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Is the new 'bible of psychiatry' a weapon for the courts?

Is the new 'bible of psychiatry' a weapon for the courts?


The DSM, psychiatry's controversial guidebook, impacts decisions on everything from sentencing to solitary confinement

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DSM protest
DSM protest

Three members of Occupy Psychiatry protest the American Psychiatric Association at their annual conference in San Francisco last week.

Walter Madden had a secret.

He and his wife, Kelsey, had been married for seven years when they divorced. They had one child. A joint custody agreement was reached in 2008.

But soon, because of Walter's secret, Kelsey decided that joint custody wouldn't work. She appealed to the court in their small Utah town for sole parental rights. Kelsey argued that her husband was mentally ill and, in the words of the state, "unfit or incompetent" to be a parent. And the court was required to listen intently: She had the "Bible of Psychiatry," the Diagnostic and Statistical Manual of Mental Disorders (DSM), on her side to bolster the claim.

Walter's secret? He was really a woman.

The DSM had been cited in some 5,500 court opinions and 320 pieces of legislation

Walter had been depressed for a long time, he said, and when he finally decided to identify publicly as female, his depression waned. Though he did not have gender reassignment surgery, he began introducing himself as Wynonna in public.

Most people might call Wynonna a transgender woman. The DSM, until last week at least, categorized him as having Gender Identity Disorder, a mental illness. If the court sided with Kelsey, that categorization could separate Wynonna permanently from her only child.

While the DSM's text is introduced with a caveat that it's only to be used for clinical, educational, and research purposes, the book has another key application: It's often used as a way to make decisions within governing bodies, in court, and in the criminal justice system. A 2011 paper by Dr. Ralph Slovenko, a professor emeritus of law and psychiatry at Detroit's Wayne State University, found that the DSM had been cited in some 5,500 court opinions and 320 pieces of legislation.

The DSM has been in the news recently because a revision of the book DSM-5 was released last weekend. It's the first revision since 1994, and has been marred by controversy ever since proposed changes were first introduced in 2011.

In addition to playing a role in parental custody battles, DSM diagnoses can also impact courts' decisions about whether someone is considered fit for full-time work or unemployable. Those diagnoses can help people duck criminal sentences, subject them to hellish treatment if they're ever incarcerated, or keep them locked in solitary confinement once they're behind bars.

"This is the problem with the DSM."

Dr. Toby Watson sees a problem with that. He's the clinical director of Associated Psychological Health Services in Sheboygan, Wisconsin, and has worked as a chief psychologist at a state prison. According to Watson, the DSM is often used in lockup as a way to keep certain prisoners "monitored." Designating a prisoner as mentally ill occurs not when that prisoner needs help, in other words, but when the prisoner is perceived to be problematic to someone in a position of power.

Watson said that tends to happen outside prison walls, too. "This is the problem with the DSM," he said, referring to the DSM's evolution over time. "We're taking normal responses to our environment and expanding our criteria of what we call illness to include people who don't have major problems."

Those criteria expand through gradual DSM revisions over time. Revisions are made based on periodic votes elections for diagnoses instead of candidates by members of the American Psychiatric Association (APA). In 1917, those members agreed on 22 disorders but didn't publish them in the first DSM until 1952, when that number expanded to 106. In the DSM-IV, there were 297 disorders. This time, the revised DSM-5 contains over 300 maladies in a 947-page doorstop of a book that retails for $199.

A group of protesters gathered outside the APA’s annual conference at San Francisco's Moscone Center last week. They believe the DSM suffers from an ever-expanding definition of mental illness and undue influence from drug companies. Many are troubled by what they see as the overmedication of children and nightmare legal scenarios like Wynonna’s.

The protest was small, maybe 40 people at most. It was mostly an older crowd and they weren't very rowdy. The group made signs together, talked with one another, and recounted bad experiences with the mental health system. Many were friends. There was a PA system, and a wireless mic that was used by chosen speakers to make their appeals for how the APA should change. Some wanted to abandon the use of drugs, and to dump psychiatry altogether. Others want reform of the existing mental health system.

