Which are definitions some states employ of insanity as a legal concept?

What Is Psychiatry?

Psychiatry is a branch of medicine specializing in emotions and behaviors. Or, to directly quote Wikipedia: “Psychiatry is the medical specialty devoted to the study, diagnosis, treatment, and prevention of mental disorders. These include various affective, behavioural (sic), cognitive and perceptual abnormalities.” In other words, psychiatrists deal with patients who are suffering from or exhibiting signs and symptoms of mental disorders.

The next question, clearly, is what is a mental disorder? This question is actually much more important than the first, because in order to have a doctor for something, we first have to define that “something.” And this something is hard to define. Mental illness has existed as long as humans have existed, as far as anyone can tell. The Bible contains references to insanity. Many are vague and use the word “madness,” although no one knows what the original meaning was. Clearly, as early in history as humans were capable of documenting their observations, they observed that some people behaved in ways outside the norm. King Saul was described as having had fits of euphoria alternating with black despair—certainly consistent with a modern view of bipolar disorder (more on this diagnosis later). The Talmud, the great body of literature expounding on the Jewish Law, the Torah, says that King David wondered why God would have created something as “purposeless” as insanity. Then David flees to the court of Achish the King of Gath, where he fakes insanity in order to save his own life. Implicit in this story is the concept that faking insanity bestows upon the faker social conditions and treatment different than that of a non-insane individual—the earliest known insanity defense. Thus, the Talmud decides that insanity can have a purpose after all. The Talmud also goes into great detail about legal decisions made while mad or insane. Interestingly, Maimonides, the philosopher and physician who wrote his own code of ethical behavior, finds that insanity covers so many different variations that it cannot be defined, but rather must be decided by a judge! We might say that Maimonides was the first forensic psychiatrist, even if he never did a fellowship, was not board-certified, and fell into the subspecialty via general family practice medicine.

Although forensic psychiatry was not officially practiced in Biblical times, we see that the roots of the differences in behavior and responsibility between the sane and the insane were documented as far back as those days. The word “forensic” itself means “in the forum,” and the Forum was the location of legal proceedings in ancient Rome. The Hammurabi Code, the ancient law of Mesopotamia, had a special section reserved just for dealing with insane criminal defendants. The legal system throughout the world apparently has recognized since the beginning of recorded history that mentally ill individuals lacked the same capacity for reason as their non-mentally ill brethren. Only today is the insanity defense fairly rare and the concept of mental illness extremely hard for people to grasp. My goal in this book is to make it a bit easier to recognize the mentally ill, so that whenever a person who is less than psychiatrically stable crosses your threshold, you will know what to do.

The first modern mention of the concept of forensic psychiatry in the English-speaking world was around 1843. In that year, Daniel M’Naughten fired a gun into the back of Edward Drummond, who died five days later. Drummond was the secretary of the British Prime Minister, Robert Peel. Without the benefit of technology and the 24-hour news cycle, the mentally ill Mr. M’Naughten had mistaken Peel’s secretary for Peel himself. M’Naughten’s actual motivation for wanting to kill Prime Minister Peel remains obscure, but clearly, the motive was something crazy, because out of this murder, the modern-day insanity defense of both the United Kingdom and the United States was born. The other English-speaking and English common-law-based jurisdictions, Australia, Canada, and New Zealand, all utilize some versions of this law as well.

While the English system utilized certain aspects of insanity defense prior to the introduction of the M’Naughten Rule (or M’Naughten Rules, as it is sometimes called, since the court had boiled down the determination of sanity to five questions), this case is the first landmark case of modern forensic psychiatry. In part, the rule states that:

to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (original British spelling unchanged)

In the United States, before anything could be done about using insanity in legal matters, an attempt was first made to determine how often such a thing might be required. The first official attempt to acquire information about the frequency of mental illness came with the 1840 census, which had a category for “idiocy/insanity.” By the 1880 census, seven options were available for mental illness: mania, melancholia, monomania, paresis, dementia, dipsomania, and epilepsy. Today, those categories have been subsumed into other more official sounding diagnoses, and most modern psychiatrists would be hard-pressed to determine the disorders described by those archaic-sounding diagnoses. However, please remember that just because the name of something changes, the actual condition, symptoms, and clinical presentation do not change. Dipsomania then might be called alcoholism today, but it still exists.

Since those early beginnings, statistical data have been utilized in the United States to form diagnostic categories of psychiatric illness. The American Medico-Psychological Association, later to become the American Psychiatric Association, joined with the National Commission on Mental Hygiene to formulate and enact a plan to gather uniform statistics from mental hospitals all across the country. A psychiatric nomenclature (or jargon) began to be developed. Later, following World War II, the United States Army and then the Veteran’s Administration developed an even broader language of psychiatry to better classify, identify, and treat the disorders of soldiers. More or less concurrently, the World Health Organization (WHO) published the ICD-6 (International Classification of Diseases, Sixth Revision), which was the first ICD to contain a section on mental disorders. The ICD remains the publication utilized throughout the world for medical diagnosis classification, especially for the all-important billing codes. Eventually, the statistical information gathered from hospitals and the census became part of a standardized way of classifying mental disorders, and in 1952, the first DSM (Diagnostic and Statistical Manual of Mental Disorders) was published.

