Charles Scott-DSM-5® and The Law - Changes and Challenges-Oxford University Press (2015) PDF
Charles Scott-DSM-5® and The Law - Changes and Challenges-Oxford University Press (2015) PDF
Charles Scott-DSM-5® and The Law - Changes and Challenges-Oxford University Press (2015) PDF
1
1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research,
scholarship, and education by publishing worldwide.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi
Kuala Lumpur Madrid Melbourne Mexico City Nairobi
New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece
Guatemala Hungary Italy Japan Poland Portugal Singapore
South Korea Switzerland Thailand Turkey Ukraine Vietnam
Oxford is a registered trademark of Oxford University Press
in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
This book is dedicated to my family, truly inspiring individuals who have
given me my life and loved me throughout that life. To my parents, I am
blessed to have a mother and father who sacrificed greatly throughout my
childhood in the unwavering belief that I was somehow worth that sacrifice.
To my brother Hal, I admire the eternal joy you find in all that’s around you
and your gift of sharing that joy with me. To my sister Gayden, your beauty,
creativity, and selfless dedication to others remind me what is always
possible when faced with the impossible. And to my brother Paul, your utter
and complete courage continually teaches me the definition of dignity.
CON TEN T S
Preface vii
Acknowledgments ix
Contributors xi
Index 269
PREFACE
The Diagnostic and Statistical Manual (DSM) is the most widely used and
accepted scheme for diagnosing mental disorders in the United States. In
2013, DSM-5 was released with profound changes revealed in the required
diagnostic process, specific criteria for previously established diagnoses, as
well as the addition and deletion of specific mental disorders. The impact of
these changes on patients, clinical providers, forensic evaluators, attorneys,
and judges is substantial. This book succinctly highlights the consequences
of the DSM-5 for mental health providers, forensic evaluators, legal profes-
sionals, and mental health administrators in criminal and civil contexts.
This book consists of 11 chapters that address four critical areas important
to understanding the impact and implications of the DSM-5 on issues related
to mental health and the law.
Chapters 1, 2, and 3 provide an overview of DSM-5’s development and
implementation, DSM-5’s key diagnostic changes, and practical guide-
lines for making a diagnosis and writing a forensic report using the new
DSM-5 diagnostic approach. Chapters 4, 5, and 6 focus on DSM-5’s impact
on individuals who become involved in the criminal justice system, either
as an individual receiving treatment in a correctional facility or as a defen-
dant undergoing a forensic psychiatric evaluation. The third area reviewed
includes DSM5’s role in a wide range of civil evaluations. In particular,
Chapters 7, 8, 9, and 10 review important issues related to civil competen-
cies, personal injury and malpractice evaluations, disability assessments,
and educational evaluations of school aged children. The fourth and final
area is highlighted in Chapter 11 and is one that is a cornerstone of foren-
sic diagnostic evaluations—the assessment of malingering and how DSM-5
diagnostic changes may affect these assessments. Each chapter provides an
initial overview and explanation of the legal issue, how diagnostic changes
may impact that issue, guidelines to address the relevant diagnostic changes,
and a summary to emphasize key points. Numerous vignettes are provided
throughout the book to illustrate key clinical and forensic issues that arise
from DSM-5’s implementation.
The evolving editions of DSM have become increasingly interwoven with
the laws that govern how we provide care and how civil and criminal foren-
sic evaluations are conducted. DSM-5 unties many of the diagnostic threads
that had been tightly tethered to the fabric of how evaluators diagnose, treat,
and conduct forensic evaluations. This book provides the evaluator practical
recommendations on how to move forward using the DSM-5 without fears
of having their forensic skills unravel and with the knowledge and skills to
appropriately move forward.
[ viii ] Preface
ACKNOW L ED GMEN T S
I would personally like to acknowledge each and every author who patiently
answered all of my E-mails, politely responded to all of my reminders, and
worked so diligently on their chapter.
I am very appreciative of the opportunity provided by Oxford Press to
have edited this book and wish to personally thank Christopher Reid for the
amazing professionalism he has demonstrated throughout the project
Finally, none of this book would have been possible without the amazing
support of the UC Davis Forensic Psychiatry Case Manager, David Spagnolo.
He makes all changes easily implemented and all challenges easy to overcome.
CONTRIB U TOR S
[ xii ] Contributors
CH AP TER 1
DSM-5: Development
and Implementation
INTRODUCTION
The Diagnostic and Statistical Manual of Mental Disorders (DSM) has pro-
vided the standard language used by mental health clinicians of various
disciplines, public health policy makers,and mental health researchers for
more than 60 years. Beginning with the first edition in 1952, the DSM has
been the primary reference for the assessment and categorization of mental
disorders in the United States. The DSM was originally developed as a writ-
ten document to assist clinicians in more reliably communicating diagnostic
concepts and criteria. Efforts to establish a nosology for psychopathology
have been met with controversy and challenges with each successive edi-
tion of the DSM. With the release of DSM-5 in May of 2013, discussions and
debates about the nosology of mental disorders have resurged.
The evolution of our understanding of mental illness should be reflected
by changes in our diagnostic nomenclature system. Certainly, this has always
been the stated goal of the DSM—to reflect prevailing theories about the eti-
ology of mental disorders. However, the descriptive approach to psychiatry
in the DSM has prioritized a classification system that creates a common
language without becoming stymied by variable hypotheses about the causes
of psychiatric illness. DSM-5 sought to incorporate the most current neuro-
biology, developmental neuroscience, and genetics to influence psychiatric
classification in the first comprehensive revision of psychiatric nomencla-
ture in two decades. From the beginning, developers of the DSM-5 promoted
the need for a “paradigm shift” in psychiatric diagnosis away from descrip-
tive categorical diagnosis to a dimensional framework. In 2002, Kupfer
et al. [1]published A Research Agenda for DSM-5, a monograph intended to
stimulate research and discussion in preparation for the start of the DSM-5
development process. This work largely identified significant gaps in the
psychiatric knowledge base that tempered the call for an ambitious “para-
digm shift” in psychiatry [2]. The official process to create DSM-5 started in
1999 and involved a multidisciplinary team of more than 400 individuals,
in addition to numerous contributions from international conferences held
during the past decade. Despite the original hope for a major paradigm shift
in psychiatry, DSM-5 continued a descriptive categorical approach but added
a greatly expanded dimensional component. DSM-5 was written with the
intention that it will be updated at regular intervals to incorporate future
advances in neuroscience, cognitive neuroscience, genetics, and clinical
practice [3].
DSM-5 has brought some significant conceptual changes in psychiatric
diagnosis and nomenclature that have important implications for the inter-
section of psychiatry and the law. The major developments that have occurred
in successive editions of the DSM have affected the clinical practice of psy-
chiatry and the delivery of mental health services within systems, and the
new developments have irrevocably shaped the intellectual underpinning of
the field. Among the medical specialties, psychiatry is uniquely vulnerable
to the vicissitudes of the sociopolitical climate of our times. Controversies
regarding the societal impact of the DSM, the medicalization of mental dis-
orders, and the meaning of mental illness are not new. Although its use may
be criticized, the utilization of the DSM by not only clinicians but also foren-
sic evaluators, policy makers, the legal system, and third-party reimburse-
ment entities, makes the DSM an undeniably powerful influence worldwide.
It was not until World War II that the profession of psychiatry shifted mea-
surably away from the insane asylums to greater prominence in the general
community. Military physicians in World War I had noted a condition in sol-
diers they called “shell shock.” The US government was interested in whether
there was an inherent temperament or predisposition that could be identi-
fied during recruitment to weed out vulnerable individuals prior to military
service [4]. With the United States’ entry into World War II, military psychia-
trists were particularly important in not only screening potential soldiers
during recruitment for underlying mental disorders but also treating the
psychiatric sequelae of war. After the conclusion of World War II, psychia-
trists who had served in the military returned to community practice and
discovered that the current diagnostic system was not adequate for psychi-
atric outpatients. The US Army and the US Navy independently developed
their own diagnostic classification systems [5]. The Department of Veterans
The creation of the DSM-II was linked with the 1948 establishment of the
World Health Organization (WHO) by the United Nations [7]. The WHO
published the International Classification of Diseases (ICD), and the United
States was required by international treaty to report its health data using
ICD codes. The DSM-I was incompatible with the psychiatric section of the
ICD. When the creation of the eighth edition of the ICD was initiated, the
APA’s Committee on Nomenclature and Statistics was tasked with updating
the DSM to make it compatible with ICD [7]. By many accounts, the creation
of DSM-II was a highly political process. The APA did not have the ability to
include a disorder recognized in America if it was not already included in
the ICD. DSM-II was published in 1968 and included 10 main divisions [8].
Significant new groupings included mental deficiency (formerly called men-
tal retardation in the DSM-IV and renamed intellectual disability in DSM-5)
and the mental illnesses of children. Overall, DSM-II continued the prac-
tice of establishing a diagnosis based on descriptions of mental disorders.
DSM-II also emphasized psychodynamic explanations for many disorders.
In 1974, the APA appointed Robert Spitzer to head the APA Task Force on
Nomenclature and Statistics. In the same year, he published an article dis-
cussing the lack of reliability of psychiatric diagnoses and advocating for the
use of structured interviews and diagnostic checklists [9]. From a sociopoliti-
cal perspective during that time period, insurers were increasingly limiting
coverage for mental health services citing the lower reliability of psychiatric
diagnoses compared with medical diagnoses. At the same time, researchers
were finding it difficult to use DSM diagnoses for studies when they were
linked with psychodynamic and social explanations for the disorders. In
1972, a Washington University group published an influential classifica-
tion system that came to be known informally as the St. Louis “Feighner
Diagnostic Criteria,” named for first author John Feighner [10]. This paper
was the most cited article in psychiatry for many decades. Because of its
emphasis on using the medical model when making a psychiatric diagnosis,
many credited this paper as heralding the most significant paradigm shift
in the field of psychiatry in the 20th century [11]. The Feighner Diagnostic
Criteria were expanded in the publication of the Research Diagnostic Criteria
(RDC), which was supported by the National Institute of Mental Health and
ultimately formed the prototypical diagnoses adopted in the DSM-III [12].
Although Spitzer was trained as a psychoanalyst, he had significant experi-
ence as a researcher, having served on the four-person United States Steering
Committee for the United States-United Kingdom Diagnostic Project, a proj-
ect founded in 1965 to examine statistical differences in diagnostic frequen-
cies among patients admitted to mental hospitals in the United States and
the United Kingdom. As work on the DSM-III began, Spitzer’s team showed
a clear interest in removing psychodynamic theory from the new DSM.
Analysts from across the country were outraged. The DSM-III task force prof-
fered several compromises including the inclusion of a separate axis for a
psychodynamic formulation. There was also a significant and heated battle
over the removal of the word “neurosis” from the manual. Ultimately, a com-
promise position was reached with the inclusion of the term “neurotic disor-
der” that was clarified to imply no “special etiological process” [13]. In 1980,
DSM-III was published. At almost 500 pages, this edition was voluminous
DSM-III-R
Three years after DSM-III was published, the process to revise the manual
began. Again, Robert Spitzer chaired the work group to revise DSM-III. The
focus was to re-examine the DSM-III from the point of view of clinical util-
ity. The team took feedback from clinicians and researchers and proposed
changes were considered. DSM-III-R was published in 1987 with prominent
modifications to the multiaxial system [13]. The severity of Axis I disorders
could be noted with specifiers (e.g., mild, moderate, severe, in partial remis-
sion, in complete remission, etc), and Axis II was expanded to include mental
retardation and developmental disorders. Axis V added a modified version of
the Global Assessment of Functioning (GAF) scale. Additional changes were
made in the diagnostic criteria for psychotic disorders, anxiety disorders,
affective disorders, and substance use disorders. In addition, a section was
added to DSM-III-R that outlined diagnoses needing further study.
In 1988, the APA appointed a task force to prepare DSM-IV. The reason pro-
vided for revision of DSM-III-R, only one year after its publication, was to
maintain consistency with ICD codes in accordance with a new WHO ICD
manual (ICD-10) and the treaty binding the United States to maintain con-
sistency with updated ICD codes [14]. The APA appointed Allen Francis, a
psychoanalyst from New York who had worked on the personality disorders
section of DSM-III, as the DSM-IV task force chair. Although DSM-III relied
mostly on expert opinion for writing criteria for diagnoses, the DSM-IV
DSM-5’S DEVELOPMENT
DSM-5 workgroups
DSM-5 field trials were conducted to evaluate the clinical utility and feasibil-
ity of the proposed diagnoses and dimensional measures. Where possible,
the field trials also sought to estimate the reliability and the validity of the
proposed diagnoses and dimensional measures in the clinical settings where
they would be utilized [21]. The field trial results were intended to inform
DSM-5 decision-making process, but, in and of themselves, the results alone
did not determine inclusion or exclusion of diagnoses in the final manual.
The trials were conducted over a 7- to 10-month time period at 11 sites (six
adult and four pediatric sites) in the United States and one adult site in
Canada [21].
The main objective of the field trials was to determine the degree to which
two clinicians would agree on the same diagnosis for patients. In a similar
process used for DSM-III field trials, DSM-5 field trials were designed, con-
ducted, and analyzed centrally to avoid any biases associated with the work
groups assessing their own work [21]. Overall, 7789 patients were screened
across the 11 field trial sites during the study period (5128 in adult sites com-
bined and 2661 in pediatric sites combined). Of these, 4110 patients were
eligible and participated (N = 2791 and 1319 across the adult and pediat-
ric sites, respectively) [21]. Participating clinicians included board-certified
psychiatrists, resident psychiatrist trainees, licensed clinical and counseling
psychologists and neuropsychologists (i.e., doctorate-level training), mas-
ter’s-level counselors, licensed clinical social workers, and advanced prac-
tice licensed mental health nurses. DSM-5 field trials attempted to recruit
diverse clinical patient populations across multiple sites and used clinicians
of various mental health disciplines. In reality, most of the field trial sites
were large academic centers, leading some professionals to voice concerns
that the field trial results would not be as applicable to community-based
practice settings.
We believe at least some of the reason why the scores were not at the level of
previous field trials is the attention we devoted to new diagnoses and criteria
sets that are often comorbid with depression and anxiety. Moreover, depres-
sion and anxiety represent symptom clusters that can fluctuate during several
weeks, and the rigorous trial design of the field trials—employing a test-retest
design requiring two separate clinicians to evaluate the same patient on dif-
ferent days—may have contributed to a lower reliability score than was found
in previous field trials [24 (p1)].
The two diagnoses that fell into the “unacceptable” reliability category,
mixed anxiety-depressive disorder and nonsuicidal self-injury, were removed
or included in Section III, respectively. DSM-5 was released in May 2013 at
APA’s Annual Meeting.
Cross-cutting measures
The GAF scale was used on Axis V in DSM-IV for “reporting the clinician’s
judgment of the individual’s overall level of functioning” [17 (p30)]. The addi-
tion of the GAF in DSM-IV can be seen as the DSM’s first major attempt
at a dimensional approach to communicating conditions or levels of sever-
ity that are conceptualized as continuous and without clear boundaries
between psychopathology and normality. The GAF, numerically coded from
0 to 100, combines assessment of symptom severity, danger to self or oth-
ers, and markers of self-care and social functioning into a gestalt numerical
score. Many third-party payers have used the GAF score to determine medi-
cal necessity for treatment and eligibility for short- and long-term disability
compensation. However, two concerns have been noted about the use of a
GAF score to describe levels of functioning for individuals with mental dis-
orders. First, insufficient empirical evidence supports the utility of a single
GAF score because the components of the GAF score may vary independently
over time. Markedly different components of a single GAF score include the
severity of symptoms, danger to self or others, and functional impairment.
Second, proper use of the GAF requires specific training in order for the mea-
sure to have good reliability in clinical practice [33].
The GAF was eliminated from DSM-5 and was accompanied by the intro-
duction (in the DSM) of The World Health Organization Disability Assessment
Schedule (WHODAS 2.0). Based on the International Classification of
Functioning, Disability, and Health (ICF), the WHODAS 2.0 was judged by
the DSM-5 Disability Work Group to be the best current measure of dis-
ability for routine clinical use. The WHODAS 2.0 assesses an individual’s
The frequent use of the “Not Otherwise Specified” (NOS) designation was seen
as a major problem to be addressed in DSM-5 [1]. The DSM-5 authors com-
mented that clinicians over utilized the NOS designation as a “catch all” to
denote clusters of symptoms that did not formally meet diagnostic criteria for
any defined disorder. Variable and unreliable information about patient symp-
tomatology resulted. DSM-5 sought to improve the psychiatric diagnostic
nomenclature by replacing the NOS categories with two reportedly more pre-
cise diagnostic options: “other specified disorder” and “unspecified disorder.”
The “other specified disorder” designation allows the clinician to specify the
reason that the criteria for a specific disorder are not met. The “unspecified dis-
order” designation allows the clinician to describe the clinical symptoms pres-
ent but forgo specifying, or referring to, any particular mental disorder [28].
The “imperfect fit” between a DSM diagnosis and the legal setting brings
with it important ethical considerations for the psychiatrist and specifi-
cally, the forensic psychiatrist. The DSM has always been accompanied by
some controversy regarding the appropriate application and meaning of
diagnostic criteria, particularly in the legal setting. An ethical founda-
tion for psychiatry in the legal system has been advanced by the seminal
work of Paul Appelbaum, MD. Appelbaum [43, 44] articulated the legal
principle of truth so important to courts is often at odds with the primary
principle of beneficence that is required of the treating clinician towards
patients. Furthermore, an individual involved in a legal matter is seeking
to resolve a legal problem in contrast to a “patient” who is seeking to solve a
medical problem [45]. From an ethical perspective, the forensic psychiatrist
utilizing the DSM to diagnose a mental disorder in the context of answering
a legal question is, in the end, assisting the court in resolving a legal mat-
ter and not a medical one. Nevertheless, the ethical use of DSM-5 in court
The use of DSM in the legal system has been an important area of concern.
Courts in both civil and criminal proceedings frequently rely upon the DSM.
In addition, DSM diagnostic guidelines are often utilized in state and federal
statutes that define mental illness [48]. DSM-III contained the first explicit
reference to concerns about the use of the DSM in legal settings. The DSM-III
authors write: “. . . The use of this manual for non-clinical purposes, such as
determinations of legal responsibility, competency or insanity, or justifica-
tion for third-party payment, must be critically examined in each instance
within the appropriate institutional context” [9 (p12)]. In 1987, DSM-III-R
expanded the admonishment about the use of the manual in legal proceed-
ings with the following statement:
. . . It is to be understood that inclusion here, for clinical and research purposes,
of a diagnostic category such as Pathological Gambling or Pedophilia does not
imply that the condition meets legal or other nonmedical criteria for what
constitutes mental disease, mental disorder, or mental disability. The clinical
and scientific considerations involved in categorization of these conditions as
mental disorders may not be wholly relevant to legal judgments, for example,
that take into account such issues as responsibility, disability determination,
and competency . . .” [13 (pxxix)]
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
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.
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.
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
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:
1. Kupfer DJ, First MB, Regier DA. A Research Agenda for DSM-5. 1st ed.
Arlington, VA: American Psychiatric Association, 2002: pp 31–72.
2. First MB. Paradigm shifts and the development of the diagnostic and
statistical manual of mental disorders: past experiences and future aspira-
tions. Can J Psychiatry 2010; 55:692–700.
3. Kupfer DJ, Regier DA. Neuroscience, clinical evidence, and the future of
psychiatric classification in DSM-5. Am J Psychiatry 2011; 168:672–674.
4. Wanke P. American military psychiatry and its role among ground forces in
World War II. J Mil History 1999; 63:127–146.
5. Grob GN. Origins of DSM-I: A study in appearance and reality. Am J Psychiatry
1991;148:421-431.
6. American Psychiatric Association. Diagnostic and Statistical Manual, Mental
Disorders. Washington, D.C.: American Psychiatric Association; 1952.
7. Fischer BA. A review of American psychiatry through its diagnoses: the his-
tory and development of the Diagnostic and Statistical Manual of Mental
Disorders. J Nerv Ment Dis 2012; 200:1022–1030.
8. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. 2nd ed. Washington, D.C.: American Psychiatric Association;
1968.
9. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. 3rd ed. Washington, D.C.: American Psychiatric Association; 1980.
10. Feighner JP, Robins E, Guze SB, et al. Diagnostic criteria for use in psychiatric
research. Arch Gen Psychiatry 1972; 26:57–63.
11. Kendler KS, Munoz RA, Murphy G. The development of the Feighner
Criteria: a historical perspective. Am J Psychiatry 2009; 167:134–142.
12. Williams JW, Spitzer MD. Research diagnostic criteria and DSM-III. Arch Gen
Psychiatry 1982; 39:1283–1289.
13. American Psychiatric Association. Diagnostic and Statistical Manual of
Mental Disorders. 3rd ed Revision. Washington, D.C.: American Psychiatric
Association, 1987.
14. Zimmerman M, Spitzer RL. Classification in psychiatry. In: Sadock BJ, Sadock
VA, eds. Kaplan and Sadock’s comprehensive textbook of psychiatry. 8th ed.
Philadelphia, PA: Lippencott Williams & Wilkins; 2005: pp 1003–1052.
15. Francis AJ, Widiger TA, Pincus HA. The development of DSM-IV. Arch Gen
Psychiatry 1989; 46:373–375.
16. Widgier TA, Frances AJ, Pincus HA, et al. Toward an empirical classification
for the DSM-IV. J Abnorm Psychiatry 1991; 100:280–288.
17. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. 4th ed. Washington, D.C.: American Psychiatric Association, 1994.
18. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. 4th ed Text Revision. Washington, D.C.: American Psychiatric
Association, 2000.
19. DSM-5 Overview: The Future Manual. American Psychiatric Association Web
site. Available at: http://www.dsm5.org/about/pages/dsmvoverview.aspx.
Accessed 12 December 2013.
20. Narrow MD, First MB, Sirovatka MS, et al. Age and Gender Considerations in
Psychiatric Diagnosis. Arlington, VA: American Psychiatric Publishing; 2007.
INTRODUCTION
Mood Disorders
Depressive Disorders
Anxiety Disorders
Eating Disorders +
Childhoods Dx Feeding and Eating Disorders
Sexual Dysfunctions
Paraphilic Disorders
Impulse-Control Disorders
Disruptive, Impulse-Control,
Not Elsewhere Classified +
and Conduct Disorders
Childhood Dx
Substance-Related and
Substance-Related Disorders
Addictive Disorders
Figure 2.1:
Significant changes in chapter names and organization from DSM-IV (left) to DSM-5
(right).
one or more important areas of functioning) or with a significantly increased
risk of suffering death, pain, disability, or an important loss of freedom.”
[1 (pxxxi)]. In contrast, DSM-5 redefined a mental disorder as follows: “a syn-
drome characterized by clinically significant disturbance in an individual’s
cognition, emotion regulation, or behavior that reflects a dysfunction in
the psychological, biological, or developmental processes underlying men-
tal functioning. Mental disorders are usually associated with significant
distress or disability in social, occupational, or other important activities.”
[2 (p20)]. DSM-5 maintains DSM-IV’s explanation that culturally appropri-
ate responses to events and certain conflicts between individuals and the
overall society (e.g., political, religious, or sexual) are not considered mental
disorders [1 (pxxxi, 2 (p20)].
NEURODEVELOPMENTAL DISORDERS
Mr. A is a 31-year-old man who lives with his mother. She brings him to an out-
patient psychiatric clinic for an initial evaluation after he lost his third job in a
year, all due to verbal conflicts with coworkers. She reports that Mr. A “nearly
ruined Christmas” because he made inappropriate and offensive comments
during a large family gathering. You meet with Mr. A, who ruminates about
coworkers and family members upsetting him when they force him to devi-
ate from his usual routines, which include eating the same meals daily and
watching Star Trek reruns at least three times a day during specified times,
regardless of what is happening. During your evaluation, Mr. A demonstrates
minimal social reciprocity, displays minimal eye contact, and misses basic
non-verbal cues. You ask Mr. A for permission to meet with his mother, which
he gladly grants in favor of watching Star Trek on his iPad. While gathering
a developmental history from his mother, you learn that Mr. A displayed no
delay in language development and has an IQ of 105. However, she notes that
he was enrolled in “some special classes” in grade school while living with his
father and stepmother in another state. His mother explains that when having
a conversation with Mr. A when she states, “It seems like he’s talking at you,
not to you.” She adds that he has never had friends his own age, but did not
seem to mind his lack of peer relationships. She reports growing tired of hav-
ing him live in the house, but worries he would struggle on his own.
DEPRESSIVE DISORDERS
The Mood Disorders Work Group, chaired by Dr. Jan Fawcett of the University
of New Mexico, consisted of 11 members [16]. Although the group acknowl-
edged that symptoms of depression and anxiety commonly occur together,
they decided to keep them separated in DSM-5. However, DSM-5 divided
DSM-IV’s Mood Disorders chapter into two separate chapters: Bipolar and
Related Disorders and Depressive Disorders.
Although the core criteria and duration of symptoms for major depres-
sive disorder remained unchanged, the group’s removal of the bereavement
exclusion created controversy and resulted in significant public scrutiny.
The bereavement exclusion in DSM-IV involved major depressive episodes
not being diagnosed within 2 months after the loss of a loved one, unless
the individual experienced specified severe depressive symptoms. DSM-5
instead notes, “In distinguishing grief from a major depressive episode
(MDE), it is useful to consider that in grief the predominant affect is feelings
of emptiness and loss, while in an MDE, it is persistent depressed mood and
the inability to anticipate happiness or pleasure” [2 (p126)]. Justifications
for removing the bereavement exclusion included that depressive episodes
occurring during or after bereavement share features of nonbereavement
depression, tend to be chronic and/or recurrent if left untreated, and respond
to treatment. Some psychiatrists have opined that the bereavement exclu-
sion may have inappropriately implied that a person’s grief should end after
2 months [17]. Another change to major depressive disorder involved adding
the specifier “with mixed features” when a major depressive episode coexists
with at least three manic symptoms (although does not qualify as a manic
episode) [2 (p184)]. This change resulted partially from the group’s decision
to split DSM-IV’s Mood Disorders chapter into two separate chapters and
eliminate DSM-IV’s mixed episodes.
The work group also modified the conceptualization of chronic depres-
sive symptoms. Persistent depressive disorder, new to DSM-5, replaces
DSM-IV’s chronic major depressive disorder and dysthymia. Rhebergen and
Graham [18] propose that this modification merely took a poorly validated
construct and repackaged it under a new name. Of particular significance,
According to DSM-IV, Ms. B would not meet criteria for major depres-
sive disorder. Because her symptoms occurred entirely in the setting of the
loss of her husband (less than two months ago), the bereavement exclusion
would apply. In this case, there is not a clear presence of the specified severe
depressive symptoms outlined in the DSM-IV, any of which would have auto-
matically moved the diagnosis to being classified as a major depressive epi-
sode. According to the DSM-5, however, Ms. B would meet criteria for major
depressive disorder.
Dr. C is a 53-year-old forensic psychiatrist who has been in practice for over
20 years. His oldest daughter left home recently to enroll as a freshman at
an out-of-state university. Dr. C finds that he seems to be having a harder
time “letting work go” when he gets home in the evening. He feels particu-
larly shaken by a recent case involving a freshman coed who was kidnapped,
tortured, repeatedly raped, and murdered. He finds himself frequently pictur-
ing the gruesome autopsy photos, worrying about his daughter’s safety, and
ruminating about how the crime impacted the victim’s family. Dr. C starts
avoiding new cases and his production decreases considerably. He begins find-
ing reasons to avoid the office altogether and starts calling in sick frequently.
Worried about Dr. C, a colleague suggests that he make a therapy appoint-
ment. During the intake appointment, the clinician finds that Dr. C meets suf-
ficient criteria in each of the four symptom clusters for PTSD.
According to DSM-IV, Dr. C would not meet criteria for PTSD because he
was not directly exposed to a traumatic event that caused a significant nega-
tive emotional reaction at the time the event occurred. In DSM-5, he likely
meets criteria for PTSD based on his experiencing work-related recurrent
and significant exposure to negative traumatic situations with emotion-
ally upsetting characteristics. His distress seems particularly related to the
case involving the freshman coed, although repeated exposure to disturbing
details of other cases could also be relevant.
How these changes impact the overall prevalence of PTSD in clinical sam-
ples and forensic referrals remains unclear. Some authors have suggested
Ms. D is a 43-year-old woman diagnosed with breast cancer two years ago.
Twelve months ago she underwent radical mastectomy and adjuvant chemo-
therapy. Since then she has complained of excruciating, sharp chest wall pain
near the surgical site. She finds herself staying home and avoiding social events
with her friends because the pain is disabling. She thinks about the pain con-
stantly and experiences considerable anxiety about recurrence of her breast
cancer. She has visited her primary care physician at least monthly since the
surgery and tried multiple medications for pain with limited improvement.
J.E. is a 13-year-old boy whose parents bring him to the outpatient clinic
for a psychiatric evaluation after his teachers reported a range of worsening
behavioral problems. Over the last two years, he has repeatedly lost his tem-
per when not getting his way, cursed out his teachers over homework assign-
ments, blamed other children for his inability to complete tasks during class
time, and gleefully thrown spitballs at his peers. Over the last few months,
J.E. has been truant from class with no explanation. During his sessions with
a therapist, J.E. reveals that since age 11 he has been fascinated with killing
small mammals with a hatchet. He also relishes lighting fires in the woods to
see how much foliage he can burn. J.E. states that he does not feel remorseful
about these behaviors, despite the harm or pain they cause. He states that he
gets away with it by lying to his parents, usually telling them that he is doing
homework at a friend’s house.
Legal problems X
Social/interpersonal problems X X
Role obligation failure X X
Hazardous use X X
Larger amounts/longer than X X
intended
Repeated attempts to quit/ X X
control use
Time spent obtaining or using X X
Social, occupational, recreational X X
activities given up
Continued use despite health X X
problems related to use
Tolerance X X
Withdrawal X X
Craving X
Mr. F is a 35-year-old man with a history of heavy drinking since his mid-teens.
