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International Journal of Law and Psychiatry 42–43 (2015) 128–134

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International Journal of Law and Psychiatry

DSM-5: Challenging diagnostic testimony


Leigh D. Hagan a,b,⁎, Thomas J. Guilmette c,d
a
Independent Practice, Chesterfield VA, USA
b
Eastern Virginia Medical School, Norfolk, VA, USA
c
Alpert Medical School of Brown University, Providence, RI, USA
d
Providence College, Providence, RI, USA

a r t i c l e i n f o a b s t r a c t

Available online 28 August 2015 The Diagnostic and Statistical Manual of Mental Disorders' (DSM) 60-year evolution has not been particularly lin-
ear nor cumulative with respect to the process of its construction, its stated purpose, its framework, and inclusion
Keywords: of specific disorders. We consider DSM-5's stated purpose in light of the manual's explicit cautions and other
DSM-5 complications encountered when presenting diagnoses in the course of psychological expert testimony under
Expert Testimony the applicable rules of evidence. This review considers the extent to which DSM-5 bears up under numerous crit-
Forensic Psychology
icisms when employed for forensic purposes and points out challenges that the expert should anticipate when
offering diagnostic opinions underpinned by DSM-5 generally and by neurocognitive disorders in particular.
© 2015 Elsevier Ltd. All rights reserved.

Attorneys call mental health professionals to the stand on a wide modifications resulting in a nosology comprised of only 17 categories
range of criminal, civil, family, and administrative issues. Courts permit inclusive of disorders clustered as psychoses and psychoneuroses as
qualified mental health experts to give opinion testimony, including di- well as disorders of character, behavior, and intelligence. A few years
agnostic conclusions, contingent on showing that the testimony is rele- later, the American Psychiatric Association published its first DSM
vant, helpful, and sufficiently scientific. As an everyday occurrence, (APA, 1952) intended to foster communication between professionals
experts cite the current Diagnostic and Statistical Manual of Mental and to organize the wide-ranging conditions by their clinical common-
Disorders (DSM) as the touchstone for their opinions. Although the alities (APA, 2014).
practice of diagnosing is so commonplace as to assume a status almost What began as Dr. Menninger's modest undertaking grew in promi-
de rigueur, psychologists should not lose sight of this taxonomy's origin nence across DSM's many incarnations. DSM-II developed out of wide-
and transformation, especially when relying on it for forensic purposes spread dissatisfaction with the International Classification of Diseases,
to establish a legal fact. Although rarely challenged as a generally ac- 6th edition (ICD-6), and represented an effort to achieve an international
cepted authority, the silent assumption of DSM's exalted status invites consensus among the U.S., the U.K., Australia, Czechoslovakia, the Federal
scrutiny for which the alert expert should prepare when planning to Republic of Germany, France, Norway, Poland, and the Soviet Union
testify. about the classification of mental disorders (APA, 1968). By APA’s
(1968) own admission, DSM-II was not fully satisfactory to psychiatrists
1. DSM's rise to imperial prominence in any of the collaborating countries. The subsequent DSM-III (APA,
1980) dropped the ambition of achieving an international consensus
The original DSM rose from its humble origins as an adaptation of an and was more parochial to the U.S. In a departure from its predecessor
Army medical field manual. During WWII, Brigadier General William and the ICD series, DSM-III introduced specific diagnostic criteria but re-
Menninger, M.D. served as Chief of the Army Medical Corps' Psychiatric lied on “clinical judgment” for most categories of disorders acknowledg-
Division. After the war, he and his colleagues found a need for a diagnos- ing that most of the clusters were not fully validated with respect to their
tic manual applicable for civilian practice (Nomenclature of psychiatric distinguishing features. Its stated purpose was “to provide clear descrip-
disorders and reactions, 1946). In 1948, for the first time, the ICD tions of diagnostic categories in order to enable clinicians and investiga-
(World Health Organization, 1948) incorporated a section for mental tors to diagnose, communicate about, study, and treat various mental
disorders, drawing heavily from the Veterans Administration's disorders” (APA, 1980, p. 12).
Significantly, none of the multiple iterations of DSM are proffered as
applicable for legal or forensic purposes. In fact, each iteration subse-
⁎ Corresponding author at: P.O. Box 350, Chesterfield, VA 23832, USA. Tel.: +1-804 748
quent to DSM-II cautions the user about potential confusion and misun-
8480; fax: +1-804 751 0873. derstanding that result when practitioners employ DSM for forensic
E-mail address: lhagan@leighhagan.com (L.D. Hagan). purposes. DSM-III contains only one scant reference to forensic and

http://dx.doi.org/10.1016/j.ijlp.2015.08.017
0160-2527/© 2015 Elsevier Ltd. All rights reserved.
L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134 129

legal issues in its caution against applying diagnoses for legal responsi- process (Frances, 2009). The result is a 700% increase in diagnoses
bility, competence, or insanity. Somewhat ironic in light of business without a commensurate increase in new research-based evidence
practices for almost all practitioners over the last 35 years is DSM-III's about these mental conditions and without a proportionate improve-
other caution against using the nosology as justification for third-party ment in practitioners' diagnostic reliability.
reimbursement. While the pooling of ideas via a committee has its advantages, the
The DSM series has expanded tremendously, not always with a com- dynamics of work groups merit a word of caution about the collective's
mensurate growth in research findings to support the manual's changes final product. Paul Meehl addressed some of the challenges to validity
(McHugh, 2013). DSM's first iteration in 1952 yielded 106 diagnoses inherent in committee decision-making dynamics citing the diagnostic
within the confines of 130 pages. Six decades later, DSM-5 now lists case conference as an example.