One of the early reviewers of this book was concerned that it would have no international appeal because the DSM is an American publication and its diagnoses are limited to the United States. In reality, psychiatry is psychiatry the world over. Moreover, the diagnostic criteria and codes of the DSM are part of the ICD, which is an international publication. Schizophrenia in New Jersey and schizophrenia in Timbuktu have the exact same diagnostic criteria. Furthermore, (like that—two legal jargon words in a row?) schizophrenia itself is indistinguishable in New Jersey and in Timbuktu—insofar as schizophrenia is ever indistinguishable from itself. The most interesting feature of psychiatric disorders and the thing that makes them so difficult to identify and explain is that they are all so unique. The general features of psychiatric disorders are common to every disorder in a category. The specifics of the illness occur only in the individual who suffers from his own unique version. This concept can be so difficult to understand that I will only mention it here and try to address it elsewhere, but it may really need its own book one day. Another way to explain this concept is that the features of the disorder—the delusions, the hallucinations, the poverty of thought, the autism, all of the things that make schizophrenic people look schizophrenic—are common to all schizophrenics. The delusions of control happen to all schizophrenics. But the details—how they are being controlled, who is controlling them, why they are being controlled, all of the coloring in of the disorder—are as unique to each schizophrenic individual as their fingerprints. It is the uniqueness of each mentally ill person’s mental illness that makes the whole concept of mental illness so difficult to understand to people who are not psychiatrists. Even clinical social workers frequently have difficulty with diagnosis. I see this conundrum every day in my private practice. Therapists only know that patients are unhappy or dissatisfied, but somehow they are often unable to put the pieces together in a cohesive way. The therapists and the patients get lost in the details of the patients’ lives and cannot figure out what the diagnostic criteria are. The reverse, of course, is true as well. I know plenty of psychiatrists who put people into diagnostic categories and ignore the details of the patients’ lives that are so troubling to the patients. The best outcomes occur when the patient and therapist can communicate about the overall picture as well as the details, and when the doctor or non-MD therapist can figure out a diagnosis and a pharmacological approach, as well as understand the circumstances unique to the patient’s life and design a psychotherapeutic treatment that will work for the particular individual. While this type of a treatment plan seems intuitive and normal, you’d be surprised how infrequently it seems to actually happen. And this failure of providing individualized treatment is not necessarily the fault of the treatment providers. Insurance companies and even professional organizations increasingly demand “evidence-based” treatment protocols, based upon large research groups of subjects and not upon individuals.

To further look into this troubling paradigm, I interviewed a leader in this field, Dr. Eric Plakun. Dr. Plakun is the founder of the American Psychiatric Association’s Caucus on Psychotherapy and a proponent of maintaining the biopsychosocial model in the face of immense pressure to shift to something he jokingly refers to as the bio-bio-bio model, a term possibly initially coined by another icon in the field, Dr. John Read, together with his colleagues in an article in 2009. In that famous piece, Dr. Read opines that the modern trend of mental illness is toward a paradigm in which everything is thought to be only biological, and any other influences, such as dysfunctional families, abuse, neglect, domestic violence, drugs, alcohol, or any other factor known to be causally related to psychosis is pared down to the role of a trigger or a biological influence only. Another outspoken such critic was an ex-president of the American Psychiatric Association (APA), which publishes the DSM. The late Dr. Steven Sharfstein was publicly critical of this bio-bio-bio model and also may have coined the phrase. Certain things are so good that lots of people want to take credit for them.

Whoever made up the bio-bio-bio model, in a recent article in the Psychiatric Times, Dr. Plakun remarks upon this trend toward this model, and identifies three misconceptions which heavily influence both the field of psychiatry and the general public in this regard. These are the following:

Genes equal disease

Patients present with single disorders that respond to single evidence-based treatments

The best treatments are pills

Dr. Plakun’s article explains why these assumptions are false, and a quick and dirty literature search reveals a whole world of information that shows exactly why and how he is right. In summary, no specific genes for specific diseases have been identified that are present in every case of every mental disorder; patients rarely have only one disorder, and when they do, many different treatment modalities (such as psychotherapy and exercise) are as effective, if not more effective, than medication, and medications do not always work, and if you read the fine print on any medication package insert you will find: “The exact mechanism of action is UNKNOWN.” This previous sentence is a very gross summary, of course. We can write volumes on how and why the bio-bio-bio model is false. Another problem too is that our brains and our bodies are biological organisms. So while we may not really know anything about the biology of mental illness, at the same time, we know quite a bit. We know that neurotransmitters do mediate communication between neurons in our brains. We know that every single thing that happens in our brains and our bodies is a biological event. We know that without brain activity we die. The expression “flat line” exists, and it does not refer only to cardiac activity. Brain death is a thing, and it is important in infinite variations in the legal system. We cannot separate mind and brain. But at the same time, we are not our neurotransmitters. And it is at this juncture that the faith-based people try to climb on board and derail the train, insisting that the soul is somehow in there with a life of its own. Who knows—maybe it is. But I am a scientist and until proven otherwise, while I do not deny the existence of a soul, I still believe there is a scientific explanation for personality, mental illness, and the interface of environment, genetics, stress, non-stress (i.e., good stuff), and everything else. There is some way in which the outside and inside world interact with each individual’s biology to create each individual. And there is plenty of scientific evidence to support my statement. We know that identical twins who live substantially different lives end up with slightly different DNA. These differences are not in the parts of the DNA that code for hair, eye color, or which version of liver enzymes they have. Instead, the differences are in the telomeres—the parts of their DNA that were once thought to be “junk” DNA, that are now thought by many experts to be related to aging, prevention of oxidation, prevention of cancer, and a whole bunch of things that are still very minimally understood. We (“we” being the real scientists that work in laboratories, but I like to consider myself at least an honorary cousin-type member of that group) now have actual physical evidence that the environment changes our biology. The future is now. With this bit of knowledge in my back pocket, so to speak, I decided to contact an expert.

I wanted to directly speak to Dr. Plakun to see how he thought I could best explain these false assumptions about psychiatry to an audience of attorneys. When even psychiatrists do not seem to understand how we are being manipulated by the health insurance industry into providing inferior care for our patients, how can we possibly expect a court to ever order a true fair outcome or standard or care? I find this lack of parity a huge problem, so I figured I’d better contact an expert right up front.