Over the last 10 years he has given up seeking employment due to being fired
frequently for intoxication on the job. More recently he has needed to drink
more to become intoxicated. If he does not drink every day, he develops shakes,
sweats, and anxiety. He also finds that he frequently craves alcohol. He spends
most of his day planning where to purchase cheap alcohol and consuming it.
After driving while intoxicated, Mr. F is arrested and requires treatment to
prevent complicated withdrawal.
Mr. F would meet DSM-IV criteria for alcohol dependence based on the
fulfillment of three or more diagnostic criteria (tolerance, withdrawal, time
spent to obtain and consume). Under the DSM-5, however, each criterion
becomes relevant to accurately list a severity specifier. Because Mr. F meets
six DSM-5 criteria (tolerance, withdrawal, craving, time spent to obtain and
consume, giving up occupational activities, failure to fulfill obligations at
work) for alcohol use disorder, he would be diagnosed with alcohol use dis-
order, severe.
SUMMARY
REFERENCES
INTRODUCTION
DSM-5 profoundly changes how diagnoses are listed and described. With
DSM-5’s increasing focus on dimensional classification, decreasing empha-
sis on a categorical approach, and elimination of DSM-IV’s multiaxial dis-
tinction, evaluators’ next question very well may be, “What do we do now?”
The answer: If you are going to use the DSM-5, you should have an in depth
understanding of not only the manual’s diagnostic changes but also the
meaning of these changes. This chapter provides practical steps to help prac-
titioners and forensic experts move forward and utilize the current manual
to make DSM-5 diagnoses in both clinical and forensic contexts.
DSM-5 distinguishes the term “diagnosis” from the term “mental disorder”
and evaluators should be careful to maintain this distinction. DSM-5’s defi-
nition of mental disorder is described in Chapter 2. An important aspect of
this definition is the need to demonstrate that the person’s described dys-
function results in a “clinically significant” disturbance. In other words, symp-
toms alone do not equate with a mental disorder [1(p20)].
All of the disorders identified in Section II of the DSM-5 are “mental
disorders” with two exceptions: “Medication-Induced Movement Disorders
and Other Adverse Effects of Medication” and “Other Conditions That May
Be a Focus of Clinical Attention.” DSM-5 notes that medication-induced
movement disorders are included in Section II along with mental disorders
because they are frequently important in the management of medical and
mental disorders and they are often important in the differential diagnosis
of mental disorders.
In regard to the DSM-5 section titled “Other Conditions that May be a
Focus of Clinical Attention,” the DSM-5 text emphasizes that these diagno-
ses are included primarily to assist providers by describing common situa-
tions where individuals may seek mental health counseling but do not meet
criteria for a mental disorder [1(p715)].
There are over 100 “other conditions” included in this DSM-5 section.
DSM-5 “conditions” frequently seen in forensic settings include the follow-
ing: malingering; academic or educational problems; other problem related
to employment; homelessness; target of (perceived) adverse discrimination
or persecution; victim of crime; imprisonment or other incarceration; adult
antisocial behavior; child or adolescent antisocial behavior; and nonadher-
ence to medical treatment. When writing the report or communicating
findings to the legal system, the evaluator should be careful not to inadver-
tently label these “other conditions” as a mental disorder. For example, if an
individual is assessed as malingering, the evaluator can communicate that
although this person has a diagnosis of malingering, this diagnosis is not a
DSM-5 mental disorder.
DSM-5 provides specific diagnostic criteria and/or text descriptions for each
of their diagnoses. DSM-5 notes that both clinical judgment and the clini-
cal interview are relevant when considering diagnostic criteria [1 (p21)]. In
other words, the diagnostic criteria are not the sole determinant of making
a diagnosis. However, the diagnostic criteria are an important component
when making a diagnosis and cannot be dismissed based solely on the evalu-
ator’s judgment or personal idiosyncratic diagnostic schema.
For some DSM-5 diagnoses, evaluators may find it difficult to understand
how many criteria are necessary to establish a disorder depending on the
language used to introduce the criterion set. For example, for the diagno-
sis of intellectual disability, when introducing Criterion A, Criterion B, and
Criterion C, the DSM-5 specifically requires that all three criteria should
be met [1 (p33)]. In marked contrast, the DSM-5 notes that Criterion A for
autism spectrum disorder may be met when the individual has sustained
deficits in the areas of social communication and interaction in a variety of
contexts. DSM-5 further emphasizes that the examples provided by DSM-5
as illustrative of autism spectrum disorder are not all inclusive [1 (p50)]. This
introduction is followed by the listing of three different types of deficits
in social communication and social interaction. With this vague language,
Consider the following situation as an example for when the “other speci-
fied” designation may be used. An individual has three clinically significant
symptoms of depression lasting at least four weeks but does not meet the
minimum requirement of five specified symptoms of depression for a major
depressive episode or another depressive circumstance. The diagnosis in this
situation would be written as follows: “other specified” + “depressive dis-
order” (name of diagnostic chapter) + “depressive episode with insufficient
symptoms” (reason diagnosis not made) resulting in a written diagnosis that
reads: Other specified depressive disorder, depressive episode with insuffi-
cient symptoms.
DSM-5 allows use of the phrase “unspecified disorder” when a person
does not meet criteria for a specific disorder and the evaluator chooses not
to specify the reason criteria are not met or for situations in which there is
insufficient information to make a more specific diagnosis. In this situation,
the diagnosis is made using the following two steps:
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 53 ]
1. Begin the diagnosis with the word “unspecified”; and
2. Use the name of the diagnostic chapter to which the diagnostic symptoms
belong.
DSM-5 notes that the use of the “unspecified” specifier may be appropri-
ate in the emergency room setting when a person presents with a prominent
symptom (e.g., delusions, hallucinations, mania, depression, or substance
intoxication) but a fuller differential diagnosis is not yet possible. In the
forensic context, the “other specified” designator may be preferable to
“unspecified” because this allows the legal system to better understand why
the individual did not meet criteria for a particular diagnosis. However,
DSM-5 emphasizes that the decision to use “other specified” vs. “unspecified
diagnoses” is left up entirely to the clinician’s judgment.
After determining whether the person meets criteria for a DSM-5 diagnosis,
the evaluator should evaluate if there are any diagnostic subtypes or speci-
fiers that apply. Under DSM-5’s diagnostic scheme, subtypes are mutually
exclusive subgroupings within a particular diagnosis that are indicated by the
manual’s instruction “specify whether” included in the diagnostic criteria.
Under this definition, an individual cannot be diagnosed with two subtypes
of a disorder. Examples of mental disorders that include mutually exclusive
subtypes are illness anxiety disorder, encopresis, and narcolepsy [1(p21)].
In contrast to subtypes, DSM-5 specifiers are identified in the diagnos-
tic set by the instruction “specify” or “specify if.” Specifier types include
course specifiers (e.g., full or partial remission), severity specifiers, fre-
quency specifiers, cross-cutting symptom specifiers, duration specifiers,
descriptive feature specifiers (e.g., with poor insight), and environmental
specifiers (e.g., in a controlled environment). Severity and course specifiers
are only used to describe a person’s current presentation and only when
the person meets full criteria for a diagnosis. When a person has an “other
specified/unspecified” diagnosis, severity and course specifiers cannot be
used. There are a variety of specifiers and their definitions and applications
are summarized below [1(p22)].
Under DSM-5, a diagnosis can also be recorded with the specifier “provi-
sional” in two circumstances. First, when there is a “strong presumption”
VIGNETTE 1
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 55 ]
determination of intellectual disability involves a more subjective assess-
ment of the person’s adaptive functioning in three domains, without any
clear cutoff scores, specified number of symptoms, or required assessment
instrument. Many disorders (e.g., depressive disorders and bipolar and
related disorders) are rated as “mild, moderate, or severe” depending on how
many symptoms are present, the significance of symptoms, and the degree
to which the symptoms impair the individual’s functioning [1 (p154, p188)].
Unlike substance use disorders, this rating method does not provide a spe-
cific number of required criterion symptoms but does require an analysis of
symptom severity and degree of disability. In this context, evaluators are
likely to use disparate methods to evaluate symptom severity and disability
as no particular assessment tools are mandated.
Section III of DSM-5 provides examples of “emerging measures” sug-
gested for use in further clinical evaluation and research and to assess
symptom severity. “Cross-cutting symptom measures” (Level 1 and Level 2)
are patient- or informant-rated measures used to assess a variety of men-
tal health domains from a range of possible disorders. In contrast to
cross-cutting symptom measures, “severity measures” are disorder-specific
with criteria that generally correspond to the DSM-5 diagnostic criteria.
DSM-5 discusses these severity measures, and the corresponding DSM-5
website provides specific severity disorder assessments. On the DSM-5 web-
site, there are 10 self-report disorder-specific severity ratings for adults and
10 self-report disorder-specific severity ratings for children and adolescents.
In addition, there are four clinician-rated disorder-specific severity ratings
and two clinician-rated severity ratings that are not specific to any disor-
der (e.g., ratings of nonsuicidal behavior and psychosis). All of these rating
schemes are included in Section III, “emerging measures,” and therefore are
not a mandatory component of assessment.
Evaluators who elect to use these assessment instruments should be famil-
iar with the reliability and validity of these instruments and the evidence to
support their use. In addition, many of these instruments have ratings that
do not correspond to the DSM-5 criteria used to rate diagnosis severity. As
an example, for the diagnosis of major depressive disorder, DSM-5 requires
at least five depressive symptoms during the same 2-week period. According
to DSM-5, the severity of depression is based on how many symptoms are
present. In addition, seven of these symptoms must be present “nearly every
day” over a 2-week time frame [1(p160–161)]. The suggested severity mea-
sure for depression on the DSM-5 web site is one adapted from the Patient
Health Questionnaire-9 (PHQ-9). In contrast to DSM-5 depression crite-
ria, the PHQ-9 assesses symptoms over a 1-week period and severity levels
depend on the frequency of each symptom (i.e., not at all, several days, more
than half the days, and nearly every day). It is very possible to receive a rat-
ing of “moderately severe depression” on the PHQ-9 but not even meet the
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 57 ]
to the voices/delusions or is bothered by the voices/delusions. Other ques-
tions typically asked by forensic examiners to evaluate the severity of hallu-
cinations and delusions are not included in the rating. It is unclear from the
DSM-5 manual or the literature how the authors chose the final factors to
determine symptom severity, the evidence base to support their inclusion or
exclusion of factors, and how the validity and reliability of this instrument
was established (if at all).
Because of the limited research on the use of the CRDPSS, forensic evalu-
ators can expect a rigorous cross-examination by knowledgeable attorneys if
they use this instrument to rate the severity of psychotic disorders.
The evaluator may wish to consider the following options when evaluating
psychotic disorders:
Option 1: Because DSM-5 explicitly states that a severity rating is not
required to make a schizophrenic spectrum disorder diagnosis, the
examiner could chose to make the diagnosis without including the sever-
ity specifier. However, the severity of a person’s psychosis is often very
important in forensic and clinical contexts. An examiner who provides
no quantitative assessment of psychosis severity may be limited on the
degree of “quantitative” information they can provide relevant to key
legal issues and relevant to determining the appropriate treatment and
response to treatment. However, the evaluator could provide “qualitative”
examples about the individual’s psychotic symptoms. For example, if a
woman stabs her three children to death based on command hallucina-
tions from her deceased mother that she must do so, the examiner could
appropriately communicate that this woman’s psychotic symptoms are
very severe when she is symptomatic.
Option 2: Because DSM-5 notes that psychosis severity is rated by a quan-
titative assessment of delusions, hallucinations, disorganized speech,
abnormal psychomotor behavior and negative symptoms, the evaluator
could rate only the first five CRDPSS items (which corresponds to these
five Criterion A symptoms of schizophrenia). The caveats noted above
about the known reliability and validity of this instrument and its use in
a legal setting should be considered if this option is chosen.
Option 3: The evaluator could assess all eight dimensions of the CRDPSS
even though not required to do so for purposes of rating severity. The
caveats noted above about the known reliability and validity of this
instrument and its use in a legal setting should be considered if this
option is chosen.
Option 4: The evaluator could choose not to use the CRDPSS and instead
administer an alternate evidence-based assessment that has demon-
strated efficacy in rating the five required psychotic dimensions.
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 59 ]
PANNS or BPRS may be difficult and not consistent with the administration
guidelines.
Although DSM-5 does not require a severity rating of cognitive impair-
ment, depression, or mania for purposes of rating the severity of psychotic
disorders, the CRDPSS includes these three dimensions. Rating the dimen-
sion of impaired cognition on this instrument may prove to be particularly
difficult. The instrument instructs the evaluator to assess the degree, if any,
of reduction in cognitive function below the person’s expected age, socioeco-
nomic status, and degree of standard deviation from the mean. No specific
cognitive assessment instrument is cited or recommended to rate impaired
cognition. The instrument’s authors provide the following guidance for eval-
uators in rating this domain:
DSM-5 provides the specifiers “in remission,” “in full remission,” or “in
partial remission” for several, but not all, DSM-5 disorders. Definitions of
“remission,” “full remission,” and “partial remission” vary depending on
the specific diagnosis. One confusing application of the specifier “in full
remission” is related to the Paraphilic Disorders. In the Paraphilic Disorders
section, the “in full remission” specifier notes that the individual must not
have engaged a “nonconsenting person” in their paraphilic interests, must
not be distressed by their paraphilic interests, or must not demonstrate
impairment resulting from their paraphilic interests for at least five years
[1 (p687)]. This remission specifier is included in the description of every
paraphilic disorder with the exception of pedophilic disorder. Therefore, an
evaluator could logically conclude that the drafters of the paraphilic disor-
ders criteria wanted to clearly communicate that a person with pedophilic
disorder could never be in full remission. However, in the DSM-5 section
titled “highlights of changes from DSM-IV to DSM-5,” the DSM-5 text
specifically notes that the “in remission” specifier applies to all paraphilic
disorders [1 (p816)]. It is unclear whether the remission specifier was mis-
takenly excluded in the text description of pedophilic disorder or whether
the sentence summarizing the changes from DSM-IV to DSM-5 mistakenly
included pedophilic disorder. This confusion is extremely problematic, par-
ticularly for forensic evaluators who are asked to provide status updates of
sex offenders and their treatment response.
DSM-5 specifically notes that a panic attack is not a mental disorder and
cannot be coded as such. The panic attack specifier requires the presence of
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 61 ]
four (or more) of 13 delineated symptoms that represent an abrupt surge of
intense fear or discomfort from a calm or anxious state that peaks within
minutes of onset. The panic attack specifier can apply to any DSM-5 men-
tal disorder and some medical conditions, with the exception of panic dis-
order where the presence of panic attack is contained within the criteria for
the disorder. DSM-5 mental disorders that have an associated panic attack
specifier include bipolar disorders, depressive disorders, eating disorders,
personality disorders, and psychotic disorders. Consider the following sce-
nario as an example of how to use the panic attack specifier when making a
diagnosis. Heather is a 55-year-old woman diagnosed with borderline per-
sonality disorder who describes that her heart suddenly begins to race along
with trembling of her hands. She states that she also experiences dizziness
and derealization when this occurs. According to DSM-5, Heather’s diagno-
sis would be written as follows: Borderline personality disorder, with panic
attack.
Catatonia specifier
1. Schizophrenia
2. Catatonia associated with schizophrenia.
1. For some diagnoses, coding numbers for subtypes and specifiers are avail-
able for both ICD-9-CM and ICD-10-CM;
2. For some diagnoses, a subtype or specifier can be coded under ICD-10-CM
but not under the ICD-9-CM; and
3. For some diagnoses, subtypes and specifiers cannot be coded either under
the ICD-9-CM and ICD-10-CM systems.
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 63 ]
In situations, where no ICD codes are available, the evaluator writes
the name of the disorder following by the applicable subtype or specifier.
For example, a 35-year-old man with obsessive-compulsive disorder who
is completely convinced that his obsessional beliefs are true would qualify
for the specifier, “with absent insight/delusional beliefs.” However, nei-
ther ICD-9 nor ICD-10 provides a coding number for this specifier. In this
situation, the evaluator would write the diagnosis as follows: 300.3 [F42]
obsessive-compulsive disorder, with absent insight/delusional beliefs.
As noted above, the ICD-10 was to have been implemented starting
October 2014. However on April 1, 2014, President Obama signed legislation
passed by the House and Senate delaying the implementation of ICD-10. At
the time of this writing, Centers for Medicare and Medicaid Services (CMS)
had not announced an official 2015 compliance date; however, the ICD-10
adoption cannot occur prior to October 2015 [9].
For situations where the individual has a prior diagnosis that has remit-
ted but there is no DSM-5 remission modifier, the evaluator will need to
determine whether the prior diagnosis should nevertheless remain on the
current diagnostic list. There is no universal rule that applies to all diagnoses
in regard to this issue. Consider the two following vignettes that illustrate
this point.
VIGNETTE 3
Mary is a 36-year-old woman who was in a near fatal car accident when
she was 16 years old. She experienced classic symptoms of posttrau-
matic stress disorder that resolved completely over a period of two
years. Recently, her husband of 15 years goes to the hospital for a rou-
tine hernia repair. In the hospital, he is inadvertently given an incorrect
dose of potassium in his intravenous fluids. As a result of this medical
error, he dies instantly. Mary was not present when this occurred and
learns of his death through a phone call from her daughter. Mary does
not develop any symptoms of PTSD nor is there any evidence that her
prior PTSD is aggravated. However, she becomes severely depressed in
response to his death. She sues the hospital providers alleging that her
major depressive disorder resulted from the death of her husband that
was caused by the negligent hospital staff. How should the forensic eval-
uator code Mary’s diagnoses?
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 65 ]
Mary’s current DSM-5 diagnoses would include her diagnosis of major
depressive disorder (as her principal diagnosis). Her prior PTSD diagnosis is
not required to be included as a current diagnosis if she has no evidence of
lingering or aggravated PTSD symptoms from the accident that she experi-
enced at age 16. However, the evaluator could discuss her prior PTSD in the
diagnostic section that addresses consideration of other disorders.
DSM-5 notes that when a person has a medical condition that causes a
mental disorder (which is the focus of treatment), ICD coding rules require
that the underlying medical condition is listed first and the resulting mental
disorder is listed second. To illustrate, a person who experiences a serious
head injury that causes a major neurocognitive disorder would have the fol-
lowing diagnostic listing:
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 67 ]
1. Schizophrenia (principal diagnosis)
2. Moderate alcohol use disorder
VIGNETTE 4
Although bipolar disorder may have been the initial reason for Richard’s
hospital admission, the principal focus of his treatment centers on address-
ing his antisocial personality disorder actions and methamphetamine use.
Therefore, the treatment team could, and should, consider changing his prin-
ciple diagnosis to the one that becomes the primary focus of treatment. The
treatment team can communicate this diagnostic change and reason for the
change in their chart documentation and reports to court.
In the outpatient setting, where more than one diagnosis is present, the cli-
nician notes the reason for the visit as the primary diagnosis that results in
the individual seeking treatment [1 (p22)]. Because this language notes that
DSM-5’s method of listing diagnoses is not a perfect fit for recording diag-
noses for many forensic evaluations. DSM-5 acknowledges the limitations of
the DSM-5 for forensic use and specifically comments that the DSM-5 was
developed to assist clinicians and researchers rather than courts and lawyers
[1 (p25)].
Many forensic assessments address the relationship, if any, of a per-
son’s emotional or behavioral symptoms to a particular legal question.
Some evaluees will have no diagnosis and for other evaluees, they may
have a diagnosis in the past but none at the time of the evaluation.
The following are general guidelines for listing diagnoses in forensic
evaluations:
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 69 ]
VIGNETTE 5
There are some situations (e.g., outpatient clinics) in which listing DMS-5
diagnoses may be all that is required for documentation purposes. However,
most forensic assessments require some explanation of the diagnoses. For
clarity purposes, the evaluator may find it useful to list the current diag-
noses and below this listing provide the evidence to support the diagnoses.
VIGNETTE 6
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 71 ]
Table 3-1. R EPORT E X A MPLE FOR DSM-5 DI AGNOSES A ND OT HER
DI AGNOST IC CONSIDER AT IONS FOR “GR A N T.”
Current Diagnostic and Statistical Manual of Mental Disorders (DSM-5) Diagnoses:
1. Schizophrenia, multiple episodes, currently in acute episode (principal diagnosis)
2. Hepatitis C
3. Mild alcohol use disorder
Mr. Wilson meets criteria for schizophrenia. In particular, he has experienced
delusional beliefs, such as thinking that the cell phones in his work place are beaming
poisonous strychnine to employees putting them at risk to die. He also has auditory
hallucinations of Edward Snowden commanding him to destroy cell phones. During
my interview, Mr. Wilson was incoherent and he exhibited markedly disorganized
speech. For example, when asked the role of his attorney, he responded, “Like order
of the trees, to judge not lest ye be judged for all mankind is to do better or not do
at all.” My review of Mr. Wilson’s jail records indicates that his symptoms have been
present most of the time during his three months of incarceration. His outpatient
records substantiate that he has had similar symptoms with multiple psychiatric
hospitalizations over a 15-year period.
Mr. Wilson also been recently diagnosed with hepatitis C. This medical condition is
included on the diagnostic list because he has developed delusional beliefs about the impact
of his hepatitis and is requiring additional mental health treatment to address his concerns
about his hepatitis.
In addition, I diagnosed Mr. Wilson with mild alcohol use disorder because he
reported that often drank more beer than he intended and he had repeated, but failed,
efforts to cut down on his alcohol use.
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 73 ]
If the WHODAS 2.0 is not recommended for use, what should an evalu-
ator use? There are several important issues to address to help answer this
question. First, a quantitative disability measure is not required for all eval-
uations. For example, competency to stand trial evaluations focus on the
impairment, if any, that results from a defendant’s mental condition on his
or her ability to assist the attorney or understand the legal process. A reason-
able argument could be made that more detailed assessments of the defen-
dant’s disability in various life circumstances (e.g., home, work, school) is not
necessary to render a forensic opinion on trial competency. Likewise, crimi-
nal responsibility evaluations focus on the individual’s mindset at the time
of the crime. The level of their current disability would have minimal, if any,
relevance to that specific legal question. Second, disability assessments in
civil cases (e.g., workers’ compensation, private disability, and social security
disability insurance) may mandate the use of a specified disability assess-
ment instrument/s, independent of DSM-5’s recommendations. The evalu-
ator will need to comply with their state’s requirement in regard to how
disability is assessed. [See Chapter 9 for further discussion of this issue.]
Third, evaluators could continue to use the GAF despite its known limita-
tions. In her excellent review of the use of the WHODAS 2.0 and the GAF,
Gold [12 (p180)] concludes,
SUMMARY
DSM-5 brings many changes in how diagnoses are made and coded. Although
this diagnostic overhaul may seem daunting, evaluators can utilize the basic
REFERENCES
D S M - 5 : D i a g n o si n g a n d R e p o r t W r i t i n g [ 75 ]
10. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision. Arlington, VA: American Psychiatric
Association; 2000.
11. Ustun TB, Kostanjsek N, Chatterji S, Rehm J. Measuring Health and Disability.
Manual for the WHO Disability Schedule. Geneva, Switzerland: World Health
Organization; 2010.
12. Gold L. DSM-5 and the assessment of functioning. The World Health
Organization Disability Assessment Schedule 2.0 (WHODAS 2.0). J Am Acad
Psychiatry Law 2014; 42(2):173–181.
INTRODUCTION
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 79 ]
intensity outbursts [14]. In addition, the person must be at least six years of
age and there is an exhaustive list of diagnoses that must be excluded before
a diagnosis of intermittent explosive disorder can be assigned. Given this
broadening of the diagnostic criteria, there may be an increase in the preva-
lence of this redefined disorder.
Individuals with intellectual impairments are frequently encountered
in forensic populations. The diagnosis of Mental Retardation has been
changed to intellectual disability in DSM-5 and has undergone signifi-
cant revisions, with an emphasis on the need to assess both cognitive
capacity and adaptive functioning. The different severities (mild, moder-
ate, severe, and profound) are no longer related to actual IQ score ranges,
but they are based solely on an individual’s adaptive functioning in three
domains (conceptual, social, practical). Notably, the actual diagnostic cri-
teria for intellectual disability do not even mention a standardized IQ
measurement approximately 70 or below, but rather require “deficits in
intellectual functioning” confirmed by clinical assessment and “individ-
ualized, standardized intelligence testing” [5 (p33)]. IQ scores that would
meet the definition of “deficits in intellectual functioning” are suggested
to be those that fall approximately two standard deviations below the
mean. On IQ tests with a standard deviation of 15 and a mean of 100, this
involves an IQ score of 65–75 (70 ± 5). DSM-5 places an emphasis on the
importance of using clinical judgment in interpreting scores and taking
into consideration the margin of error in measurement and factors that
may lower or raise IQ scores. More importantly, DSM-5 clearly indicates
that a diagnosis of intellectual disability might be appropriate in persons
with a measured IQ greater than 70 if the adaptive functioning of the
individual is comparable to that of individuals with a much lower IQ score
[5 (p37)].
Finally, malingering is frequently encountered in forensic populations,
and estimates among pretrial detainees referred for either competency or
criminal responsibility evaluations range from as low as 8% to as high as
21% [15, 16]. Among jail inmates referred for psychiatric assessment and
treatment, rates of malingering have been reported as high as 45% to 56%
[17]. In a study of jail inmates that used a structured psychological instru-
ment to detect malingering, this prevalence was even higher (66%) [18].
Among prison inmates claiming psychiatric symptoms, one study found a
malingering rate of 46% [19]. DSM-5 includes malingering under the sec-
tion “Other Conditions That May Be a Focus of Clinical Attention.” The
description of malingering remains essentially unchanged from DSM-IV-TR
and retains the emphasis on motive, with the desire to assume a sick role
being characteristic of factitious disorder and other secondary gain to be
characteristic of malingering.
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
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 81 ]
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.
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
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 83 ]
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.
Violence risk assessment has evolved over the last two decades from an
attempt to predict violent behavior to the identification of static and dynamic
risk factors that demonstrate an association with violent behavior. After
these factors are identified, treatment strategies and interventions are tar-
geted to manage and minimize the dynamic risk factors [28]. Because violent
acts are rare events, prior misguided attempts to predict violent behavior
were usually associated with a very high number of false positive predictions.
The presence of a major mental illness (psychotic or major mood disorder)
does not necessarily predispose a person to behaving violently. In fact, per-
sons with mental illness are much more likely to be the victim of a violent
act than a perpetrator. However, public perception may be shaped by high
profile events involving violent acts among persons with mental illness that
have garnered media coverage. In the medical literature, certain symptoms
of psychosis have been linked to violence risk; however, replication of these
findings has not always shown consistency [29]. Results from the MacArthur
study have linked the presence of threat/control override delusions to assaul-
tive behavior. Specifically, certain delusions that were accompanied by anger
were linked to violent acts: being spied upon, being followed, being under
control of a person/force, and thought insertion [30]. Even though DSM-5
has eliminated the special attribution of some of these bizarre delusions
and Schneiderian first-rank auditory hallucinations for the diagnosis of
schizophrenia, if threat/control override delusions are present, they should
be carefully documented in a violence risk assessment. In contrast, negative
symptoms of schizophrenia (diminished emotional expression, social with-
drawal, avolition) have been shown to reduce the rate of serious violence
among individuals with schizophrenia [31]. Although negative symptoms
are one of the five DSM-5 A criteria for schizophrenia, their presence is not
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 85 ]
if bizarre delusions were present, VRAG scoring using the original VRAG
must follow the former DSM-III and DSM-IV-TR diagnostic guidelines. The
VRAG was revised in 2013 (VRAG-R), and the presence of schizophrenia was
removed as an item. Therefore, evaluators must be aware of implications of
DSM-5 on both versions of this instrument. Actuarial instruments are also
used in presentencing evaluations of sex offenders, so changes in actuarial
instrument scores as a result of DSM-5 diagnostic changes may have sen-
tencing implications.
Some forensic clinicians are also involved with the evaluation of convicted
sex offenders at the end of their prison sentence to assess whether they would
meet civil commitment criteria as a sexually violent predator (SVP) or sexu-
ally violent offender (SVO). SVP programs have been enacted in 20 states and
the District of Columbia [35]. In addition, the Adam Walsh Child Protection
and Safety Act of 2006 authorized the federal government to institute a civil
commitment program for federal sex offenders [36]. These laws were enacted
to address the high recidivism rates reported among offenders who have
been convicted of violent sexual assaults [37]. Most SVP statutes require four
general conditions for civil commitment: (1) one or more charges (if found
Not Guilty By Reason of Insanity or Incompetent to Stand Trial) or convic-
tions for a sexually violent offense, (2) a qualifying “mental abnormality,”
(3) a likelihood of engaging in further acts of predatory sexual violence, and
(4) a causal link, at least in part, between the mental abnormality and the
risk of sexual recidivism [38]. These laws have been the source of controversy
but have been upheld by the United States Supreme Court as constitutional
and not in violation of substantial due process or double jeopardy and ex
post facto prohibitions [39]. Furthermore, the U.S. Supreme Court has held
that to satisfy due process, there must be some proof of an inmate’s lack of
control of their sexual behaviors but not a showing of a total lack of control
[40]. The commitment of a person as a SVP is a momentous decision because
once committed the individual could be detained for life.