591 unique diagnostic code numbers. The appendix's Numerical Listing In one respect, the clinical case conference is no different from other
iterates 757 disorders, conditions, or problems spanning 947 total academic group phenomena such as committee meetings, in that
pages. many intelligent, educated, sane, rational persons seem to undergo
The near six-fold increase in diagnoses and seven-fold escalation in a kind of intellectual deterioration when they gather around a
pages between the first DSM and the current tome can be appreciated table in one room. The cognitive degradation and feckless vocaliza-
in several contexts including commerce on two fronts. First, the impact tion characteristic of committees are too well known to require com-
of third-party payments came to head in a lawsuit against Blue Cross ment. Somehow, the group situation brings out the worst in many
Blue Shield through which psychologists sought direct payment for psy- people, and results in an intellectual functioning that is at the lowest
chotherapy and other mental health services without having to bill common denominator, which in clinical psychology and psychiatry
through a supervising physician. The physician group countered that is likely to be pretty low (Meehl, 1973, p. 227-228)
psychotherapy required medical care to assure medical necessity and Although DSM-5 underwent field trials, some were abandoned,
quality control. some were retained in spite of low reliability, while others showed ac-
In 1980, the federal appellate court held that the bill-through re- ceptable reliability (Frances, 2013; Freedman et al., 2013). Even in
quirement violated the Sherman Antitrust Act by unduly restricting those instances in which field trials yielded fair inter-rater agreement,
the psychologists' economic activity which state law recognized as in- such reliability is not a substitute for validity. By analogy, a sharpshooter
dependent (Virginia Academy of Clinical Psychologists v. Blue Shield might hit the same area of the target with each shot (i.e., reliability) but
of Virginia, 1980). That same year, DSM-III arrived and incorporated miss the bull's-eye each time (i.e., low/no validity). When the diagnostic
the taxonomy's first-ever cautionary statement about the qualifications enterprise goes to court, examiners might consistently agree on the
needed to apply diagnostic criteria, requiring clinicians to possess spe- wrong conclusion, miss the legal point altogether, or simply confuse
cialized training, knowledge, and skill. the jury.
Shortly thereafter, reimbursement opened to subdoctoral practi- The National Institute of Mental Health (NIMH) re-oriented its re-
tioners at lower rates, thereby tremendously expanding DSM's base of search away from the DSM model because of concerns about validity
customers who might need to buy the book currently listing for $149, (Insel, 2013).
the original progenitor of which was free and in the public domain. While DSM has been described as a “Bible” for the field, it is, at best, a
For the multitude of practitioners dependent on third-party reimburse- dictionary, creating a set of labels and defining each. The strength of
ment, DSM stills serves its gatekeeper function for establishing medical each of the editions of DSM has been “reliability”—each edition has
necessity. Economic realities necessitate clinicians to diagnose their pa- ensured that clinicians use the same terms in the same ways. The
tients with mental conditions in order to satisfy medical necessity for weakness is its lack of validity. Unlike our definitions of ischemic
reimbursement. Consequently, the business of diagnosing has become heart disease, lymphoma, or AIDS, the DSM's diagnoses are based
reflexive. While finding a patient's place in the taxonomy can also be on a consensus about clusters of clinical symptoms, not any objective
useful when communicating with other professionals, educating the pa- laboratory measure. In the rest of medicine, this would be equivalent
tient, formulating a treatment plan, and conducting research, the more to creating diagnostic systems based on the nature of chest pain or
mundane but sometimes damaging reality is that the DSM rose to sine the quality of fever. Indeed, symptom-based diagnosis, once com-
qua non status for financial viability for most clinicians relying on mon in other areas of medicine, has been largely replaced in the
third-party payment. Almost every patient relying on insurance cover- past half century as we have understood that symptoms alone rarely
age for psychological services had to have a mental disorder. indicate the best treatment. (Insel, 2013, p. 1-2).
Although physicians failed in their effort to retain exclusive direct re- A subsequent joint statement from the NIMH and APA acknowl-
imbursement, psychiatrists, through the APA, maintained the rights to edged that DSM and ICD are the current consensus standards for how
the diagnostic nomenclature upon which almost all mental health pro- diagnoses are derived, yet underscored that what serves practitioners
fessionals depend for their livelihoods. With that copyright comes a is not sufficient for researchers (Insel & Lieberman, 2013).
