Some issues important to prosecution and criminal cases about what changed in this manual
After a 14-year revision process, the American Psychiatric Association (APA) published the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders last May.1 The APA manuals are commonly considered the authoritative source in the mental health community on the criteria for diagnosing and classifying mental disorders.2 The latest manual, titled the “DSM-5” (they dropped the Roman numerals), is 947 pages and contains over 300 diagnoses. It replaces the DSM-IV, published in 1994, and the DSM-IV-TR (Text Revision), published in 2000.3
Although previous versions of the manual were widely accepted, the DSM-5 has been the target of considerable criticism and controversy. The APA task force developed this version’s content primarily in closed-door committees and required participants to sign non-disclosure agreements.4 A higher percentage of committee members than in previous revisions—about 70 percent—had ties to the pharmaceutical industry.5 In addition, the APA rejected proposals by other mental health professional associations for independent review of the revisions.6
Criticism of the development process has been followed by some vehement attacks on the content of the final, published DSM-5.7 An overriding issue in the new manual is its expansion of disorders and reduced thresholds for diagnoses, primarily in the mild psychiatric disorders.8
Mental health issues arise frequently in criminal cases, including when prosecutors must consider a defendant’s competency, sanity, eligibility for a death sentence, and intent. Mental health issues also are often relevant to punishment evidence, a defendant’s mitigation case, and expert testimony. The APA’s expansion of disorders and lowered thresholds for diagnoses may result in an increase in the prevalence of mental health issues raised in criminal cases.
Aside from controversy within the mental health industry over this manual, there has always been a disconnect between the manual’s primary purpose—diagnosis in the mental health setting—and its use in the courtroom. There is a substantial volume of commentary available on abuses and misuses in applying the Diagnostic and Statistical Manual in the criminal context, by both lawyers and mental health clinicians.9
It will take time for the changes in the DSM-5 to be absorbed and applied in the mental health arena, and more time for the impact to spill over into courtrooms and caselaw. Only time and input from testifying psychiatrists and psychologists will ultimately reveal how the changes will impact criminal cases; meanwhile, this article discusses some issues for prosecutors to be aware of regarding the new manual.
for forensic use
The new manual contains a prominently placed one-page “Cautionary Statement for Forensic Use of DSM-5.”10 This warning acknowledges that the DSM-5 will be used by courts and attorneys in “assessing the forensic consequences of mental disorders” even though it was not developed to meet the technical needs of the courts and legal professionals. The APA now cautions that “use of the DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings.” It contains a helpful statement for prosecutors:
In most situations the clinical diagnosis of a DSM-5 mental disorder such as intellectual disability (intellectual developmental disorder), schizophrenia, major neurocognitive disorder, gambling disorder, or pedophilic disorder does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specified legal standard (e.g., for competence, criminal responsibility, or disability).
“Intellectual disability” (the new MR)
The term mental retardation, used in the DSM-IV, has been replaced with the term “intellectual disability (intellectual developmental disorder),” or “ID,” because the term intellectual disability is now commonly used in the medical and educational fields.11 More important than the updated label, however, is that the DSM-5 provides a more fluid and malleable criteria for the disorder. Due to changes in ID, the criteria clinicians will use to diagnose ID and Texas’ legal definition (of mental retardation) differ.