Prior to DSM-5’s release, DSM-IV-TR paraphilias were some of the most
common mental disorders noted to impair an individual’s ability to control
their sexual behavior. DSM-5 contains diagnostic changes in the chapter on
Paraphilic Disorders that may impact SVP determinations. Many of these
changes have been highly criticized [41]. First and foremost, DSM-5 defines
a paraphilia (a prerequisite for a Paraphilic Disorder) not by what it is, but
by what it is not. A paraphilia is defined as “any intense and persistent sex-
ual interest other than sexual interest in genital stimulation or preparatory
fondling with phenotypically normal, physically mature, consenting human
VIGNETTE 2
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 87 ]
mentally disordered (i.e., receiving a label of having pedophilia rather than
pedophilic disorder may be equally damaging to an individual’s reputation,
social relationships, and occupational opportunities). Possessing child por-
nography involves victimization (children were exploited in its production);
therefore, forensic evaluators may choose to opine that possession of child
pornography as evidence of “acting on these sexual urges,” a requirement
for pedophilic disorder. DSM-5 notes that “the extensive use of pornography
depicting prepubescent children is a useful diagnostic indicator of pedophilic
disorder” [5 (p689)].
The paraphilic disorders require that the paraphilic interest has been pres-
ent for six months. This was a steadfast rule in DSM-IV for the paraphilias,
but it appears that language has been added to the DSM-5 description of
the disorders that make this requirement less strict. DSM-5 states that the
six month requirement for paraphilic urges is not an absolute requirement
but rather a generally recommended time course to emphasize that the indi-
vidual’s sexual interest is not brief and fleeting [5 (p 685)]. In general, the
duration of paraphilic interests has been derived from self-report, collateral
records (such as witness statements), and legal convictions. Under the new
DSM-5 language, if the individual meets criteria for a paraphilic disorder
for five rather than six months, the attorney seeking commitment (normally
the attorney general) may argue that the person has a paraphilia sufficient to
qualify for a diagnosis of paraphilic disorder. This relaxation of a strict time
limit may become a flashpoint of contention in SVP proceedings. Pedophilic
disorder continues to exclude an individual who is in late adolescence and is
involved in an ongoing sexual relationship with a 12- or 13-year-old child.
However, what constitutes an “ongoing sexual relationship” is left unde-
fined. Unlike other Paraphilic Disorders, pedophilic disorder is the only dis-
order that does not have the “in full remission” specifier, implying that it is a
life-long disorder. However, in the section titled “Highlights of Changes from
DSM-IV to DSM-5,” the text notes that the “in remission specifier” applies to
all paraphilias [5 (p816)]. This statement suggests that the “in full remission”
specifier does apply to pedophilic disorder in direct contrast to diagnostic
criteria listed in Section II.
For the first time, DSM-5 mentions physiological measures of sexual
interest as providing evidence of paraphilic interests, especially in determin-
ing the strength of paraphilic interests in comparison to normophilic sexual
interests. In particular, the DSM-5 mentions penile plethysmography (PPG)
in males and viewing time in males and females. Historically, penile plethys-
mography has been used and accepted by courts in the treatment and super-
vision of convicted sex offenders [43]. Penile plethysmography has survived
human rights challenges in Europe, but has not gained a wide admissibility
in U.S. courts [44-45]. Its lack of admissibility in U.S. Courts has generally
involved its potential use in the guilt and innocence phase of child sexual
In the 1972 case of Furman v. Georgia, the U.S. Supreme Court declared the
death penalty as unconstitutional because it violated the 8th Amendment’s
ban on cruel and unusual punishment [51]. The reasoning behind the deci-
sion was that the death penalty was arbitrarily imposed, and there were lit-
tle differences between those who received the death penalty and those who
did not. Since the Furman decision, 34 of the 50 United States have enacted
statutes that define criteria to be used in determining whether someone is
eligible for the death penalty. These statutes were found constitutional by
the U.S. Supreme Court because they created statutory sentencing guidelines
written to prevent the death penalty from being arbitrarily and capriciously
applied [52]. In general, these statutes define a set of aggravating circum-
stances, one of which is necessary in order to sentence a defendant to death.
Examples of aggravating circumstances include, but are not limited to, kill-
ing of a law enforcement officer, torture, murder during commission of a
violent crime, murder for hire, etc [53]. In some jurisdictions (e.g., Idaho,
Oklahoma, Oregon, Texas, Virginia, Washington, and Wyoming), the future
dangerousness of the defendant is also considered a potentially aggravating
factor. Forensic psychiatrists and other forensic mental health professionals
are involved in many stages of capital litigation: competency to stand trial
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 89 ]
evaluation, criminal responsibility evaluation, evaluation of mitigating fac-
tors, evaluation of future dangerousness, competency to be executed evalua-
tion, and evaluation of intellectual disability for the purpose of avoiding the
death penalty. The important role that a defense retained psychiatrist may
have in capital cases has been described by the U.S. Supreme Court as “piv-
otal,” and failure by the State to provide an indigent capital defendant with
the use of a psychiatric expert has also been found to deny due process [54].
The standards governing competency to stand trial and criminal respon-
sibility evaluations are the same in capital cases and noncapital cases, and
these evaluations are addressed in Chapter 5 and Chapter 6. In most jurisdic-
tions, the evaluation of potential mitigating factors includes consideration
of how a mental disorder (to include substance use) may have impacted the
defendant’s behavior. As noted above, DSM-5 has combined the DSM-IV
diagnoses of Substance Abuse and Dependence into one diagnostic category
labeled “substance use disorder.” The clinician should carefully review each
criterion for every substance the defendant has used in order to rate the
severity of substance use and how such use may have impacted the defen-
dant’s behavior. In addition, the clinician must be prepared to describe how
various substances may impact a person’s behavior during periods of intoxi-
cation or withdrawal. The DSM-5 has added two new withdrawal syndromes,
caffeine withdrawal and cannabis withdrawal. Although caffeine withdrawal
does include “dysphoric mood, depressed mood, or irritability” as one symp-
tom [5 (p506)], caffeine withdrawal is unlikely to play a prominent mitigat-
ing role for criminal behavior. In contrast, cannabis withdrawal includes
multiple symptoms, such as irritability, anger, or aggression, nervousness or
anxiety, restlessness, and depressed mood, all of which may be considered as
influencing a defendant’s thinking and behavior.
Although many states mandate that juries consider a defendant’s risk of
future dangerousness when considering the death penalty, the assessment
of future dangerousness has been challenged for lacking scientific validity.
As outlined above, the evaluator should be familiar with those factors that
have been described to increase a person’s risk of future violence as well as
the limitations of research in this area.
At the end of 2013, there were 3108 inmates on death row in the United
States [55]. Many of these inmates will likely undergo a competency
to be executed evaluation as the date of their execution approaches. In
Ford v. Wainwright, the U.S. Supreme Court decided that the execution of
an incompetent inmate constitutes cruel and unusual punishment because
such an execution has questionable retributive value, presents no example
to others and therefore has no deterrence value, and simply offends human-
ity. In addition, the Court stated that certain due process requirements were
relevant and that the condemned prisoner was entitled to a hearing on the
competency issue where he could present evidence from his own experts and
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 91 ]
are generally seen in other types of psychosis, distinguishing true delusions
from malingered delusions may prove somewhat difficult.
In states that have adopted an assistance prong in their competency to be
executed standards, illnesses that disrupt thought processes may be asso-
ciated with impaired ability to communicate with an attorney. Psychotic
disorders have the ability to disrupt thought process through the produc-
tion of loose associations, tangentiality, circumstantiality, and thought
blocking. Any one of these symptoms, if sufficiently severe, can also impair
attorney-client communication and thereby impact competency. The average
prisoner on death row has been there 13 years. Because the appeals process
is very long, an inmate may spend as much as 36 years from incarceration to
execution [58, 59]. As a result, death row inmates, by virtue of their lengthy
incarceration, may be at risk of developing major or mild neurocognitive dis-
order, which could impact their competency to be executed.
In 2002, the U.S. Supreme Court, citing evolving standards of decency,
ruled that the execution of those with mental retardation constituted cruel
and unusual punishment under the 8th Amendment [60]. The Court con-
cluded that such punishment was excessive and therefore prohibited by
prevailing standards, and that the death penalty for persons with mental
retardation did not measurably advance the deterrent retributive purposes
of the death penalty. Persons with mental retardation may unwittingly con-
fess to crimes they did not commit, have poor ability to assist counsel at
trial, and may appear to lack remorse due to an impression created by their
demeanor in court. Because of the Atkins decision, numerous individuals on
death row who were convicted prior to 2002 have been or will have to be eval-
uated for the presence of mental retardation. Evaluators should be aware of
the specific definition of mental retardation used in their jurisdiction. Most
of these definitions parallel the DSM-IV and the American Association on
Intellectual and Developmental Disabilities (AAIDD) definition.
As described above, DSM-5 replaces the DSM-IV diagnosis of Mental
Retardation with “intellectual disability,” which requires deficits in intel-
lectual and adaptive functioning. Research on murder defendants referred
for pretrial evaluation has indicated that although 15.5% presented with a
valid, measured IQ score at or below 70, only 6% received an actual diagno-
sis of mental retardation (Intellectual Disability) [61]. Therefore, adaptive
functioning did not correlate with the low IQ score or low IQ was not seen
until after the developmental period, so a DSM-IV-TR diagnosis of mental
retardation was not made.
Unfortunately, the assessment of adaptive functioning is very difficult
when an individual is incarcerated. For clinical assessment, evaluators may
need to think “outside the box.” Assessment of adaptive behavior may be
strengthened by the use of multiple informants. It still must be assessed
in three domains: conceptual, social, and practical. The conceptual domain
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 93 ]
population [62]. In addition, the American Association on Intellectual and
Developmental Disabilities (AAIDD) is planning a release of a Diagnostic
Adaptive Behavior Scale (DABS), which may be used in forensic popula-
tions [63].
The DSM-5’s shift in focus to adaptive functioning (as opposed to a spe-
cific I.Q. score when defining intellectual disability) has heightened impor-
tance considering the U.S. Supreme Court’s decision in Hall v. Florida [65].
Freddie Lee Hall was convicted and sentenced to death in 1978 for his part
in the abduction and murder of a 21-year-old pregnant woman. During one
resentencing trial, the court found that Mr. Hall was mentally retarded.
Florida’s statutory scheme for identifying defendants with mental retar-
dation in capital cases categorically barred defendants who do not have an
I.Q. test score of 70 or below. In subsequent hearings, evaluators testified
that Hall’s I.Q. scores on the Wechsler Adult Intelligence Scale were 71, 73,
and 80. Because his scores were above the mandatory cut off score of 70,
the court denied a motion to vacate his death sentence, and this decision
was upheld by the Florida Supreme Court. Hall appealed the case to the U.S.
Supreme Court, which held that Florida’s statutory scheme for identifying
individuals with mental retardation violated the 8th Amendment prohibition
on the execution of persons with mental retardation as articulated in Atkins
v. Virginia. The primary issue in this case involved Florida’s rigid adherence
to a cut off score of 70 or below without consideration of the standard error
of measurement for IQ tests and without consideration of adaptive function-
ing. Because DSM-5’s criteria for intellectual disability no longer uses IQ
scores to determine the presence or severity of intellectual disability, this
diagnostic change is extremely relevant to both past and future evaluations
of death row inmates as well as the constitutionality of the death penalty for
this population [64].
The U.S. Supreme Court has held that deliberate indifference to the serious
medical needs of prisoners constitutes the “unnecessary and wanton inflic-
tion of pain” proscribed by the 8th Amendment [65]. Although the Supreme
Court has not specifically ruled on whether the serious medical needs of pris-
oners includes mental health treatment, two separate U.S. Courts of Appeal
have held that a lack of psychiatric care was a critical deficiency and that
there is no underlying distinction between the right to medical care and its
psychological counterpart [66, 67]. The definition of serious medical needs as
it relates to mental disorders remains unclear. The Society of Correctional
Physicians has defined serious mental disorder for the purpose of limiting
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 95 ]
SUMMARY
REFERENCES
1. James DJ, Glaze LE. Mental health problems of prison and jail inmates.
Bureau of Justice Statistics special report, NCJ 213600. Washington, DC: US
Department of Justice. Available at: http://www.ojp.usdoj.gov/bjs/pub/pdf/
mhppji.pdf. Published September 2006. Accessed 27 April 2014.
2. Baillargeon J, Binswater IA, Penn J, et al. Psychiatric disorders and repeat
incarcerations: the revolving prison door. Am J Psychiatry 2009; 166:103–109.
3. Diamond PM, Wang EW, Holzer CE III, et al. The prevalence of mental illness
in prison. Adm Policy Ment Health 2001; 29:21–40.
4. Karberg JC, James DJ. Substance dependence, abuse, and treatment of jail
inmates, 2002. Bureau of Justice Statistics special report, NCJ 209588.
Washington, DC: US Department of Justice. Available at: http://www.bjs.
gov/content/pub/pdf/sdatji02.pdf. Published July 2005. Accessed 27 April
2014.
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 97 ]
23. Naples M, Morris LS, Steadman HJ. Factors in disproportionate representa-
tion among persons recommended by programs and accepted by courts for jail
diversion. Psychiatric Ser 2007; 58:1095–1101.
24. Steadman HJ, Redlich A, et al. Effect of mental health courts on arrests and
jail days: a Multisite study. Arch of Gen Psychiatry 2011; 68:167–172.
25. Redlich A, Steadman HJ, Monahan J, et al. The second generation of mental
health courts. Psychol Public Policy Law 2005; 11:527–538.
26. Wortzel, Hal S. The DSM-5 and forensic psychiatry. J Psychiatr Pract 2013;
19:238–241.
27. Burke MM, Griggs M, Dykens EM, Hodapp RM. Defendants with intellectual
disabilities and mental illness diagnoses: faring in a mental health court.
J Intellect Disabil Res 2012; 56:305–316.
28. Douglas KS, Skeem, JL. Violence risk assessment: getting specific about being
dynamic. Psychol Public Policy Law 2005; 11:347–383.
29. Appelbaum PS, Robbins PC, Monahan J. Violence and delusions: data from
the MacArthur Violence Risk Assessment Study. Am J Psychiatry 2000;
157:566–572.
30. Ulrich S, Keers R, Cold JW. Delusions, anger, and serious violence: new
finding from the MacArthur Violence Risk Assessment Study. Schizophr Bull
2014;40:1174–1181.
31. Swanson JW, Swartz MS, Van Dorn RA, et al. A national study of violent behav-
ior in persons with schizophrenia. Arch Gen Psychiatry 2006; 63:490–499.
32. Steadman HJ, Mulvey EP, Monahan J, et al. Violence by people discharged
from acute psychiatric inpatient facilities and by others in the same neighbor-
hoods. Arch Gen Psychiatry 1998; 55:393–401.
33. Anton RF, Moak DH, Latham PK. The obsessive compulsive drinking scale: a
new method of assessing outcome in alcohol treatment studies. Arch Gen
Psychiatry 1996; 53:225–231.
34. Rice ME, Harris GT, Lang C. Validation of and revision to the VRAG and
SORAG: the violence risk appraisal guide-revised (VRAG-R) Psychol Assess
2013; 25:951–965.
35. Civil commitment of sexually violent predators. Association for the
Treatment of Sexual Abusers. Available at: http://www.atsa.com/
civil-commitment-sexually-violent-predators Accessed 3 January 2014.
36. The Adam Walsh Child Protection and Safety Act, 42 USC §16911 (2006).
37. Snyder HN. Sexual Assault of Young Children as Reported to Law: Victim,
Incident, and Offender Characteristics. Bureau of Justice Statistics. A NIRB
special report. NCJ 182990. Washington, DC: U.S. Department of Justice.
Available at: http://www.bjs.gov/content/pub/pdf/saycrle.pdf. Published July
2000. Accessed 27 April 2014.
38. Rucket DE, Brakel SJ. Sexually violent predator laws. In: Rosner R, ed.
Principles and Practice of Forensic Psychiatry, 2nd ed., London: Arnold
Publishers, 2003: p 717.
39. Kansas v Hendricks, 521 U.S. 346, 117 S.Ct. 2072 (1997).
40. Kansas v Crane, 534 U.S. 407, 122 S.Ct. 867 (2002).
41. Fedoroff JP, Di Gioacchino L, Murphy L. Problems with paraphilias in the
DSM-5. Curr Psychiatry Rep 2013; 15:363–368.
42. Moser C, Kleinplatz PJ. DSM-IV-TR and the paraphilias: an argument for
removal. J Psychol Hum Sex 2005; 17:91–109.
E va l u a t i o n s i n t h e C r imi n a l J u s t i c e S y s t e m [ 99 ]
68. Position Statement: Restricted housing of Mentally Ill Inmates. Society
of Correctional Physicians. Available at: http://societyofcorrectional-
physicians.org/resources/position-statements/restricted-housing-of-
mentally-ill-inmates. Accessed 11 January 2014.
69. Naughton M, Michelle Kosilek. Appeals court to hear transgender inmate
case. Available at: http://www.metro.us/newyork/news/2013/04/01/
michelle-kosilek-appeals-court-to-hear-transgender-inmate-case/. Accessed 11
January 2014.
INTRODUCTION
COMPETENCE AS A CONCEPT
VIGNETTE 1
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 103 ]
defense attorney. He was committed to a psychiatric hospital for treatment
to restore his competency to stand trial.
The origins of competence to stand trial can be traced to 13th century trials
before the king’s court in England. Criminal defendants who failed to enter a
plea of guilty or not guilty were given three warnings by the court, and then
either confined and starved (prison forte et dure) or gradually crushed under
increasing weights (peine forte et dure) until they entered a plea or died [1, 2].
The phrase “to press someone for an answer” originates from this practice.
Before engaging such methods, the king’s court first needed to determine
whether the defendant was intentionally withholding a plea (mute by mal-
ice), or whether, due to a mental defect, the defendant was unable to under-
stand that a plea was required of them (mute by visitation of God—having
a God-given mental defect). Those mute by visitation of God were spared
the extreme methods described above, and a not guilty plea was entered
for them. In 1353, the first criminal defendant was formally adjudicated
Incompetent to Stand Trial. Legal standards for trial competence developed
over the course of several subsequent centuries, although the United States
legal standard was not articulated until 1960.
Modern American competence to stand trial standards stem from the U.S.
Supreme Court ruling in Dusky v. United States (1960) [3]. The Dusky standard
inquires “whether the defendant has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceed-
ings against him.” Although the Dusky standard did not require that a men-
tal illness be the cause of the defendant’s incompetence, the subsequently
adopted Federal Insanity Defense Reform Act of 1984 [4] required a present
mental disease or defect as the cause of the defendant’s incompetence to
stand trial.
In response to Dusky v. United States, every American jurisdiction adopted
a competence to stand trial standard based on the Dusky standard. In general,
state and federal standards indicate that defendants may be incompetent to
stand trial if their mental illness makes them (1) unable to understand the
nature and objectives of the court proceedings and/or (2) unable to assist in
their defense.
George, an 18-year-old man, is charged with murder for the death of his
mother. George has a severe psychotic disorder, which is now in remis-
sion, except for his belief that a government official authorized George
to kill his mother. George plans on subpoenaing government telephone
records and government officials to testify at trial as part of his defense
plan. Otherwise, George does not appear psychotic. Is he competent?
VIGNETTE 3
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 105 ]
performed on an outpatient basis, although provisions for an inpatient eval-
uation can be made for the defendant who is uncooperative or suspected of
malingering [8]. On average, 30% of defendants evaluated for trial compe-
tency are found to be incompetent to stand trial.
The clinician performing the competency to stand trial examination
should:
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 107 ]
e. Sufficient memory and concentration to understand the events at
trial—A defendant must be able to pay attention during trial and have
sufficient memory to retain and apply the information during trial.
f. Understand appropriate courtroom behavior—A defendant must be
able to understand appropriate courtroom behavior and possess suf-
ficient impulse control to exercise appropriate courtroom demeanor. It
is important to differentiate between a defendant who (due to a men-
tal disorder) is not capable of acting appropriately from a defendant
who elects to act inappropriately to make a political statement or other
reasons.
g. Give a rational, consistent, and coherent account of the offense—A
defendant must be able to give a consistent and organized account of
the offense. Such an account may help to achieve alibi, acquittal, insan-
ity or mitigation. However, a defendant with permanent amnesia for
the offense is not categorically incompetent to stand trial [11].
h. Formulate a basic plan of defense—A defendant should be able to work
with their attorney to develop a basic plan of defense, working toward
the goal of acquittal or mitigation.
i. Make reasonable defense decisions—Using their knowledge of the
information listed above, a defendant must be able to rationally apply
their knowledge to their defense and make reasonable, logic-driven
decisions.
j. Freedom from self-defeating behavior—A defendant must be motivated
to seek the best possible outcome for their criminal trial. Defendants
who consciously seek an unfavorable outcome, due to mental illness,
may be incompetent to stand trial. For example, a depressed, suicidal
defendant who is seeking capital punishment is likely incompetent to
stand trial.
k. Testify at trial—A defendant must be able to give rational, organized,
and logical trial testimony that may assist in their defense. A defendant
must also be able to withstand the stress of testifying and being subject
to cross-examination.
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 109 ]
Table 5-2. COMMON R E A SONS FOR INCOMPET ENCE
TO STA ND T R I A L FINDINGS
1. Low intelligence or dementia that impairs the defendant’s understanding of the trial
process.
2. Depression and self-defeating behavior that limit the defendant’s motivation for the
best outcome at trial.
3. Mania that impairs the defendant’s ability to act appropriately in the courtroom.
4. Paranoid delusions that impair the defendant’s ability to work with their defense
counsel.
5. Disorganized thinking that impairs the defendant’s concentration and attention.
6. Irrational decision-making about their defense as the result of delusions,
disorganized thinking, low intellect or dementia.
7. Hallucinations that distract the defendant from attending to the trial.
Intellectual disability
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 111 ]
intellectual disability in DSM-5. In contrast to DSM-IV, DSM-5 emphasizes
both cognitive capacity and also adaptive functioning. Severity of disability
is determined by adaptive functioning in three areas: conceptual, social, and
practical. Accordingly, this DSM-5 diagnosis requires the forensic evaluator
to conduct a more thorough assessment of functional skills rather than rely-
ing solely on IQ testing scores.
Several studies have reported that defendants with diagnoses of mood dis-
orders are more likely to be adjudicated incompetent to stand trial compared
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 113 ]
with the general population of trial competence evaluees [42, 43]. Defendants
with bipolar mania, for example, may lack the ability to adequately control
their behavior in the courtroom or in their interactions with their attorney.
Depressive symptoms, such as severe emotional blunting, can impair trial
competence when the defendants do not care about what happens to them,
including the outcome of their legal case (see Vignette 3). DSM-5 changes
in the category of Bipolar and Related Disorders are few and are unlikely
to change competency assessments from DSM-IV in any meaningful way.
For Depressive Disorders, the DSM-5 includes two new diagnoses that merit
special attention in evaluating possible claims of trial incompetency.
The DSM-5 text notes that the essential feature of disruptive mood dys-
regulation disorder (DMDR) is “chronic, severe persistent irritability” [37
(p156)]. The diagnostic criteria for DMDR includes the presence of signifi-
cant and repeated temper problems (either verbally or physically) that typi-
cally occur three or more times a week and are a mismatch with the youth’s
level of development. In addition, the symptoms must be present for at least
12 months without any symptom free period lasting three or more months.
DSM-5 notes that this disorder was added to help differentiate non-episodic
irritability from a pattern of episodic-irritability, which is more consistent
with bipolar disorder in children. DSM-5 particularly emphasizes that bipo-
lar disorder is specifically designated for psychiatric presentations that
include discrete periods of bipolar symptoms [37 (p157)].
Many adult defendants facing trial may have recurrent temper outbursts;
however, they will not meet criteria for DMDD, even if they have verbal or
behavioral problems that interfere with their ability to cooperate with counsel.
The text criteria states that the diagnosis should not be made for the first time
in those older than 18. Could an adult defendant continue to retain this diag-
nosis into adulthood if he or she was diagnosed with DMDD at age 18 or less?
The DSM-5 text suggests not. In particular, the DSM-5 notes, “. . . use of the
diagnosis should be restricted to age groups similar to those in which validity
has been established (7–18 years) [37 (p157)]. Based on this statement, the
diagnosis of DMDD appears strictly limited to those less than age 19.
The real issue is the how the diagnosis of DMDD may be used as the predi-
cate diagnosis to establish trial incompetency for juveniles (i.e., age 18 or
less). Because youth often present with difficulties controlling their temper
and behavior, the evaluator will need to carefully apply DMDD criteria to
distinguish this diagnosis from other common mental health presentations
found in juvenile delinquent populations (e.g., oppositional defiant disorder
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 115 ]
Posttraumatic stress disorder
The diagnostic changes for posttraumatic stress disorder (PTSD) have been
covered extensively in other chapters of this book (see Chapters 2, 8, and 11).
The most relevant issue for potential concerns related to trial competency
includes the new DSM-5 specifier “with dissociative symptoms” [37 (p274)].
This specifier includes the possibility that the individual could experience
either depersonalization (feeling separated from one’s own body) or dereal-
ization (a sustained sense that one’s environment is not real). A defendant
might claim that his or her PTSD results in dissociation thereby preventing
them from being able to assist counsel in real time during the trial or trial
preparations. PTSD, as described by DSM-IV, was not a common diagnosis
resulting in a finding of trial incompetency. It is unclear what, if any, impact
this new specifier might have in future claims of trial competency related to
a PTSD diagnosis claim.
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 117 ]
does not provide clear guidance on how to distinguish between IED and
ASPD, only that “the level of impulsive aggression in individuals with antiso-
cial personality disorder is lower than that in individuals with intermittent
explosive disorder” [37 (p468)].
Neurocognitive disorders
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 119 ]
a belief that they do not need representation because they are “innocent,”
a belief that they could better represent their situation than an attorney,
a belief that they will earn sympathy by proceeding pro se against the gov-
ernment, or any number of psychotic or self-defeating beliefs.
In Faretta v California (1975) [49], the U.S. Supreme Court held that a
criminal defendant has a Constitutional right (via the 6th Amendment) to
knowingly and intelligently refuse legal representation. Although a related
concept (and both may be subjects of forensic assessment), it is important
to point out that refusing counsel is not the same thing as representing
oneself (proceeding pro se). The Faretta court added that a defendant’s abil-
ity to represent himself has no bearing on his competence to elect to repre-
sent himself. In Indiana v. Edwards (2008) [50], the Court ruled that courts
may require a higher standard of competence for self-representation than
that necessary for trial competence. The right to represent oneself is not
absolute; courts have discretion in maintaining the validity of the court
process.
Forensic evaluators in the position to evaluate defendants for compe-
tence to waive counsel should familiarize themselves with jurisdictional
law. Under Faretta, the mental health professional evaluating competence
to waive counsel must assess whether the defendant understands that he
or she is abandoning the right to representation by legal counsel and that
there may be disadvantages as a result of the waiver of counsel. Although
the evaluator may not agree with the defendant’s rationale, the evaluator
must be careful not to equate poor judgment with incompetence. The focus
should be on whether the defendant has symptoms of a mental disorder
or defect that impair the defendant’s ability to make the decision to waive
counsel.
COMPETENCE TO TESTIFY
COMPETENCE TO BE SENTENCED
A mentally ill defendant who is competent to stand trial or to plead guilty may
nevertheless experience an exacerbation of his/her illness during the period of
time between trial and sentencing and potentially become incompetent to be
sentenced. Competence to be sentenced deals with evaluating the defendant’s
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 121 ]
understanding that they have been convicted of a crime; the reason for the
conviction; and the reasons that sentencing will be imposed. Competence to
be sentenced also requires that the defendant be able to rationally participate
in a presentence investigation; to assist their defense attorney in minimizing
the negative impact of their conviction; and to assist their attorney in offering
mitigating factors that may cause the court to reduce their sentence.
Defendants who have been convicted may appeal their conviction, and, in
fact, defendants who are convicted and sentenced to death have numerous
appeals filed automatically on their behalf. A mentally ill defendant may
irrationally instruct his attorney to not file appeals on his behalf, or he/she
may refuse to cooperate with his attorney in preparing appeals. In contrast,
a defendant may rationally waive his appeals in the belief that pursuing
further appeals is not likely to be fruitful or not in his/her best interests.
Evaluating competence to waive appeals involves assessing the defendant’s
current mental state and understanding whether current symptoms impair
the defendant’s ability to rationally make a decision of whether to pursue
appeals and to assist his/her defense counsel in that pursuit. A depressed
defendant who, as a result of their depression, lacks energy/motivation to
pursue appeals may be incompetent to waive appeals. A suicidal defendant
seeking capital punishment may be incompetent to waive appeals, as is a
defendant with paranoid delusions about his/her attorney or the court. In
contrast, a defendant who prefers capital punishment compared with a life
of imprisonment may be competent to waive appeals if his/her decision is
rational and not the product of his/her mental disorder.
COMPETENCE TO BE EXECUTED
Presently, 34 states and the federal jurisdiction have the ability to sen-
tence a defendant to death. On average, in American jurisdictions, 15
years pass between when the defendant is sentenced to death and when
the sentence is carried out. Defendants on death row may develop a men-
tal disorder during those 15 years that may impair their competence to be
executed.
The U.S. Supreme Court has ruled that executing a mentally retarded
defendant is unconstitutional [51] as is executing a defendant who was
under the age of eighteen years at the time of the commission of the offense
[52]. In Ford v. Wainwright [53], the U.S. Supreme Court ruled that it is cruel
and unusual punishment, in violation of the 8th Amendment, to execute an
SUMMARY
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 123 ]
• When asked to perform a forensic assessment of a criminal defendant, the
evaluator should determine the specific question or type of legal compe-
tency to be evaluated.
• Competence to stand trial evaluations focus on the defendant’s present
mental state.
• Legal standards for competence to stand trial uniformly assess for the
presence of a mental disorder that impairs the defendant’s ability to either
(1) understand the nature and objectives of the court proceedings and/or
(2) assist in their defense.
• Defendants adjudicated as incompetent to stand trial are referred for com-
petency restoration treatment if there is a probability that they can be
restored to competence.
• Restoration of trial competence does not require remission of psychiatric
symptoms.