Dr. Plakun was kind enough to take my call. He told me quite a few interesting things. His opinion underscores my belief that there is a lost generation of psychiatrists who do not know anything about psychotherapy. For the past 20 years or so, psychotherapy training has been absent from psychiatry residency training programs. Gone are the intensive hours of supervision, the process notes, the one-way mirrors, and the T-groups (I don’t know if we ever really knew what that T stood for—possibly transference, possibly training, possibly something else). Gone are the hours of reading Freud in bad, flowery translation, the hours of watching videos of family therapy sessions, the processing of what happened in the community meetings on the “unit” (the long-term inpatient unit where the chronic schizophrenics lived, sometimes for years), and what happened in that meeting that triggered Anne-Marie’s or Walter’s need to get up and go to the bathroom at that exact moment. Those amazing hours spent thinking and talking about what we thought was going on in the minds of our patients, and what was going on in our own minds and those of our colleagues—all gone, as if none of it had ever really mattered. Now it’s all medication, and all keeping people out of the hospital in order to keep costs down. While the total amount of knowledge about the brain’s biology has grown immensely, the individual psychiatrist’s knowledge about the brain does not seem to have grown at all. The field of psychiatry has been so influenced by outside factors that the very things which drew so many of us into psychiatry—what makes people think, and what makes them think in crazy ways—has been abandoned for the much less interesting component of “how can we save the insurance companies money?”

Dr. Plakun pointed out a problem that we mentioned here right in the introduction—that so many people are diverted from the mental health system into the criminal justice system.

“I think it’s a national tragedy,” he told me. “The promise of the community mental health system in the sixties and seventies has fallen apart because of inadequate funding. People are diverted from an inadequately funded mental health system.” He went on to tell me that what the emerging science is teaching us is that “William Faulkner was right… ‘The past isn’t dead; it isn’t even past.’ All the evidence is that early adverse experiences shape later psychiatric and medical outcomes.” In other words, everything that happens to us as we develop from fetuses to babies to children into adults shapes our brains, bodies, and behaviors. Biology and psychology are inextricably linked; it is silly to pretend otherwise, and it is not therapeutic to treat patients as if their neurotransmitters are somehow functioning outside of their life experiences. While traditional psychoanalysis did not specifically include biological changes in the brain as mechanisms for psychopathology, we now know that experience changes brain biology. However, knowing that experiences change brain biology does not negate the effect of life experience, trauma, or any of the things that traditional psychoanalysis taught us.

And the body is not exempt from the brain’s biological whims. For many years, psychologists have acknowledged and studied the brain–body connection known as the fight-or-flight response. When mammals, including humans, are threatened, an ancient survival mechanism is instantly triggered. The mechanism was initially proposed by one of the fathers of psychology, Walter Cannon, about a century ago. Cannon proposed that animals, including humans, react to threats with a general discharge of the autonomic nervous system, resulting in a release of a class of neurotransmitters called catecholamines, primarily adrenaline, (also called epinephrine), as well as norepinephrine (also called noradrenaline). These are released in the brain and in the periphery (the rest of the body). Catecholamines are produced in a pathway that includes other famous neurotransmitters, which you have no doubt encountered in your forays through the world of psychiatry: dopamine and serotonin. So we have just learned a few important things. First, that the fight-or-flight response, which starts in the brain and moves into the rest of the body, involves chemicals that work on both the brain and the body. Second, the main neurotransmitters responsible for the fight-or-flight, adrenaline and noradrenaline, which give us that “adrenaline rush,” which we will discuss in several other places in this book, are also important in a pathway, something like an assembly line, with other neurotransmitters that are clearly implicated in ways which remain only partially understood in most mental illnesses, including depression, bipolar disorder, and schizophrenia (see Figure 1.1).

But there is another important piece to this fight-or-flight puzzle, which relates to Dr. Plakun’s dire predictions about the interactions between early trauma and its effects on the mind and body. New scientific evidence strongly suggests that the fight-or-flight component of the autonomic nervous system is meant to be an emergency backup system. We are not meant to engage our fight-or-flight response on a regular, daily basis. We are not supposed to experience stress round-the-clock. Unfortunately, our modern-day, 21st century brains do not yet distinguish between a mountain lion on our cave-step and the bills piling up on our doorstep. Stress is stress, and when we cannot keep up with the Kardashians, or whomever we’re supposed to be keeping up with, we feel stressed. We live by artificial light, we eat artificial food, we wear artificial clothes, and we take artificial medications. I am not asking anyone to stop doing any of these things, and I do not claim to know that if doing any of these things is bad for us. But I do know that our bodies and brains evolved to their current state in a time when these artificial things did not exist, so to say that sitting in a chair in front of a computer screen for 12 hours a day is a stressor that our bodies, eyes, and brains are not really built for is not a stretch of anyone’s imagination. I personally use my daily walk as a reward. Is that weird? I know quite a few other people who do the same. Walking as reward, in a world that defines itself by the day the humanoids climbed out of the trees and began walking on their two bottom legs.

So one night, I went to a drug-company-sponsored dinner, and I confess, I went there because I was scouting for talent. I need psychiatric help! I need another psychiatrist or a psychiatric nurse practitioner for my office! I’m too busy! You know what they say, be careful what you wish for! There was an awesome speaker, though, so going to that dinner turned out to be a huge bonus for me, even though I couldn’t get the psychiatric help I needed.