The DSM-5 defines ID as “a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains.”12 The DSM-IV, on the other hand, defined a person as mentally retarded if he exhibited significantly subaverage general intellectual functioning (an IQ of about 70 or below) accompanied by significant limitations in adaptive functioning, with onset before age 18.13
The DSM-5 expands the spectrum of those eligible for an ID diagnosis by removing full-scale IQ scores from the diagnostic criteria14 and shifting the focus of severity to adaptive deficits. The APA comments, however, that like mental retardation in the DSM-IV, ID continues to require assessment of both cognitive capacity (IQ) and adaptive functioning.15
The first (of three) criteria for ID in the DSM-5 requires “deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intellectual intelligence testing.”16 Previously, the DSM-IV required “significantly subaverage intellectual functioning” of “an IQ of approximately 70 or below on an individually administered IQ test.”17
Although analysis of IQ has not been completely removed from the diagnostic determination of ID, its importance has been greatly reduced.18 This change will likely increase ammunition for those death row or death-eligible inmates whose IQs are between 70 and 80, or in the borderline intellectual range.19
The APA explicitly comments on this change, noting its particular impact in forensic cases:
By removing IQ test scores from the diagnostic criteria, but still including them in the text description of intellectual disability, DSM-5 ensures that they are not overemphasized as the defining factor of a person’s overall ability, without adequately considering functioning levels. This is especially important in forensic cases.20
The DSM-5 does indicate in the ID “Diagnostic Features” section that individuals with intellectual disability have IQ scores of approximately two standard deviations or more below the population mean with a margin for measurement error of five points, or an IQ of 65 to 75.21 The DSM-5 states that factors that may affect test scores include practice effects and the “Flynn effect” (i.e., overly high scores due to out-of-date test norms).
The APA also altered the second criteria for ID—the adaptive functioning requirement. Adaptive functioning is how well a person meets community standards of personal independence and social responsibility in comparison to others of similar age and sociocultural background.
The DSM-IV required deficits or impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.22 ID requires adaptive deficits which limit functioning in “one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community.”23 Thus, the DSM-5 requires deficits in only one of three broadly designated domains, whereas the DSM-IV required deficits in at least two of 11 narrower skill areas.24 The APA notes adaptive functioning may be difficult to assess in a controlled setting, such as prison, and examiners should obtain information reflecting functioning outside prison.25
For mental retardation in the DSM-IV, severity was determined by IQ score.26 In the DSM-5, severity (mild, moderate, severe, or profound) is now determined by adaptive functioning27—a major change consistent with the greater reliance on adaptive functioning and the reduced role of IQ. A clinician now determines severity by analyzing adaptive functioning in the three domains: conceptual or academic, social, and practical.28 The DSM-5 contains a detailed chart providing examples of skills for each severity level.29
The APA slightly altered the third and final criteria, replacing the specific age requirement of onset before age 18 with the more general requirement that ID manifest itself during the “developmental period.”30
In the “Associated Features Supporting Diagnosis” section, which lists characteristics that an intellectually disabled individual may have—such as poor social judgment, inability to assess risk, gullibility, and other factors—the APA indicates the associated features “can be important in criminal cases, including Atkins-type hearings involving the death penalty.”31 Keep in mind that the DSM-5’s criterion for ID is not the law in Texas and should not be applied without the Court of Criminal Appeals weighing in on the issue.
While the Supreme Court of the United States in Atkins v. Virginia held that executing the mentally retarded violates the Eighth Amendment, the court elected not to provide a uniform definition of or criteria for mental retardation—instead leaving the task to the individual states.32 In 2004, the Texas Court of Criminal Appeals set “temporary” guidelines in Ex parte Briseno, but the legislature has never passed a statute establishing guidelines for determining mental retardation (in a death penalty case). Accordingly, mental retardation is defined under Briseno and the cases that follow as 1) significantly subaverage general intellectual functioning, 2) accompanied by related limitations in adaptive functioning, 3) the onset of which occurs prior to age 18.33
In defining mental retardation, the Briseno Court relied on the American Association of Mental Retardation (AAMR) (now known as the American Association on Intellectual and Developmental Disabilities) and the Texas Health and Safety Code.34 The court used the DSM-IV to define significantly subaverage intellectual functioning as an IQ of about 70 or below.35 The court also developed its own seven evidentiary factors, called the Briseno factors, to aid in a determination of MR.36
The courts have noted over the years that the determination of mental retardation in a death penalty case differs from the determination in other settings, for example in the schools or for social services.37 The DSM-5 widens this gap. Briseno’s definition of mental retardation was quite similar to DSM-IV criteria. Now, the DSM-5—which the average clinician would expect to apply—differs from the criteria set out in Texas law. Prosecutors will need to review and discuss these differences with their own experts and cross-examine defense experts who diagnose a defendant with ID under the DSM-5 guidelines without considering the legal standard.