substantial revenue stream. As the Chair of DSM-IV's Task Force Within the DSM framework, examiners might arrive at the same
reflected on the emerging DSM-5, this nosology has risen to imperial conclusion for very different reasons. Evaluators might endorse some
posture on the practitioners' landscape (Frances, 2009). findings in common but not concur on others yet still meet the technical
criteria for the same diagnosis. It is also possible for two examiners to
2. DSM-5 converge on the same diagnosis without any overlap in the specific un-
derlying criteria. In this scenario, the examiners have 100% inter-rater
The current DSM-5 holds itself out “as a practical, functional, and reliability with respect to the diagnosis but 0% validity in terms of the
flexible guide for organizing information that can aid in the accurate di- underlying signs and symptoms related to their conclusions. This prob-
agnosis and treatment of mental disorders. It is a tool for clinicians, an lem is not limited to DSM's current incarnation. It takes a leap of faith for
essential educational resource for students and practitioners, and a ref- the ordinary juror to give much weight to evidence offered as “scientif-
erence for researchers in the field” (APA, 2013, p. xli). ic” when predicated on such questionable validity (Andreas, Theisen,
The process by which the Task Force constructed the taxonomy Mestel, Koch, & Schulz, 2009; Kraemer, 2013; Zuckerman, 1999).
shifted radically. What began as an open and transparent collaboration NIMH is not alone in rejecting DSM-5's classification model. Dozens of
headed by Dr. Menninger and culminated in a modest manual has trans- professional interest groups endorsed an open letter to the DSM Task
formed into the DSM-5, which remains under the copyright control of Force. One group (British Psychological Society, 2011) registered concern
the APA. This new manual is the product of 13 work groups whose pro- that as many as one in eight persons in the general population could
cess began in a level of secrecy not seen in the DSM-IV development meet the criteria for mild neurocognitive disorders predicated on
130 L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134

neuropsychological testing norm groups that under-represent many per- The concerns about DSM-5 are not circumscribed to academia, re-
sons from racial and ethnic minorities, which account for 37% of the 2011 search, and professional turf issues. The introduction of testimony about
census. The fact that most children in the U.S. younger than one year old diagnoses poses very practical considerations for real-world litigation.
belong to minorities (U.S. Census Bureau, 2012) suggests that non- Experts cite DSM when opining about who qualifies for VA benefits, social
representational norm composition could continue to be a concern unless security disability, long-term commercial disability, life insurance, securi-
tests are restandardized. The Society for Humanistic Psychology, Division ty clearances, gun permits, fitness for security-sensitive employment, de-
32 of the American Psychological Association, in sponsorship with a mul- termining pre-existing conditions in claims of psychological damages,
titude of U.S. and international professional organizations raised concerns assessing whether an employee belongs to a protected class under ADA,
that DSM-5's lower diagnostic thresholds could have an injurious impact evaluating mitigating and aggravating circumstances in criminal disposi-
on vulnerable populations and might result in the appearance of false ep- tions, and assessing for sexually violent predator status. Parsing out new
idemics by virtue of medically pathologizing normative experiences diagnoses, redefining prior conditions, and adjusting the threshold
(Society for Humanistic Psychology, 2011). The DSM-5 committee ad- criteria for yet other disorders all have an untallied financial impact
dressed some but not all of those concerns. and, consequently, a significant bearing on public policy with respect to
The Chair of the DSM-IV Task Force, Dr. Allen Frances, expressed a apportioning the public treasure. Through their opinion testimony psy-
similar concern that persons with normal worries about health issues, chologists play a role in these decisions.
grief, forgetfulness attendant to normal aging, tantrums, and overeating During DSM-5's development, many advocacy groups were trans-
reside at the “fuzzy boundary” of normality that will qualify as mentally parent in their effort to expand the number of disorders for the strategic
disordered under DSM-5. He cautioned that the introduction of new di- and goal-directed purpose of securing money for the treatment of cer-
agnoses raised the risk of market-driven fads which, in the case of DSM- tain conditions. For example, revisions to “substance-related disorders”
IV, resulted in a tripling of diagnoses of attention deficit hyperactivity may qualify millions of persons for treatment for conditions that be-
disorder, doubling of bipolar disorder, and a 20-fold increase in autism came disorders under DSM-5. The development of DSM-5 represents a
diagnoses (Batstra et al., 2012). Just as the appearance of major shifts major shift from the seminal taxonomy's concept-guided construction
in crime statistics are caused by changing definitions of major violent (i.e., clinical features coalesced for professionals' common understand-
crimes in the absence of significant shifts in actual criminal conduct ing) to an outcome-driven strategy to achieve particular financial, clin-
and victimization, so too might revamping mental diagnostic parame- ical, and administrative results (i.e., secure treatment funding).
ters cause the appearance of false epidemics, merely by changing the
definitions without evidence of fundamental shifts in the psychological 3. DSM goes to court
adjustment of society at large (Verhoeff, 2010).