The speaker was Jon Draud from Nashville, Tennessee, and he said a lot of really interesting things, but one specific thing really made me sit up and pay attention. He is the one who said that the fight-or-flight response was not meant to be on 24-7. Not only was the ongoing stress response bad for our brains, it was also bad for our bodies. Research was showing us that the constant secretion of catecholamines was actually causing medical illness in our bodies. Once we used to believe that medical illness caused depression and anxiety. Now it seems that depression and anxiety literally cause biological changes in the periphery—in other words, brain changes cause medical problems in the rest of the body.

Take-home lesson? We don’t know everything, and we don’t even know what we don’t know. Let us be very, very careful before we allow our experts to call each other names.

We are now on the DSM-V, which was published in May of 2013. This Fifth Edition changed some names and diagnostic criteria. It invented a few new disorders (Binge Eating Disorder, anyone?) and dropped some other ones. Certain conditions seen daily in clinical practice, especially in the practice of forensic psychiatry (e.g., psychopathy, which also needs its own book, cutting or “self-harm,” and pathological lying) are not DSM diagnoses. One can only speculate as to why not, but the fact remains that new disorders have not suddenly sprouted onto the face of the earth since the early days of the ICD-6 and the DSM-I. The only things that have changed are our way of understanding these disorders and our ways of treating them. Psychiatric disorders are now explained and categorized differently than they used to be, and undoubtedly when the DSM-VI comes along in another ten or 20 years, it will introduce even more changes to the official bank of psychiatric diagnoses. The DSM itself, via the American Psychiatric Association (APA), is attempting to trend toward a more biologically based understanding of mental disorders, but currently the science is still under development. As we discussed earlier, some critics call recent trends in psychiatry the bio-bio-bio model, a satirical play on the traditional biopsychosocial model, which was the traditional way of looking at mental illness for most of the last two centuries, and probably most of even prerecorded history, if the Bible and Hammurabi’s Code are indicative of early mores. Despite recent problems in the conceptualization of psychiatry and mental illness, the DSM remains important. While the actual diagnoses are basically made up, they all represent clusters of signs and symptoms that occur together in fairly predictable ways. While incomplete in some ways and overinclusive in others, the DSM gives all mental health professionals a way to speak the same language. Because the ICD is an international classification of diseases put forth by the World Health Organization, the DSM is utilized in many countries outside the United States. Therefore, this book is not limited to lawyers practicing in the United States—understanding psychiatry should be an international goal.

We psychiatrists know perfectly well that the diagnoses in the DSM are merely groups of signs and symptoms that frequently occur together. In regular clinical treatment practice, this knowledge is useful, especially when it comes to getting paid by health insurance companies. In forensic practice, however, these diagnoses become in some ways far more important than in clinical practice. I have seen many cases in which the diagnosis becomes more important than the symptoms. For example, we know that bipolar disorder is overdiagnosed. Bipolar disorder, once called manic-depression, is a severe, cyclical, psychiatric disorder, in which the sufferer can expect to take medications for a long time. The only absolute criterion for bipolar disorder is a history of one manic episode. The criteria for a manic episode are well and clearly defined in the DSM, and for a good reason—the disorder is very dramatic and requires ongoing clinical monitoring and treatment of the patient. While the etiology—the underlying causes—of bipolar disorder is not known—let me repeat—NOT KNOWN—we do have many theories about its inheritance, causation, and biology. There is definitely a biological component, and there are definitely at least some variants of bipolar disorder that are inherited, or at least some of the components of the disorder are inherited in some people. These facts are terrifically important in the study of mental illness, but they do not really have anything to do with treating any individual patients in any specific clinical setting.

So how come so many people are “bipolar” today? Two reasons—one sort of scientific, and one completely bogus. To understand how bipolar disorder became as common as the common cold, we have to first consider the topic of personality disorders. A personality disorder is defined in the DSM as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” One of these personality disorders is Borderline Personality Disorder, which is fully described in the DSM V on page 663. I will not go into the details here. The problem is that Borderline Personality Disorder is characterized by rapid changes in mood and affect. The disorder includes many other features as well, but in general, insurance companies do not cover treatment for personality disorders. Since I started my training in the late 1980s until today, millions of new “bipolar” patients have been discovered. Those patients would previously have been classified as borderline and sent to frequent psychotherapy, psychoanalysis, or inpatient borderline units. Those units and those treatments do not really exist anymore. And neither does that diagnosis—those patients are now all “bipolar.”