In 1917 the DSM had 22 disorders. In 1952 that number expanded to 106. This time, the revised DSM-5 contains over 300

Matthew Morrissey, a psychotherapist and organizer of the event, fell into that category. He was optimistic. "There is this thing happening around the DSM-5 ... that's brought a spotlight to our issues," he said. "I think we have an opportunity."

While the Occupy Psychiatry movement might've seemed like a small, fringe group out on San Francisco's busy streets, some of their complaints about the DSM are shared by prominent members of the psychiatric community. In a blog post late last month, Dr. Thomas Insel, director of the National Institute of Mental Health (NIMH), explained that this federal agency "will be re-orienting its research away from DSM categories." To put it another way: The largest mental health research organization in the world has publicly questioned the DSM's usefulness.


"While DSM has been described as a ‘Bible' for the field, it is, at best, a dictionary, creating a set of labels and defining each," Insel wrote. "Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.... Patients with mental disorders deserve better."

Morrisey expressed similar thoughts, arguing that the the DSM's consensus-based model of defining mental illness is deeply flawed.

"Our basic message is calling for human rights in the mental health system," Morrissey said. "Psychiatry is here to stay, the mental health system is here to stay ... but we want to make sure that people aren't being treated against their will, that people aren't being forcefully drugged, that people aren't being forced into treatment that isn't right for them. That people aren't being abused."

It's too soon to know how DSM-5 changes will affect the law, but some lawyers argue that new definitions of mental retardation, for example, will bring more executions in states such as Texas. Others argue that its redefinition of autism will affect "one's legal rights to non-discrimination, reasonable accommodation, special education services, income support, and more intensive forms of service provision supported through the Medicaid program." There are, in other words, myriad possibilities for abuse against individuals at the hands of more powerful people, organizations, or employers.

"Maybe in five years, we'll look back and laugh about the outlier cases. But the opposite could also be true."

On the other hand, there are lawyers such as Douglas Hass who argue that employers, rather than individuals, will suffer most from the DSM's revision. The new DSM-5 will allow people to take advantage of everyday stressors, he said, to argue in court for workplace disability benefits. In a paper published in the Loyola University Chicago Law Journal this year, he wrote that "prudent employers should assume that all but the most transitory and minor of impairments (the common cold or flu, a sprained ankle, or a pulled hamstring) will be found to be ‘disabilities.'"

What's more, he told The Verge, is there's not much employers can do about it. "It's going to be difficult for courts to disregard the DSM," he said. "Maybe in five years, we'll look back and laugh about the outlier cases, the cases where someone sued to get disability benefits for Internet Addiction. But the opposite could also be true. We may look at this in five years and think this has unleashed a lot of litigation that we weren't prepared to handle."

Wynonna Madden's Utah custody battle could be considered a legal outlier. Dr. Dan Karasic certainly considered it that way. But he was happy to aid her cause.

Dr. Karasic specializes in transgender, gender dysphoric, and HIV-positive patients. He testified as an expert witness in Wynonna's case.

"In my clinical experience," he said in court, "transgender parents have maintained strong, beneficial parental relationships with their children relationships as significant as those of any parent. Termination of contact between parent and child, by contrast, is a tragic loss for both."

He also noted that DSM-5 would change Gender Identity Disorder to Gender Dysphoria. This is a good change for people like Wynonna; the new DSM treats the feelings surrounding gender change as symptomatic of illness, not the gender change itself.

The Utah court agreed. "The Court finds that [Wynonna] began her physical transformation while the parties entered" into divorce and "[Kelsey] did not find this condition to hinder [Wynonna's] parenting abilities," the opinion read. Kelsey had thus "failed to prove by clear and convincing evidence that [Wynonna] suffers from mental health issues that would render her unfit or incompetent to care for the needs of [a child]."

Unfortunately, the story still has a sad ending. Wynonna lost her job and was forced to move out of state to find work. She fell behind on alimony payments, so she lost regular access to her son anyway. But at least it wasn’t because the DSM categorized her as mentally ill.

"Often, in these cases," Karasic said, "it feels like winning a battle but losing a war."

Nathan Olivarez-Giles contributed reporting from San Francisco. Wynonna and Kelsey Madden's names have been changed to protect their privacy.