Posttraumatic Stress Disorder (PTSD)
PTSD, previously considered an anxiety disorder, is categorized in the DSM-5 as a trauma and stressor-related disorder.38 Generally, the APA has broadened PTSD’s criteria,39 which may increase its use by criminal defendants. Prosecutors should keep in mind, however, that PTSD is relevant not only to defendants, but also to sexual assault victims and to those exposed to violent crime, including family members and first responders.
To be diagnosed with PTSD under the DSM-5, a person must have been exposed to actual or threatened death, serious injury, or sexual assault, by 1) directly experiencing a traumatic event personally, 2) witnessing a traumatic event as it happened to someone else, 3) learning a close relative or friend experienced a violent or accidental traumatic event, or 4) experiencing repeated or extreme exposure to aversive details of a traumatic event.40 The DSM-5 specifically provides examples of the last method of exposure to include first responders who collect human remains and police officers who are repeatedly exposed to details of child abuse. To meet diagnostic criteria for PTSD, any exposure must cause clinically significant distress or impairment in the person’s social interactions, capacity to work, or other important area of functioning.41 Like the DSM-IV, the DSM-5 requires only that the distress from PTSD continue for more than one month.42
The DSM-5 no longer requires an emotional reaction of intense fear, helplessness, or horror to the triggering event, as in the DSM-IV.43 This is because research since PTSD was first included in the DSM-III shows that individuals may have responses grounded in emotions other than fear, such as dysphoria (sadness) or anhedonia (lack of pleasure or enjoyment in things), or no emotional reaction at all (as in the case of professionals who are trained to respond to traumatic events).44
The third method of exposure—learning that someone close suffered a traumatic event—is more expansive than in the DSM-IV and open to abuse.45 Whereas a prior check on PTSD involved limiting it to individuals with more direct exposure, this expansion increases the number of individuals who may feign PTSD symptoms, which can be mostly subjective, to gain a diagnosis.
Substance use disorder
Unlike the DSM-IV, the DSM-5 does not separate the diagnoses of substance abuse and substance dependence; instead, criteria for these two have been combined for a single diagnosis of substance use.46 In the DSM-IV, abuse and dependence differed in that abuse was an early or mild phase and dependence was a more severe manifestation; this distinction has been eliminated.47
A use disorder should be diagnosed for each substance abused—such as alcohol use disorder, stimulant use disorder, etc.48 The severity of a substance use disorder is indicated on a sliding scale of mild, moderate, or severe, depending on the number of symptom criteria on the list that are relevant to the individual.49 Although the diagnosis of substance abuse previously required only one symptom, mild substance use disorder in the DSM-5 requires two to three from a list of 11 possible symptoms.50 Compared to the prior list of symptoms in the DSM-IV, “drug craving” has been added and “recurrent legal problems” eliminated.51
Mild Neurocognitive Disorder
There are now two categories under a neurocognitive disorder umbrella: major and minor.52 The former DSM-IV diagnoses of dementia and amnestic disorder are subsumed in the DSM-5 under the diagnosis of major neurocognitive disorder; in addition, the DSM-5 recognizes a new, less-severe level of cognitive impairment called mild neurocognitive disorder.53 According to the APA, recognition of mild neurocognitive disorder supports early detection and treatment of cognitive decline before deficits become more pronounced and progress to major neurocognitive disorder, or dementia.54 The DSM-5 includes separate criteria for various subtypes of major or mild neurocognitive disorder, including traumatic brain injury neurocognitive disorder, substance/medication-induced neurocognitive disorder, frontotemporal neurocognitive disorder, and others.55
Although criticism in the mental health field about mild neurocognitive disorder is that it pathologizes slight but normal memory problems related to aging and gives those having “senior moments” a psychiatric diagnosis,56 in the criminal context there should be a concern that defense experts will use this label for defendants who did not previously meet criteria for a neurologically based diagnosis.