Not surprisingly, many of the pharmacological treatments we use to treat bipolar disorder are the same as those used for borderline personality disorder. The reason I say that the similarity in treatment is not surprising is that the symptom pictures are similar. When we have similar symptoms, and we know now that biology is involved in some way, we are going to have similar treatments. However, this similarity is also the problem. We have plenty of scientific “evidence” classifying bipolar disorder as “biological.” I put all these words in quotation marks because the health insurance industry, as well as the psychology lobby, still insist that personality disorders are somehow not “biological.” And so now we are back to our previous conundrum—the problem of biology versus psychology—even though we have clearly established that everything we ever do, from typing a word, to having a hissy fit, to crying or sneezing or chewing gum, has a biological component. In reality, every day, new studies are published showing the relationship of certain personality disorders to certain chronic psychiatric illnesses, which are considered biological by the mainstream. These details are beyond the scope of this chapter or this book. What is important to know is that every time you think something or do something, something biological happens. The fact that we—we being the psychiatrists and neurologists and neuroscientists of the world—do not know the exact mechanisms by which thought and behavior occur is irrelevant. Science has progressed to the point that we absolutely do know that all thought, feeling, emotion, behavior, and action begins in the brain. The brain is a biological thing. Cut off its oxygen and glucose, and death occurs—no more thoughts, feelings, emotions, behaviors, or actions. Depending on where in the brain the oxygen and glucose loss occur, we see more or less impairment of these things. Cut off the fuel below the part called the brainstem and certain functions will continue—breathing, sweating, and heart beating. Cut off the fuel higher up, closer to the spinal cord, and those functions stop too. Cut it off higher, or in just one place (as happens with what is commonly called a “stroke”) and only certain functions are impaired. The body of evidence that behavior and thought is biologically based is enormous. I once worked in a hospital whose neuroscience division had an ornate doorway featuring a massive mural representing the universe. The metaphor is perfect—so perfect that I used it on my website. Inside each human brain is an entire universe. Every single thing that we do is governed by biological reactions so complex that they are not yet even partially understood. Neuroscientists in laboratories spend entire careers trying to understand what happens when a molecule of neurotransmitter hits a receptor. There are lots of neurotransmitters and lots of receptors. We psychiatrists try to utilize the biological findings in a clinical manner, in order to help people live happier lives. We don’t claim to understand the details of the biological mechanisms, especially as many of them have not even been discovered yet. But we know, far beyond a reasonable doubt, that brain and behavior are inextricably linked. Unfortunately, this little bit of knowledge has become a truly dangerous thing, resulting in this reductionistic bio-bio-bio theory of mental illness we discussed earlier—the idea that mental illness is a purely biological phenomenon that can be treated solely with the right combination of pills. Maybe a few patients can be treated with medication only—those few patients with perfect lives, perfect relationships, perfect bodies, perfect psyches, and perfect SAT scores. I’ve never met any of those people, but one probably exists and she is doing great on Prozac, somewhere. For everyone else, there is the biopsychosocial model, like it or not. Our environment, our thoughts, our friends, our behaviors, our moods, what we eat, how we exercise, what we watch on TV, what we read, where we go, and who we know, all influence our brains, which then enact these influences in a biological way. Get it? See Figure 1.2.

Now, back to our overused diagnosis of bipolar disorder. In forensic practice, I have seen legal cases completely derailed by the issue of diagnosis. One case involved a true bipolar—a young woman who had a manic episode every few years. During one of these manic episodes, she met a man and had a child by him. She was unable to care for that child, especially when she entered her depressive phase and could not get out of bed, much less meet the needs of an infant. In that case, the father stepped in, took custody of his daughter, and moved away to another state. The mother was briefly hospitalized but then did not receive any follow-up treatment. She was relatively stable for a while, had a job, and even resumed visits with her daughter. But then she became manic again, which is when I was consulted by the court.

I saw that woman three times in about two years. The first time, she was in a depressive episode. She had just given birth to another child, who had also been removed from her custody by the state. She was tearful, anhedonic (unable to experience reactive joy), suffered from insomnia, loss of appetite, and all of the official signs and symptoms of depression. I was provided with only a little information about her past, but putting the pieces together (she was depressed, not stupid), I was able to understand how she had lost custody of her first child. I recommended psychiatric treatment and gradual reunification.

Time passed. I received another call from the case-worker asking me to evaluate this woman again. I agreed. This time, she was flagrantly manic. She was accompanied by the father of her new baby—a 24-year-old unemployed loser (my words). She herself was in her mid-thirties and college-educated. This time, I recommended psychiatric treatment again. Again, I wrote that the diagnosis was bipolar disorder. I included “most recent episode manic.” I included all of the diagnostic criteria, word-for-word from the DSM, in my report.

After some time, the state wanted me to see her again. On this occasion, the woman was depressed. I do not recall what the legal situation was, but at this point I was asked to testify in a hearing. The testimony was over the phone. Note: When possible, please avoid phone testimony. While the judge and attorneys might think they are doing a busy psychiatrist a favor by not making her come to court for a 20-minute appearance, those 20 minutes will be far better understood in real life. How do I know? Here is the outcome of my 20-minute appearance: the judge turned to the young woman, patted her arm (I know this anecdotally; I have no idea how he could have gotten close enough to her to pat her arm) and said, “Don’t worry, honey, you’re not really bipolar.” The judge (before whom I had previously and since testified many times) generally respected my psychiatric opinions. However, he was under the media-induced belief that bipolar means you are constantly agitated and upset. He was confusing bipolar disorder with personality disorders, acute reactions to stress, adjustment disorders, and a dozen far less serious psychiatric disorders that he sees in his courtroom on a daily basis. And for that particular woman, he was not doing her any favors. The only way she was going to regain custody of her children and live a normal life was by taking mood-stabilizing medications indefinitely. To deny her an appropriate and correct diagnosis was to deny her appropriate and correct treatment, and ultimately, deny her children a healthy mother. I must say I never quite regained my previous respect for that particular judge.

Another example concerns a case in which I examined the defendant for her public defender. This example also brings up an important point: lawyers, steer clear of experts who only do evaluations for one specific side. In reality, an expert’s expert opinion is far stronger if he or she considers every case equally and honestly. At least start by using an open-minded expert. When you pay for an opinion, the other side will know it.

So back to this case. In this instance, a 31-year-old woman had lost custody of her 10-year-old daughter. The father was completely out of the picture and had relinquished his parental rights and moved to another state. The mother had a long-standing history of psychiatric issues and substance abuse, as well as a total of 10 arrests (none for indictable offenses). At the time that I was asked to evaluate her, the mother was in an inpatient drug rehabilitation facility and also taking psychotropic medications. The daughter was in foster care.