• For any criminal competency, mental health evaluators should focus on
the relationship between symptoms and the specific legal abilities required
for the competence.
• Forensic evaluators need to be aware of their jurisdiction’s specific require-
ments for any criminal competence.
REFERENCES
C o m p e t e n c i e s a n d t h e C r imi n a l J u s t i c e S y s t e m [ 125 ]
34. Sell v United States, 539 US 166 (2003).
35. Jackson v Indiana, 92 Supreme Court Reporter 1845 (1972).
36. Hubbard KL, Zapf PA, Ronan KA. Competency restoration: an examination of
the differences between defendants predicted restorable and not restorable to
competency. Law Human Behav 2003; 27:127–139.
37. American Psychiatric Association. Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition (DSM-5). Arlington, VA: American Psychiatric
Association, 2013.
38. Wall BW, Christopher PP. A training program for defendant’s with intellectual
disability who are found incompetent to stand trial. J Am Acad Psychiatry Law
2012; 40:366–373.
39. Ericson K, Perlman N. Knowledge of legal terminology and court proceed-
ings in adults with developmental disabilities. Law Human Behav 2001;
25:529–545.
40. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision. Arlington, VA: American Psychiatric
Association; 2000.
41. Pirelli G, Gottdiener WH, Zapf PA. A meta-analytic review of competency to
stand trial research. Psychol Public Pol L, 2011; 17:1–53.
42. Rogers R, Gillis JR, McMain S, Dickens SE. Fitness evaluations: a retrospective
study of clinical, criminal and sociodemographic characteristics. Can J Behav
Sci 1998; 20:192–200.
43. Warren JI, Rosenfeld B, Fitch WL, Hawk G. Forensic mental health clinical
evaluation: an analysis of interstate and intersystemic differences. Law Human
Behav 1997; 21: 372–390.
4 4. Lewis D, Bard J. Multiple personality disorder and forensic issues. Psychiatr
Clin North Am 1991; 14:741–746.
45. Ryba NL, Zapf PA. The influence of psychiatric symptoms and cognitive abili-
ties on competence-related abilities. Int J Forensic Ment Health 2011; 10:29–40.
46. Miranda v Arizona 384, US 436 (1966).
47. Johnson v Zerbst, 304, US 458 (1938).
48. Colorado v Connelly, 479 US 157 (1986).
49. Faretta v California, 422 US 806 (1975).
50. Indiana v Edwards, 554 US 164 (2008).
51. Atkins v Virginia, 536 US 304 (2002).
52. Roper v Simmons, 543 US 551 (2005).
53. Ford v Wainwright, 477 US 399 (1986).
54. Panetti v Quarterman, 551 US 930 (2007).
INTRODUCTION
Criminal law and societal standards strive to establish a consistent and prac-
tical method to describe behaviors for which society may punish. Accordingly,
federal, state, and municipal jurisdictions establish sources of criminal law—
most commonly through statute—which outline the elements necessary for
a defendant to be found guilty of a crime. Criminal guilt is established only
if the prosecution can demonstrate and prove all of the required elements
of the crime charged. The prosecution must prove each required element of
the crime to the standard of beyond a reasonable doubt in a criminal trial.
A defendant is to be found not guilty of a crime if the prosecution fails to
prove all of the required elements of the crime or if the defendant establishes
an affirmative defense to the crime.
In general, for a defendant to be guilty of a crime, two elements must be
established and proven by the prosecution: the actus reus (Latin: “prohibited
act”) and the mens rea (guilty mind—the intent to commit the actus reus).
The actus reus is further defined as either a voluntary physical act commit-
ted by the defendant or the defendant’s failure to act when there was a legal
duty to act. The law is usually concerned with preventing individuals from
committing a harmful act to another. However, there are some obligations
imposed by the law, such as a parent must provide food and shelter to a child,
and failure to do so would constitute an actus reus. Both the actus reus and
the mens rea must occur together in order to constitute a criminal act.
For example, person A is angry and intentionally strikes person B. A is
charged with Battery. The actus reus is A striking B. The mens rea is A’s
purposeful intent to strike B, motivated by A’s anger at B. In this example,
A could be convicted of Battery. In a contrasting example, A strikes B as the
result of an unintentional bump. A has struck B, therefore a forbidden act
has occurred. But because the striking was accidental, no mens rea is present
and no criminal liability exists (although civil liability may result). For nearly
all crimes, the prosecution must prove the requisite mental state (mens rea).
An exception is strict liability offenses, such as Statutory Rape or Driving
Under the Influence, which require only an actus reus to result in a criminal
conviction.
The concept of mens rea is important because the criminal law recognizes
that a person who intends to harm another is more blameworthy than the
person who accidentally harms another [1]. It is important to note that a
defendant with a major mental illness may still be able to form the requisite
level of mens rea for a given crime. Mentally ill defendants may intention-
ally commit criminal acts that occur for reasons and motives independent
of their mental illness. For example, a psychotic individual may still pur-
posely assault another for reasons unrelated to his psychosis, such as anger,
revenge, financial gain, etc.
Even if the prosecution establishes all of the criminal elements (actus reus
and mens rea) beyond a reasonable doubt, the defendant my nevertheless
avoid criminal responsibility by raising an affirmative defense. An affirma-
tive defense is a legal defense in which the defendant affirms that he indeed
committed the actus reus, but, due to the special conditions alleged via the
affirmative defense, seeks an acquittal. An affirmative defense justifies or
excuses a criminal defendant of legal responsibility even though the ele-
ments of the crime have been proved. A state may, at its discretion, place
the burden of proof for establishing an affirmative defense on either the
prosecution or defense. Some affirmative defenses are legal justifications for
the criminal act, such as in self-defense. The law recognizes that harm to
another may be justified when a person is defending against imminent phys-
ical harm. Another category of affirmative defenses are legal excuses. The
defense of NGRI falls into this category. For these, society has determined
that the defendant is not blameworthy of the criminal act, usually based on
a moral ground. Table 6-1 lists common affirmative defenses.
VIGNETTE 1
The ALI/MPC test also adds qualifying language to exclude mental abnor-
mality manifested only by repeated criminal or otherwise antisocial conduct.
The ALI/MPC insanity test was widely adopted by states and the federal
government as an alternative to the M’Naghten standard prior to John
Hinckley, Jr.’s assassination attempt on President Ronald Reagan. Although
many states retain this standard, in the aftermath of the Hinckley trial,
Congress enacted the Federal Insanity Defense Reform Act (FIDRA) of 1984
[18], which is used in federal jurisdictions today.
Under the FIDRA, a defendant is legally insane if “at the time of the com-
mission of the acts constituting the offense, the defendant, as a result of
a severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of his acts.” This Act removed the irresistible
impulse component, which had been adopted under federal law as part of the
ALI/MPC standard. It is a cognitive test that adopted the more expansive
term “appreciate” from the ALI/MPC test. The FIDRA states that the defen-
dant’s mental illness must be “severe” [19].
VIGNETTE 2
The formal entry of an insanity plea triggers an order from the court for
a psychiatric evaluation regarding sanity. Many courts have associated psy-
chiatric clinics that provide these evaluations. The prosecution, as well as
the defense, may request additional psychiatric assessments for the pur-
poses of evaluating a possible insanity defense. All jurisdictions require
the presence of a mental disease or defect to establish the insanity defense.
Here, Frank has a diagnosis of Schizophrenia. At the time of act, he expe-
rienced symptoms of his illness and delusionally believed that his mother
had been overtaken by Satan. The defense can likely demonstrate the first
criteria of the insanity defense that Frank had a mental disease or defect at
the time of the offense, based on his prior diagnosis of schizophrenia; that
All state statues require a threshold mental illness for a successful insanity
defense. In fact, the term “mental disease or defect” is commonly used in
state insanity statutes as the requisite threshold mental illness. However,
what is that threshold and who should define it—mental health profession-
als, legislators, or courts? These are challenging questions that illustrate the
inherent tension between legal concepts and medical knowledge. Some have
argued that medicine or science should guide any definitions of mental ill-
ness. Forensic psychiatrist Bernard Diamond [23] artfully articulated his
position about this tension:
However, courts have closely guarded their role in determining what sat-
isfies legal concepts. Illustrative of this is the D.C. Court of Appeal’s opinion
in McDonald v. U.S. (1962) [24]:
Our purpose now is to make it very clear that neither the court nor the jury
is bound by the ad hoc definition or conclusions as to what experts state is a
disease or defect. What psychiatrists may consider a ’mental disease or defect’
for clinical purposes . . . may or may not be the same as mental disease or defect
for the jury’s purpose in defining criminal responsibility.
With this as background, terms such as “mental disease or defect” that are
used in insanity statutes are legal terms of art, meaning that they reflect spe-
cific legal, not clinical, definitions. In contrast, DSM-5 contains diagnostic
Intellectual disability
With DSM-5, modest changes have been made to the diagnostic criteria for
the various psychotic disorders. The main change is the emphasis on symp-
tom severity that requires a “quantitative assessment” of psychotic symp-
toms [26 (p100)]. For each psychotic disorder, an evaluator may specify the
diagnosis with a severity rating. Although DSM-5 does not require the use
of any specific symptom severity scale to make a diagnosis, it includes the
Clinician-Rated Dimensions of Psychosis Symptom Severity Scale, found in
the Emerging Measures and Models section of the text. Mental health evalu-
ators should familiarize themselves with the severity ratings because they
may be tasked with specifically commenting on symptom severity retrospec-
tively at the time of the criminal event. (See Chapter 3 for detailed informa-
tion about this scale.)
The main diagnostic change in DSM-5 to the Bipolar and Related Disorders
is the addition of “persistently increased goal-directed activity or energy”
This diagnosis has moved from a category for further study in DSM-IV
to the DSM-5 category of Depressive Disorders. The use of Premenstrual
Dysphoric Disorder (PMDD) or premenstrual syndrome to excuse culpabil-
ity has long been discussed in medical and legal articles [30]. The diagnosis
requires symptom confirmation by daily symptom ratings for a minimum
of two symptomatic menstrual periods [26 (p171)]. Accordingly, collateral
information, such as gynecologic or other medical records, may be particu-
larly useful in making the diagnosis. This diagnosis has been used success-
fully to excuse or mitigate responsibility in a limited number of cases in
the United States [31]. Moving the disorder into the main text of DSM-5
legitimizes it as a disease of the mind rather than a hormonal or physio-
logic ailment. Accordingly, there may be increased interest by defendants
and lawyers to assert the condition in an insanity defense. In jurisdictions
following the M’Naghten standard, in particular, it will be difficult for the
defendant to establish, because of PMDD, that she lacked knowledge of the
wrongfulness of the act. The requirement remains that there is a nexus
between the disorder, the criminal behavior, and not knowing the wrong-
fulness of the criminal behavior.
Posttraumatic Stress Disorder (PTSD) has, although rarely, been used as the
basis for the insanity defense. In DSM-5, PTSD has been reclassified from
the Anxiety Disorders chapter in DSM-IV to the category of Trauma and
Stressor-Related Disorders. The diagnostic criteria have changed. Most nota-
bly, the A criterion is more explicit in what qualifies as a traumatic event.
With DSM-5, directly and witnessed traumatic experiences qualify as trau-
matic events, as does learning that a friend or family member experienced a
nonaccidental trauma or being exposed during the course of one’s job to emo-
tionally distressing details about traumatic incidents to others [26 (p271)].
The subjective reaction criterion (A2) from DSM-IV has been eliminated.
Concern has been raised that these more “liberal” A-criteria widens the door
for more individuals to claim PTSD [32]. In DSM-5, dissociative reactions
(flashbacks) are described on a continuum (criterion-B), hence defendants
with only minimal dissociative reactions may satisfy this criterion for the
diagnosis. Regardless, PTSD as a basis for NGRI has been viewed skepti-
cally, and will continue to so, because of the subjective nature of the disor-
der, heavy reliance on evaluee self-report, and belief that it is relatively easy
to imitate [33]. Military-related PTSD is highly comorbid with substance
use disorders, adding to skepticism because of the difficulty in defining the
degree of impairment from PTSD.
Persons with dissociative amnesia lack the ability to recall personal informa-
tion. In contrast to the DSM-IV, the new criterion explicitly identifies two
types: localized or selective versus generalized. Given this, it is a disorder
ripe for defendants to claim, for example, selective amnesia for the criminal
event. Also new to DSM-5, the specifier “with dissociative fugue” is listed
here rather than as a separate diagnosis [26 (p298)].
In DSM-5, Paraphilic Disorders have been separated into their own category.
Previously, paraphilias had been embedded in the Sexual and Gender Identity
Disorders Category in the DSM-IV. Despite debate regarding their inclusion
as mental disorders, the DSM-5 commentary states that they are included
in DSM-5 because of their frequency in the population and that some
paraphilias entail actions with potential harm to others. Although DSM-5
workgroups proposed new categories for further study (e.g., hebephilia and
paraphilic coercive disorder), these attracted prior criticism and were ulti-
mately rejected [36]. New to DSM-5 is the addition of course specifiers “in a
controlled environment” and “in remission” for all Paraphilic Disorders with
the exception of pedophilic disorder. In the DSM-5 section titled “Highlights
of Changes from DSM-IV to DSM-5,” the text notes that the “in remission”
specifier applies to all of the paraphilic disorders [26 (p816)]. This statement
conflicts with the DSM-5 actual text defining pedophilic disorder, which
does not include these specifiers. There is no expert agreement whether a
chronic paraphilia can fully remit.
Retained from DSM-IV is the adoption of clinically significant distress
criteria. The rationale is to distinguish paraphilias from paraphilic disor-
ders. With DSM-5, a paraphilia corresponds to the A criterion (abnormal
erotic focus). In contrast, a paraphilic disorder requires both the A criterion
and B criterion (clinical distress). Although inclusion of the word “disor-
der” (as in Paraphilic Disorders) may legitimize for some these diagnoses
as mental illness, it remains up to the jurisdiction to determine whether
Paraphilic Disorders constitute mental disorders from a legal standpoint.
The Oregon Supreme Court, in another context, ruled that Pedophilia
qualifies as a mental disorder [37]. Of importance, as with DSM-IV crite-
ria, forensic evaluators assessing for these conditions must be careful not
to infer from criminal sexual behavior alone the existence of a paraphilic
disorder.
The diagnoses expected to be most associated with insanity and mens rea
evaluations include the Schizophrenia Spectrum and Other Psychotic
Disorders, Bipolar and Related Disorders, and Depressive Disorders. There
are relatively minor changes to these categories. Other than the specific
changes discussed above, the changes in these categories are expected to
have little impact on the assessment of criminal responsibility.
To date, there is little organized data relating to diagnoses and the success of
a diminished capacity defense. Case law from several jurisdictions suggests
that defendants have relied on numerous different DSM diagnoses and vari-
ous mental syndromes in raising the defense. As with the insanity defense,
a qualifying mental condition is subject to jurisdictional variation and the
admissibility of mental condition evidence may not relate to whether the
condition is a disorder recognized in the DSM. Cases from differing juris-
dictions have held that evidence of Fetal Alcohol Syndrome, for example, is
admissible for a defense based on diminished capacity [38]. In DSM-5, neu-
robehavioral disorder associated with prenatal alcohol exposure is included
in the Appendix as a condition for further study.
Kischner and Galperin [39] assessed the characteristics of defendants
in New York County who claimed “extreme emotional disturbance” in their
defense to intentional murder or attempted intentional murder. In these
cases, the defendant’s psychiatric diagnosis did not substantially distinguish
those defendants who would be successful with the defense. Instead, success
VIGNETTE 3
Recall Frank from Vignettes 1 and 2. Frank killed his mother due to a
delusional belief that his mother was possessed by Satan. He used his
father’s firearm and killed her in the family home. Hours after the kill-
ing, Frank’s father, George, learns of the details of his wife’s death. In
the weeks following his wife’s death, George consumes himself with han-
dling his wife’s affairs and taking care of Frank’s brother, who remains
in the home. Seven months after her death, George begins having night-
mares about his wife’s death, avoids going into Frank’s former bedroom,
is forgetful, believes that no one can be trusted, and has restless sleep.
Although George has returned to work, his performance review criti-
cizes him for lack of concentration on tasks. George decides to speak
with his supervisor about the status of his position. When his supervi-
sor puts off their conversation, George flies into a rage. George pushes
his supervisor, who falls and strikes his head. George is arrested and
charged with Assault. His lawyer hires you to evaluate whether George
had a qualifying mental disorder should he want to purse an insanity
defense. The jurisdiction has recognized the DSM-5 as a basis for mental
disorders in insanity cases. What do you think?
SUMMARY
REFERENCES
1. Stroud, DA. Mens Rea or Imputability Under the Laws of England. London,
England: Sweet and Maxwell; 1914.
INTRODUCTION
Psychiatrists and other mental health professionals are often asked to evalu-
ate a person’s mental capacity (competence) to perform important tasks, such
as making medical decisions, executing a will, or managing their finances,
among others. These assessments essentially ask the evaluator to consider
(1) the requirements of the task in question and (2) whether the evaluee has
the requisite mental and physical ability to carry out the task. These legally
important tasks in the civil context are generally referred to as “civil compe-
tencies.” The completion of the legal document is often known as “executing
the instrument.”
Forensic evaluators and others who conduct these assessments recognize
that civil competence evaluations may require opinions of the evaluee’s past,
current, or future capacities. For example, individuals often create wills and
durable powers of attorneys for healthcare to guide future decisions about
these issues when they are no longer able to make them. However, the indi-
vidual’s capacity to execute the instrument may be called into question at
a later date. In such cases, the evaluator is asked to opine on the evaluee’s
past ability to execute the instrument at the time it was signed. Examples
of present-day competence assessments include the ability to make medi-
cal decisions and marry. Guardianship and conservatorship assessments are
classic examples where an opinion on both contemporary and future capac-
ity of the evaluee is required.
The Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition (DSM-5) completed in 2013 [1]has resulted in significant changes
to diagnostic criteria for many diagnoses that are likely to impact civil
competence assessments. A threshold question in most civil competence
assessments is whether the evaluee has a mental disorder. If so, the next
step is to assess whether, given the disorder, the evaluee has the capacity
Table 7-1. ILLUST R AT I V E LIST OF CI V IL COMPET ENCIES
Care for oneself/guardianship or conservatorship
Consent for research
Consent for voluntary hospitalization
Enter a contract
Provide informed consent for treatment/treatment refusals
Marry, divorce
Perform occupational duties
Give testamentary capacity, handle financial affairs, make a gift
Provide testimony in a civil case
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 153 ]
The definition of mental disorder from DSM-IV-TR remained the same as
had been presented in the Third Edition-Revised (DSM-III-R) [7]in 1987 and
in the Fourth Edition (DSM-IV) [8] in 1994 . This definition emphasized the
association of emotional or behavioral symptoms to the individual’s experi-
ence of personal distress, impairment, or other form of suffering [4 (p xxxi)].
The DSM-5 definition of a mental disorder has been rewritten and focuses
on the relationship of a person’s difficulty in thinking, feeling, or behaving
to an underlying impairment in the individual’s growth and development,
medical status, or psychological functioning. DSM-5 also notes that indi-
viduals suffering from a mental disorder usually experience some type of
impairment or loss of functioning in important areas of their life. DSM-5
maintains DSM-IV’s explanation that culturally appropriate responses to
events and certain conflicts between individuals and society (e.g., political,
religious, or sexual) are not considered mental disorders [1 (p20)].
The DSM-5 definition of a mental disorder retains the two key compo-
nents from prior definitions, namely necessitating that there is a “clinically
significant disturbance” and that such disturbances are associated with “sig-
nificant distress” or “disability” [1 (p20)]. This definition infers a relationship
to a mental disorder with “disability” or a parallel lack of ability or capacity,
thereby supporting the importance of providing a diagnosis of a mental dis-
order when assessing civil capacities even if not explicitly legally required.
This chapter’s exploration of the influence of the DSM-5 in the evalua-
tion of civil competencies (or for those wishing to maintain the dichotomy
between the legal and clinical systems, civil capacities) begins with a review
of the most commonly evaluated civil competency involving involuntary civil
commitment and then branches out to other civil competencies. A review of
all civil competencies is beyond the scope of this chapter; instead, a sampling
of civil competencies has been selected to illustrate principles and the role
of DSM-5.
Each jurisdiction has its own definition of what constitutes grounds for
involuntary hospitalization and for civil commitment and the specific proce-
dures and judicial reviews required. In some jurisdictions, civil commitment
does not technically commence until the initial period of involuntary hos-
pitalization and observation expires and there is a judicial order, and these
two terms are distinguished from each other in that context. However, for
purposes of this chapter, involuntary hospitalization and civil commitment
are not distinguished and often used interchangeably below for simplicity.
Nonetheless, jurisdictions have a mental disorder criterion as a necessary
antecedent before applying involuntary hospitalization/civil commitment
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 155 ]
unspecified depressive disorder or alternatively to allow transient symp-
toms in patients with a personality disorder diagnosis to be sufficient.
Most likely, the implications of DSM-5 changes in this context will not be
significant.
In contradistinction to Washington, there is no definition of mental dis-
order for involuntary civil commitment purposes in Oregon [2]. This is also
true of California. California is used to illustrate this dilemma because it
has additional potential complexities in the definition of a mental disorder.
The current involuntary hospitalization and civil commitment framework
derives from the passage of the Lanterman-Petris-Short (LPS) Act from
1969. The legislative intent of the LPS Act included providing “prompt evalu-
ation and treatment of persons with serious mental disorders or impaired by
chronic alcoholism” [12]. Involuntary hospitalization requires that “. . . as a
result of mental disorder, to be a danger to others, or to himself or herself, or
to be gravely disabled . . .” [13, 14].
California neither defines what constitutes a “serious mental disorder
(from the LPS Act’s legislative intent)” [15] or a “mental disorder (from how
the LPS Act is operationalized)” for the initial and subsequent involuntary
hospitalization of adults [16]. Insofar as mental disorder is concerned, it
would appear that any mental disorder as defined by DSM-5 would qualify,
so long as the predicate is met, that is, the mental disorder is serious and it
gives rise to dangerousness or grave disability. Some counties though decide
to exclude dementia (major neurocognitive disorder in DSM-5) as a mental
disorder for LPS purposes unless something like psychosis also is present.
Ambiguities in the law in California and likely elsewhere in the absence of
case law are interpreted differently from county to county. Of course, even
though “chronic alcoholism” is a qualifying condition, its DSM equivalents,
and in the case of DSM-5, alcohol use disorder, would not culminate in invol-
untary hospitalization because there have been no specialized alcohol or
drug treatment facilities in California to treat these involuntary patients
according to the LPS framework. Instead, clinicians have resorted to offer-
ing a diagnosis of an alcohol-induced psychotic or mood disorder in order to
involuntary hospitalize those with “chronic alcoholism” in a mental health
facility. DSM-5 would not be expected to remedy this dilemma or change the
situation.
In the case of minors in California, involuntary commitment is governed
by a different statute [17]. Although similar to involuntary commitment for
adults [14], for the case of a gravely disabled minor, “intellectual disability,
epilepsy, or other developmental disabilities, alcoholism, other drug abuse,
or repeated antisocial behavior” are specifically excluded as qualifying condi-
tions. This statutory language arguably eliminates the DSM-5 categories of
Neurodevelopmental Disorders, Substance-Related and Addictive Disorders,
and Conduct Disorders (from the Disruptive, Impulse-Control, and Conduct
“If the court finds that a person, as the result of a mental disorder, presents a
likelihood of serious harm, or is gravely disabled, but that treatment in a less
restrictive setting than detention is in the best interest of such person or oth-
ers, the court shall order an appropriate less restrictive course of treatment . . .”
In states that have defined mental disorder by statute, the same definition is
generally used for both inpatient and outpatient civil commitment.
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 157 ]
opine as to both (1) and (2). When both physicians agree, the patient
may be medicated despite refusal for up to 30 days. Additional review is
needed for medication administration beyond 30 days and may require
a court hearing. In addition, patients may refuse any psychiatric medi-
cation, including involuntarily ordered antipsychotic medication begin-
ning 24 hours before any initial or continued civil commitment hearing
or involuntary medication hearing [24]. However, a specific reference to
the presence of a mental disorder is not stated, but appears to be assumed
from the mental disorder criterion required to initiate involuntary com-
mitment in Washington.
According to California law, a patient who is involuntarily committed and
refuses antipsychotic medication is entitled to review hearing(s) before the
medication is administered in nonemergency situations [25]. In California,
capacity to refuse medication hearings are commonly referred to as “Riese
Petitions” after a prominent legal case that resulted in these hearings. In
Riese v. St. Mary’s Hospital and Medical Center [26], the court held that, absent
judicial determination of incompetence, informed consent is required to
administer antipsychotic medications to involuntary committed persons in
no emergent situations. To assess capacity, the court in Riese stated that the
decision maker should focus on whether the patient: (1) is aware of his or
her situation (e.g., diagnosis); (2) is able to understand the benefits, risks,
and alternatives to medications; and (3) is rationally able to understand and
evaluate the medication information and participate in the treatment deci-
sion. After this 1991 decision, the California legislature enacted SB 665 and
codified in the statutes [27–29], which requires informed refusal for psy-
chotropic medications absent an emergency and capacity hearings for those
thought to be lacking capacity for such informed refusal of these medica-
tions. In practice, there is no interest in California in conducting hearings
on those who consent to medication but lack the capacity to give informed
consent.
Under California law, a patient who is to be involuntary medicated must
be proven to lack capacity by “clear and convincing evidence.” In practice,
a court-hearing officer listens to the testimony at the hospital facility and
makes a determination about whether or not the patient will be forcibly
medicated. There may be patients who are found detainable at probable cause
hearings, but they are not permitted to be given involuntary administration
of psychotropic medication as a result of the Riese hearing. The California
State legislature has not specified which mental disorders are relevant to
Riese Petitions, nor has it specified which diagnostic system should be used.
However, as with involuntary civil commitment, the use of the current DSM
edition (now DSM-5) has become the standard bearer. However, the central
issue in determining whether to override a person’s medication refusal is
his or her lack of capacity to weigh the risks and benefits of psychotropic
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 159 ]
medications were considered, and forced medication is necessary to further
important government interests. Neither court in Harper or Sell commented
on whether specific mental disorders are necessary, nor whether any spe-
cific diagnostic system is required in these determinations. Because specific
diagnoses are not identified as required in these treatment refusal settings,
one can infer that DSM-5 changes are unlikely to have any impact in these
particular situations.
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 161 ]
However, criticism has been raised that the threshold between mild and
major neurocognitive disorders is artificial [43]. Although not included as
diagnostic criteria, DSM-5’s paradigm for distinguishing the mild and major
neurocognitive disorders is based in the text discussion on whether the
cognitive impairment is 1 or 2 standard deviations from the mean on an
unspecified standardized test [1 (p607)]. The lack of a specified test could
lead to potential misuse in the forensic settings by some being tempted to
choose a test most likely to produce a desired result that may not even have
norms for the relevant population. The DSM-5 does not endorse or recom-
mend specific tests because of proprietary concerns and due to the likelihood
that new tests will be developed in the future. Therefore, the standard devia-
tion text commentary serves as a general guideline rather than a diagnostic
requirement, an important distinction especially in forensic contexts. In the
DSM-5, the distinction is made by unspecified neuropsychological testing,
but a clinical assessment can substitute for that so long as it is quantified.
For forensic purposes, this can still lead to abuse by some choosing the tests
most likely to lead to a desired result without the test necessarily having
norms for the relevant population.
The distinction between 1 and 2 standard deviations below appropri-
ate norms may nonetheless be a meaningful boundary between mild and
major neurocognitive disorder, but it also can lead to confusion and diag-
nostic controversy and misuse in forensic settings and only a specific capac-
ity might be relevant for a specified forensic purpose and not a general lack
of capacity assessed in making the diagnosis. Although a specific diagnosis
does not automatically infer incompetence, arriving at a diagnosis of major
neurocognitive disorder will likely carry great weight in arriving at an opin-
ion supporting incompetence. From these perspectives, making a distinc-
tion between mild and major neurocognitive disorders based on the number
of standard deviations from the mean may assume more significance than
it probably should. An artificial dividing line between <2 and >2 standard
deviations also conflicts with the DSM-5’s attempt to support a dimensional
measure in diagnoses in addition to the inherent categorical nature of a
diagnostic system. Nonetheless, objective-type measurements that assist in
distinguishing between major and mild neurocognitive function in the clini-
cal domains could also serve to support a medical opinion regarding compe-
tence. Such use of tests is appropriate so long as the following principles are
considered: (1) care is taken in the selection of specific tools, (2) tests are not
selected to purposely skew the results in any desired direction, and (3) the
dividing line between major and mild in not overly emphasized because the
relevant issue is capacity or lack of it for a specific purpose and not a more
general capacity and (4) there are norms for the test on the relevant popula-
tion. Examples of tools that may assist in differentiating between a mild and
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 163 ]
Several authors have conceptualized a “sliding-scale” approach to capacity
to make medical decisions [46, 47]. This model presumes that the degree of
risk inherent in the treatment decision is a key factor in the analysis. In this
scheme, there is a low bar for competence when the risk of the patient’s deci-
sion is low and the benefit is large. In contrast, under this approach, a patient
must more clearly demonstrate competence when the risk of the treatment
is high or the benefits limited (e.g., experimental surgery).
Healthcare decision making involving end-of-life decisions include
Do Not Resuscitate Orders, Advanced Directives, or naming a health-
care proxy decision maker should the person become incompetent. These
healthcare decisions require the person be competent at the time the
decision is made, identical to any healthcare decision a person makes.