Criticism and notes
A particularly outspoken critic of the DSM-5 has been Dr. Allen Frances, chair of the task force that developed the DSM-IV, who predicts the DSM-5 may lead to “massive over-diagnosis and harmful over-medication.”57 But Dr. Frances has been only one of many critics. The National Institute of Mental Health (NIMH) and the APA came to loggerheads about the DSM-5 and its changes. Shortly before the DSM-5’s release, the NIMH, which administers federal grants for research in mental illness, announced it would no longer use the DSM diagnoses for its funded studies; instead it will rely on its own new classification system.58
This version of the DSM, like previous versions, may suffer from what clinicians call a “lack of validity” and “inter-rater reliability,” relating to whether multiple clinicians could examine one individual and make the same diagnosis.59 Prosecutors should keep in mind that every mental health evaluation and diagnosis is based on subjective interpretation (the clinician’s opinion) of an objective set of facts and circumstances (the individual and his mental characteristics).
One of the purposes of the DSM has always been to assign diagnostic codes to disorders so that physicians and hospitals can bill insurance companies. Application and use in the courtroom take the manual far afield from this basic function. Also, the legal community should understand that in addition to its relationship to medical billing, one of the chief purposes of the manual is to facilitate care for and treatment of the mentally ill. For this reason, mental health practitioners may view the diagnoses as inclusive, allowing individuals who might be considered on the border of a disorder to receive treatment. This inclusiveness may or may not be consistent with a prosecutor’s and the criminal justice system’s goals, depending on the circumstances.
Will the changes in the DSM-5 spill over into criminal cases? Will controversy surrounding the DSM-5 impact the manual’s credibility and use? Or will the current version of the manual continue to be considered, by testifying experts, as the bible of the mental health industry? Only time—and future court decisions—will tell.
1 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (hereinafter DSM-5).
2 Loren Grush, The DSM-5 is here: What the controversial new changes mean for mental health care, FoxNews.com (May 21, 2013), www. foxnews.com/health/2013/05/21/dsm-5-is-here-what-controversial-new-changes-mean-for-mental-health-care/ (noting that the DSM establishes the almost universal standard by which doctors classify, diagnose, and ultimately treat mental disorders).
3 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxix-xxx (4th ed., text revision 2000) [DSM-IV-TR]. The DSM-IV-TR provided updated text explanations without changing the criteria of any diagnoses. DSM-IV-TR, at xxix-xxx. This article will simply refer to the prior manual as the DSM-IV, unless a specific page citation to the DSM-IV-TR is relevant.
4 See Benedict Carey, Psychiatrists Revise the Book of Human Troubles, The New York Times (Dec. 17, 2008), www.nytimes.com/2008/12/18/ health/18psych.html?pagewanted=all&_r=0; Christopher Lane, Wrangling over psychiatry’s bible, The Los Angeles Times (Nov. 16, 2008), www.latimes.com/news/opinion/commentary/la-oe-lane16-2008nov16,0,5678764.story.
5 Lisa Cosgrove, Diagnosing Conflict-of-Interest Disorder, Academe, Am. Ass’n of Univ. Professors (Nov.-Dec. 2010), www.aaup.org/article/diagnosing-conflict-interest-disorder; Lisa Cosgrove, Harold J. Bursztajn & Sheldon Krimsky, Developing Unbiased Diagnostic and Treatment Guidelines in Psychiatry, New England Journal of Med. 360; 19, 2035-2036 (May 7, 2009), www.nejm.org/doi/pdf/ 10.1056/NEJMc0810237.
6 Allen Frances, DSM5 in Distress: DSM 5 Is Guide Not Bible—Ignore Its Ten Worst Changes, Psychology Today (Dec. 2, 2012), www.psychologytoday.com/blog/dsm5-in-distress/201212/dsm-5-is-guide-not-bible-ignore-its-ten-worst-changes.
7 See, e.g., Allen Francis, DSM-5: Where Do We Go From Here, Huffington Post Science (May 16, 2013), www.huffingtonpost.com/allen-frances/ dsm-5-where-do-we-go-from_b_3281313.html; Allen Francis, Saving Normal: An Insider’s Revolt Against Out-of-Control Psychiatric Diagnosis, DMS-5, Big Pharma, and the Medicalization of Ordinary Life (2013).