The state’s psychiatrist had opined that this woman could not care for her daughter because of her substance abuse, posttraumatic stress disorder (PTSD), and “rule-out bipolar disorder.” He knew as well I as did that she was not bipolar. This particular psychiatrist does hundreds of cases for his state’s Child Protective Services each year. He always writes exactly the same report and spends only about 10 to 20 minutes with the people he is evaluating (I know from speaking to hundreds of them). Often after he does an evaluation, the individual is referred to me anyway because his audience does not know what he is talking about. What really annoys me about him is that he is not stupid. He lies and knows he is lying. He spins information and gives partial opinions in order to always find that the parents cannot parent at the moment—in order to keep the work and the referrals flowing his way. He does not care at all about the fates of either the parents or the children, and his biases and apathy are obvious to me and to many of the case-workers who utilize his services, and often to the judges who end up sending the individuals for another evaluation. If he were merely incompetent, I would have more respect for him than I do for his sneakiness and manipulativeness.

Technically, according to the ethical principles of forensic psychiatry, our duty is not to the person we are evaluating—it is to the person who hires us and to the truth. But—and this is an important but—we are still human beings and still doctors. While we have to call it like it is, we are not supposed to lie. We are not supposed to invent a way to present this particular person in a way to support his lawyer’s case. And we should still be polite and respectful to everyone we evaluate. (I spent almost 10 years working with sex offenders—it can be done. More on that later). Also, when we do evaluations for a child custody case, the evaluation is court-ordered, and we are doing the evaluations for the court. We are supposed to be impartial. I don’t know how some of these experts decided that their opinions were supposed to always be that the parents could not parent and the children should always be removed. When an expert always has this opinion, the person paying for the opinion should probably be suspicious that the expert has no actual forensic training (which is easy to find out—just ask for the doctor’s curriculum vita).

The case of this woman and her daughter ended up in termination of parental rights (TPR) proceedings. The state decided—or the judge decided, or what actually happened was that the judge agreed with the case-workers who decided—that it was time to terminate the mother’s rights to her child. She was finally given a lawyer (the stage at which you get a lawyer differs by jurisdiction and type of case). Her lawyer read and reviewed all the psychiatric evaluations and did not think she needed another expert, since the reports were ambiguous enough about prognosis, and the mother had complied with all of that psychiatrist’s recommendations. As I said earlier, the psychiatrist was not stupid and was not actually an incompetent psychiatrist, just sneaky and mean.

The case was in court and this psychiatrist—I’ll call him Dr. Sneaky for now—was actually testifying for the state and for termination when the public defender realized she needed a new psychiatric evaluation. In the middle of his testimony, Dr. Sneaky realized he might have been a little too truthful in his reports, stating that this woman could be reunified with her daughter if she stopped using drugs and took appropriate psychotropic medication, because she was now doing those things. He had, after all, found that she suffered from substance dependence and PTSD, both treatable conditions (although he considered an additional dozen rule-out diagnoses just to keep his options open). Dr. Sneaky suddenly “realized” that the mother was actually “bipolar.”

“She is bipolar, she has changes in her brain, and she will never get better!!” He was so proud of this statement that he wrote an addendum to his report, saying as much.

While Dr. Sneaky was writing his addendum and finding references for his outrageous statements, the public defender was finding me. Neither of us had ever seen a case like this one. The “references” provided by Dr. Sneaky consisted of every single page turned up on a Google Search for “bipolar disorder + biology.” Some of the “references” were hilarious—flyers for international psychiatry meetings, cartoons, and book promotional materials. Naturally, there were some actual scholarly articles included, some of which were fascinating, but totally irrelevant to the case.

Dr. Sneaky returned to court prior to my report being finished, so I had the pleasure of reading his addendum, which read, in part, “The typical reader of this report will not understand what I am saying, since he is not a brilliant psychiatrist like me.” No joke, but paraphrased into simpler terms we mere mortals might understand. I also had the honor, ironically just now inadvertently autocorrected into the “horror,” of reading the transcript of his testimony saying much the same thing but in an even more obtuse and condescending way. I’m sure that if I had been there in person, I would have witnessed the veins bulging on his forehead.

In my review and evaluation, I learned that this young woman had completely turned around her life, and that she was psychiatrically stable and had been compliant with treatment for some time. I did not invent this information; it was all documented. All I did was put it together in a coherent way. Dr. Sneaky looked like a fool (especially after I tried including all of his “references” in my report, only to give up in frustration at reference number 30, sub-reference k):

“At this point I decided not to waste the state’s money in writing down every single abstract that Dr. Sneaky pulled off the Internet to support his bizarre statements in court. Approximately 10 additional abstracts were provided, all of which were reviewed but none of which has any bearing on this case.”

I did not even have to go to court. The judge read my report, laughed Dr. Sneaky out of the courtroom, and gave the girl back to her mother. All I did was tell the truth. The moral of the story? A string of rule-out diagnoses helps no one and makes your expert look like a fool. Sometimes you really can’t tell which diagnosis is more appropriate—often records are withheld, information is third-hand, and people are terrible informants. But with the right education and approach to forensic psychiatric evaluation, all the evaluators should come to the same, or similar, diagnoses. When they don’t—someone is trying to suck up to the attorney who hired him. And a whole bunch of potential rule-out diagnoses are a big clue that your expert might be an expert in billing for his time, but not necessarily an expert in psychiatry.

In clinical practice, what does it matter what we call a diagnosis? The answer is, it depends. If part of someone’s emotional struggle is a result of behaviors and perceptions that can change with appropriate therapy but not with medication, then that specific patient needs to understand that fact. Many times I have to tell a patient: “I don’t have a pill for that.” And what is “that?” “That” can refer to abusive relationships, lack of self-awareness, the expectation that “I deserve to be happy because I saw it on TV.”

