To the average Law & Order fan, it might look like a psychiatric diagnosis is a commonly-used defense tactic. But the average fan doesn’t realize that the common use of diagnoses in court occurs with criminal or disability law—not family law.
For example, an insanity defense in criminal court almost always requires proof of a severe mental illness or defect; therefore, it’s an essential element of the case.
Mental health evaluations are also a requirement for civil commitment. In most cases, a mental disorder is a prerequisite for commitment, in addition to being a danger to oneself or others. Therefore, a diagnosis is needed in order to determine whether commitment is legal and appropriate.
However, in family law, a mental health diagnosis is not necessarily important or helpful to a case. Why? Because the diagnostic categories originally created to facilitate communication between treatment professionals often doesn’t convey relevant or reliable information for the family law setting. Mental health diagnostic categories are historically unreliable, often being added, changing or disappearing with every revision of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The description of mental health disorders often is irrelevant, as they are impacted by political issues, and are often vague and highly subjective.
A diagnosis in the courtroom shouldn’t carry the same weight as a diagnosis in a mental health setting. Unfortunately, for the uninformed jurist, hearing evidence about a mental health diagnosis in a family law case can carry tremendous weight.
What mental health evidence should carry the day in court?
Functional behavior. It’s much more important to demonstrate how a person is functioning is everyday life rather than tout a formal psychiatric diagnosis. For example, a person with a diagnosis of bipolar disorder who is well treated may function quite well, while a person that has never been diagnosed has a track record of acting out well beyond norms.
The misuse of diagnoses in the legal system is a concern highlighted since the release of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
For the first time in the DSM’s history, members of the American Psychiatric Association’s Council on Psychiatry and the Law were asked to serve as advisors during the revision process. Their role was to advise DSM 5 Work Group members and identify legal obstacles associated with proposed diagnostic criteria and revisions. In 2013, new guidelines and standards were introduced for many disorders.
DSM Diagnoses in Court: When Do They Matter?
It is important to distinguish the difference between using the DSM in a clinical setting versus a legal setting. The “Cautionary Statement for Forensic Use of DSM5” clarifies that even though DSM authors know the manual will be used in legal matters, its primary use is to aid mental health professionals, not lawyers or judges. In fact, with every new issue of the DSM, the cautionary statement strengthens.
Statement for prosecutors in DSM-5:
The Cautionary Statement for Forensic Use of DSM-5 acknowledges that the manual will be used in courtroom settings, but warns that diagnosis of a disorder in a mental health setting does not automatically meet legal criteria for that disorder.
The official cautionary statement is as follows:
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).
In other words, the DSM is meant for use as a guide–one of many tools in a psychiatrist’s toolbox–not as an absolute diagnosis. And it is to be used primarily in a mental health setting, not a courtroom.
When Is Diagnosis Important in Courtroom?
Diagnoses alone should have little bearing on litigation. Instead, the court should focus on the litigants’ functional behavior. The legal concern should be on the capacity and impairment of an individual rather than a mental health diagnosis. A person who has been diagnosed with a clinical disorder can still be a wonderful parent or a defendant coping well with life. Conversely, a person with no history or diagnosis can be extremely risky from a criminal standpoint, or denied custody in a family law proceeding.
From a legal standpoint, the perfect scenario is when risky or dangerous functional behavior is supported by a mental health diagnosis. That is when the court should sit up and take notice.
Greenberg, S., Shuman, D. & Meyer, R. (2004) Unmasking forensic diagnosis. International Journal of Law and Psychiatry 1, 1-15.
American Psychiatric Association. (2013) Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition. Arlington, VA: American Psychiatric Association.
The Role of Diagnosis in Forensic Reports