND IMPLICATIONS FOR VIOLENCE RISK