Now, if an abusive relationship results in depression (and there are many proposed mechanisms, including many biological ones) then I can treat those signs and symptoms of depression—to a degree. One example I encounter in my practice all the time, even though I was stunned the first time I heard this story, is that of the couple who divorces yet continues to live together in the same house. Their anger leads to divorce. So now, the wife, who used to be angry with her husband because he was never home and had a glamorous job in the city while she drove carpools most of her waking hours, has to get a job. (These are her perceptions, not necessarily the truth. Sometimes there is infidelity, or alcoholism, or something else, too. Or not. Sometimes she just thinks she deserves better. There are all kinds of stories). Anyway, now they are divorced but still living together. She is now more stressed. The husband is now less stressed, because he has no responsibilities to his family, other than the automatic paycheck withdrawals toward child support. He can come home for dinner with his family, like before. He does not need to help to clean up after dinner (like before). He can go out with his girlfriend on the weekends (like before?). Meanwhile his ex-wife is now more stressed than ever, juggling kids and what is usually a low-paying job (because she stayed home for years). She comes to see me because she is depressed. I have to tell her, there is no pill for making bad decisions. If you want a happy life, you have to move on. I tell them—but there is no way to engage in meaningful psychotherapy that will help this hypothetical woman to emotionally understand this situation, because as a psychiatrist I cannot afford to take a loss on every hour I spend with a patient—an entirely separate issue from what treatments work, but still an important topic for this book.

Why is health insurance important in the discussion of psychiatric illness? For a variety of reasons. Many psychiatrists do not accept insurance. I do (for now). While the American Psychiatric Association has battled for parity for psychiatric illness and treatment in Washington, there is no parity. If I visit my gastroenterologist (stomach and intestines doctor) for a 10-minute “intake” appointment, she gets around $300. Any procedures she might then choose to do are billed separately. Insurance pays her because someone decided that speaking to a patient for 10 minutes about recurrent diarrhea is somehow harder and more “medical” than speaking to the same patient about every single thing that ever happened in her life.

When a patient who never met me before comes into the office to tell me about her problems, I give her 45 minutes for an intake. Often that 45 minutes turns into an hour or an hour and a quarter, messing up my schedule for the rest of the day. I miss lunch. Other patients are angry at being kept waiting. But the difference is that the minute she steps foot into a psychiatric office, that patient’s life become my responsibility. I get, from insurance and copays, about $150 for the intake appointment. She shares with me the most humiliating and painful experiences of her life. I was trained to take my time, to spend as long as it takes to get the patient to trust me, to understand her symptoms, her situation, and her family life—both family of origin as well as current nuclear family. All of these things are critical in understanding someone’s symptoms, presentation, complaints, and diagnosis. Yet modern medicine has decided that this person’s whole life is less important than her diarrhea. Ironically, stress is thought to be a major cause of gastrointestinal symptoms, and we know, from some of the things we discussed earlier, about catecholamines, fight-or-flight, and the effect of certain neurotransmitters on the body, that our brains can really make our bodies sick. Perhaps if patients could get appropriate psychotherapy from trained psychiatrists, their medical needs would diminish. (A whole dissertation waiting for the right person.)

I go into these details about the contrast between psychiatry and all the other branches of medicine to make a point, and the point is not that I wish I could make more money. I do wish I could, but I decided to continue taking insurance as long as I can so that I can help as many people as possible, at least a little. In my mind, I’ve decided that for me, I prefer to work super hard within the constraints imposed on me by health insurance, and help more people, rather than make more money helping fewer people. I am not sharing this information to show off, or to gain any kind of brownie points. I often think I’m being stupid by practicing this way! I’m sharing it so that you, the reader—the attorney who is going to encounter an untreated psychotic criminal, or a divorcing spouse who cries hysterically in the courtroom, or a repeat sexual offender who keeps being court-ordered to “counseling,” or even the family of a suicide, trying to understand what happened and who are suing the doctor or the hospital—so that you have some framework in which to understand how the mental health system works. What I’ve described is the best possible outcome: a patient sees a knowledgeable psychiatrist, takes appropriate medication, and remains non-suicidal and out of the hospital, and possibly even capable of holding down a job and meeting his or her daily responsibilities.

The more frequent outcome is far worse. The best of the worst is when people complain to their family doctors that they are depressed. The family doctors throw some medication at them, and hopefully it helps a little. Whether or not it helps, most people do not become suicidal or totally dysfunctional, so they continue to live their lives unhappily but at least minimally functionally. They experience back pain, fibromyalgia, headaches, migraines, and yes, diarrhea, and are appropriately referred to all sorts of specialists for those signs and symptoms. Usually those symptoms could be better managed by appropriate psychotropic medications and good psychotherapy, but since the good psychiatrists cannot support their families on what health insurance pays, only a few people have access to that sort of treatment.

In the poorer and inner-city communities, the situation is far worse. Medicaid (which includes ObamaCare) pays about $6 for a psychiatric appointment. You can imagine that the doctors staffing these public clinics are hardly the best. Getting a clinic appointment is close to impossible, anyway. Hospitals are pressured to not admit patients, and to discharge them the second they deny active suicidal ideation. Inpatient units change medications every day so that the insurance companies (and I include Medicaid and Medicare, both of which are privately administered) allow the patients to remain in the hospital. Although there is an extensive literature on psychotropic medications, and in order for a patient to just begin to respond to a medication can often take up to six weeks, hospitals are encouraged to try a different medication each day until they find one that works. If the medication that “works” (i.e., the medication that is given to the patient on the day he says he does not want to commit suicide) happens to be a new antipsychotic medication that is not covered by that patient’s insurance—too bad. Discharge to the community, go to a clinic (first appointment in six months), and basically, keep your fingers crossed.

