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Is
Diagnosis Useless In Litigation?
©Vicky Campagna,
PhD
for a pdf copy
of this article, click here
That’s pretty much the conclusion of psychologist Stuart Greenberg and
attorney Daniel Shuman, who together wrote a provocative article on this
subject for the International Journal of Law and Psychiatry. (Greenberg,
S. and Shuman, D. [2004] Unmasking Forensic Diagnosis International
Journal of Law and Psychiatry 27 (1) 1-15).
The authors, whose earlier article titled “ The Irreconcilable Conflict
Between Clinical and Forensic Roles” (Journal of Professional
Psychology: Research and Practice, 28 (1) p. 50-7) is considered a
seminal work in the forensic psychology field, contend that diagnosis
is often more prejudicial than probative, that it is often inherently
unreliable, encourages feigning of symptoms, and that mental health
professionals better serve the courts when they focus on the litigant’s
functional abilities with respect to the litigation.
What is generally not known to the legal community is that DSM, the
oft-quoted reference book of mental disorders, is comprised of diagnoses
that were included by consensus, not by any empirical
formulation. There is no test for, let’s say, antisocial personality
disorder the way there is a clear test for emphysema. As the authors
state:
“While there is more
consensus on these issues than ever before, psychiatric diagnoses in general provide less reliable information than well-established diagnoses in other
fields of medicine. A diagnosis of colon cancer, for
example, conveys far more dependable information about the pathology causing signs and symptoms that led to the diagnosis in the first place, how the
disease is likely to progress, and how the diagnosis implies a
treatment than would the diagnosis of Reactive Attachment
Disorder (RAD). An RAD diagnosis conveys neither the necessary signs and
symptoms, the original cause, nor reliable
intervention. No psychiatric diagnosis—except those also claimed by
neurology—conveys dependable information on all 3 of
these points. In fact, some psychiatric diagnoses do not
convey dependable information on any of these
points.”
DSM, today in its 4th revision, is sometimes severely
criticized as having been created out of compromise, not hard science,
particularly with personality disorder diagnoses. These can be challenged as
being merely a reflection of cultural norms.
Moreover, many of the symptoms that define any diagnosis are
self-report symptoms. The information regarding what symptoms
constitute a specific diagnosis are easily researched, and are available
for the litigant who wishes to embellish his case. Given a set of
symptoms, the clinician provides a
diagnosis, which is then presented to the court. However, what
is not highlighted is the fact that the diagnosis was determined by
the information provided by the litigant!
The case of Spencer v. General Electric Co. (688 F. Supp. 1072 [E.D.
Va. 1988) is on point here. This claimant reported experiencing trauma
due to having been raped and was diagnosed as having PTSD, a diagnosis
which was then used to prove that the events had in fact occurred. “The
diagnosis may stand without reference to, or even in the face of,
independently collected behavioral, historical or psychological test
data. Hence, the jury may reasonably believe that they received an
objective diagnosis made by the expert witness on the basis of
scientifically collected data, whereas, in actuality, it may be a
diagnosis made more by the victim than by the expert. Having been
labeled with a diagnosis gives a veneer of objectivity to what may be
nothing more than the claimant repeating her story to a clinician.”
(Greenberg & Shuman, p. 7.)
Furthermore, stressful life events, which cause emotional upheaval in
their own right, may mistakenly be seen as symptoms of a diagnosable
mental disorder. It is very difficult, if not impossible, to tease
these two things apart with any certainty. And if the litigant is given
more than one diagnosis (a not uncommon event, since many symptoms apply
to more than one diagnosis), s/he is often seen by the jury as
being even more harmed. The fact is, as Greenberg & Shuman succinctly
state, “People with two diagnoses based on two different sets of
unrelated symptoms may be more impaired than people with only one
diagnosis, but people with two diagnoses based on one set of symptoms
are not more impaired simply because their symptoms fit within two
diagnostic categories.” (p. 8)
What is potentially far more useful to the trier of fact than a
diagnosis is an expert’s assessment of any change in the litigant’s
functional abilities, i.e. in what way have the defendant’s actions
impacted the litigant’s life? (Assuming they have at all, in the first
place!) A diagnosis is irrelevant in answering this most basic question,
and it is this question that the courts must have an answer in order to
make a legal finding.
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