Dr. Frances also voiced the opinion that APA's financial conflict of It is second nature for the practitioner to come to court prepared
interest might have led to premature publication and inadequate field with a diagnostic formulation when subpoenaed to appear for a matter
trials. He opined that “Publishing profits trumped public interest” in controversy. While rendering a diagnosis might be the usual and cus-
(Frances, 2013, p. 221). tomary practice for the clinician in the comfort of the treatment office,
Dissatisfied with DSM and ICD generally, an alliance of mental health the professional faces a different set of challenges altogether when tes-
professionals developed the Psychodynamic Diagnostic Manual (PDM) tifying as an expert for forensic purposes.
with the intent of addressing some of the inevitable unwanted conse- Assuming the witness qualifies as an expert, the proponent of the tes-
quences of DSM's descriptive taxonomy and its lack of underlying theo- timony must clear the hurdle of admissibility by sufficiently demonstrat-
ry and treatment implications (PDM Task Force, 2006). By separating ing that the testimony is relevant to the legal issue and will assist the trier
itself from the reimbursement function of the diagnostic enterprise, of fact with information that goes beyond the ken of a layperson. Under
the PDM does not rely on reductionistic checklists of symptom descrip- the Frye Rule (Frye v. US, 1923), applicable in some jurisdictions, the
tors but takes a larger view when assessing mental adjustment and for- expert's methods and procedures must meet the general acceptance stan-
mulating psychological interventions. dard. Federal Rule of Evidence 702 provides that “if scientific, technical, or
The dissatisfaction with DSM-5's approach to categorizing personal- other specialized knowledge will assist the trier of fact to understand the
ity disorders is not limited to extramural critics. Within the pages of the evidence or to determine a fact in issue, a witness qualified as an expert by
latest compendium of mental conditions, the authors provide an alter- knowledge, skill, experience, training, or education, may testify thereto in
native model for personality disorders, and for good reason. The alterna- the form of an opinion or otherwise” (FRE 702). The court interpreted the
tive model is an acknowledgement that the current approach has rule in Daubert v. Merrell Dow Pharmaceuticals (1993), inclusive of the
“numerous shortcomings” including the fact that “the typical patient necessity to show reliability, known error rates, and other requirements.
meeting criteria for a specific personality disorder frequently also When DSM underpins the experts' conclusions, they should expect stiff
meets criteria for other personality disorders” (APA, 2013, p. 761). challenges from a well-schooled attorney who will not let DSM rest on
The trustees concede that there are problems with the current its laurels.
approach's acceptance in the field and that the criteria lack sufficient Opinion testimony must relate to the legal issue (relevance test).
clarity within and between personality disorders. In the larger picture, While establishing a diagnosis might be axiomatic in clinical practice,
most physicians worldwide and in the U.S. do not use the DSM but very few legal determinations require a diagnosis. In fact, many statutes
turn to the ICD. The attorney or forensic psychologist anticipating expert and much of case law on mental conditions refer to “mental disease, de-
testimony regarding personality disorders should prepare for a chal- fect, or illness,” terms which are almost entirely absent from DSM,
lenge to admissibility under the “generally accepted” and reliability which anchors itself in “disorders,” as its title indicates. “Mental disease,
requirements. defect, or illness” appeared in DSM-IV-TR (APA, 2000) only as a histor-
The organization responsible for most licensing examinations for ical reference and within the cautionary statement. They are completely
psychologists in the U.S. and Canada announced that, effective August absent from DSM-5's Index.
2014, all DSM questions on the Examination for Professional Practice A description of impairments can adequately educate the jury with-
of Psychology (EPPP) will pertain to DSM-5. However, the association out the prejudicial impact of a specific diagnosis. In criminal matters, an
of psychology licensing boards made it clear that its decision was deter- insanity defense requires a predicate disease (illness) or defect (brain
mined by what universities teach rather than standing as an endorse- impairment). Some, but not all jurisdictions, require a formal mental
ment of DSM-5. If universities begin teaching the ICD, the EPPP would condition when trial competence is in dispute. Other than the claim of
test for knowledge of that system rather than the DSM (Association of mental retardation (MR) for death penalty purposes, sentencing factors
State Provincial Psychology Boards, 2014). do not require diagnostic specificity. Risk assessments for sex offender
L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134 131

sentencing do not hinge on a particular mental disorder. In civil matters, journals, thereby “increas[ing] the likelihood that substantive flaws in
a claim of damages is not contingent on a DSM disorder. methodology will be detected”; (3) the rate of error associated with
In family law controversies, the child's best interest does not pivot the particular technique used by the expert, and “the existence and
on the finding of a DSM disorder, but is more functionally determined maintenance of standards controlling the technique's operation”; and
by the comparative analysis of the parties' parenting behavior in light (4) the degree to which the expert's theory is recognized and accepted
of the child's needs. For administrative purposes, a disability claim as valid within the relevant scientific community (Daubert v. Merrell
might rise or fall on the merits of the claimant's mental condition, but Dow Pharmaceuticals, 1993, 593-594).
