The DSM has been widely accepted and relied upon in the legal system in both civil and criminal proceedings [48]. Legal challenges to the appropriate use of the DSM in court have been made based on prior DSM’s cautionary statement. For example, in Discepolo v. Gorgone (2005), the US District Court for the District of Connecticut found that the cautionary wording in the DSM “appears to pertain to conclusions of law such as competence or crimi- nal responsibility, and therefore is not applicable [in civil proceedings]” [49 (p130)]. Interestingly, this court distinguished between the use of the DSM in civil versus criminal proceedings and affirmed the use of DSM in civil liti- gation based on the lack of specific reference to civil proceedings in DSM-IV- TR’s cautionary statement. As of 2012, Discepolo v. Gorgone had been cited in 29 other court proceedings to support the argument that the DSM is accept- able to rely upon in civil proceedings [50]. In State v. Lockhart, expert testi- mony on the subject of Dissociative Identity Disorder (DID) was excluded in criminal court based on the cautionary statement in the DSM. However, the Supreme Court of Appeals of West Virginia found that the trial court erred in excluding the testimony related to an insanity plea, finding that the inclusion of DID in the DSM reflected current consensus in the field [51]. In
State v. Galloway, the New Jersey Supreme Court also noted the cautionary
statement in the DSM, but it affirmed the use of a DSM diagnosis (in this case, borderline personality disorder) to establish diminished capacity [52].
The appropriate use of the DSM to establish the presence or absence of a diagnosis has also been litigated extensively from both sides of the argu- ment. For example, in civil commitment proceedings, virtually all state statutes require proof of a mental disorder, disease or defect as a predicate condition for commitment. However, most states define mental illness by descriptive language and do not require a DSM diagnosis per se. In the 1965 case Dodd v. Hughes, a petitioner diagnosed as a “sociopath” challenged his commitment, arguing that mental illness in the Nevada legislation meant a psychotic reaction as classified in the DSM. His appeal was denied by Supreme Court of Nevada. In explaining their ruling, the court writes:
. . . We seriously doubt that the legislature ever intended medical classifica- tions to be the sole guide for judicial commitment. The judicial inquiry is not
to be limited so as to exclude the totality of circumstances involved in the particular case before the court . . . The assistance of medical examination and opinion is a necessary concomitant of the court hearing, but the court alone is invested with the power of decision. That power is to be exercised within the permissible limits of judicial discretion” [53 (p1)]
In this statement, the Nevada Supreme Court clearly articulated the impor- tance of expert testimony to assist the trier of fact, but ultimately noted the prerogative of the court to consider all of the factors relevant to the judicial decision, above and beyond medical and/or psychiatric classification.
The case of Clark v. Arizona
In the case of Clark v. Arizona (2006), the United States Supreme Court issued a cautionary statement acknowledging that certain designations in the DSM may suggest “that a defendant suffering from a recognized mental disease lacks cognitive, moral, volitional, or other capacity, when that may not be a sound conclusion at all.” [54 (p35)]. The Supreme Court spoke to the dangers of testimony related to diagnoses being misunderstood and/or misapplied by juries. In the wake of Clark v. Arizona, various courts have grappled with how mental disorders should be defined. Some state courts have struggled in how to articulate the relationship between a diagnosed mental illness and the legal standard of mental disease or defect [55]. With the contro- versies regarding the scientific reliability of some of the DSM-5 diagnoses, the acceptability of the DSM-5 in court may face challenges similar to those posed by previous editions.
The DSM’s admissibility as evidence in court
In the 1923 case Frye v. United States, the D.C. Circuit Court of Appeals held that evidence could be admitted in court only if “the thing from which the deduction is made” is “sufficiently established to have gained general accep- tance in the particular field in which it belongs” [56 (p1)]. Essentially, the Frye test involves a two-step analysis: (1) defining the relevant scientific community; and (2) evaluating the testimony and publications to determine the existence of a general consensus in the field. Over the years, legal schol- ars have argued the proper scope and application of the Frye test, also known as the “general acceptance” test.
Daubert v. Merrell Dow Pharmaceuticals (1993) is a United States Supreme
Court case that determined the standard for admitting expert testimony and scientific reliability in federal courts [57]. In Daubert, the plaintiffs
successfully argued that after Congress adopted the Federal Rules of Evidence in 1975, Frye was no longer the governing standard for admitting scientific evidence in trials held in federal courts. The Supreme Court agreed and cited Rule 702 of the Federal Rules of Evidence which reads: “If scientific, techni- cal, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise” [58].