8 See, e.g., Michael Castillo, Debate over psychiatry bible DSM-5 grows days before release, CBS News (May 15, 2013), www.cbsnews.com/8301-204_162-57584600/debate-over-psychiatry-bible-dsm-5-grows-days-before-release; Susan Krauss Whitbourne, What the DSM-5 Changes Mean for You, Psychology Today (May 4, 2013), www.psychologytoday.com/blog/fulfillment-any-age/201305/what-the-dsm-5-changes-mean-you.
9 See, e.g., Allen Francis, The Forensic Risks of DSM-V and How to Avoid Them, Journal of the Am. Acad. of Psychiatry and the Law 38: 11-14 (2010).
10 DSM-5, at 25. The DSM-IV contained similar but milder and less prominently placed comments. See DSM-IV-TR, at xxxii-xxxiii (Use of DSM-IV in Forensic Settings) and xxxvii (Cautionary Statement).
11 DSM-5, at 33; American Psychiatric Association, Highlights of Changes from the DSM-IV-TR to DSM-5 (2013), www.dsm5.org/Documents/ changes%20from%20dsm-iv-tr%20to%20dsm-5.pdf; Whitbourne, supra note 8.
12 DSM-5, at 33.
13 DSM-IV-TR, at 41.
14 The “Diagnostic Criteria” is the “meat and bones” of a diagnosis—a sort of checklist of the factors required. The APA then explains and expands on the diagnostic criteria in the “Diagnostic Features” discussion portion of the text.
15 American Psychiatric Association, Highlights of Changes from the DSM-IV-TR to DSM-5, supra note 11; DSM-5, at 37.
16 DSM-5, at 33.
17 DSM-IV-TR, at 49.
18 Mark Moran, DSM-5 Provides New Take on Neurodevelopment Disorders, Psychiatry Online Psychiatric News (Jan. 18, 2013), http://psychnews.psychiatryonline.org/newsarticle.aspx?articleid=1558424 (stating that the DSM-5 criteria for ID move away from relying exclusively on IQ scores to using additional measures of adaptive functioning).
19 One critic of the change says, “Removing the IQ requirement for Intellectual Disability reduces the reliability and precision of diagnosis and will have forensic implications.” Allen Francis, DSM-5 Writing Mistakes Will Cause Great Confusion, Huffington Post Science (June 11, 2013), www.huffingtonpost.com/allen-frances/dsm5-writing-mistakes-wil_b_3419747.html.
20 American Psychiatric Association, Intellectual Disability (2013), www.dsm5.org/Documents/ Intellectual%20Disability%20Fact%20Sheet.pdf.
21 DSM-5, at 37.
22 DSM-IV-TR, at 49.
23 DSM-5, at 33. In the diagnostic criteria, the DSM-5 lists the three domains as communication, social participation, and independent living. In other places, it labels them as conceptual, social, and practical. Id. at 37-38.
24 Walter Kaufmann, Intellectual disability’s DSM-5 debut, Simons Foundation Autism Research Initiative (May 30, 2013), http://sfari.org/news-and-opinion/specials/2013/dsm-5-special-report/intellectual-disabilitys-dsm-5-debut/.
25 DSM-5, at 38.
26 DSM-IV-TR, at 42.
27 DSM-5, at 33.
28 Id. at 33, 37.
29 Id. at 34-36.
30 Id. at 33.
31 DSM-5, at 38.
32 Atkins v. Virginia, 536 U.S. 304 (2002); Ex parte Briseno, 135 S.W.3d 1, 4-5 (2004).
33 Briseno, 135 S.W.3d at 7-8.
34 Id. (citing AAMR, Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed. 1992) and Tex. Health & Safety Code §591.003(13)).