the Social Security Administration (SSA) has its own listing of impair- Psychologists are often called to testify about intellectual functioning,
ments (administrative criteria) that are not inextricably bound to any relevant to disability, special education and the death penalty exemption
version of the DSM. Because forensic practice lies at the intersection of under Atkins v. Virginia (2002) and now Hall v. Florida (2014). The former
law and human behavior, a functional and street-level description of a MR (now, ID) stands as a clear testament to DSM's malleability, inconsis-
person's traits and attributes is usually more relevant and illuminating tency, and hence, unreliability. DSM-5 refashioned the condition as ID,
than a diagnosis. prompted in part by social sensitivity rather than advances in scientific
Expert testimony regarding a diagnosis might seem interesting and understanding or improved measurement. This freshly minted moniker
even axiomatic to clinicians but is irrelevant to most legal issues. The now resides in a newly branded category: “neurodevelopmental disor-
court, not the expert, has a gatekeeper function in determining whether ders.” The current DSM continues the long tradition of inconsistency
the probative value of the opinions in assisting the jury substantially with respect to this disorder: over the last six decades, DSM has changed
outweighs their prejudicial effect (FRE 703). Except for those few and fi- the IQ criterion with each iteration. The first DSM's definition of MR had
nite legal issues requiring a diagnosis, there is considerable risk of prej- no IQ score parameters. DSM-II included a range of IQ scores from 52 to
udice with the introduction of DSM terminology, particularly with its 67. DSM-III determined that the scores fell between 50 and 70. By the ad-
gross misuse in contemporary common conversation. In some instances, vent of DSM-IV, the IQ score parameters became fuzzier at both ends with
introducing diagnostic labels, when not required for legal or forensic a low 50–55 to a high of “approximately” 70. What had previously been
purposes, risks devolving into psychiatric name-calling rather than gen- bright-lined but numerically migrating demarcations morphed into the
uinely educating the trier of fact and illuminating the relevant issues. inexact qualifier “approximately” meaning something is almost, but not
The introduction of DSM testimony can also cause needless distractions completely accurate or exact; roughly. DSM-5's diagnostic criteria for ID
by interjecting a “straw man” contest into the battle of the experts' diag- abandons any mention of IQ scores and buries reference to test data with-
nostic precision and acumen while diverting from the core legal ele- in the narrative of diagnostic features. In so doing, DSM-5 swings full cir-
ments of behavior that should otherwise inform the judge or jury. cle to the 1952 version that was silent on the test data prong. What was
DSM's purpose, structure, content, and criteria morphed substantial- old is new again.
ly over time. While fluidity is commonplace in all the sciences, intellec- In Hall v. Florida (2014) the U.S. Supreme Court took note of the un-
tual frankness requires forensic psychological experts to concede that reliability of IQ testing and the field's shifting interpretations of scores
the entire diagnostic enterprise is subject to significant variability de- when it concluded that IQ scores are neither final nor infallible, an opin-
pending on when they draw conclusions. DSM, in all its iterations, ion that further reduces the emphasis on the IQ score factor while
faces considerable challenges in light of these inconsistencies. The 5- adding greater weight to the adaptive functioning prong.
Axis system emerged in DSM-III only to be deconstructed in DSM-5. Adaptive functioning, with its greater diagnostic importance in
The current version introduced a dimensional approach to diagnostics DSM-5, “is assessed using both clinical evaluation and individualized,
and rearranged the chapter order with the intent to reflect a better un- culturally appropriate, psychometrically sound measures” (APA, 2013,
derstanding of the vulnerabilities associated with the conditions. Across p. 37). Thus, both clinical judgment and objective measures of adaptive
the seven iterations of DSM, diagnostic labels appear and disappear. functioning should be considered. Examples of standardized or objec-
“Hypochondriasis” and “homosexuality” are out; “hoarding disorder” tive adaptive measures include the Vineland Adaptive Behavior Scales
and “homelessness” are in. “Not otherwise specified” reappears as and the Scales of Independent Behavior-Revised. These scales are com-
“not elsewhere defined.” “Mental retardation” is now “intellectual pleted usually by interview with informants who are most familiar with
disability” (ID); manic-depression was refashioned as “bipolar disor- the daily behavioral capabilities of the subject in several domains. In
der.” Other disorders remain but pulled up stakes and relocated to a dif- death penalty cases, those most familiar with the defendant are usually
ferent diagnostic cluster. Malingering, a condition centrally relevant to a family and friends who undoubtedly have an incentive for their loved
wide range of forensic controversies, migrated from conditions that one to be diagnosed with MR. However, there are no validity indicators
may be a focus of clinical attention in DSM-IV-TR to non-adherence to in either measure to ensure that the report of the informant is truthful
medical treatment in DSM-5. Other conditions remained but now and without exaggeration or response bias. Thus, the “objective” results
have new criteria (e.g., the IQ test score criterion in ID). of adaptive questionnaires may not be objective at all. In addition, be-
It is little wonder that during arguments before the U.S. Supreme cause MR/ID is a disorder that must emerge during one's development,
Court on a pivotal point regarding a diagnosis, Justice Scalia observed it is not unusual for informants to provide a narrative about a
“they changed their mind, counsel. This APA is the same organization defendant's adaptive functioning when their loved one was a child,
that once said that homosexuality was a mental disability and now says which may have been decades earlier. This retrospective description is
it's perfectly normal. They change their minds” (Hall v. Florida, 2014; fraught with challenges not only for its inability to (again) confirm the
p. 18). truthfulness of the reporter but also due to the major problem of accu-
In addition to the hurdles of relevance and utility, experts' opinions rately recalling events and details of someone's daily activities from
must pass the test of reliability within the parameters of Daubert, Frye, years earlier (Henry, Moffitt, Caspi, Langley, & Silva, 1994).
and local jurisdiction equivalents. The court, in its gatekeeper role, has DSM-5 takes care to point out two factors (practice and Flynn effect)
the authority to examine the body of science underlying the expert's with the potential to falsely inflate IQ scores. Oddly, yet very significant
opinion, and to rule on whether that science is sufficiently developed in the forensic forum, is DSM-5's opacity with respect to the most obvi-
and coherent to justify permitting the expert to draw conclusions ous factor that could falsely deflate IQ scores: intentional
from that body of knowledge and so testifying in court. Toward that underperformance and frank malingering, a term peculiarly absent
end, the Supreme Court iterated four considerations when determining from the Index. In an apparent non sequitur, the criteria for malingering
the validity of the expert's underlying thesis: (1) whether the knowl- establish a clear forensic focus (i.e., litigation or prosecution-related re-
edge can be and has been tested using scientific methods; (2) whether ferral scenario), yet DSM-5 nests the term under the umbrella of “med-
the theory has been subjected to peer review and published in scientific ical treatment.”
