Today, I wanted to share an article that I received from Dr. John Zervopoulos, a board certified forensic psychologist and lawyer with Psychology Law Partners. We often hire Dr. Z to consult with us when we have mental health issues involved in a child custody case. Dr. Z will help navigate through the mental health issues and steer the attorney in preparing for litigation on those issues. Because he is a lawyer and a psychologist, he understands the litigation process and how mental health evidence affects a case, especially a child custody case.
So, here’s what Dr. Z has to say about the DSM-V coming out in May (read more about the DSM-V at its website):
WILL DSM-5 CHANGE EXPERT TESTIMONY?
Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.
Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.
Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:
• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).
• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).
• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).
Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.
Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).