However, in the case of Physician Assisted Suicide, diagnostic consider-
ations can play a role. The 1997 Oregon Death with Dignity Act authorizes
Physician Assisted Suicide under very limited circumstances for termi-
nally ill individuals [48]. Besides various safeguards, including the person
making a competent decision, there is the following safeguard regarding
mental health [49]:
VIGNETTE 1
Jack is a 35 year-old man who fell from a ladder and sustained signifi-
cant injuries to his head. He develops hemiparesis. As a result of his
injuries, he needs assistance with many of his daily tasks. He lives in
a residential group home and works in a sheltered workshop environ-
ment. When he is at work one day, he badly cuts his hand. He is taken to
the local emergency room where his physicians recommend stitches and
he refuses. His doctors, aware of his head injury, ask if he is competent
to make this decision. You are asked to consult.
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 165 ]
California Probate Code [52] lists the following specific deficits in mental
functions:
(1) Alertness and attention, including, but not limited to, the following:
(A) Level of arousal or consciousness
(B) Orientation to time, place, person, and situation
(C) Ability to attend and concentrate
(2) Information processing, including, but not limited to, the following:
(A) Short- and long-term memory, including immediate recall
(B) Ability to understand or communicate with others, either verbally
or otherwise
(C) Recognition of familiar objects and familiar persons
(D) Ability to understand and appreciate quantities
(E) Ability to reason using abstract concepts
(F) Ability to plan, organize, and carry out actions in one’s own rational
self-interest
(G) Ability to reason logically
(3) Thought processes. Deficits in these functions may be demonstrated by
the presence of the following:
(A) Severely disorganized thinking
(B) Hallucinations
(C) Delusions
(D) Uncontrollable, repetitive, or intrusive thoughts
(4) Ability to modulate mood and affect. Deficits in this ability may be dem-
onstrated by the presence of a pervasive and persistent or recurrent
state of euphoria, anger, anxiety, fear, panic, depression, hopelessness
or despair, helplessness, apathy or indifference that is inappropriate in
degree to the individual’s circumstances.
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 167 ]
Disorders, and Depressive Disorders. Despite minor changes in these catego-
ries in comparison to DSM-IV, the changes are expected to have little impact
on the assessment of these capacities.
Statutes can mention a specific diagnosis. In the California Probate
Code section dealing with Powers and Duties of Guardian or Conservator
of the Person, there is a specific reference to the diagnosis of “dementia,”
“as defined in the last published edition of the ’Diagnostic and Statistical
Manual of Mental Disorders’ ” [55]. This statute allows the Conservator to
make an appropriate placement for a person on a Probate Conservatorship
who has dementia, lacks the capacity to give informed consent to placement,
lacks general decision-making capacity, and benefits from placement in a
“restricted and secure environment” [56]. Because DSM-5 specifically notes
that major neurocognitive disorder is the essential equivalent to the DSM-IV
diagnosis of Dementia, evaluators should have little difficulty clarifying
for the court the similarities between these two diagnoses. In addition, as
previously mentioned, the specific level of impairment in the various neu-
rocognitive domains by clinical examination and use of the tools listed in
Table 7-2 would have bearing for both the DSM-5 diagnosis and an opin-
ion about competence. However, there is a difference insofar as major
neurocognitive disorder, unlike dementia, does not require memory
impairment. Until and unless statutes using the diagnosis of dementia
are updated, explaining the diagnosis of major neurocognitive disorder
may be needed when writing the forensic report or testifying to avoid
misunderstandings.
TESTAMENTARY CAPACIT Y
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 169 ]
illness at the time of their will execution. If so, did the symptoms impact
the testator’s thought process or ability to rationally appraise the situation?
Many DSM-5 disorders are potentially relevant to testamentary capac-
ity. Particular DSM-5 disorders, such as Schizophrenia Spectrum and Other
Psychotic Disorders, Major Neurocognitive Disorders, Neurodevelopmental
Disorders, Depressive Disorders, and Substance Use Disorders, should be
explored but may not necessarily negate testamentary capacity. For the most
part, the testamentary capacity assessment will change little from those
under the DSM-IV.
As identified in earlier sections of this chapter, however, the Neurocognitive
Disorders under DSM-5 have broadened the scope of the former DSM-IV
Dementia diagnoses and, thus, might capture more individuals. Even with
this expansion, however, most people with a mild neurocognitive disorder,
and some even with a major neurocognitive disorder, may nevertheless be
able to identify and discuss their estate, heirs, and wishes for dissolution of
the estate.
A related concept not yet discussed in this chapter is the Global
Assessment of Functioning Scale (GAF) that was present on Axis V of the
multiaxial classification system in use for more than the past 30 years in the
DSM-III through the DSM-IV-TR. Axis V has been removed from the DSM-5
and the GAF with it. Previously, the GAF could be used to measure overall
functioning at a point in time and to provide reference points for compari-
son over time. With several disorders, review of a person’s GAFs over time
could be superimposed on the time of the event in question (i.e., execute a
will) as an additional source of information for the evaluator. In the absence
of the GAF, there may be need to be more reliant on descriptive terms for
the person’s condition, unless the psychiatrist chooses a cognitive screening
tool (see Table 7-2 for examples) in the case of a neurocognitive disorder, or
the BPRS, PANSS, or the DSM-5’s “Clinician-Rated Dimensions of Psychosis
Symptom Severity” in the case of a Schizophrenia Spectrum and Other
Psychotic Disorder.
It is not uncommon for a person to create or change their will after one
of their relative’s dies. Under DSM-5, the DSM-IV bereavement exclusion for
Major Depressive Disorder has been removed and the diagnosis may be made
in the presence of grief. Although the diagnosis of major depressive disor-
der may be given in this context, it remains the evaluator’s responsibility
to explore all of the requirements of testamentary capacity and the possible
need for delay until the bereavement subsides.
Finally, the related concept of undue influence arises in the setting of
execution of a will. This situation arises when an individual is vulnerable
to the influence of another person, usually a beneficiary of the estate. For
undue influence, it must generally be established that that the person actu-
ally exerted influence over the testator; the influence rises to the level or
VIGNETTE 2
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 171 ]
EVALUATION GUIDELINES
As illustrated by the range of topics that fall under the broad category of civil
competencies, the assessment of any one particular competence is guided
by the knowledge and skills required to carry out the particular task. In this
sense, competence assessments are context specific. A consulting psychia-
trist or forensic examiner is called to assess an evaluee’s cognitive, psychi-
atric, and emotional state and opine whether any limitations in these areas
reasonably prevent the evaluee from participating in the task.
A prerequisite, then, for assessing a person’s capacity for a task is an
understanding of the underlying task and the necessary elements of that
task. As alluded to above, sometimes jurisdictions, by statute or other pro-
vision, outline requirements necessary for the competence. The California
statutory requirements for medical decision-making is illustrative. Where
jurisdictional guidance is not available, the evaluator is tasked with identify-
ing the requisite requirements. The question posed to the evaluator can be
vague (e.g., understand the consequences of marriage), requiring the evalua-
tor to operationalize a definition or set of skills for the task.
Foubister and Connell [31] have outlined a “general assessment approach”
for medical decisions that is useful in variety of civil competence contexts.
Their approach focuses on background information typical of a standard psy-
chiatric assessment and “on the individual’s capacity or incapacity . . . rather
than on an ultimate declaration of competence . . . The ultimate competence
judgment may rest on balanced consideration of the severity of consequences
and the individual’s capacities, a decision that involved moral or ’values’ con-
siderations and may best be made by the court” [64 (p508)]. Likewise, Grisso
[44] put forth a model for evaluation of competencies with the following
key elements: functional, causal, interactive, judgmental, and dispositional.
These models are useful in helping to characterize the nature of more general
capacity impairment. They may be relevant in situations of extreme capac-
ity deficiencies demonstrating lack of capacity for all or almost all purposes.
However, it is important to recognize that legal capacities are specific to the
purpose in question, and evaluators need to have the specific capacities for
that purpose in mind when performing an evaluation. A person may lack
a specific capacity although retain general capacity for most purposes. Or
a person can lack general capacity but retain a specific capacity so except
in extreme cases they may be less useful. If general capacity tests are used,
it is essential not to lose sight of the need to assess and focus on how any
impairment(s) affects the particular legal capacity in question.
For many common civil competencies, a body of literature exists that helps
inform the evaluation. Assessments tools are also available to aid in several
civil competence evaluations, particularly for medical decision-making and
guardianship. Although not exhaustive, identified in Table 7-3 are several
SUMMARY
Psychiatrists and forensic evaluators are often called to assess for civil com-
petencies. These assessments can be both challenging and interesting due
to their varied nature of required tasks. Evaluators doing this type of work
will want to familiarize themselves with any jurisdictional requirements for
the competency being evaluated. Likewise, evaluators will want to identity
any jurisdictional definitions of mental disorder. This is particularly true in
the area of civil commitment. Working with DSM-5, one should be mindful
whether a DSM-5 diagnosis comports with any mental disorder definition
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 173 ]
necessary for the specific capacity or competence. Although the presence of a
DSM-5 diagnosis alone is not sufficient to establish incompetence, a DSM-5
diagnosis can have utility in reporting and conveying helpful information
about the evaluee and the longitudinal course and prognosis of an illness.
However, an accurate assessment of a person’s specific symptoms and skills
will provide more forensic utility than the diagnosis. Key summary points
from this chapter include the following:
• Be familiar with any local laws regarding the competency definitions and
procedures.
• Know your jurisdiction’s mental disorder criterion.
• Remember that civil competencies are task-specific and are assessed based
on the requirements of the specific task.
• Assess how symptoms of DSM-5 disorders affect legal criteria.
• Understand that DSM-5 has made changes to facilitate communicating
information. However, in doing so, not only has there been an improve-
ment in calling attention to areas of impairment, there are also drawbacks
because the new criteria may differ from DSM-IV-TR nomenclature and
criteria and sometimes thereby can lead to confusion or give the mistaken
impression of more or less impairment than actually is the case.
• Avoid over interpretation in regard to the scientific validity of certain
tests merely because the results can be quantified.
• Appreciate that although DSM-5 was designed for clinical purposes, the
changes in many diagnostic criteria DSM-5 are likely to impact civil com-
petence assessments nonetheless. The presence of a DSM-5 disorder does
not equate with civil incompetence but is relevant to the evaluation.
REFERENCES
D S M - 5 a n d Ci v i l C o m p e t e n c i e s [ 175 ]
43. Blazer D. Neurocognitive disorders in DSM-5. Am J Psychiatry 2013;
170:585–587.
4 4. Grisso T. Evaluating Competencies: Forensic Assessments and Instruments. 2nd ed.
New York, NY: Kluwer Academic; 2003.
45. Grisso T, Appelbaum PS. Assessing Competence to Consent to Treatment: A Guide
for Physicians and Other Health Professionals. New York, NY: Oxford University
Press; 1998.
46. Roth LK, Meisel A, Lidz CW. Tests of competency to consent to treatment. Am
J Psychiatry 1977; 134:279–284.
47. Cahana A, Hurst SA. Voluntary informed consent in research and clinical
care: an update. Pain Practice 2008; 8:446–451.
48. Oregon Revised Statutes 127.800-995.
49. Oregon Revised Statutes 127.825 §3.03.
50. California Probate Code 810(c).
51. California Probate Code 810(b).
52. California Probate Code 811(a).
53. California Probate Code 811(b).
54. Krauss IK, Popkin SJ. Competence issues in older adults. In: Hunt T, Lindley
CJ, eds. Testing older adults: A Reference Guide for Geropsychological Assessments.
Austin, TX: Pro-Ed, 1989.
55. California Probate Code 2356.5.
56. California Probate Code 2356(b)(1-4).
57. Revised Code of Washington 11.12.010.
58. California Probate Code 6100.5(a).
59. California Probate Code 6100.5(a)(2).
60. In re Estate of Scott, 128 Cal. 57 (1900).
61. Melton GB, Petrila J, Poythress NG, et al. Psychological Evaluation for the
Courts: A Handbook for Mental Health Professionals and Lawyers. 3rd ed.
New York, NY: Guilford Press; 2007.
62. Beyer GE. Wills, Trusts, and Estates. New York, NY: Aspen Law & Business;
1999.
63. Gutheil TG. Common pitfalls in the evaluation of testamentary capacity. J Am
Acad Psych Law 2007; 35:514–517.
64. Foubister N, Connell M. Competency to consent to treatment. In: Drogin
EY, Dattilio FM, Sadoff RL, Gutheil TG, eds. Handbook of forensic assess-
ment: Psychological and Psychiatric Perspectives. Hoboken, NJ: John Wiley &
Sons; 2011.
65. Drogin EY, Barret CL. Evaluation for Guardianship. New York, NY: Oxford
University Press; 2010.
INTRODUCTION
Civil litigation is a major aspect of the legal system in the United States,
marked by a vast number and variety of cases. According to census data from
2008, more than 19 million civil cases were filed in state trial courts in that
year alone. In the U.S. District Courts, 285,215 civil cases were filed in 2010,
with 87,256 of those involving tort actions [1, 2]. Even if cases involving psy-
chiatry represent only a small percentage of these civil actions, they never-
theless encompass a significant number of evaluations in which a forensic
evaluator’s expertise is vital. It stands to reason that changes in how mental
disorders are diagnosed portend significant implications for assessing how
alleged harms are assessed under tort law.
Tort law governs the legal resolution of complaints regarding medical
treatment and alleged personal injury. A tort is a civil wrong. Tort law seeks
to financially compensate individuals who have been injured or who have suf-
fered losses due to the conduct of others. Intentional torts are those where
the individual or agency intends harms or knows harm will result from his
or her actions [3]. In contrast, unintentional torts involve those situations in
which the individual’s behavior unintentionally causes an unreasonable risk
of harm to another [3]. Depending on the type of civil litigation, claims of
emotional distress can include a claim of intentional infliction of emotional
distress and/or a claim of negligent (i.e., unintentional) infliction of emo-
tional distress.
When evaluating alleged emotional damages arising during the course of
civil litigation, the evaluator generally considers the elements summarized
in Table 8-1.
This chapter summarizes how DSM-5 diagnostic changes may impact the
assessment of claims of emotional distress and psychiatric injury in medical
Table 8-1. R ELEVA N T QUEST IONS TO CONSIDER W HEN EVA LUAT ING
EMOT IONA L DIST R ESS CL A IMS
1. Does the person meet criteria for a recognized mental disorder?
2. If the person does not meet criteria for a recognized mental disorder, is there evidence
that the individual genuinely experienced some type of emotional distress?
3. Is there evidence that the person is malingering?
4. Does the evidence support that the alleged stressor is solely responsible for the reported
symptoms?
5. Is there evidence that the person has a preexisting mental disorder?
6. If the person has a preexisting mental disorder, does the evidence indicate that the
alleged stressor is nevertheless solely responsible for the reported symptoms?
7. If the person has a preexisting mental disorder, does the evidence support that the
alleged stressor aggravated the preexisting mental disorder?
8. Are there other factors that are causally related to the reported symptoms independent
of the alleged stressor?
Many malpractice claims involve an allegation that the patient was not
appropriately diagnosed, which could be a dereliction of duty if proved true.
Practitioners who fail to utilize the DSM-5 may face allegations (justly or
unjustly) that they fell below the standard of care in making a diagnosis. In
particular, a failure to appropriately diagnose may be linked to failures to
identify and potentially treat mental health risk factors associated with an
increased risk of suicide or violence. In DSM-IV, many disorders, such major
depressive disorder and schizophrenia, included descriptions of suicide risk
under the subheading “Associated Features and Disorders.” This focus is
expanded in DSM-5, with a separate subheading labeled “Suicide Risk” for 25
different mental disorders. Suicide risk was not emphasized in many of these
disorders in DSM-IV. The subheading of Suicide Risk is different for each dis-
order, but it typically includes information about the level of risk associated
with the disorder, common risk factors for suicide, and comorbid disorders
that may further increase suicide risk. This information may impact civil liti-
gation, particularly malpractice cases, because it demonstrates a greater focus
in the DSM-5 on considering suicide risk in clinical practice and provides
some guidance that attorneys may use as evidence of the “standard of care.”
Although suicide risk was separated into a new subheading, discussions
of violence risk remain relatively unchanged in DSM-5 compared to DSM-IV.
Certain disorders, such as schizophrenia, provide information about vio-
lence risk in the subheading “Associated Features Supporting Diagnosis.”
These descriptions of violence risk are less consistently documented in the
DSM-5 text and provide less guidance for the clinician or forensic evaluator
than the text describing suicide risk.
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 179 ]
medication-induced movement disorders and other adverse effects of medica-
tion). The medication-induced mental disorders include substance/medication–
induced psychotic disorder, bipolar and related disorder, depressive disorder,
anxiety disorder, obsessive-compulsive and related disorder, sleep disorder,
and sexual dysfunction. Many of the medication-induced mental disorders
were included under the “Substance-Induced” diagnostic category in DSM-IV.
In both DSM-IV and DSM-5, Criterion A describes mental health symp-
toms that must be present to make the diagnosis. Compared with other non-
substance/medication-induced disorders in the same diagnostic categories,
the substance/medication-induced mental disorders and their DSM-IV coun-
terparts generally require fewer symptoms to establish the diagnosis. For
example, the DSM-5 diagnosis of substance/medication-induced depressive
disorder requires only that the person have a depressed mood or decreased
enjoyment in most aspects of their life [4 (p175)]. As a result, fewer symp-
toms are needed to establish a substance/medication induced depressive dis-
order diagnosis compared with the Criterion A of major depressive disorder,
which requires five depressive symptoms.
DSM-5 also retains the suggestion that medications may cause a mental
disorder, an important element in civil litigation. The previous diagnosis of
“Substance-Induced” mental disorder in DSM-IV included medications as a
potential substance that may cause symptoms, but DSM-5 brings the word
“medication” into the title of the diagnosis. Although many similarities exist
between the previous diagnoses and the ones present in DSM-5, there are also
multiple criteria changes that may impact their use in forensic psychiatry.
The first change in substance/medication-induced mental disorders is in
the diagnostic categories themselves. DSM-5 separates obsessive-compulsive
and related disorders out from anxiety disorders and similarly separates
bipolar and related disorders and depressive disorders into their own cat-
egories, instead of using the general mood disorders designation. Because
these are now separate entities, the substance/medication-induced mental
disorders in these categories reflect a different diagnosis for each.
Second, in the transition from DSM-IV to DSM-5, some of the language
of Criterion A in the substance/medication-induced mental disorders has
changed, mainly to add or subtract mention of clinical significance of symp-
toms. Many of these changes are not particularly significant because both
the DSM-IV and DSM-5 versions of these diagnoses retain Criterion E, which
requires clinically significant distress or impairment. The exception to this
is the diagnosis of substance/medication-induced psychotic disorder. In
DSM-IV, if the person was aware that their substance use caused their hal-
lucinations, then such hallucinations were not considered as one of the diag-
nostic criterion of substance-induced psychosis [5 (p342)]. However, this
statement is not retained in DSM-5, indicating an expansion of the criteria to
include hallucinations that the individual knows are caused by the substance
DSM-5 now requires that the substance used must be able to cause the
symptoms and to result in the development of symptoms within a brief
period of time after substance use [4 (p175)].
These changes may affect the diagnosis of substance/medication-induced
mental disorders in a significant way. A forensic evaluator now needs to pro-
vide both evidence of a medication’s capability of producing a symptom and
evidence that the symptom occurred around the time of exposure to the
medication. Case reports alone are generally insufficient evidence by them-
selves to conclude that a medication causes a particular symptom.
The last major change in substance/medication-induced mental disorders
is noted in Criterion C. Both the DSM-IV and DSM-5 use Criterion C to pro-
vide instructions as to how one may distinguish a substance or medication
induced mental disorder from a primary mental disorder. However, DSM-5
removes the DSM-IV instruction that emphasized the need to consider the
dose and duration of the substance to the symptom presentation [5 (p483)].
Unfortunately, this deletion ignores the reality that the dose and duration of
the medication is often very relevant in considering the ability of the medica-
tion to induce symptoms.
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 181 ]
syndrome, medication-induced acute dystonia, medication-induced acute akathi-
sia, tardive dyskinesia, tardive dystonia, tardive akathisia, medication-induced
postural tremor, other medication-induced movement disorder, and antidepres-
sant discontinuation syndrome.
DSM-5 clearly documents that these medication-induced movement dis-
orders are not mental disorders, which differentiates them from substance/
medication-induced mental disorders. In addition, both DSM-IV and DSM-5
emphasize that attributing the symptoms of a movement disorder to med-
ication use is challenging, particularly because some of these same move-
ment disorders are observed in patients who have never taken a medication
[4 (p709)].
The language used can be a critical distinction for a forensic evalua-
tor, because the diagnosis alone does not necessarily mean the medication
caused the symptoms described. This approach differs from substance/
medication-induced mental disorders, which presume that the medication
causes the described symptoms when making the diagnosis.
DSM-5 adds a new diagnosis to this section called antidepressant discon-
tinuation syndrome. This diagnosis involves a cluster of specific symptoms
that can present after a person has taken their antidepressant medication
for at least 30 days without interruption and then suddenly stops taking the
medication or significantly lowers the medication dose. DSM-5 also describes
that these discontinuation symptoms usually occur within two to four days
after stopping the medicine [4 (p712)].
DSM-5 notes that frequently reported symptoms of antidepressant dis-
continuation syndrome include experiencing flashes of light, “electric shock”
sensations, nausea, a heightened sensitivity to noises or lights, nonspecific
anxiety, and feelings of dread [4 (p713)]. DSM-5 emphasizes that to establish
the diagnosis of antidepressant continuation syndrome, the evaluator should
assess whether the reported symptoms were present before the antidepres-
sant dosage was reduced and whether or not reported withdrawal symptoms
are alleviated by restarting the same medication or starting a different medi-
cation that has a similar mechanism of action. In the diagnostic features
section, DSM-5 indicates that unlike withdrawal syndromes from other sub-
stances, antidepressant discontinuation syndrome has no distinct symptoms,
which distinguishes it from other substance withdrawal disorder diagnoses.
Personal injury claims are wide-ranging and can involve claims that a person
experienced emotional distress or a psychiatric injury (such as a mental dis-
order or diagnosis) as a result of an accident, sexual harassment, discrimina-
tion, or exposure to a toxic agent. The following vignette presents a typical
VIGNETTE
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 183 ]
marked problems with his concentration and memory. He also reports
that there has been a significant change in his personality, to include
marked irritability and sudden mood changes. Mark recently resumed
working in a job similar to his prior job, but he emphasizes that he has
to exert greater effort to successfully perform his job duties.
Depressive disorders
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 185 ]
Illness anxiety disorder
Conversion disorder
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 187 ]
Mark’s case, his intense focus and worry about his somatic symptoms and
pain are more consistent with a diagnosis of somatic symptom disorder as
opposed to an adjustment disorder alone.
The DSM-IV text focused on recognized medical conditions from a broad
range of disease categories that may be adversely impacted by psychological
factors. In contrast, DSM-5 Criterion A adds that a reported medical symp-
tom alone is sufficient for purposes of making this diagnosis. As a result, this
diagnosis is greatly expanded and includes not only specific medical disor-
ders, such as asthma or stomach ulcers, but also general medical complaints,
such as becoming easily tired, experiencing pain, or feeling light headed [4
(p322)]
Under this broadened definition, unexplained fatigue or pain is now con-
sidered a medical condition. To distinguish this presentation from somatic
symptom disorder, DSM-5 notes that the individual suffering from the diag-
nosis of “psychological factors affecting other medical condition” does not
present with excessive worries or anxious behaviors in regard to their physi-
cal complaint.
Factitious disorder
In DSM-IV, Factitious Disorder had its own separate chapter. DSM-5 has
moved this disorder into the Somatic Symptom and Related Disorders chap-
ter because of the predominance of somatic symptom complaints and pre-
sentation of the individual in medical settings. In addition, DSM-5 adds a
D criterion, which emphasizes that factitious disorder cannot be diagnosed
if the person meets criteria for another diagnosis, such as schizophrenia [4
(p324)]. Although Mark has sought out treatment with multiple medical per-
sonnel, there is no evidence from the record that he is taking surreptitious
actions to cause his symptoms making a diagnosis of factitious disorder
highly unlikely.
Although there are multiple changes from DSM-IV to DSM-5, the presence
of a trauma preceding symptoms continues to be a required criterion of
PTSD. However, the definition of what constitutes a trauma has evolved with
DSM-5 in meaningful ways. First, DSM-5 removes the requirement that the
person experiences some intense emotional reaction or shock at the time of
the event Friedman writes that presence or absence of a person’s reaction is
not predictive of PTSD outcome and therefore irrelevant in making a PTSD
diagnosis [12].
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 189 ]
Second, Criterion A adds “sexual violence” as a stressor in addition to the
DSM-IV stressors that involved facing potential death or significant physical
harm [4 (p271)]. Gone, however, is DSM-IV’s wording that allowed a person
to qualify as being exposed to a traumatic event if he or she experienced a
“threat to the physical integrity of self or others” [5 (p467)]. This deletion may
impact how frequently PTSD can be diagnosed in civil litigation cases that
involve a sexual harassment claim. For example, under DSM-IV, a plaintiff
alleging sexual harassment could claim that the alleged harasser represented
a threat to their “physical integrity,” even if there was no actual or threat-
ened death or serious injury. Because the DSM-5 wording indicates that there
must be actual or threatened death, serious injury, or sexual violence, cases
in which this level of trauma exposure is not present (as is often seen in sex-
ual harassment cases) will not likely qualify for PTSD. Furthermore, DSM-5
has added a diagnosis titled “Other problem related to employment” in the
section titled “Other Conditions that May be a Focus of Clinical Attention”
(a section that includes diagnoses that are not mental disorders). DSM-5
provides a range of work conditions considered as employment-related prob-
lems, and “sexual harassment on the job” is included among them [4 (p723)].
As a result of these DSM-5 diagnostic changes, an employee who reports
emotional distress related to sexual harassment will more easily meet crite-
ria for the diagnosis of “Other problem related to employment,” as opposed
to PTSD.
A third, and quite robust, change is the addition of two exposures that
may qualify as a traumatic event (in addition to directly experiencing or
witnessing the trauma). First, becoming aware that a close friend or family
member experienced an incident that involves trauma or violence now quali-
fies as a potential exposure that can lead to PTSD. Second, individuals whose
work may expose them to horrific outcomes of traumatic incidents may also
qualify as having been exposed to a PTSD causing trauma, even if they were
not personally in harm’s way [4 (p271)]
These new trauma categories expand situations that qualify as a traumatic
event and may lead to an increased number of individuals diagnosed with
PTSD. With these new criteria, an individual can be diagnosed with PTSD
without ever being present at the traumatic event. In Mark’s case, the evalu-
ator will try to determine if during his accident Mark was genuinely exposed
to actual or threatened death or serious injury. With the new DSM-5 crite-
ria, Mark’s wife may now claim that when she learned of Mark’s accident,
she believed that his life had been threatened and he might die. Although
DSM-5 expands the types of trauma exposures that qualify for a diagnosis
of PTSD, these expansions are not without limits. In the case of learning
about a traumatic event that occurred to a close family member or friend,
the event must have been violent or traumatic. This restriction excludes the
majority of deaths from natural causes; had this exclusion not been included,
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 191 ]
DSM-5 Criterion C: Persistent avoidance of stimuli associated
with the traumatic event(s)
Although this criterion is new to DSM-5 and was not delineated under
DSM-IV, five of the seven listed symptoms were included under DSM-IV’s
Criterion C. The five DSM-IV symptoms now moved to DSM-5 Criterion
D include having trouble remembering key aspects of the trauma, con-
tinued or lasting pessimistic views about oneself or the surrounding
world, decreased involvement in important life interests, and a sustained
restricted ability to communicate pleasant feelings (such as caring for
someone). The two newly added criteria include experiencing sustained
adverse feelings (e.g., personal embarrassment related to the trauma)
(and sustained altered thoughts and beliefs about factors resulting in the
trauma or its outcome [(4 (p272)].
When reviewing the new DSM-5 criteria, several important comparisons
between DSM-IV and DSM-5 become apparent. First, DSM-5 criteria D1, D5,
and D6 are nearly identical to their DSM-IV Criterion C counterparts. Second,
the DSM-IV equivalent to the DSM-5 D2 criterion described that the individual
sensed they had a foreshortened future. The revised DSM-5 version expands
such negative beliefs beyond the individual and now includes negative thoughts
about others and the “the world” at large. However, the modifier “persistent”
has been added when evaluating these beliefs, and this addition indicates that
such thoughts are not brief or fleeting. Third, Criteria D3 and D4 are completely
new to the DSM-5. Evaluators should now ask the individual about their per-
sonal feelings of guilt or responsibility related to the trauma and any persistent
negative emotions they have experienced after the trauma. Finally, the DSM-5
D7 criterion modifies its DSM-IV equivalent by adding the modifier “persistent”
when evaluating the extent of the individual’s inability to experience positive
emotions [(4 (p272–273)].
DSM-5 alters the arousal section to also include reactivity as part of the
overall criterion, as well as noting that the arousal must be “marked.” DSM-5
also clarifies that Criterion E symptoms must be related to the traumatic
event; in DSM-IV, this relationship was not specified, but rather the symp-
toms simply had to begin after the trauma occurred. This change focuses
the evaluation so that only deficits in arousal and reactivity that are specifi-
cally related to the trauma can be counted toward a PTSD diagnosis. As a
result, the evaluator should carefully determine which reported symptoms
are preexisting or unrelated to the traumatic event. Finally, DSM-5 adds
self-harmful behaviors to this section, which was not previously present in
DSM-IV [(4 (p272)].