35 Id. at 7 n.24, 14. The Court of Criminal Appeals has since confirmed that an IQ score of 70 or below represents “a rough ceiling, above which a finding of mental retardation in the capital context is precluded.” Ex parte Hearn, 310 S.W.3d 424, 430 (Tex. Crim. App. 2010).
36 Briseno, 135 S.W.3d at 8-9; Gallo v. State, 239 S.W.3d 757, 776-77 (Tex. Crim. App. 2007).
37 See, e.g., Chester v. Thaler, 666 F.3d 340, 343, 346 (5th Cir. 2011).
38 American Psychiatric Association, Posttraumatic Stress Disorder (2013), www.dsm5.org/Documents/PTSD%20Fact%20Sheet.pdf.
39 Karen Franklin, Witness: Forensic Implications of the DSM-5 (Part II of II), Psychology Today (May 31, 2013), www.psychologytoday.com/blog/witness/201305/forensic-implications-the-dsm-5-part-ii-ii (commenting that “PTSD got some significant tweaking in the DSM-5, mostly in directions that could increase its prevalence”).
40 DSM-5, at 271, 274.
41 Posttraumatic Stress Disorder, supra note 40; DSM-5, at 272.
42 DSM-5, at 272; DSM-IV, at 468.
43 Posttraumatic Stress Disorder, supra note 40; DSM-5, at 274; DSM-IV, at 467.
44 Mark Moran, Trauma Disorder Criteria Reflect Variability of Response to Events, Psychiatric News, American Psychiatric Association (March 1, 2013), http://psychnews.psychiatryonline.org/ newsArticle.aspx?articleid=1659600.
45 One expert says: “On clinical grounds alone it may be useful to have a more inclusive definition of the acceptable stressors to alert clinicians and patients to this possibility. But inclusive definitions inserted for clinical purposes can create great complications in the courtroom.” Allen Frances, DSM5 in Distress: PTSD, DSM 5, and Forensic Misuse, Psychology Today (Feb. 9, 2012), www.psychologytoday.com/blog/dsm5-in-distress/201202/ ptsd-dsm-5-and-forensic-misuse. The author focuses on abuses in civil suits, but his concern applies equally in the criminal context.
46 American Psychiatric Association, Substance-Related and Addictive Disorders (2013), www.dsm5.org/Documents/Substance%20Use%20Disorder%20Fact%20Sheet.pdf; Grush, supra note 2.
47 Substance-Related and Addictive Disorders, supra note 49.
48 DSM-5, at 490-585.
49 DSM-5, at 484.
50 DSM-5, at 484; Substance-Related and Addictive Disorders, supra note 49.
51 Substance-Related and Addictive Disorders, supra note 49; American Psychiatric Association, Highlights of Changes from the DSM-IV-TR to DSM-5, supra note 11.
52 DSM-5, at 602-611.
53 American Psychiatric Association, Highlights of Changes from the DSM-IV-TR to DSM-5, supra note 11; DSM-5, at 591.
54 American Psychiatric Association, Mild Neurocognitive Disorder (2013), www.dsm5.org/ Documents/Mild%20Neurocognitive%20Disorder%20Fact%20Sheet.pdf.
55 DSM-5, at 611-643; Mark Moran, Mild Neurocognitive Disorder Added to DSM, Psychiatric News (May 3, 2013), http://psychnews.psychiatryonline.org/newsarticle.aspx?articleid=1685437.
56 Whitbourne, supra note 8.
57 Frances, DSM 5 Is Guide Not Bible—Ignore Its Ten Worst Changes, supra note 6; see also Whitbourne, supra note 8.
58 Christopher Lane, Side Effects: The NIMH Withdraws Support for the DSM-5, Psychology Today (May 4, 2013), www.psychologytoday .com/blog/side-effects/201305/the-nimh-withdraws-support-dsm-5.
59 Jonathan Turley, From DSM-I to DSM-5 in the Legal System: Mental Illness Issues in the Courtroom (May 19, 2013), http://jonathanturley.org/ 2013/05/19/from-dsm-i-to-dsm-5-in-the-legal-system-mental-illness-issues-in-the-courtroom.