Experts will find it helpful to know what standard the court is using to determine the admissibility of expert testimony. If the case is in Federal Court, then the Daubert standard always applies. However, in state court the standard for admissibility of expert testimony varies. Since Daubert, some states continue to apply Frye and others have explicitly rejected Frye and adopted the Daubert standard or a similar test. Previous versions of the DSM have been widely accepted by the courts as satisfying both Daubert and Frye criteria. The criteria established by Daubert articulated four basic criteria. The four criteria are as follows: general acceptability; established standards controlling the technique’s operation and accuracy; a known or potentially known rate of error; and the testability of the procedure. DSM diagnoses have been tested and reviewed based on evidence from research. In terms of general acceptability, many of the DSM-5 diagnoses have been widely peer-reviewed and articulated published literature. However, some DSM-5 diagnoses are likely more controversial than others and may not be uniformly accepted by all practitioners. In addition, whether or not proposed “conditions for further study” listed in DSM-5’s Section III have met “general acceptability” in the field and meet Daubert and Frye standards has yet to be established. However, the fact that these proposed conditions were deter- mined by the DSM-5 Task Force as not sufficiently reliable or valid to warrant inclusion as a mental disorder in Section II raises likely and justified ques- tions about their admissibility in a legal setting.
Considering the Daubert criteria of known error rates, standards for qual- ity control and accuracy and testability, the field trials established good interrater reliability for some diagnoses but yielded less sufficient interrater reliability for others, including the common diagnosis of major depressive disorder. However, because other factors in addition to interrater reliabil- ity were considered in determining those disorders to include as an official DSM-5 diagnosis, most Section II DSM-5 diagnoses will likely meet both the
Daubert and Frye standards.
The history of legal challenges to the DSM-IV-TR may foreshadow future challenges to the DSM-5. Despite the Clark Court’s cautionary state- ment about using the DSM-IV-TR, many states continued to find that the DSM-IV-TR was acceptable and admissible in civil and criminal proceed- ings [50]. Diagnoses in the DSM-IV-TR rarely failed to meet the threshold
requirements for reliability, validity, and admissibility. The New Jersey Supreme Court, while citing the United States Supreme Court’s language from Clark v. Arizona, noted that the DSM-IV-TR does not necessarily deter- mine a defendant’s capacity. Nevertheless, this same court ruled that the DSM-IV-TR was admissible as evidence and appropriate in reaching a final determination [59]. Similarly, the Supreme Court of Appeals of West Virginia held that regardless of the warning issued by the United States Supreme Court in Clark, the DSM-IV-TR meets the Daubert test for admissibility of expert evidence and that the inclusion of a disorder in the DSM reflects gen- eral acceptance by the psychiatric community [50].
In Mancuso v. Consol. Edison (1997), the DSM-IV-TR was used in a legal argument to contest the admission of mental health evidence on the grounds that the diagnosis did not rely on the DSM and therefore did not satisfy
Daubert [60]. With the advent of DSM-5 and with the introduction of possible
assessment instruments such as the WHODAS 2.0, courts and psychiatrists may face future legal challenges to test whether this most current edition meets court admissibility standards. DSM-5 may also face legal challenges in the future. It is likely that the manual’s utility will ultimately weigh in favor of its continued use as a valuable resource for both experts and litigants in the courtroom.
SUMMARY
For more than 60 years, the DSM has provided the standard language used by mental health clinicians of various disciplines, public health policy makers, and mental health researchers. Like all preceding editions of the DSM, the development of the 5th Edition of the DSM attracted considerable contro- versy, criticism, and a robust debate about the meaning and nomenclature of the diagnosis of mental disorders. Key points regarding the development and implementation of DSM-5 highlighted in this chapter include the following:
• Overarching structural changes to psychiatric nomenclature in DSM-5 included the integration of dimensional aspects of diagnosis; the removal of the multiaxial system; the removal of the GAF; the removal of the “Not Otherwise Specified” specifier; and the addition of cross-cutting symptom measures.
• Despite legal challenges, the DSM is widely accepted and relied upon in the legal system in both civil and criminal proceedings.
• In the past, the DSM has been widely accepted by the courts to satisfy both Daubert and Frye criteria. Despite current controversies surrounding the DSM-5, this new manual will likely remain a diagnostic cornerstone in future legal arenas.
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