DSM-5, like DSM-IV, requires that symptoms last at least one month to qual-
ify for a PTSD diagnosis. In addition, DSM-5 maintains the DSM-IV require-
ment that PTSD difficulties impair a person’s functioning in some aspect of
their life [4 (p272)]. DSM-5 includes a new criterion that emphasizes that
PTSD can not be diagnosed if the symptoms are due to an underlying medical
illness or side effects of a substance. DSM-5 removes the specifiers of “acute”
and “chronic” from the criteria for PTSD. Instead, DSM-5 adds a “with dis-
sociative symptoms” specifier, which is used when an individual experiences
ongoing or repeated symptoms of depersonalization or derealization. DSM-5
renames the specifier “with delayed onset” to “with delayed expression”
[4 (p272)]. In the new criteria, delayed expression is given when the person
does not meet full diagnostic criteria for PTSD until at least six months after
the event. This change reflects that some PTSD symptoms may occur imme-
diately but full expression of symptoms can be delayed. DSM-5 includes sepa-
rate descriptors for PTSD for children six years or younger. Finally, for unclear
reasons, DSM-5 has removed DSM-IV’s consideration of malingering in the
differential diagnosis of PTSD. Considering that PTSD is one of the most com-
mon diagnoses alleged in civil litigation, this elimination is ill advised, and
the forensic evaluator should continue to carefully evaluate for the possible
exaggeration or feigning of symptoms, particularly in a forensic context.
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 193 ]
PTSD. DSM-5 made the following changes to the DSM-IV diagnosis of Acute
Stress Disorder, in addition to the PTSD Criterion A change, outlined above.
First, DSM-5 is much more specific in identifying specific symptoms that
characterize acute stress disorder. Second, DSM-5 requires at least nine of
14 symptoms from any of the five identified categories (intrusion, nega-
tive mood, dissociation, avoidance, and arousal) that begin or worsen after
the trauma exposure in order to make an acute stress disorder diagnosis.
DSM-5 does not require a specific number of symptoms from each of the five
categories-only a total of nine symptoms is required. As a result, a person can
experience no arousal symptoms yet still meet criteria for acute stress disor-
der if they have sufficient symptoms in the other categories. Likewise, under
this new diagnostic scheme, a person can experience no intrusion symptoms
(e.g., distressing dreams, flashbacks, or prolonged distress upon exposure),
yet still meet criteria for acute stress disorder. The forensic and clinical impli-
cation of this change is clear: there will likely be many different presenta-
tions of acute stress disorder when using DSM-5 diagnostic criteria.
In contrast, DSM-IV required at least three dissociative symptoms, at least
one intrusion symptom, evidence of marked avoidance of stimuli that arouse
recollections of the trauma, and marked symptoms of anxiety or increased
arousal. DSM-IV was not as precise as DSM-5 in the specific number of symp-
toms necessary to make the diagnosis; however, DSM-IV required at least
some symptom evidence in each category of dissociation, intrusion, avoid-
ance, and anxiety or arousal. Third, the DSM-5 version removes the DSM-IV
symptom that emphasized a decrease in emotional responsivity [5 (p471)]
and replaces it with a “negative mood” symptom characterized by a sustained
inability to have positive feelings, such as caring for others [4 (p281)]. Finally,
under DSM-5, the duration of the symptoms must last at least three days
(and no longer than one month) after trauma exposure, whereas DSM-IV
only required that the symptoms last for two days (and no longer than one
month).
Adjustment disorders
Neurocognitive disorders
As with many accidents that involve alleged head trauma, the possibil-
ity of a neurocognitive disorder must be carefully considered. DSM-5
lists two types of Neurocognitive Disorders: major neurocognitive disor-
der and minor neurocognitive disorder. Major neurocognitive disorder is
the DSM-IV equivalent of Dementia. In DSM-IV, Dementia specified that
the person had to have both memory impairment and at least one of four
identified impairments (e.g., aphasia, apraxia, agnosia, or disturbances in
executive functioning) to qualify for a diagnosis. In contrast, DSM-5 is less
precise in how cognitive impairment is defined. For example, in regard to
the diagnosis of major neurocognitive disorder, Criterion A notes that there
must be a substantial decrease in at least one area of the person’s function-
ing, such as their ability to learn or sustain attention [4 (p602)]. According
to DSM-5, this cognitive decline must involve concern by the patient,
someone who knows the patient, or the clinician that there has been a “sig-
nificant decline in cognitive function” and a “substantial impairment in
cognitive performance” [4 (p602)]. DSM-5 suggests that this impairment
be documented by standard neuropsychological testing or another quanti-
fied clinical assessment, but it does not require any specific test. Under the
DSM-5 structure, if cognitive deficits are identified, they must interfere
with independence in everyday activities to qualify as a major neurocogni-
tive disorder. Mark has not undergone any neuropsychological testing that
indicates substantial impairment in cognitive performance, and he has
been able to resume work, despite his complaints of pain. He is not likely to
meet the criteria for major neurocognitive disorder.
Mark may meet criteria for the new DSM-5 diagnosis of mild neurocog-
nitive disorder. In particular, he complains of memory loss and problems
concentrating. In contrast to major neurocognitive disorder, mild neurocog-
nitive disorder requires only a “modest” (as opposed to a substantial) cog-
nitive decline and the cognitive deficits do not interfere with the person’s
capacity for independence in everyday activities. The evaluator will need to
assess whether Mark’s reported symptoms are genuine, result from another
DSM5 disorder (such as depression), or are malingered. The evaluation to
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 195 ]
make this determination will likely involve a combination of neuropsycho-
logical testing, instruments designed to assess malingered cognitive impair-
ment, and a structured clinical interview.
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 197 ]
impairment or distress, as manifested by at least two of the following, occur-
ring within a 12-month period” [4 (p490)] (emphasis added). Does this word-
ing suggest that the presence of at least two of the criteria occurring within
a 12-month period is, in and of itself, manifest evidence of clinically signifi-
cant impairment of distress? This interpretation would seem to elevate the
risk of false-positive diagnosis, if the criteria present are simply added up
and the total compared with a threshold number. Alternatively, in addition
to identifying the presence of the threshold number of criteria, must the
diagnostician assess whether the disturbance causes clinically significant
impairment or distress? This approach would appear to be in keeping with
the DSM requirement that the diagnosis should meet the DSM-5 actual defi-
nition of a mental disorder. Guidance has been provided in an editorial by
one of the Work Group members [17], who writes: “It is important to note
that even the mild substance use disorder . . . can only be diagnosed in the
context of significant impairment in life functioning or distress to the indi-
vidual or those around them” [17 (p662)]. Thus, the presence of two or more
criteria, assessed to be unaccompanied by clinically significant impairment
or distress, would not be sufficient to make the diagnosis of a substance use
disorder in DSM-5.
In judicial and legislative contexts, the diagnostic and conceptual discon-
tinuity between DSM-IV and DSM-5 approach to substance use disorders
may present problems, given that the previous DSM editions, including the
DSM-IV, have been cited in court opinions more than 5500 times and in leg-
islation more than 320 times [18]. Unlike the DSM-IV diagnosis of Substance
Dependence, which has been more thoroughly researched and has been dem-
onstrated to have excellent reliability and validity, the same is not yet true
for the DSM-5 diagnosis of a substance use disorder. It has been noted that
the DSM-5 field trials did not compare the DSM-IV and the DSM-5 prev-
alence rates for the same disorder through head-to-head diagnosis by the
same clinician. Instead, the field trials relied primarily on academic medical
centers with the most severe cases, rather than typical outpatient settings.
Furthermore, there was an extraordinarily high rate of attrition among clini-
cians approved to participate in the field trials, no tests of predictive validity
of the DSM-5 diagnoses were undertaken, planned tests of convergent valid-
ity were abandoned, and the threshold requirement for interrater reliability
was lowered substantially [19, 20]. It has been predicted [21] that experts
adopting the latest edition “will encounter criticisms related to the newness
of and inexperience with DSM-5,” whereas experts who choose to stick with
the DSM-IV “will likely experience aspersions suggesting that their prac-
tice is antiquated and outdated” [21 (p240)]. Therefore, regardless of choice,
the forensic expert may need a working knowledge of the issues relevant to
DSM-IV and DSM-5, including the changes, rationale, research, criticisms,
SUMMARY
DSM-5 has reorganized, added, and altered multiple diagnoses in the transi-
tion from the DSM-IV. Many of these changes may impact how claims of psy-
chiatric injuries (to include emotional distress) are evaluated in malpractice,
personal injury, and “addiction” civil litigation cases. Key summary points
for this chapter include the following:
REFERENCES
D S M - 5 a n d P e r s o n a l I n j u r y Li t i g a t i o n [ 199 ]
8. Breslau N, Davis GC, Andreski P, Peterson E. Traumatic events and
posttraumatic stress disorder in an urban population of young adults.
Arch Gen Psychiatry 1991; 48:216–222.
9. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Third Edition. Washington, DC: American Psychiatric Association;
1980.
10. Ameringen MV, Mancini C, Patterson B. The impact of changing diagnostic
criteria in posttraumatic stress disorder in a Canadian epidemiologic sample.
J Clin Psychiatry 2011; 72:1034–1041.
11. Stone A. Post-traumatic stress disorder and the law: critical review of the new
frontier. Bull Am Acad Psychiatry Law 1993; 21:23–36.
12. Friedman MJ. Finalizing PTSD in DSM-5: getting here from there and where
to go next. J Trauma Stress 2013; 26:548–556.
13. Hasin DS, O’Brien CP, Auriacombe M, et al. DSM-5 criteria for substance
use disorders: recommendations and rationale. Am J Psychiatry 2013;
170:834–851.
14. WHO Technical Report Series, No. 273, 1964 (Thirteenth report of WHO
Expert Committee on Addiction-Producing Drugs).
15. Edwards G, Gross MM. Alcohol dependence: provisional description of a
clinical syndrome. Brit Med J 1976; 1:1058–1061.
16. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Third Edition, Revised. Washington, DC: American Psychiatric
Association; 1987.
17. Schuckit MA. Editor’s corner: DSM-5—ready or not, here it comes. J Stud
Alcohol Drugs 2013; 74:661–663.
18. Slovenko R. The DSM in litigation and legislation. J Am Acad Psychiatry Law
2011; 39:6–11.
19. Welch S, Klassen C, Borisova O, Clothier H. The DSM-5 controversies: how
should psychologists respond. Canadian Psychol 2013; 54:166–175.
20. Jones KD. A critique of the DSM-5 field trials. J Nerv Ment Dis 2012;
200:517–519.
21. Wortzel HS. The DSM-5 and forensic psychiatry. J Psychiatr Pract 2013;
19:238–241.
INTRODUCTION
VIGNETTE
Workers’ compensation has been described as the nation’s oldest social insur-
ance program [1]. According to Mackenzie et al. [2], workers’ compensation
systems were developed to compensate employees for work-related injuries or
illnesses. Compensation includes not only the cost of medical treatment but
also temporary payment for lost wages and permanent disability payment
for injuries that result in a decreased ability to compete in the job market.
There are three major types of psychiatric claims that an employee can bring
under workers’ compensation; these are summarized in Table 9-1.
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 203 ]
Table 9-1. T Y PES OF PS YCHI AT R IC WOR K ER S ’ COMPENSAT ION CL A IMS
Claim Definition
Physical-Mental Physical injury (slip and fall) and resulting impairment causes
mental illness (e.g., major depressive disorder).
Mental-Physical PTSD from traumatic event (clerk being robbed at gunpoint)
causes physical illness (heart attack).
Mental-Mental Repeated stress from work (sexual harassment by a coworker)
causes mental illness (generalized anxiety disorder).
Issue Definition
Causation Whether the injury was the predominant cause of the alleged
injury.
Permanent and stationary Also known as Maximum Medical Improvement (MMI).
Whether the claimant has received maximal benefit from
treatment.
Temporary disability If the claimant has not reached MMI, whether they are
currently temporarily or completely unable to work while
they receive treatment.
Permanent disability If the claimant has reached MMI, whether they suffer from a
permanent partial or total disability that will not improve
and will keep them partially or fully unable to work.
Apportionment If the claimant has a permanent disability, whether factors
either preexisting (prior mental illness) or subsequent
issues (death in family after work injury) exacerbate the
permanent injury and therefore should reduce permanent
disability award value.
Future medical care Whether additional psychiatric care will be needed to
stabilize the permanent disability.
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 205 ]
maximum medical improvement are no longer temporarily disabled, and
they either have the ability to return to work or suffer from some amount of
permanent disability. The Sixth Edition of the American Medical Association
Guides to The Evaluation of Permanent Impairment notes that a condition is
rated “permanent” when it is “not expected to change significantly over the
next 12 months” [10 (p353)].
State workers’ compensation programs have established instructions for
the evaluator to assign a “disability rating” to quantify the employer’s per-
manent disability presentation, which helps establish how much compen-
sation the injured worker should receive. Each state varies as to how they
approach assessing disability. Many states adopt the disability rating system
as defined in the American Medical Association’s Guides to the Evaluation
of Permanent Impairment, Sixth Edition (AMA Guides), which uses three
scales; the Brief Psychiatric Rating Scale (BPRS), the Global Assessment of
Functioning Scale (GAF), and the Psychiatric Impairment Rating Scale (PIRS)
[10]. After evaluating impairment based on all three scales and assigning
a numerical impairment score for each, the evaluator is instructed to use
the median (middle) value of the BPRS, GAF, and PIRS impairment scores,
to determine a final impairment percentage. The final percentage, in turn,
is used by the workers’ compensation system to calculate a Whole Person
Impairment number, which directly translates to a monetary amount.
California has adopted a different model for rating permanent disabil-
ity. Adopted in January 2005, the California Schedule for Rating Permanent
Disabilities [11] is a scale that translates the employee’s GAF score to a Whole
Person Impairment number (WPI). The WPI number is then used to deter-
mine a disability award.
Assuming Ms. Jones has received maximum medical improvement in
regard to treatment, but she continues to suffer from psychiatric symptoms
including continued depressed mood and loss of interest, and she is not
able to perform chores around the house or interact appropriately with her
husband, children, and friends, her current GAF could be considered to be
60. According to the California Schedule of Rating, then, her Whole Person
Impairment would be 15, and the workers’ compensation system would use
this number to calculate Ms. Jones’ permanent disability award.
DSM-5 has added approximately 15 mental disorders and has broadened the
diagnostic criteria of some of the DSM-IV disorders. DSM-5 critics argue
that these changes may over classify individuals in the general population
and workplace as mentally ill when they are not [12]. When considering
the impact of DSM-5 on workers’ compensation claims, it is important to
Adjustment disorders
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 207 ]
workers’ compensation claims involve a workplace injury with a resulting or
accompanying mental health component, the three following changes are
particularly relevant when considering workers’ compensation claims that
involve physical symptoms. First, DSM-5 no longer includes the DSM-IV
diagnosis of Pain Disorder. Instead, employees who experience injury pain
that becomes a predominant focus of their attention will likely be diagnosed
with a somatic symptom disorder. Somatic symptom disorder is a completely
new DSM-5 diagnoses that may increase the number of compensable psychi-
atric injuries in the workplace [15]. According to the newly created diagnostic
criteria, if an individual has one physical symptom for more than six months
and is highly anxious about this symptom, he or she can be diagnosed with
somatic symptom disorder [14 (p311)]. Somatic symptom disorder is most
similar to the DSM-IV diagnosis of Hypochondriasis, which was not included
in the DSM-5. Hypochondriasis required the absence of a known medical con-
dition to make the diagnosis. In contrast, somatic symptom disorder can be
diagnosed whether or not the person has an underlying condition. To illus-
trate, consider the case of Joe, an employee who experiences back pain for
six months after he lifts a heavy box at work. If Joe becomes distressed and
very anxious about his pain, he could be diagnosed with somatic symptom
disorder and pursue workers’ compensation for his associated mental inju-
ries. The specifier “with predominant pain” would be given if pain is Joe’s
only symptom.
Second, DSM-5 has created a new diagnosis named “illness anxiety dis-
order.” Characteristics of this disorder include a person who becomes overly
concerned with having a significant medical illness, even though he or she
has minimal, if any, actual physical symptoms [14 (p315)]. An employee who
becomes fearful they may have been exposed to toxins in their work envi-
ronment, and for six months is extremely anxious about developing cancer,
would likely qualify for this diagnosis. Even if these fears are unreasonable,
this employee may qualify for compensation.
Third, the diagnosis “psychological factors affecting other medical condi-
tions” has been added as a mental disorder to DSM-5. The cardinal feature of
this disorder is the presence of “one or more clinically significant psychological
or behavioral factors that adversely affect a medical condition” [14 (p322)]. In
DSM-IV, this diagnosis was listed under the section titled “Other Conditions
that May Be a Focus of Clinical Attention” and was therefore not considered
an actual mental disorder. Although a superficial review may suggest little
difference between how this disorder is defined by the two manuals, there
are some important wording changes. For example, DSM-5 notes that one
way psychological or behavioral factors may adversely impact the individual
is the development of “well-established” health risks [14 (p322)]. In contrast,
DSM-IV required only that the person have “additional” health risks caused
by psychological factors. As a result, the workers’ compensation evaluator
The new DSM-5 disorder titled “mild neurocognitive disorder” carries the
potential of labeling normal memory loss that occurs with aging as a mental
illness [16]. An individual meets criteria for this disorder when there is clinical
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 209 ]
evidence of modest cognitive impairment and concern by the individual (or
others) that a mild decline in cognitive function is present. According to the
mild neurocognitive disorder diagnostic criteria, cognitive deficits must not
be severe and must not interfere with the ability to do everyday tasks, such as
paying bills or taking one’s medication [14 (p505)]. Under this new diagnosis,
the requirement for objective evidence of cognitive impairment is minimal.
It is a reasonable conclusion that many employees will be able to claim they
suffer from mild neurocognitive disorder with minimal difficulty. However,
to receive workers’ compensation, the employee will need to demonstrate
how this disorder arose from their work environment. Cognitive deficits due
to normal aging would not be expected to qualify.
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 211 ]
each element. After generating four numbers, the evaluator then takes the
average of the two highest subcategory ratings to calculate a final number
that represents overall impairment. Finally, the evaluator uses the number
on the provided Category Conversion Table, to come up with the correspond-
ing percentage that represents overall permanent impairment [18].
Regardless of how states modify their instructions for the evaluator
to determine a disability rating, it is highly likely that a viable alternative
strategy will eventually be implemented. Perhaps DSM-5’s move away from
using the GAF in impairment ratings will provide evaluators, and workers’
compensation systems, an opportunity to improve upon disability rating in
general.
Intellectual disability
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 213 ]
a person’s ability to function in real-life situations, and even those individuals
with test scores above 70 may nevertheless experience significant problems
with functioning in everyday life activities [14 (p37)].
DSM-5’s definition of intellectual disability is significantly broader than
DSM-IV’s definition and the current definition provided by the ADA. Now
employees who do not score below a recognized cutoff score for intellectual
disability on testing may nevertheless be diagnosed with intellectual disabil-
ity if they present evidence of impairment in at least one domain of adap-
tive functioning. DSM-5 provides conflicting guidance as to how extensive
impairments in adaptive functioning must be to establish an intellectual dis-
ability diagnosis. In the outline of diagnostic criteria, DSM-5 notes that the
adaptive deficits must limit functioning “across” “multiple environments”,
[14 (p33)] [emphasis added]. In contrast, the DSM-5 text notes that deficits
in adaptive functioning are present when “at least one domain of adaptive
functioning” is impaired to the degree that the person requires additional
support to function” [14 (p37)].
For the person evaluating an ADA claim involving an intellectual disabil-
ity, two important questions arise. (1) Which definition of intellectual dis-
ability is correct when evaluating an ADA claim-the ADA definition or the
DSM-5 definition? As noted above, prior EEOC guidance states that the cur-
rent DSM is relevant when making a diagnosis. However, DSM-5’s diagnostic
criteria conflicts with the EEOC’s definition of intellectual disability used
under the ADA. (2) If the evaluator uses DSM-5, must deficits in adaptive
deficits limit functioning in one or more than one setting? These important
questions are currently unanswered and likely to result in diagnostic confu-
sion and contradictory results.
Attention-deficit/hyperactivity disorder
Depressive disorders
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 215 ]
employee with the same symptoms may now request an ongoing ADA accom-
modation for major depressive disorder.
Premenstrual dysphoric disorder (PMDD) is a completely new mental dis-
order in DSM-5. Women who suffer from at least five delineated symptoms
for the majority of their menstrual cycles and experience “clinically significant
distress” in one or more life activities can qualify for PMDD. Furthermore,
DSM-5 specifically notes that PMDD may result in “decreased productivity and
efficiency at work, school or home” [14 (p172)] [emphasis added]. It is unknown
whether this new DSM-5 diagnosis will qualify as a protected disability under
the ADA, and, if it does, what reasonable accommodations will be provided.
Hoarding disorder
Hoarding disorder is also new to DSM-5 and is included in the section titled
“Obsessive-Compulsive and Related Disorders.” Diagnostic criteria for
hoarding disorder highlight that the individual has ongoing problems get-
ting rid of their possessions and becomes upset when attempts are made to
do so. DSM-5 provides specifiers that describe the person’s level of insight
into their hoarding behavior, ranging from “good or fair insight” to “with
absent insight/delusional beliefs” [14 (p247)]. Imagine an employee whose
desk becomes increasingly cluttered with numerous old documents that
need to be discarded. The employee’s workspace becomes an office eye sore
and his supervisor repeatedly tells him to “clean up his mess.” The employee
ignores all instructions and his “mess” accumulates. The supervisor calls
the employee into the office to initiate disciplinary action. Moments before
doing so, the employee reports that he has been diagnosed with hoarding
disorder, wishes to enter into the interactive process, and requests accommo-
dations under the ADA. Because the EEOC includes Obsessive Compulsive
Disorder as a possible disability under the ADA, this vignette outcome is not
impossible to envision.
Binge-eating disorder
One new eating disorder, binge-eating disorder, may have interesting implica-
tions for possible future ADA claims as highlighted in the following vignette.
VIGNETTE
Does Michael have a disability that now qualifies under the ADA? Under
DSM-5, he may. Binge eating disorder is diagnosed when a person has
repeated episodes of binge eating that occur at a minimum of once a week for
at least three months. An episode of binge eating is characterized by eating
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 217 ]
more food in a distinct timeframe compared to what most people would eat
in a similar timeframe and feeling an inability to control how much one eats
when binging. In addition, the binge-eating episode must have at least three
of the following four symptoms or behaviors: eating faster than usual; eating
so much that the person feels uncomfortable; eating a lot of food even when
the person has no appetite; and feeling ashamed or repulsed after the binge-
eating episode. In contrast to bulimia nervosa, a person with binge-eating
disorder does not take actions to prevent weight gain, such as using laxa-
tives or inducing vomiting [14 (p350)]. The DSM-5 specifically notes that
binge-eating disorder is usually associated with being overweight and obe-
sity in persons who seek treatment [14 (p351)].
Based on Michael’s presentation and his new diagnosis of binge-eating
disorder, Michael could conceivable request that his employer provide him a
reasonable accommodation for his new disability.
While a current illegal user of drugs has no protection under the ADA if the
employer acts on the basis of such use, a person who currently uses alcohol
is not automatically denied protection simply because of the alcohol use. An
alcoholic is a person with a disability under the ADA and may be entitled to
consideration of accommodation, if s/he is qualified to perform the essential
functions of a job. However, an employer may discipline, discharge or deny
employment to an alcoholic whose use of alcohol adversely affects job perfor-
mance or conduct to the extent that s/he is not “qualified” [28].
The language used by the ADA and EEOC that relates to substance use
includes terms such as “drug addicts,” “illegal user or drugs,” and “alcoholic.”
Under the DSM-IV diagnostic scheme, Alcohol Dependence was an approxi-
mate equivalent for an “alcoholic” as was Drug Dependence for a drug addict.
DSM-5 no longer separates substance abuse from substance dependence and
The new DSM-5 diagnosis “mild neurocognitive disorder” has been reviewed
in multiple chapters in this book (e.g., Chapters 2, 7, and 11). In brief, this dis-
order requires a “modest cognitive decline” in previous functioning in one or
more areas of cognition (such as learning or memory). Although these deficits
may not interfere with the ability to complete complex activities, the DSM-5
notes, “greater effort, compensatory strategies, or accommodation may be
required” [14 (p605)]. The Age Discrimination in Employment Act (ADEA)
bans discrimination in the hiring practices of individuals 40 or older but does
not require accommodations to accommodate older worker’s cognitive deficits
due to aging [29]. Perhaps employers will be required to provide assistance to
employees with this “new diagnosis” whose difficulties with performing the
essential functions of their job are related to normal effects of aging.
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 219 ]
Table 9-3. QUEST IONS TO A SSESS A DA DISA BILI T Y
1. Does the employee have an ADA qualifying impairment?
2. If yes, does this impairment substantially limit a major life activity?
3. If yes, what major life activity is limited and how is it impacted by the disability?
4. What are the essential functions of the employee’s job?
5. Is the employee qualified for the job he or she has?
6. Is there a reasonable accommodation that can help the employee perform the
essential functions of his or her job?
7. Can the employee do his or her job without an accommodation?
8. Can the employee do his or her job only with an accommodation?
9. What are specific accommodations that may assist the employee?
also substantially limit a major life activity. According to the EEOC, “substan-
tially limits” is a lower standard than “severely or significantly restricts” or
“prevents” [30]. In addition, the Americans with Disability Act Amendments
Act of 2008 (ADAAAA) clarified that a substantial limitation in only one
major life activity is required to meet the disability threshold [22]. The EEOC
has provided a list of major life activities that include (but are not limited to)
activities such as caring for oneself, performing manual tasks, seeing, hear-
ing, eating, sleeping, speaking, learning, reading, concentrating, thinking,
communicating, working, and interacting with others [30]. Table 9-3 provides
questions that can assist the evaluator in assessing important components
that constitute the definition of disability under the ADA. Finally, concerns
about the use of the WHODAS 2.0 outlined in Chapter 3 and in a previous sec-
tion of this chapter are also relevant when evaluating ADA claims.
Many of our rules for adults are based on the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders, Third Edition . . . also
called the DSM-III. That manual has been updated three times over the years
since we first published comprehensive revisions of the adult mental disorder
listings. Our childhood listings are based on the revision of the Third Edition
(the DSM-III-R) . . . We want to update the terms in our listings so they are con-
sistent with current medical terminology [33 (p12640)].
The SSA’s specific citation of the DSM-5 indicates the likely importance
that the DSM-5 will have moving forward with future claims. Although the
SSA has previously commented that they want their diagnostic listings to be
consistent with current terminology, their diagnostic listings for both adult
and children do not yet match general diagnostic categories in the DSM-5
and still retain terms found in the DSM-III and the DSM-IIR. Table 9-4 out-
lines the nine SSA adult diagnostic categories with corresponding DSM-5
diagnoses.
When determining whether the SSDI applicant is eligibility for disability,
the evaluator first determines whether the person has a mental health diag-
nosis that is included in the SSA’s list of qualifying disorders. If so, the evalu-
ator provides a description of the disorder (known as “Paragraph A”) and lists
functional limitations (known as “Paragraph B”). Four categories of func-
tional limitations that require assessment under Paragraph B include: restric-
tion of activities of daily living; difficulty in maintaining social functioning;
deficiencies of concentration, persistence, or pace; and episodes of decompen-
sation (each of extended duration). A final consideration involves a review of
additional criteria (“Paragraph C”) provided for certain disorders if the indi-
vidual does not meet the severity requirements for “Paragraph B.”
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 221 ]
Table 9- 4. SSA A DULT DI AGNOST IC C AT EGOR IES A ND
PA R A LLEL DSM-5 DISOR DER S
With the SSA’s emphasis on maintaining currency with the most recent
DSM-5 edition and the DSM-5’s abandonment of the GAF to rate disability,
the future use of the GAF in this setting seems somewhat limited. However,
evaluators should continue to use specific evidence to support identified
functional limitations rather than an over emphasis on any one rating tool.
As outlined in the workers’ compensation and ADA discussion, the WHODAS
2.0 has not been formally adopted by the DSM-5. An evaluator who uses this
instrument should be aware of its strengths and limitations in rating a per-
son’s disability.
REFERENCES
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 223 ]
7. Washington State Department of Labor & Industries. Medical examiner’s
handbook. Available at: http://lni.wa.gov/IPUB/252-001-000.pdf. Published
July 2013. Accessed 30 May 2014.
8. Colorado State Mental Impairment Rating, 2009. Available at: http://-
coworkforce.com/dwc/physaccred/level%20ii%20accreditation/level%20ii/
mental_impairment.pdf. Accessed 30 May 2014.
9. Fla Rev Stat ch 440, Title XXXI.
10. Rondinelli R, Genovese D, Katz R, et al., eds. Guides to the Evaluation of
Permanent Impairment. 6th ed. Chicago, IL: American Medical Association;
2008: p 353.
11. California Labor Work Force and Development Agency, Department of
Industrial Relations, Division of Workers’ Compensation. Schedule for rating
permanent disabilities under the provision of the labor code of the State of
California. Available at: http://www.dir.ca.gov/dwc/pdr.pdf. January 2005.
Accessed 30 May 2014.
12. Employers beware: psychiatry’s latest diagnostic manual (DSM-5) cre-
ates new mental disorders, expands others. Available at: http://www.
huntonlaborblog.com/2013/05/articles/ada-title-iii-and-state-disabl/
employers-beware-psychiatrys-latest-diagnostic-manual-d
sm5-creates-new-mental-disorders-expands-others. Updated May 20, 2013,
Accessed 30 May 2014.
13. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. 4th ed Text Revision. Washington, DC: American Psychiatric
Association, 2000.
14. American Psychiatric Association. Diagnostic and Statistical Manual of
Mental Disorders. Fifth Edition. Arlington, VA: American Psychiatric
Association; 2013.
15. Chapman S. Somatic Symptom Disorder could capture millions
more under health diagnosis. Available at: http://dxrevisionwatch.
com/2012/05/26/somatic-symptom-disorder-could-capture-millions-more-u
nder-mental-health-diagnosis/. Updated May 26, 2012. Accessed 30 May 2014.
16. Frances A. Opening Pandora’s box: the 19 worst suggestions for DSM5.
Psychiatric Times. February 11, 2010. Available at: http://www.psychiatric-
times.com/dsm/content/article/10168/1522341/. Accessed 25 February 2014.