132 L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134

Attorneys and forensic psychology experts involved in a dispute over engage. While some might dismiss this caution as a technical detail,
the presence of MR/ID as a legal fact should anticipate the need to explain the fact that APA placed the warning foremost should not be lost on
why the diagnostic parameters of this condition have changed with each the user. Failing to recognize and respect the instructions opens the ex-
new edition. A search of DSM-5 yields no satisfying explanation. Al- pert to a discomforting cross-examination.
though scientists update taxonomies for botany, entomology, and zoolo- There is also a dual-role problem that stems from the fundamental
gy as new discoveries emerge, nothing in DSM-5 points to scientific distinction between the treater's need to diagnose a condition in order
breakthroughs regarding ID. The more transparent explanation is unre- to establish treatment goals and secure reimbursement as opposed to
lated to the inputs (i.e., new measurement device or discoveries in asso- the forensic expert witness' contribution in the courtroom under the
ciated features, prevalence, development, course, risk, prognosis, or rules of evidence and admissibility. The two roles, therapist and expert
culture) but rests in the outputs (i.e., determining the level of service witness, reflect divergent diagnostic enterprises sufficiently differenti-
might benefit a person with MR/ID). DSM-5 explicitly assigns greater ated by the persons they serve, the methods they employ, the standards
weight to the adaptive functioning prong for what appears to be the fur- of certainty, and the purpose for which clients hire them. Their role dif-
therance of an advocacy-focused result: “…because it is adaptive func- ferences are irreconcilable and their conclusions not necessarily inter-
tioning that determines the level of supports required” (APA, 2013, changeable even under the common veil of DSM (Greenberg &
p. 33). The result-oriented emphasis is not limited to ID; it appears to Shuman, 2007).
drive the expansion within “substance-related” and “addictive disorders.”
This change could open up insurance reimbursement for earlier treat- 5. Assessment of neurocognitive disorders in particular
ment for millions of persons qualifying as unhealthy users rather than
the previous higher threshold of abuse or addiction. As with the changes The majority of diagnoses made using DSM-5 criteria rely heavily on
in ID, DSM-5 does not justify changes in the definition of “substance-re- the history and symptoms reported by the patient in conjunction with be-
lated disorders” based on new inputs (i.e., advances in measurement or havioral signs observed by the clinician. These are frequently subjective
compelling discoveries in behavioral or medical science) but clearly im- and qualitative in nature. For example, reports of depressed or anxious
pacts the outputs (i.e., patient access to services and reimbursement for mood, intrusive or racing thoughts, flashbacks, and even hallucinations,
providers). In the forensic arena, such result-driven advocacy is antithet- to name just a few symptoms of mental disorders, are not objectively ver-
ical to the role of the expert. ifiable. Like pain, their severity and the distress they are alleged to cause
In the forensic arena, attorneys and forensic psychologists can antic- are idiosyncratic and subjective. The reliance of DSM-5 diagnostic criteria
ipate challenges when IQ test data is offered as proof of ID for a wide on self-report of symptoms makes them vulnerable to distortion, whether
range of civil, administrative, and criminal disputes. Some will forward intentional or not.
the position that ID is defined by the diagnostic criteria without con- Reported history and symptoms necessary to make a DSM-5 diagno-
straint by numerical parameters; others likely will opine that the diag- sis are also vulnerable to exaggeration, fabrication, and manipulation on
nostic features set the boundaries with reference to “two standard the part of the patient if there is motivation and incentive to do so, such
deviations or more below the population mean, including a margin for as with a claim of psychological damages in personal injury cases and
measurement error.” However, the latter's more empirical appearance with competence to stand trial, diminished capacity, the insanity plea
equivocates with qualified language including “typically” (i.e., most in criminal court, and mitigating factors at sentencing. The clinician, un-
often but not always) and “approximately.” If the score parameters are fortunately, is at a disadvantage in trying to ascertain the veracity and
not fuzzy enough, DSM-5 further blurs the boundaries by asserting legitimacy of a patient's subjective symptoms and complaints given
that the use of “clinical judgment” is “required” (APA, 2013, p. 37). the substantial evidence that mental health professionals, like nearly
When the exercise of discretion finds scientific support in research, everyone else, are unable to detect lying or malingering through face-
the use of judgment is defensible. When outcome advocacy colors to-face contact or observation (Bond & DePaulo, 2006; Edelstein,
decision-making, then clinical judgment is a precarious proposition. Luten, Ekman, & Goodman, 2006; Rosenhan, 1973; Spellman & Tenny,
2010).