I am not writing a political critique—I am trying to write a book explaining psychiatry to the legal profession. But some insider information is important. Appropriate and adequate psychiatric treatment is a luxury available mostly to the people who need it least. The socioeconomic “downward drift” of the mentally ill is a well-established phenomenon. People who are severely mentally ill cannot maintain normal relationships. They cannot work at normal jobs. They often have other behavioral and personal mannerisms that make them look weird. So they drift toward the lowest end of the socioeconomic spectrum. These are the street people who talk to themselves while pushing shopping carts full of junk. They tend to be schizophrenic (more on that later). Sure, we can all think of rich neurotics, drug addicts, and downright wackos who make the news with their shenanigans or sometimes their extremely tragic deeds. The only thing that their existence proves is that mental illness can occur in all walks of life. It does not discriminate. But if you are not to the manor born, chances are you will end up in public housing once that chronic mental illness kicks in.

For the purpose of this book, I am including substance abuse under the general heading of mental illness. I will also include some neurological disorders with mainly behavioral manifestations. Clearly, different issues arise when dealing with what generally looks like a voluntary behavior (obtaining and using drugs or alcohol) and involuntary behavior (having a partial-complex seizure during which a person does something dangerous to another person). And while criminal acts while crazy are usually the most dramatic legal manifestations of mental illness, most psychiatric involvement in legal cases occurs in far less dramatic situations. Divorces include a high degree of psychiatric issues. Immigration cases often require psychiatric experts. Child Protective Services cases and the removal of children from their parents are civil cases, not criminal. Testamentary capacity cases rely upon psychiatric expertise when often there was never any psychiatric involvement during the person’s lifetime. I can think of many more types of legal cases with psychiatric nuances, and we will explore many of them throughout the course of this book.

One attorney whom I interviewed, Kelly Singh, does not actually practice law anymore. She works for a legal publisher and writes books on law for non-lawyers, sort of a parallel to what I’m doing here. She recalls her brief time working for an immigration law firm prior to attending law school, when her firm frequently consulted forensic psychiatrists. Kelly says they were “looking” for the psychiatric consultants to say that the clients had PTSD, but additionally, she always had more questions for them. Were the clients able to tell right from wrong? Did PTSD influence that ability? Were they suppressing some sort of guilt about what they had done or experienced in their country of origin, or were they self-medicating with drugs or alcohol, or was the whole legal process somehow damaging them further? Knowing Kelly, I’m sure she had, and continues to have, about a hundred times more insight and concern for those clients than the lawyers she worked for at the time, but she brings up some fascinating points. It is impossible to separate the forensic aspects of the legal case from the underlying psychiatric concerns of the human being. We must never forget that although we are dealing with a legal matter, we are also dealing with human beings when we bring psychiatric testimony to court.

With that idea in mind, let us catch up with our fictional friend.

When we last met Mr. Goldstein/Abu-Amy, he had paid his fine for harassing the president of the synagogue and had gone off to counseling, whatever that might be. Now, here is the interesting part. You know that Ben Goldstein, aka Mohammed Abu-Amy, did not lose his job. He voluntarily left his job because he was losing his mind. You defended him and kept him out of jail, and made sure he got “counseling.” He should be better by now, right?

Even though you are an overworked and underpaid public defender, you are also highly organized and you know exactly where Ben/Mohammed’s file is and that in it is a release of information to speak to his counselor. Intrigued by the situation, you find the form, fax it over (all on your own time, of course) and a few minutes later, you receive a phone call from a very cooperative and youthful-sounding Ms. Brandi-with-a-heart-dotting-her-i-Jones.

“Hi!” Ms. Jones chirps brightly. “I’m Mr. Abu-Amy’s counselor. I got your fax. I checked with my supervisor and she said it was okay to speak to you.” (This part is extra-made up. Usually Ms. Jones will decline to speak to you despite the release of information, because she once went to a training in which someone mentioned “therapist–client confidentiality,” and although she does not really understand what it means, she fears getting into some indefinable sort of trouble if she speaks to you. But let’s pretend that our Ms. Jones does understand the concepts of informed consent, release of information, etc., and is willing to talk).

“Hello Ms. Jones.” Meanwhile you are thinking, Mr. Abu-Amy? His name is Goldstein. “I was wondering how Mr., ahem, Goldstein is doing in counseling.”

“Oh, he prefers to go by Abu-Amy. Mohammed. He likes to be called Mo. And that’s his civil right, you know. He can be any religion he wants and call himself anything he wants. It’s in the Constitution.” Ms. Jones sounds very sure of herself, despite having the voice of a 14-year old.

“Um, okay. So how is Mo doing?”

“Oh, he’s doing great in therapy. Really talkative. Has some real creative ideas for a business. He was real depressed when he lost his job but now he is thinking about studying to become an imam.”

“Is he—so you don’t think he’s mentally ill?”

“Mentally ill?” Ms. Jones laughs. “Ben is a pleasure to work with. He is always cheerful. He has great ideas. He even writes to the president once a week. He has so much self-esteem. I’m going to be closing his case soon. I just have to write a letter to the judge telling him that Mr. Abu-Amy is no longer in need of services.”

I hope by this point you are appalled. However, while the facts and details are changed, this story is true. Seriously mentally ill defendants are virtually never referred for psychiatric treatment. They are referred to “counseling.” The “counselors” are frequently very young, eager, and minimally trained individuals who staff the community mental health centers and other clinics where indigent and other poor patients are referred by the courts.

The judge in Mr. Goldstein/Abu-Amy’s case, however, does not know any of these things. He knows that a guy who seemed to be a bit unbalanced was referred to counseling as part of his probation. The probationer successfully “completed” counseling. The probation officer, glad to have one fewer case on her roster, gladly terminates probation early. The case is closed, Mr. Goldstein/Abu-Amy is free to go, and he accompanies his wife, two children, two cats, one dog, and four goldfish from his east coast home to the midwestern state where his wife grew up and where his in-laws still live.

You think to yourself, good thing this lunatic is now someone else’s problem, and turn back to the 7000 other case files on your desk.