17. Leckart B. DSM-5: assessing psych disability in PI and WC Cases. October 17,
2013. Available at: https://ww3.workcompcentral.com/columns/show/id/53e9
0d8c65fc3cee6f44d6cb441f8a82j. Accessed 30 May 2014.
18. Colorado Department of Labor and Employment, Division of Worker’s
Compensation. Workers’ compensation rules of procedure: rule 12-permanent
impairment rating guidelines. Available at: http://www.colorado.gov/cs/Satelli
te?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=-
MungoBlobs&blobwhere=1251894631025&ssbinary=true. Accessed 30 May
2014.
19. Americans with Disabilities Act, Pub. L. No. 101-336 (1990).
20. 29 CFR §1630 2(h((2)).
21. US Equal Employment Opportunity Commission, US Department of
Justice, Civil Rights Division. EEOC enforcement guidance: the Americans
with Disabilities Act and Psychiatric Disabilities. EEOC Notice No. 915.002;
1997. Available at: http//www.eeoc.gov/policy/docs/psych.html. Accessed
27 May 2014.
D S M - 5 a n d D is a b i l i t y E va l u a t i o n s [ 225 ]
CH AP TER 10
INTRODUCTION
Education for children with disabilities has changed drastically over the past
several decades. Today, more than six million children aged 3–21 with dis-
abilities receive special education (approximately 13% of total enrollment).
In stark comparison, as recently as 1970, only one in five children with dis-
abilities was educated in U.S. schools. Numerous states had laws that spe-
cifically excluded certain students from public education, such as those who
were emotionally disturbed, mentally retarded, deaf, or blind. As a result,
many children and adults with disabilities were housed in state institu-
tions where they were accommodated rather than thoroughly assessed or
educated. Families were often not involved in the education process, and
resources were not generally available to provide education within a disabled
individual’s community [1].
In 1975, Congress enacted the Individuals with Disabilities Education Act
(IDEA), which fundamentally changed the landscape of education within
the United States. The legislation guaranteed free, appropriate public educa-
tion to each child with a disability in every state and local community across
the country. The IDEA aimed to improve efforts to identify students with
disabilities, educate these individuals appropriately, evaluate the success of
these efforts, provide due process protection to children and their families,
and provide financial resources for these programs and services. Since 1975,
key amendments made to the IDEA have strengthened special education in
the United States. Notable amendments have resulted in mandated exten-
sion of programs and services from birth to age 21, required transition plans
and referrals as students transition out of the education system to postsec-
ondary school enrollment or employment, increased neighborhood school
involvement, increased partnership between schools and families as a result
of more culturally relevant instruction, and improved quality of special
education teachers and specialists. The accomplishments made as a result
of the IDEA have been tremendous including the sheer number of individu-
als with disabilities who have received appropriate education, the significant
improvement in graduation rates for those with disabilities, and the ongoing
success of many individuals with disabilities in postsecondary school enroll-
ment and employment [1].
At the federal level, the IDEA mandates that schools provide a free appropri-
ate public education (FAPE) in the least restrictive environment (LRE) to all
eligible students with disabilities. States are left to interpret these mandates
and federal regulations and issue their own regulations on implementation.
Individual school districts then develop plans for the delivery of special edu-
cation to students with disabilities.
There are currently 13 disability categories for special education eligibil-
ity under the IDEA. The disability categories (as labeled by the IDEA) that
are particularly relevant to the forensic evaluator when considering whether
a mental health disorder impacts the student’s functioning in the school
setting include autism, emotional disturbance, mental retardation, other
health impairments (which includes disorders such as Attention-Deficit/
Hyperactivity Disorder (ADHD) and Tourette syndrome), specific learning
disability, speech or language impairment, and traumatic brain injury.
VIGNETTE
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 227 ]
impulsivity have led to continual disruptions to his class. His parents
request an Individualized Education Plan (IEP) meeting because his
grades have slipped from A’s and B’s to C’s and D’s. Under the DSM-IV-TR,
Alex could not be diagnosed with both ADHD and Asperger’s Disorder,
which resulted in the school maintaining Asperger’s Disorder as his sole
diagnosis. More recently, Alex’s parents have learned from other parents
that there has been a significant change in how Asperger’s Disorder is
diagnosed, and they are concerned Alex may lose services under the new
criteria. How might DSM-5 impact Alex’s diagnosis and his eligibility for
continued services?
Autism spectrum disorder (ASD) reflects one of the most significant DSM-5
diagnostic changes to DSM-IV-TR. DSM-IV-TR [2]had four distinct per-
vasive developmental disorders: Autistic Disorder, Asperger’s Disorder,
Childhood Disintegrative Disorder, and Pervasive Developmental Disorder
Not Otherwise Specified (PDD NOS). In DSM-IV, the diagnosis of Autistic
Disorder included three separate criterion required to make the diagno-
sis: (1) problems that involve social interchanges with others, (2) problems
communicating with others (such as a having a language delay), and (3)
“restricted repetitive and stereotyped patterns of behavior, interests, and
activities” (RRBs) [2 (p75)]. In contrast, Asperger’s Disorder required only two
of these three descriptive criteria to make the diagnosis: problems interacting
with others and RRBs. As a result, if someone had problems interacting with
others and exhibited RRBs but not communication impairments, they would
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 229 ]
presentation is consistent with the diagnosis even if there is no evidence of
impaired social and communication skills in childhood. A third challenge to
the new wording used in DSM-5 for ASD is the notation that “individuals with
a well-established DSM-IV diagnosis of autistic disorder, Asperger’s disorder, or
pervasive developmental disorder not otherwise specified should be given the
diagnosis of autism spectrum disorder” [3 (p51)] (emphasis added). Concern
has been raised that this language allows the clinician to decide whether to
use either the DSM-IV-TR or DSM-5 to diagnose ASD [5, 8]. Of equal concern
is the possibility that children with a well-established diagnosis of Asperger’s
Disorder prior to the publication of DSM-5 will be eligible for ASD, whereas
children who would meet criteria for Asperger’s Disorder after the publication
of DSM-5 will not qualify because their Asperger’s diagnosis is not “well- estab-
lished.” In Alex’s case, he could be diagnosed with ASD based on the DSM-5
language that references inclusion of a prior diagnosis of Asperger’s disorder.
Implications for DSM-5’s definition of ASD remain unclear. A significant
question involves whether the new diagnostic ASD criteria will impact the
number of individuals eligible for special education services under the IDEA.
The most important link allowing for disability eligibility under the IDEA is
the direct impairment in learning and achievement as a result of an individ-
ual’s autism or ASD. However, individuals with an autism diagnosis gener-
ally have an easier time establishing eligibility for disability under the IDEA
[9]. Because some school districts limit eligibility for students diagnosed
with Asperger’s disorder or PDD NOS, having a unified diagnosis of ASD may
increase eligibility for these affected individuals. Conversely, eligibility may
decline for the individuals who would have met PDD NOS criteria but no lon-
ger meet criteria for ASD under DSM-5. Evidence suggests that those no longer
meeting ASD criteria disproportionately met criteria for PDD NOS [8, 10, 11].
Many of these individuals may be reclassified into social communication dis-
order (see below), for which disability eligibility remains uncertain [12].
Diagnoses that DSM-5 notes are now included under the umbrella of ASD
are listed in Table 10-1.
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 231 ]
functioning. Instead, the DSM-5 text indicates that adaptive functioning is
assessed using “both clinical evaluation and individualized, culturally appro-
priate, psychometrically sound measures” [3 (p37)]. The American Academy
of Child and Adolescent Psychiatry (AACAP) practice parameters for men-
tal retardation note that there are standardized measures of adaptive func-
tioning, such as the Vineland Adaptive Behavior Scale and the American
Association for Mental Deficiency (AAMD) Adaptive Behavior Scales [14],
but these instruments do not completely parallel the DSM-5 functional
domains of impairment.
Communication disorders
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 233 ]
British children, Polanczyk et al. [18] found that the prevalence of ADHD
was increased by only 0.1% when the age of onset was increased from seven
to 12 years.
Even if additional students are more accurately identified with ADHD
using DSM-5 criteria, an increase in numbers could have a significant
impact on access to special education services for children, older adoles-
cents, and adults in educational settings. Likewise, DSM-5’s formal recog-
nition that individuals can have both ASD and ADHD may enhance service
eligibility for those individuals who are functionally impaired by both
conditions.
Depressive disorders
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 235 ]
using DSM-5 criteria for symptom frequency, duration, and cross-context
criteria. For example, DMDD requires three or more temper outbursts per
week, irritability nearly every day, a duration of 12 or more months, and the
presence of symptoms in at least two of three settings. In contrast, ODD may
only present in one setting, and symptoms need only occur once per week,
“often,” and over a period of at least six months. Unlike DMDD, conduct dis-
order requires only behavioral symptoms and does not require the presence
of mood symptoms, such as irritability, to make the diagnosis.
Children and adolescents with DMDD may qualify for special education
services through the IDEA if the disorder adversely affects the child’s edu-
cational performance. The DMDD diagnosis would likely fall under the cat-
egory of emotional disturbance, which includes presentations marked by “a
general pervasive mood of unhappiness or depression” and “inappropriate
types of behavior of feelings under normal circumstances” [15]. Although
the prevalence of DMDD in a school environment (with resulting potential
increase in special education services) is unknown, Copeland et al. [25] sug-
gested a prevalence of DMDD close to 1%. Because children with conduct
disorder alone may not be eligible for special education services as opposed
to those with DMDD, evaluators will need to carefully distinguish between
the two disorders to help determine those most appropriate special educa-
tion services.
Neurocognitive disorders
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 237 ]
does not require the level of cognitive deficits to interfere with the capacity
for independence in everyday activities. In contrast, the IDEA-defined brain
injury does require that the condition “adversely affects a child’s educational
performance” [15]. Therefore, do youth with mild NCD not qualify for ser-
vices under IDEA? The answer to this question is uncertain.
Although not the focus of this chapter, the educational evaluator should
have a basic understanding of additional legislation relevant to students with
disabilities. Whereas the IDEA is the education legislation that serves as the
main vehicle for obtaining special education services, Section 504 of the
Rehabilitation Act of 1973 [28] and Title II of the Americans with Disabilities
Act of 1990 (Title II) [29] are civil rights statutes that protect individuals
SUMMARY
• The Individuals with Disabilities Education Act (IDEA), the main vehicle
used for special education, mandates that schools provide a free appropri-
ate public education (FAPE) in the least restrictive environment (LRE) to
all eligible students with disabilities.
• Autism spectrum disorder reflects one of the most significant changes in
the DSM-5 and has substantial implications for special education.
• Intellectual disability presents a new challenge in how to evaluate adap-
tive functioning.
• New diagnoses such as social communication disorder, disruptive mood
dysregulation disorder, and mild neurocognitive disorder, as well as broad-
ened criteria such as for ADHD and PTSD, raise questions of disability
eligibility and concern that some children and adolescents may be over
diagnosed.
REFERENCES
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 239 ]
Through IDEA. Washington, DC: US Department of Education, Office of Special
Education and Rehabilitative Services; 2010.
2. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision. Arlington, VA: American Psychiatric
Association; 2000.
3. American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition. Arlington, VA: American Psychiatric Association; 2013.
4. Huerta M, Bishop SL, Duncan A, et al. Application of DSM-5 criteria for autism
spectrum disorder to three samples of children with DSM-IV diagnoses of
pervasive developmental disorders. Am J Psychiatry 2012; 169:1056–1064.
5. Frances A. DSM-5 badly flunks the writing test. Psychiatric Times. Available
at: http://www.psychiatrictimes.com/ dsm-5-badly-flunks-writing-test.
Published June 11, 2013. Accessed 9 January 2014.
6. McPartland JC, Reichow B, Volkmar FR. Sensitivity and specificity of pro-
posed DSM-5 diagnostic criteria for autism spectrum disorder. J Am Acad Child
Adolesc Psychiatry 2012; 51:368–383.
7. Frazier TW, Youngstrom EA, Speer L, et al. Validation of proposed DSM-5
criteria for autism spectrum disorder. J Am Acad Child Adolesc Psychiatry 2012;
51:28–40.
8. Volkmar FR, McPartland JC. From Kanner to DSM-5: autism as an evolving
diagnostic concept. Annu Rev Clin Psychol 2014; 10:8.1–8.20.
9. Ne’eman A, Kapp S. What are the stakes? An analysis of the impact of the
DSM-5 draft autism criteria on law, policy and service provision. Autistic Self
Advocacy Network, Policy Brief. 2012; 1–11. Available at: http://autisticadvocacy.
org/wp-content/uploads/2012/06/DSM-5_Policy_Brief_ASAN_final.pdf.
Accessed 12 May 2014.
10. Frances A. Will the DSM-5 reduce rates of autism? Psychology
Today. 2012; Available at: http://www.psychologytoday.com/blog/
dsm5-reduce-rates-autism. Published November 20, 2012. Accessed 8
January 2014.
11. Kulage KM, Smaldone AM, Cohn EG. How will DSM-5 affect autism diagnosis?
A systematic literature review and meta-analysis. J Autism Dev Disord 2014;
44:1918–32.
12. Norbury CF. Practitioner review: social (pragmatic) communication disorder
conceptualization, evidence and clinical implications. J Child Psychol Psychiatry
2014; 55:204–216.
13. Rosa’s Law, Pub L No. 111-256, 124 stat. 2643 (2010).
14. Szymanski L, King BH. Practice parameters for the assessment and treat-
ment of children, adolescents, and adults with mental retardation and
comorbid mental disorders. J Am Acad Child Adolesc Psychiatry 1999; 38(12
Suppl):5S–31S.
15. Individuals with Disabilities Education Act, 20 USC §1400 et seq. (2004).
16. Volkmar F, Siegel M, Woodbury-Smith M, et al. Practice parameters for the
assessment and treatment of children and adolescents with autism spectrum
disorder. J Am Acad Child Adolesc Psychiatry 2014; 53:237–257.
17. Thomas R, Mitchell GK, Batstra L. Attention-deficit/hyperactivity disor-
der: are we helping or harming? BMJ 2013; 347(f6172):1–7.
18. Polanczyk G, Caspi A, Houts R, et al. Implications of extending the ADHD
age-of-onset criterion to age 12: results from a prospectively studied birth
cohert. J Am Acad Child Adolesc Psychiatry 2010; 49:210–216.
D S M - 5 a n d Ed u c a t i o n E va l u a t i o n s o f C h i l d r e n [ 241 ]
CH AP TER 11
INTRODUCTION
The somatoform disorders are not the only diagnoses that have undergone
substantial changes in DSM-5. In some diagnoses, the criteria have become
so broad that feigning symptoms are likely to occur with increasing fre-
quency. For example, the criteria for posttraumatic stress disorder (PTSD)
have changed such that some believe that the number of people who could
receive this diagnosis will substantially increase, with a comparable increase
in the number who attempt to feign the disorder [5]. Mental retardation
has been replaced with intellectual disability, and severity level is based
on functional deficits, not measured intelligence, which may or may not be
more easily feigned. Strategies for the detection of feigning would necessar-
ily be different depending on whether the clinician is assessing the presence
of symptoms versus the absence of deficits. For example, in PTSD, feigning
involves the endorsement of a wide range of symptoms; in intellectual dis-
ability, feigning would require endorsing an absence of functioning. The text
below is a brief discussion of the suggested components of a forensic inter-
view, including a discussion of the strategies for the detection of feigning
and examples of assessments for each strategy.
DSM-IV TR DSM-IV TR Diagnosis Intentional Malingering DSM-5 DSM-5 Diagnosis Intentional Malingering
Category and Code Symptom in DSM-IV TR Category Symptom in DSM-5
Production in Differential Production Differential
DSM-IV TR in DSM-5
Criteria Criteria
Somatoform Somatization Disorder Yes Yes Somatic Somatic symptom disorder 300.82 No No
disorders 300.81 symptom
and related
disorders
Undifferentiated Yes Yes Somatic symptom disorder 300.82 No No
Somatoform Disorder
300.82
Conversion Disorder Yes Yes Conversion Disorder 300.11 No Yes
300.11
Pain Disorder Yes Yes Somatic symptom disorder with
Testing strategies
Ombudsmen tests of psychological functioning
Perhaps the most researched strategy in the detection of response bias is to use
self-report tests of general psychological functioning that also include validity
scales. The two instruments most often used in this regard are the most recent
version of the Minnesota Multiphasic Personality Inventory (MMPI) [8], the
MMPI-2 [9], and the Personality Assessment Inventory (PAI) [10].
The MMPI-2 is a 567-item self-report instrument designed as a measure
of general psychopathology. It has been cited as being “the mostly widely
administered objective personality test in forensic evaluations” [11 (p1)]
largely because of the extensive research conducted on its ability to detect
response bias via the embedded validity scales. The three original valid-
ity scales from the MMPI included the Lie scale (L), the Infrequency scale
(F), and the Defensiveness scale (K). Various configurations of these scales
were extensively researched to detect both positive and negative impression
management [12]. Further research with the MMPI led to the development
of many more validity scales, including VRIN (variable response inconsis-
tency), the tendency to respond inconsistently to item content); TRIN (true
response inconsistency), the tendency to respond mostly true (or false) to
items regardless of content); Fb (Back Infrequency), the infrequency items
contained on the latter half of the test; and Fp (Infrequency psychopathol-
ogy scale), items rarely endorsed by psychiatric patients.
As Larrabee [13] describes, the MMPI-2 is efficient at measuring at least
two types of feigning: feigned severe psychopathology (e.g., psychosis) and
Floor effect
Name Content
Rey 15-item Test (FIT) 15 redundant items grouped 3 in 5 rows
Score less than 9 = probable malingering
The b test Circle all lowercase b’s in a 15-page booklet,
requires distinguishing between q’s, p’s, and d’s
Coin-in hand test Show coin in hand for 2 seconds
Close eyes count backward 10–1
Clench both hands
Tap hand with coin
10 trials, random hand
PTSD VIGNETTE
Donald is a 28-year-old male who had lived with his mother his entire
life until her recent death. He was placed in special education classes in
the 3rd grade, where he remained until he dropped out of school in the
9th grade. Donald was tested using the Wechsler Intelligence Scale for
Children while in the 6th grade, on which he achieved a full scale IQ
score of 73, which did not allow him to receive services from the local
developmentally disabled agency (IQ too high, did not qualify as men-
tally retarded). He received SSDI since the age of 10 for learning disabili-
ties, which his mother managed (she was the payee). Donald was never
able to obtain employment, although he performed odd jobs (e.g., lawn
mowing) for neighbors. Although Donald was able to perform self-care
adequately, his mother provided a home and meals for him. Donald
had very few friends and preferred spending his days at home watch-
ing TV when not performing the above-noted odd jobs. Upon mother’s
death, Donald’s older, more functional brother moved in to the home
and replaced mother as payee and caretaker. Within two months of his
mother’s death, Donald was arrested and charged with petty theft, his
first arrest. He was instructed by his older brother to steal a six-pack of
beer from the local convenience store. Although Donald recognized that
to do so was wrong, he wanted to please his brother and “fit in” with his
brother’s friends, and his brother was his sole source of support. His
attorney expressed concerns about Donald’s judgment and intelligence
and requests a competence to stand trial evaluation. You are the foren-
sic examiner and understand that malingering should always be consid-
ered in such evaluations.
that the embedded effort tests are inaccurate for individuals with intellec-
tual deficits. Therefore, collateral information such as school records and
information from neighbors and/or brother would be crucial in document-
ing adaptive skills deficits.
The basic criteria for dissociative identity disorder (DID) are essentially
unchanged. However, Criterion A in DSM-5 includes possession experiences
in addition to the “two or more distinct personality states” [1 (p292)] found
in DSM-IV TR. DSM-5 describes that DID possession states commonly pres-
ent as if a spirit or supernatural force has taken over the individual, and
as a result the individual talks or behaves in an obviously different manner
than usual [1 (293)]. DSM-5 is very clear that culture is a critical aspect of
this type of dissociation and is likely not relevant in most U.S. cultures, sug-
gesting that an effort to feign this disorder by claiming feeling possessed is
unlikely to be successful. DSM-5 also has clearly specified that the symptoms
cause distress or impairment in functioning (Criterion C), absent in DSM-IV
TR.
In an interesting break from the seeming lack of acknowledgment of
malingering in other disorders commonly feigned, the text for dissociative
identity disorder (DID) provides guidelines for distinguishing feigned from
“legitimate” DID. In the Differential Diagnosis section, DSM-5 cautions
examiners to consider factitious disorder or malingering, as did DSM-IV
SUMMARY
• Malingering has been removed from the differential of all but one of the
somatic symptom and related disorders.
• The somatoform disorders underwent substantial revision in an apparent
effort to improve reliability of the diagnoses, as implied by the statement
that distinguishing conscious from unconscious motivations is unreliable.
• The revision of PTSD to include “learned of” trauma is likely to greatly
increase the number of individuals meeting diagnostic criteria as well as
the number attempting to feign the disorder.
• The criteria for intellectual disability are impossibly confusing such that
both of the following are true:
• One could receive the diagnosis with a low average IQ with deficits in
one domain.
• One could receive the diagnosis with a low IQ with deficits only in the
conceptual domain.
• It is unknown whether the changes to diagnosing intellectual disability
will lead to an increase in the incidence of malingering, because adaptive
skills may be more easily feigned.
• In dissociative identity disorder, examples are given to aid in distinguish-
ing genuine from feigned disorder.
• Adding “sexsomnia” as a specifier to sleepwalking may increase the inci-
dence of malingering as a defense against a sex offense.