4. DSM-5 contains a caution for court Assessing the truthfulness of self-reported symptoms and com-
plaints should be augmented through psychological testing measures
There is a great divide between the clinical, public health, and re- that include specific scales of symptom validity (Heilbronner et al.,
search purposes for which the task force intended DSM-5 and the foren- 2009). Some measures, such as the Structured Interview of Reported
sic applications for which mental health experts presently employ it for Symptoms, have been designed exclusively to assess for the feigning
matters in legal controversy. This dichotomy of purposes and applica- or exaggeration of psychiatric symptoms. Some other psychological
tions comes at some peril against which DSM-5 wisely warns the user tests, such as the Minnesota Multiphasic Personality Inventory-Second
and consumer of diagnostic services. Edition (MMPI-2), Minnesota Multiphasic Personality Inventory-
…[I]t is important to note that the definition of mental disorder in- Second Edition-Restructured Form (MMPI-2-RF), and the Personality
cluded in DSM-5 was developed to meet the needs of clinicians, pub- Assessment Inventory (PAI), assess more general psychological and
lic health professionals, and research investigators rather than all of emotional functioning but also have validity scales and indicators that
the technical needs of the courts and legal professionals… When are sensitive to symptom magnification or “faking bad.” Thus, to arrive
DSM-5 categories, criteria, and textual descriptions are employed at a DSM-5 diagnosis based solely on self-reported symptoms and histo-
for forensic purposes, there is a risk that diagnostic information ry without ancillary evidence from more objective clinical sources, such
will be misused or misunderstood. These dangers arise because of as psychological testing, can leave the expert vulnerable to challenges
the imperfect fit between the questions of ultimate concern to the regarding the legitimacy of the patient's symptoms.
law and the information contained in a clinical diagnosis. (APA, Within the broad area of psychological testing and evaluation, neuro-
2013, p. 25) psychological assessment has experienced tremendous growth over the
This warning is not new. It appeared in each of five iterations and last several decades and as a result has gained widespread acceptance
text revisions over the last three decades beginning with DSM-III. Un- in general clinical and forensic domains (Kaufmann, 2009; Sweet,
fortunately, the caution appears in the front-end material, which users Meyer, Nelson, & Moberg, 2011; Zillmer, 2004). Clinical neuropsychology,
typically gloss over en route to the diagnostic criteria. Good advice un- “an applied science that examines the impact of both normal and abnor-
heeded is of little value. Many experts seem undeterred by the upfront mal brain functioning on a broad range of cognitive, emotional, and be-
warning and testify with a lack of appreciation that the same authority havioral functions” (Board of Directors, 2007, p. 211), has an expanded
upon which they rely warns against the very enterprise in which they role in DSM-5 given the addition of a new diagnostic group called
L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134 133

neurocognitive disorders (NCD). This group of disorders was known in credentials as possessing the necessary expertise. Board certification
DSM-IV as “dementia, delirium, and other cognitive disorders.” The im- in neuropsychology is the highest standard for the demonstration of
portant feature of these conditions is that they are acquired, meaning competence in the field, although many clinicians who practice neuro-
that they have not been present since birth or early in development psychology are not board-certified. Thus, this could present an addition-
such as those found among the “neurodevelopmental disorders” al challenge to the expert to outline how he or she possesses the
(e.g., intellectual disability, autism spectrum disorder, attention deficit hy- necessary training, experience, and background to conduct and inter-
peractivity disorder). Consequently, the NCDs are reserved for those con- pret neuropsychological test findings.
ditions that result in a decline from a previously higher level of In addition to the credentialing issue noted above, the major profes-
functioning. sional organizations within neuropsychology (e.g., American Academy
The neurocognitive disorders apply in a forensic context to cognitive of Clinical Neuropsychology, National Academy of Neuropsychology)
impairments that affect both civil and criminal competencies, criminal have made clear the need to incorporate in all forensic evaluations, mul-
culpability, and personal injury litigation. The underlying causes for the tiple specific test measures that assess effort and malingering (Bush,
NCDs can include any medical or substance etiology, including dementia, Ruff, Troster, et al., 2005; Heilbronner et al., 2009). These measures are
traumatic brain injury, or vascular disease, among others. The NCDs are known collectively as performance validity tests (PVTs) and may be ad-
further delineated into major and mild severities. The major NCDs require ministered as “stand-alone” tests or embedded as part of a standardized
evidence of “significant cognitive decline” as well as “a substantial impair- or routine neuropsychological measure. Many of these performance va-
ment in cognitive performance,” and require evidence that the cognitive lidity indicators have well-established and empirically derived cutoffs
deficits interfere with independence in everyday activities (APA, 2013, and norms with known sensitivity and specificity values for the detec-
p. 602). A mild NCD requires a “modest cognitive decline” and “a modest tion of inadequate effort or malingering (Boone, 2007; Larrabee,
impairment in cognitive performance,” but no interference of the cogni- 2007). Practice guidelines assert the need to incorporate multiple
tive deficits with everyday activities (APA, 2013, p. 605). The mild NCD PVTs throughout the assessment when conducted as part of a forensic
would be the most applicable DSM-5 diagnosis for the effects of a concus- evaluation (Heilbronner et al., 2009). Ignoring this recommendation
sion or a mild traumatic brain injury. and standard will no doubt leave the expert witness vulnerable to chal-
DSM-5 explicitly underscores the importance of neuropsychological lenging cross-examination regarding the absence of these critical fea-
assessment for the NCDs. For example, DSM-5 states that “neuropsycho- tures that ensure the validity of the test results. DSM-5 recognizes this
logical testing… is part of the standard evaluation of NCDs and is partic- possibility by stating that “in some settings, malingering or other facti-
ularly critical in the evaluation of mild NCD” (APA, 2013, p. 607). In tious disorders may be a concern” (APA, 2013, p. 609).
addition, “neuropsychological assessments are the key measures for di- Many individuals who assert a cognitive decline following an injury,
agnosis of NCDs, particularly at the mild level, where functional changes such as a concussion, report not only cognitive but also other general
are minimal and symptoms are more subtle. Ideally, individuals will be psychological symptoms, such as depression, anxiety, irritability, and fa-
referred for formal neuropsychological testing, which will provide a tigue. Thus, the assessment of these individuals must include not only
quantitative assessment of all relevant domains and thus help with neuropsychological testing, with the inclusion of multiple performance
the diagnosis” (APA, 2013, p. 609–610). Thus, in asserting a diagnosis validity tests, but also an objective assessment of the general psycholog-
of major or minor neurocognitive disorder, neuropsychological assess- ical symptoms. Within a forensic evaluation, the psychologist must also
ment should be incorporated into the case formulation. ascertain the validity of those symptoms with measures that are sensi-
DSM-5 attempts to provide the clinician with some framework tive to exaggeration or malingering. These are known as symptom va-
regarding the distinction between major versus mild NCDs from a neuro- lidity tests, in contrast to the performance validity tests noted above.
psychological perspective by suggesting that, for major NCDs, perfor- The validity scales of the MMPI-2, MMPI-2-RF, and PAI provide objective
mance is typically two or more standard deviations below the norm indicators of symptom presentation and response bias.
whereas for mild NCD, neuropsychological performance is more typically
between one and two standard deviations below the mean. In addition, 6. Summary cautions for prospective expert witnesses
DSM-5 provides functional examples of major and mild neurocognitive
disorders across six different cognitive domains. However, DSM-5 also ac- DSM-5 does little to improve its predecessors' standing in the legal
knowledges that “the distinction between major and mild NCD is inher- forum or the court of public perception and creates robust opportunities
ently arbitrary, and the disorders exist along a continuum. Precise for challenges by attorneys opposing diagnostic testimony. Psychologists
thresholds are therefore difficult to determine” (APA, 2013, p. 608). The testifying on the strength of DSM-5 diagnoses should anticipate chal-
classification of major or mild severity has not been empirically tested. lenges to the admissibility and weight of their opinions. Intellectually
It is unclear whether clinicians can reliably distinguish between “signifi- honest acknowledgement and well-warranted modesty might prompt
cant” versus “modest” cognitive impairments and decline. Thus, the reli- experts to concede that the intended purposes of the current DSM are
ability of this distinction is unknown. Evidence generally suggests that far removed from its original taxonomy and, by DSM-5's own admonish-
qualitative descriptors of neuropsychological test scores (e.g., mildly, ment, is not now, nor ever was formulated for forensic purposes.
moderately, or significantly impaired) assigned by clinicians is highly var- When testifying about a legal issue for which the law does not specif-
iable and inconsistent (Guilmette, Hagan, & Giuliano, 2008). However, ically require a diagnosis, psychologists functioning as expert witnesses
within the area of traumatic brain injury (TBI), DSM-5 lists severity rat- should remain cognizant of the hazards of relying on a diagnostic system
ings for mild, moderate, and severe TBI based on loss of consciousness, designed for the incompatible purposes of designing treatment plans and
post-traumatic amnesia, and Glasgow coma scale scores, which are gen- securing reimbursement under the medical necessity requirement.
erally accepted within the field of TBI rehabilitation. Also, DSM-5 makes To assure a more positive professional experience in the witness box,
it clear that the usual outcome of symptom resolution is within weeks well-prepared psychologists will offer well-reasoned explanations
to about three months post injury with mild TBI, consistent with the liter- when cross-examination attempts to show that DSM-5 generally fails
ature in that area (Carroll et al., 2004; McCrea, 2008; Rohling et al., 2011). the tests of admissibility. Those challenges will likely focus on the ques-
Given the importance of neuropsychological assessment in the diag- tionable consensus about the DSM-5's symptom-descriptive approach,
nosis of the NCDs, a clinician who uses this diagnostic category will need its repeated cautions against forensic use, the low reliability shown in
to have relied upon neuropsychological test findings. This raises other the field trials of certain disorders, the emphasis on the litigant's self-
issues regarding the quality of the neuropsychological assessment. Be- report, and its reliance on clinical judgment. Be forearmed with a re-
cause states do not license psychologists in subspecialty areas, such as sponse to challenges that highlight the shifting boundaries of inclusion
neuropsychology, the expert witness may need to defend his or her through which disorders appear and disappear. Be able to explain why
134 L.D. Hagan, T.J. Guilmette / International Journal of Law and Psychiatry 42–43 (2015) 128–134

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