REFERENCES
[ 270 ] Index
bipolar II disorder, 6 checklists of features, 5
bizarre content, 43 childhood-onset fluency disorder, 28
body dysmorphic disorder (BDD), 36, children
43–44 education evaluations for, 226–241
borderline personality disorder, 117, mental illnesses in, 3–4
245 posttraumatic stress disorder (PTSD)
Brief Psychiatric Rating Scale (BPRS), in, 193
159, 170–171, 205 school-aged, 226–241
Brief Psychiatric Rating Scale (BPRS) civil commitment, involuntary,
Expanded Version (4.0), 59 154–157
b test, 252t civil competence evaluations, 152–153
executing the instrument, 152
CADCOMP. see Computer-Assisted general approach to, 172–173
Determination of Competency to guidelines for, 172–173
Stand Trial civil competencies, 152–176, 153t
California civil proceedings, 18, 177
capacity to manage medical decisions, litigation related to prescribed medi-
160–161 cations, 179–181
competence to manage financial litigation related to risk assessment,
affairs/contract/marry, 165–168 179
involuntary civil commitment, substance use disorders and, 196–199
156–157 Clark v. Arizona, 19, 134, 135
Probate Code, 161 Clinician-Rated Dimensions of
right to refuse psychiatric treatment, Psychosis Symptom Severity
158–159 (CRDPSS) scale, 57–58, 60, 83–84,
Schedule for Rating Permanent 113, 140, 159, 170
Disabilities, 205 CMS. see Centers for Medicare and
testamentary capacity, 168–169 Medicaid Services
workers’ compensation claims, 203, cocaine abuse and dependence, 82–83
204, 205, 210 cognitive decline, modest, 258–259
Canterbury v. Spence, 160 cognitive deficits, feigned, 259–260
capacity. see also competence cognitive disorders, 6, 46
definition of, 161 cognitive impairment, 260
diminished capacity defense, 127, cognitive screening, 162–163, 163t
134–135, 146–148, 149–150 coin-in-hand test, 252t
for medical decision-making, Colorado
160–165 Mental Impairment Rating, 204–205
testamentary, 168–171 Permanent Impairment Rating
capacity hearings, 159 Guidelines, 211–212
CAST*MR. see Competence Assessment workers’ compensation claims,
for Standing Trial for Defendants 204–205, 211–212
with Mental Retardation Colorado v. Connelly, 119
catatonia, 43, 62 communication disorders, 28, 112,
cautionary statement, 16–18, 137 214–215, 232–233
CD. see conduct disorder competence, 101–126
Centers for Disease Control and to be executed, 122–123
Prevention (CDC), 63 to be sentenced, 121–122
Centers for Medicare and Medicaid civil competencies, 152–176, 153t
Services (CMS), 63, 64 to confess to a crime, 118–119
charges: severity of, 107 criminal competencies, 102, 102t
Inde x [ 271 ]
competence (Contd.) competence to stand trial, 103–111,
incompetence to stand trial findings, 111–118, 123, 124
109–110, 110t courtroom behavior, appropriate, 108
key points to consider, 123–124 courtroom personnel, 107
to manage financial affairs/contract/ CRDPSS. see Clinician-Rated
marry, 165–168 Dimensions of Psychosis Symptom
to plead guilty, 119 Severity
to stand trial, 103–111, 111–118, crime: elements of, 127–130
123, 124 criminal competencies, 102, 102t
to testify, 121 criminal defendants, 106–107
to waive a jury trial, 120 criminal justice system
to waive appeals, 122 competencies and, 101–126, 102t
to waive counsel, 119–120 psychiatric evaluations of individuals
to waive extradition, 121 in, 77–100
Competence Assessment for Standing criminal responsibility, 136–148,
Trial for Defendants with Mental 148–149
Retardation (CAST*MR), 108 cross-cutting symptoms, 9, 10, 11–12,
competence evaluation 56, 61–62
for competence to be executed, 123 Crowley, Thomas, 39
for competence to stand trial, Cruzan v. Missouri Department of Health,
105–108, 108–109, 109–111, 110t, 160
111–118 culpability. see guilt
suggestions for clinicians, 106 current diagnoses, 64–66, 66–70
tools for, 108–109, 173, 173t
Competency Screening Test, 108 DABS. see Diagnostic Adaptive Behavior
Competency to Stand Trial Assessment Scale
Instrument, 108 damages, 178
Computer-Assisted Determination Daubert v. Merrell Dow Pharmaceuticals,
of Competency to Stand Trial 19–20
(CADCOMP), 109 death penalty litigation, 89–94,
conduct disorders, 36–39, 114–115, 122–123
143–144 death row, 90
confession: competence to make, Death with Dignity Act (Oregon),
118–119 164–165
confidentiality, 16 decisional capacity to manage medical
conservators, 168 decisions, 160–165
contracts: competence to manage, defendants: competence to testify, 121
165–168 defense attorneys, 107
conversion disorder, 35–36, 186–187, defense decisions, 108
244–245, 246t defenses. see also mental health
correctional settings defenses
death row, 90 ability to assist in, 107–108
recording diagnoses in, 69 affirmative, 128–129, 129t
right to refuse psychiatric treatment plan of, 108
in, 159–160 delirium, 46, 91
treatment requirements in, 94–95 delusional disorder, 91–92, 113
counsel: competence to waive, 119–120 delusions, grandiose, 91–92
court proceedings dementia, 46, 118, 161, 167, 168, 195
ability to understand nature and denial, 3
objectives of, 106–107 dependence, 198–199
[ 272 ] Index
dependence syndrome, 39, 197 disruptive disorders, 36–39, 143–144
depersonalization/derealization disor- disruptive mood dysregulation disorder
der, 44 (DMDD), 31, 46, 140, 235–236
depressive disorders, 30–31, 184, and competence to stand trial assess-
215–216, 235–236 ments, 114–115
and competence to stand trial assess- guidelines for evaluating, 115
ments, 113–115 dissociative amnesia, 143
diagnoses relevant to ADA claims, dissociative disorders, 44
215–216 Dissociative Experiences Scale (DES),
mixed anxiety-depressive disorder, 9 261
dereliction of duty, 178 dissociative fugue, 143
DES. see Dissociative Experiences Scale dissociative identity disorder (DID), 18,
detoxification, 82 142
deviant behavior, 138 and competence to stand trial assess-
diagnosis (term), 51–52 ments, 116–117
Diagnostic Adaptive Behavior Scale diagnostic criteria for, 260
(DABS), 94 feigned or malingered, 260–261
Diagnostic and Statistical Manual (DSM). to question trial competency, 116
see DSM DMDD. see disruptive mood dysregula-
diagnostic criteria, 52–54 tion disorder
Feighner Diagnostic Criteria, 4 Dodd v. Hughes, 18–19
generic, 197 do not resuscitate (DNR) orders, 164
diagnostic examination, 242 Down’s syndrome, 10
diagnostic orphans, 39–40 drug court diversion programs, 81–84
diagnostic subtypes, 54–63 drug court treatment: eligibility criteria
Diamond, Bernard, 136 for, 81–82
differential diagnosis, 242 drug screens, 82
Digit Span Scaled Score, 257 Drummond, Edward, 131
diminished capacity defense, 127, DSM (Diagnostic and Statistical Manual),
134–135, 146–148, 149–150 vii, 111
Dimsdale, Joel E., 34 evolution of, 2–6
disability in legal proceedings, 16–17, 19–21
definition of, 201, 212 DSM-I (Diagnostic and Statistical
education accommodations for, 238 Manual, Mental Disorders), 2–3,
intellectual. see intellectual 4–5, 153
disability DSM-II (Diagnostic and Statistical
permanent, 205, 205t Manual), 3–4, 5, 153
qualifications for, 238 DSM-III (Diagnostic and Statistical
special education eligibility, 227 Manual), 4–5, 12, 16, 153
temporary, 205, 205t DSM-III-R (Diagnostic and Statistical
disability evaluations, 14, 201–225 Manual), 5, 16
for ADA claims, 214, 219–220, 220t DSM-IV (Diagnostic and Statistical
determination whether and how, 71–74 Manual), 3–4, 5–6, 13, 153, 188,
under DSM-5, 210–212 198–199
key summary findings, 223 DSM-IV-TR (Diagnostic and Statistical
questions for, 220, 220t Manual of Mental Disorders, Fourth
in SSDI claims, 221 Edition, Text Revision), 5–6, 10,
disability insurance programs, 220–221 16–17, 20–21, 153
disability ratings, 205 DSM-5 (Diagnostic and Statistical
Discepolo v. Gorgone, 18 Manual, Fifth Edition), vii, 3–4
Inde x [ 273 ]
DSM-5 (Contd.) eating disorders, 44
cautionary statement, 16–18, 137 ECST-R. see Evaluation of Competency
challenges presented by, 139 to Stand Trial-Revised
and civil litigation related to pre- education accommodations, 238
scribed medications, 179–181 education evaluations
and civil litigation related to risk key DSM-5 diagnostic changes and
assessment, 179 impact on, 227–238
and competence to stand trial, key summary points, 239
111–118 for school-aged children, 226–241
and criminal responsibility, 136–148 EEOC. see Equal Employment
definition of mental disorder, 154 Opportunity Commission
development of, 6–15, 21 emerging measures, 11–12, 56
diagnostic changes, 42–46, 227–238 emotional distress claims, 177, 178t,
diagnostic criteria, 52–54 199
diagnostic subtypes and specifiers, emotions, prosocial, 37
54–63, 64–66 employment-related problems, 190
dimensional approaches, 10–11 end-of-life decisions, 164
and diminished capacity defenses, Equal Employment Opportunity
146–148 Commission (EEOC), 212–213, 218
disability evaluations under, 210–212 ethical issues, 15–16
and disability qualification and edu- Evaluation of Competency to Stand
cation accommodation, 238 Trial-Revised (ECST-R), 109
DSM-5 Research Planning evaluations. see also forensic evalua-
Conference, 6–7 tions; psychiatric evaluations
and educational evaluations, intelligence quotient (IQ) testing,
227–238 27, 80
ethical issues, 15–16 intelligence testing, 167–168
field trials, 8–9 neurocognitive tests, 259
forensic use of, 16–18 neuropsychological testing, 167–168
legal challenges to, 18–19 ombudsmen tests, 247–248
major diagnostic changes, vii, 1–2, evidence
25–50, 26f appraisal of, 107
and mens rea defenses, 136–148 criteria for, 20
other conditions, 51–52 DSM admissibility as, 19–21
preparation and planning for, 7 Federal Rules of Evidence, 20
release, 9 executing the instrument, 152
A Research Agenda for DSM-5 (Kupfer execution: competence to be executed,
et al.), 1–2 122–123
and Social Security Disability exhibitionistic disorder, 79
Insurance claims, 220–222 extradition: competence to waive, 121
structural changes, 9–10
and workers’ compensation claims, factitious disorder, 188, 243, 244–245,
201–203, 206–209 246t
workgroups, 7–8 factitious illness behavior, 243
DSM-5 Disability Work Group, 13 Fake Bad Scale (FBS), 248, 254
DSM-5 Research Planning Conference, FAPE. see free appropriate public
6–7 education
Durham v. United States, 132 Faretta v California, 120
Dusky v. United States, 104 Fawcett, Jan, 30
duty, 178 FBS. see Fake Bad Scale
[ 274 ] Index
Federal Insanity Defense Reform Act GAF scale. see Global Assessment of
(FIDRA), 133, 137 Functioning scale
Federal Rules of Evidence, 20 gambling, pathological, 16
feeding disorders, 44 gambling disorder, 41–42, 78
Feighner, John, 4 GBMI defense. see guilty but mentally
Feighner Diagnostic Criteria, 4 ill defense
feigning, 245. see also malingering gender considerations, 7
fetal alcohol syndrome, 146 gender dysphoria, 45
fetishism, 79 gender incongruence, 45
FIDRA. see Federal Insanity Defense gender-related diagnostic issues, 89
Reform Act general acceptance test, 19
field trials, 8–9 generic diagnostic criteria, 197
financial affairs/contract/marry: com- Georgia Court Competency Test, 108
petence to manage, 165–168 Global Assessment of Functioning
FIT. see Rey 15-item Test (GAF) scale, 5, 6, 10, 13–15, 71, 74,
fitness for duty evaluations, 14 83, 170, 205, 210, 222
Fitness Interview test, 108–109 global competence, 102
flashbacks, 191 grief, 171
floor effect, 248–249 guardians, 168
floor effect tests, 250–251, 252t Guides to The Evaluation of Permanent
Florida, 205 Impairment, Sixth Edition (AMA),
fluency disorder, childhood-onset, 28 205, 210
Ford v. Wainwright, 90, 122–123 guilty: competence to plead, 119
forensic evaluations, 15–16 guilty but mentally ill (GBMI) defense,
cautionary statement regarding, 127, 135–136
15–16
guidelines for, 148–149 Hall, Freddie Lee, 94
guidelines for listing diagnoses, 70 hallucinogens, 39
key points to consider, 96 Hall v. Florida, 94
major responsibilities in, 148 harassment, sexual, 190
options for, 58–59 healthcare decision making, 164
recording diagnoses, 69–70 healthcare proxy decision makers, 164
at the time of the offense, 148–149 hebephilia, 79, 145
forensic settings Highlights of Changes From DSM-IV-TR
conditions frequently seen in, to DSM-5 (APA), 45
51–52 Hinckley, John, Jr., 133
disorders commonly seen in, 78 hoarding, 44, 141, 216
key points to consider, 96 Huntington’s disease, 10
Francis, Allen, 5–6 hypochondriasis, 208, 244–245, 246t
free appropriate public education
(FAPE), 227, 239 ICD. see International Classification of
Frye test, 19 Diseases
Frye v. United States, 19 Idaho, 89, 134
fugue, dissociative, 143 IDEA. see Individuals with Disabilities
functional deficits, 256 Education Act
functional disorders, 3 IED. see intermittent explosive disorder
functional mental illness, 3 ILK. see Inventory of Legal Knowledge
functional neurological symptom disor- illness anxiety disorder, 35, 186, 208,
der, 186–187 244–245, 246t
Furman v. Georgia, 89–90 impairment, whole person, 205
Inde x [ 275 ]
impulse-control disorders, 36–39, and competence to stand trial assess-
143–144 ments, 117–118
Indiana, 262 diagnostic criteria for, 117
Indiana v. Edwards, 120 violence risk, 85
Individuals with Disabilities Education International Classification of Diseases
Act (IDEA), 226–227, 233, 236, 239 (ICD), 3–4, 10, 63–64, 231
2004 amendments, 234–235 International Classification of
disability categories for special educa- Diseases, Ninth Revision, Clinical
tion eligibility, 227 Modification (ICD-9-CM), 63–64
informed consent, 160 International Classification of Diseases,
injury Tenth Revision (ICD-10), 5–6, 10
nonsuicidal self-injury, 9 International Classification of
personal injury claims, 182–196 Diseases, Tenth Revision, Clinical
personal injury litigation, 177–200 Modification (ICD-10-CM), 64
inmates International Classification of
on death row, 90 Functioning, Disability, and Health
right to refuse psychiatric treatment, (ICF), 13
159–160 intoxication, 138
inpatient settings, 67–68 intrusion symptoms, 191–192
insane delusion, 169 Inventory of Legal Knowledge (ILK),
insanity 109
Federal Insanity Defense Reform Act involuntary civil commitment, 154–157
(FIDRA), 133 involuntary intoxication, 138
legal, 130, 131–134 Irresistible Impulse Test, 132
M’Naghten Rule for, 131
most common mental disorders, 146 jury trials: competence to waive, 120
not guilty by reason of insanity juvenile delinquents, 114–115
defense, 127–151, 262
settled, 138 Kansas, 134
insanity defense. see not guilty by kleptomania, 37
reason of insanity defense Kupfer, David, 7–8, 9
insanity statutes, 136–137
insomnia, 44–45 language disorder, 28
intellectual disability, 10, 27, 92–93, language impairment, 233
139, 212–213, 213–214, 231–232 Lanterman-Petris-Short (LPS) Act, 156
categories of, 256 learning disorders, specific, 234–235
and competence to stand trial assess- least restrictive environment (LRE),
ments, 111–112 227, 239
components of, 213 legal charges, 106
definition of, 214 legal counsel: competence to waive,
diagnostic criteria for, 53, 256, 263 119–120
feigned or malingered, 256–258 legal guardians, 168
severity levels, 245, 256 legal insanity, 130
intellectual functioning deficits, 80 legal standards
intelligence quotient (IQ) scores, 231 for competence to stand trial,
intelligence quotient (IQ) testing, 27, 80 104–105, 124
intelligence testing, 167–168 for insanity, 131–134
Interdisciplinary Fitness Interview, 108 legal wrongfulness, 131–132
intermittent explosive disorder (IED), life domains, 73
37, 38–39, 47, 79–80, 143–144 Likert scale, 57–58
[ 276 ] Index
listing current diagnoses, 66–70 capacity for, 160–165
litigation incapacity for, 161
civil, 177, 179–181 medical ethics, 16
competence to stand trial, 103–111, medically unexplained symptoms
111–118, 123, 124 (MUS), 34
death penalty, 89–94 medical malpractice claims, 178–182,
DSM admissibility as evidence in 199
court, 19–21 medical needs, serious, 95
personal injury, 177–200 medical negligence, 178
psychiatric diagnosis and, 18–21 medication(s)
LRE. see least restrictive environment adverse effects of, 46, 51–52,
181–182
MacArthur Competence Assessment antidepressant discontinuation syn-
Tool-Criminal Adjudication drome, 182
(Mac-CAT-CA), 109, 118 civil litigation related to prescribed
maintenance therapy, 77–78, 82 medications, 179–181
major depressive episode (MDE), 30, process for administering antipsy-
215–216 chotic medication to civilly hospi-
major neurocognitive disorder, 46, 91, talized persons in, 158
161–163, 237 right to refuse, 158–159
malingering, 80, 242–267 medication-induced mental disorders,
changes from DSM-IV TR to DSM-5, 179–181, 199
244–245, 246t medication-induced movement disor-
definition of, 242–243 ders, 46, 51–52, 145–146, 179–180,
differential diagnosis of, 242 181–182
guidelines for when to suspect, 242 mens rea (guilty mind), 127–130
important summary points, 263 mens rea defenses, 134–135, 136–148
possible, 259 MENT. see Morel Emotional Numbing
probable, 259 Test
reverse, 14 mental deficiency, 3–4
strategies for detecting, 250–251, 252t mental disease or defect (phrase), 136
malingering evaluation, 245–251 mental disorders, 51–52. see also specific
Malingering Index (MAL), 248 disorders
malingering of neurocognitive dysfunc- in civil competencies, 153–154
tion (MND), 259 definition of, 5, 25–27, 51, 154, 155,
malpractice, medical, 178–182, 199 197, 221
Mancuso v. Consol. Edison, 21 diagnostic criteria for, 136
manic-depression, 5 medication-induced, 179–181, 199
manslaughter, 135 parallel SSA and DSM-5 categories,
Marcellino, Rosa, 27 221, 222t
marriage: competence for, 165–168 serious, 95
Maryland, 27 substance-induced, 180–181
Matter of Welfare of Colyer, 160 mental health court diversion pro-
McDonald v. U.S., 136 grams, 81–84
MDE. see major depressive episode mental health defenses
medical conditions diminished capacity defense, 127,
personality change due to, 196 134–135, 146–148, 149–150
psychological factors affecting, mens rea defenses, 134–135
187–188, 208–209 not guilty by reason of insanity
medical decision-making defense, 127–151, 262
Inde x [ 277 ]
mental health defenses (Cont.) multiaxial system, 5, 12–13
willingness to consider, 107 MUS. see medically unexplained
mental illness symptoms
categories of, 3 muscle dysmorphia, 44
definition of, 136–137
functional, 3 narcolepsy, 6
major, 91 National Academy of Neuropsychology
threshold for, 136–137 (NAN), 259
mental impairment National Center for Health Statistics, 63
under ADA, 212–213 National Institute of Mental Health
examples, 213 (NIMH), 4, 6, 7
mental-mental injury, 204, 204t DSM-5 Research Planning
mental-physical injury, 204t Conference, 6–7
mental retardation, 3–4, 10, 27, 80, Neurodevelopmental Disorders Work
92–93, 139 Group, 27
Merrell Dow Pharmaceuticals, 19–20 National Institute on Alcoholism and
Meyer, Adolf, 3 Alcohol Abuse (NIAAA), 7
M-FAST. see Miller Forensic National Institute on Drug Abuse
Assessment of Symptoms Test (NIDA), 7
(M-FAST) National Institutes of Health (NIH), 7
mild head injury (MHI), 260 NCDs. see neurocognitive disorders
mild neurocognitive disorder, 46, 144, negative impression management
161–163, 167, 195–196, 209–210, (NIM), 248
219–220, 237–238 negative mood symptoms, 194
diagnostic strategies for, 258–259 negligence, medical, 178
feigned or malingered, 258–260 negligent torts, 178
mild substance use disorders, 196 neurocognitive disorders (NCDs), 46,
Miller Forensic Assessment of 195–196, 237–238
Symptoms Test (M-FAST), 252t and competence to stand trial assess-
Minnesota Multiphasic Personality ments, 118
Inventory (MMPI), 247 major, 46, 91, 161–163, 237
MMPI-2, 247–248, 253–254, 255 malingering of, 259
Miranda v. Arizona, 118–119 mild, 46, 144–145, 161–163, 167,
mixed anxiety-depressive disorder, 9 195–196, 209–210, 237–238,
MMPI. see Minnesota Multiphasic 258–260
Personality Inventory neurocognitive tests, 259
M’Naghten Rule, 131, 132, 133 neurodevelopmental disorders, 27–30
MND. see malingering of neurocogni- Neurodevelopmental Disorders Work
tive dysfunction Group (NIMH), 27, 46
Model Penal Code (MPC), 132, 133, neuropsychological testing, 167–168
135 neurosis (term), 4–5
Montana, 134 neurotic disorder (term), 4–5
Montana v. Egelhoff, 135 NGRI. see not guilty by reason of
mood disorders, 30–31, 181 insanity
Mood Disorders Work Group, 30, 46 NIAAA. see National Institute on
moral wrongfulness, 131–132 Alcoholism and Alcohol Abuse
Morel Emotional Numbing Test NIDA. see National Institute on Drug
(MENT), 254–255 Abuse
movement disorders, NIH. see National Institutes of Health
medication-induced, 46, 51–52, NIM (negative impression manage-
146, 179–180, 181–182 ment), 248
[ 278 ] Index
NIMH. see National Institute of Mental panic attack specifier, 61–62
Health panic disorder, 43
nomenclature, 9–10 PANSS. see Positive and Negative
nonrapid eye movement sleep arousal Syndrome Scale
disorders, 45, 143, 261–262 paraphilias, 45, 79, 86–87
North Carolina, 262 paraphilic coercive disorder, 78–79, 145
NOS disorders. see not otherwise speci- paraphilic disorders, 45, 78–79, 86–87,
fied disorders 88, 145
not guilty by reason of insanity (NGRI) Parsons v. State, 132
defense, 127–151, 262 pathological gambling, 16
exclusions, 138 Patient Health Questionnaire (PHQ), 11
Federal Insanity Defense Reform Act Patient Health Questionnaire-9
(FIDRA), 133 (PHQ-9), 56
history of, 131–134 PDD-NOS. see pervasive developmental
key points, 149 disorder not otherwise specified
not otherwise specified (NOS) disor- pedophilia, 16, 65, 88
ders, 10, 12, 15, 53 pedophilic disorders, 87–88, 136–137
Peel, Robert, 131
O’Brien, Charles, 39 peeping toms, 79
obsessive compulsive disorder (OCD), penile plethysmography, 88
32, 43–44, 141 performance curve analysis, 249–250
Obsessive Compulsive Drinking Scale Permanent Impairment Rating
(OCDS), 85 Guidelines (Colorado Department
OCD. see obsessive compulsive disorder of Labor and Employment),
OCDS. see Obsessive Compulsive 211–212
Drinking Scale personal injury claims, 182–196, 199
ODD. see oppositional defiant disorder personal injury litigation, 177–200
Oklahoma, 89 Personality and Personality Disorders
ombudsmen tests, 247–248 Work Group, 46
opioid use disorder, 77–78 Personality Assessment Inventory
oppositional defiant disorder (ODD), 37, (PAI), 247, 248, 261
38, 47, 114–115, 235–236 personality change due to another
Oregon, 89, 138, 164–165 medical condition, 196
organic brain disturbances, 3 personality disorders, 11, 46, 78
organic disorders, 6 pervasive developmental disorder
other conditions, 51–52 (PDD), 28
and competence to stand trial assess- pervasive developmental disorder not
ments, 113 otherwise specified (PDD-NOS),
listing, 66–67 27–28
that may be a focus of clinical atten- Phillips, Katharine A., 31–32
tion, 51–52 phonological disorder, 28
other specified disorders, 15 PHQ. see Patient Health Questionnaire
outpatient settings, 68–69 physical-mental injury, 204, 204t
physician-assisted suicide, 164
PAI. see Personality Assessment PIM (positive impression management),
Inventory 248
pain, predominant, 185, 208 plea bargaining, 107
pain disorder, 208, 244–245, 246t pleas, 107, 119
Panetti, Scott Louis, 91 PMDD. see premenstrual dysphoric
Panetti v. Quarterman, 123 disorder
Inde x [ 279 ]
police coercion, 119 major diagnostic changes, vii, 1–2,
Portland Digit Recognition Test, 260 25–50, 26f
Positive and Negative Syndrome Scale multiaxial system for, 5, 12–13
(PANSS), 59, 159, 170–171 paradigm shift in, 1–2
positive impression management (PIM), previous diagnoses, 64–66
248 principal diagnosis, 66–67
possession, 142 provisional specifiers, 54–55
possession-form identities, 116, 260 recording in correctional settings,
posttraumatic stress disorder (PTSD), 9, 69
32–33, 46, 78, 141–142, 188–193, recording in forensic evaluations, 69
209, 216–217 recording in inpatient settings,
and competence to stand trial assess- 67–68
ments, 116 recording in outpatient settings, 68–69
diagnostic criteria for, 189–191, remission specifiers, 61, 64–66
191–192, 192–193, 193, 245, 253, severity specifiers, 55–61
263 steps for making, 51–76
key summary points, 199 steps helpful in making, 53, 54
malingered or feigned, 251–255 subtypes and specifiers, 54–63
within trauma- and stressor-related psychiatric evaluations. see also foren-
disorders, 236–237 sic evaluations
violence risk, 85 civil competence assessments,
PPG. see penile plethysmography 152–153, 172–173
premenstrual dysphoric disorder, 31, for competence to be executed, 123
115, 140, 216 for competence to stand trial,
principal diagnosis (term), 66–67 105–108, 108–109, 109–111, 110t,
Principles of Medical Ethics With 111–118
Annotations Applicable Especially in criminal justice system, 77–100
to Psychiatry (APA), 16 diagnostic examination, 243
problem solving courts, 81 disability evaluations, 14, 71–74,
Product Test, 132 201–225, 220t
projection, 3 education evaluations, 226–241
prosocial emotions, limited, 37 in emotional distress claims, 177,
provisional disorders, 54–55 178t, 199
provisional specifiers, 54–55 fitness for duty evaluations, 14
psychiatric diagnosis of individuals in criminal justice
Age and Gender Considerations in system, 77–100
Psychiatric Diagnosis (APA), 7 for malingering, 245–251
alternative model, 11 of school-aged children, 226–241
changes, 42–46 steps for, 242
via checklists of features, 5 at the time of the offense, 148–149
current diagnoses, 64–66 Psychiatric Impairment Rating Scale
diagnostic criteria for, 52–54 (PIRS), 205
dimensional approaches, 10–11 psychiatric nomenclature, 9–10
emerging measures, 11–12 psychiatric symptoms, cross-cutting, 9,
example report, 70, 72t 10, 11–12, 56, 62–63
explaining, 70–71 psychiatric treatment: right to refuse,
guidelines for listing, 70 157–160
ICD coding, 63–64 psychiatric workers’ compensation
listing, 66–70 claims, 203–212, 204t
and litigation, 18–21 psychiatry, 2–3
[ 280 ] Index
psychological factors affecting other restless legs syndrome, 45
medical conditions, 187–188, restricted repetitive behaviors, inter-
208–209, 244–245, 246t ests, and activities (RRBs), 28
psychological stressors, 187 retreat from reality, 3
psychological testing. see also psychiat- reverse malingering, 14
ric evaluations Rey 15-item Test (FIT), 249, 252t, 257,
for malingering, 245–247 259–260
ombudsmen tests, 247–248 Rhett disorder, 6
psychoneurotic disorders, 3 Riese Petitions, 158, 159
psychosis severity specifier, 57–61 Riese v. St. Mary’s Hospital and Medical
psychotic disorders, 42–43, 57, 139. see Center, 158
also specific disorders right to refuse psychiatric treatment,
and competence to stand trial assess- 157–160
ments, 113 risk assessment
guidance for evaluating, 60 civil litigation related to, 179
options when evaluating, 58–59 violence risk assessment, 84–86
PTSD. see posttraumatic stress disorder Roe v. Wade, 160–161
Public Law 111-255. see Rosa’s law Rogers Discriminant Function (RDF),
pyromania, 37 248
Rosa’s law (PL 111-256), 27, 231
random drug screens, 82
rapid eye movement sleep behavior SCD. see social (pragmatic) communica-
disorder, 45 tion disorder
RBS. see Response Bias Scale schizophrenia, 42–43, 57, 113, 139
RDC. see Research Diagnostic Criteria Schloendorff v. Society of New York
RDF. see Rogers Discriminant Function Hospital, 157–158
RDS. see Reliable Digit Span school-aged children: education evalua-
reaction (term), 3, 4 tions for, 226–241
reactive attachment disorder, 33 self-defeating behavior, 108
Reagan, Ronald, 133 self-injury, nonsuicidal, 9
reality: retreat from, 3 Sell v. US, 159–160
recording diagnoses sentencing: competence for, 121–122
in correctional settings, 69 serious medical needs, 94–95
in forensic evaluations, 69–70 serious mental disorder, 94–95
in inpatient settings, 67–68 settled insanity, 138
in outpatient settings, 68–69 severity specifiers, 55–61
recurrent legal problem(s), 77–78 sex offender assessment, 86–89
Regier, Darrel A., 7–8 sexsomnia or sleep sex (sleep-related
Rehabilitation Act, 238–239 sexual behavior), 45, 143, 261–262,
Reliable Digit Span (RDS), 257 263
remission specifiers, 61 sexual dysfunctions, 45
and current diagnoses, 64–66 sexual harassment, 190
and previous diagnoses, 64–66 sexually violent offender (SVO) pro-
reports grams, 86
example, 70, 72t sexually violent predator (SVP) pro-
writing, 51–76 grams, 86
A Research Agenda for DSM-5 (Kupfer sexually violent predator (SVP) statutes,
et al.), 1–2, 7 86
Research Diagnostic Criteria (RDC), 4 sexual violence, 190
Response Bias Scale (RBS), 248 Shaffer, David, 36–37
Inde x [ 281 ]
Sharfstein, Steven, 7–8 Spitzer, Robert, 4–5
shell shock, 2–3 SSA. see Social Security Administration
SIRS. see Structured Interview of SSD. see somatic symptom disorder
Reported Symptoms SSDI. see Social Security Disability
sleep arousal disorders, non-rapid eye Insurance
movement, 45, 143, 261–262 SSI. see Supplemental Security Income
sleep disorders, 44–45 SSSQ. see Street Survival Skills
sleep-related sexual behavior (sexsom- Questionnaire
nia or sleep sex), 45, 143, 261–262, St. Louis Feighner Diagnostic Criteria, 4
263 State v. Galloway, 18
sleep terrors, 45 State v. Lockhart, 18
sleep-wake disorders, 44–45 State v. Pike, 132
sleepwalking, 45, 261–262, 263 stimulant use disorder, 82–83
social (pragmatic) communication Street Survival Skills Questionnaire
disorder (SPCD or SCD), 112, (SSSQ), 93
214–215, 232 stressor-related disorders, 31–34,
social phobia, 43 188–193
Social Security Administration (SSA) Structured Interview of Reported
definition of mental disorders, 221 Symptoms (SIRS), 250–251, 252t,
diagnostic categories, 221, 222t 261
disability insurance programs, Structured Interview of Reported
220–221 Symptoms—Revised (SIRS-2), 251,
Social Security Disability Insurance 252t
(SSDI), 220–221 stuttering, 28
Social Security Disability Insurance substance abuse, 82
(SSDI) claims, 220–222 craving or strong desire or urge to
Society of Correctional Physicians, 95 use, 77–78
somatic symptom disorder (SSD), criteria for, 40, 41t
34–35, 36, 47, 184–185, 207–208, substance dependence, 40, 41t, 82, 197
243–244 substance-induced disorders, 40–41
changes from DSM-IV TR to DSM-5, substance-induced mental disorders,
244–245, 246t 180–181
key summary points, 199 substance-induced mood disorders, 181
somatic symptoms, 184–189 substance-related disorders, 39–42, 78,
Somatic Symptoms Disorders Work 144
Group, 34, 47 Substance-Related Disorders Work
somatization disorder, 34 Group, 39, 47
somatoform disorders, 34, 184–185, substance use disorders, 3, 40, 90
243–245, 246t and ADA, 218–219
somnambulism, 262 and civil litigation, 196–199
Source Books, 6 criteria for, 40, 41t
SPCD. see social (pragmatic) communi- diagnostic criteria for, 197, 198
cation disorder key summary points, 199
special education: disability categories mild, 196
for, 227 moderate, 196
specific learning disorder, 234–235 severe, 197
specific phobia, 43 suicide, physician-assisted, 164–165
specifiers, 54–63, 64–66 suicide risk, 179
speech or language impairment, 233 Superintendent of Belchertown State
speech sound disorder, 28 School v. Saikewicz, 160
[ 282 ] Index
Supplemental Security Income (SSI), competence to stand, 103–111,
220–221 111–118, 123, 124
surrogate decision-makers, 161 competence to waive, 120
SVO programs. see sexually violent estimation of likely outcomes of, 107
offender programs jury, 120
SVP programs. see sexually violent memory and concentration to under-
predator programs stand, 108
SVT. see symptom validity testing testifying at, 108
Swedo, Susan, 27 trichotillomania, 43–44
symptoms, cross-cutting, 9, 10, 11–12, TSI-2. see Trauma Symptom
56, 62–63 Inventory-2nd edition
symptom validity testing (SVT), 249,
250, 252t unconsciousness defense, 262
undue influence, 171
terminology, 9–10, 51–52 Uniform Criminal Extradition Act,
testamentary capacity, 168–171 121
testimony United States Army, 2–3
competence to testify, 121 United States Constitution, 134
at trial, 108 5th Amendment, 118–119
Test of Memory Malingering (TOMM), 6th Amendment, 103, 119–120
249, 252t, 257, 259–260 8th Amendment, 89, 92, 94, 122
tests and testing. see also forensic 14th Amendment, 103
evaluations; psychiatric diagnosis United States Department of Education,
intelligence quotient (IQ) testing, 231
27, 80 United States Department of Veterans
intelligence testing, 167–168 Affairs (VA), 2–3
for malingering, 247–251 United States Navy, 2–3
neurocognitive tests, 259 United States Steering Committee,
neuropsychological, 167–168 4–5
ombudsmen tests, 247–248 United States-United Kingdom
symptom validity testing, 249 Diagnostic Project, 4–5
Texas, 89 unspecified disorders, 15, 53
tobacco use disorder, 41 unusual patterns or responses,
TOMM. see Test of Memory 250–251, 252t
Malingering US v Long, 137
tort law, 177 Utah, 134, 158
intentional torts that involve mental
healthcare, 178 Validity Indicator Profile (VIP), 250,
negligent torts, 178 252t, 257
transvestic disorder, 79 verbal agression, 79
trauma, 78 Vineland Adaptive Behavior Scale, 232,
trauma-related disorders, 31–34, 256
188–193 violence, sexual, 190
Trauma Symptom Inventory-2nd edi- violence risk, 85, 179
tion (TSI-2), 255 Violence Risk Appraisal Guide (VRAG),
traumatic events, 78, 190, 191 85–86
traumatic stressors, 189–191, 217 violence risk assessment, 84–86
treatment programs, 81–82 VIP. see Validity Indicator Profile
trials Virginia, 89
adversarial nature of, 107 voluntary intoxication, 138
Inde x [ 283 ]
voyeuristic disorder, 79 workers’ compensation claims, 201–203
VRAG. see Violence Risk Appraisal disability evaluations, 210–212
Guide DSM-5 and, 206–209
issues to address in, 205, 205t
WAIS. see Wechsler Adult Intelligence no fault, 203
Scale psychiatric, 203–212, 204t
Washington, 89 World Health Organization (WHO),
capacity to manage medical decisions, 3–4, 7
160–161 International Classification of
definition of mental disorder, Diseases (ICD), 3–4, 10, 63–64,
155–156 231
involuntary civil commitment, International Classification of
155–156, 157 Diseases, Ninth Revision, Clinical
process for administering antipsy- Modification (ICD-9-CM), 63–64
chotic medication to civilly hospi- International Classification of
talized persons, 157–158 Diseases, Tenth Revision (ICD-10),
right to refuse psychiatric treatment, 5–6
157–158 International Classification of
testamentary capacity, 168–169 Diseases, Tenth Revision, Clinical
workers’ compensation claims, Modification (ICD-10-CM), 64
204–205 World Health Organization Disability
workers’ compensation claims in, 211 Assessment Schedule (WHODAS
Washington State Medical Examiner’s 2.0), 13–14, 14–15, 71–74, 83, 211,
Handbook, 204–205, 211 222, 256
Washington University, 4 World War I, 2–3
Washington v. Harper, 159 World War II, 2–3
Wechsler Adult Intelligence Scale writing reports, 51–76
(WAIS), 257 wrongfulness
Whole Person Impairment number definition of, 132
(WPI), 205 legal, 131–132
wills: testamentary capacity, 168–171 moral, 131–132
Word Memory Test (WMT), 252t Wyoming, 89, 262
workers’ compensation, 202–203
[ 284 ] Index