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Volume 2015, Number 4

Symposium: Legal Borders and Mental Disorders: The Challenge of Defining Mental Illness


From Bibles to Biomarkers: The Future of the DSM and Forensic Psychiatric Diagnosis
Teneille R. Brown

There is great anticipation for the RDoC’s neurobiological approach to mental illness to replace the DSM and make everything from research funding to insurance coverage more fair. Whether or not the legal applications of this new system will indeed be an improvement on the DSM depends greatly on how it is used, and what the normative commitments are in that particular legal domain. While the DSM provides one important and useful perspective on what counts as mentally disordered, ultimately for the law this is not a question that science or data can answer. Societies, comprised of people, must grapple with a normative account of when to treat, when to pardon, and when to punish. The DSM cannot decide these questions for us, tempting as it may be to defer to its diagnostic criteria. That we expect it to reveals a deep insecurity about the legal system’s ability to defend its methods and theories of punishment.

2015 Utah L. Rev. 743 | (Download PDF)

The DSM-5: Implications for Health Law
Stacey A. Tovino

In May 2013, the American Psychiatric Association released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Among other changes, the DSM-5 includes new entries for hoarding disorder and premenstrual dysphoric disorder as well as a reclassified entry for gambling disorder. Using these changes as examples, this Article examines the implications of the DSM-5 for key issues in health law, including health insurance coverage, public and private disability benefit eligibility, and disability discrimination protection. As a descriptive matter, this Article illustrates how the addition of new disorders and the reclassification of existing disorders in the DSM-5 can significantly impact health insurance coverage and has some relevance to disability benefit eligibility and disability discrimination protection. From a normative perspective, this Article offers guidelines designed to prevent attorneys, judges, and other nonclinicians from abusing the DSM-5 in civil and administrative health law proceedings.

2015 Utah L. Rev. 767 | (Download PDF)

Does the DSM-5 Threaten Autism Service Access?
Rebecca Johnson

The present paper addressed the question: how will the DSM-5 revisions impact access to autism services? While media commentators posited a straightforward link between DSM-5 changes and service access, we should consider the different strength of couplings between a DSM diagnosis and entitlement access by investigating the factors that result in a diagnoses translation into service access. The Article began by outlining the pre DSM-5 policy background for autism entitlements. This background helps contextualize the policy environment into which the DSM-5 changes entered. Rather than examining autism medical and educational services in isolation, we should conceive of these services as interdependent, and investigate how changes to the uptake or depth of medical service access affect changes to the uptake or depth of educational service access.

Taking this interdependent perspective, the Article showed how the passage of private insurance mandates for autism services has led to more rapid uptake of special education services for autism, showing how one entitlement that creates a close DSM diagnosis-service link (an insurance mandate) increases uptake of another entitlement with a looser DSM diagnosis-service link (special education services). This shows that if DSM-5 revisions undermine access to medical entitlements there will be a corresponding impact on access to educational entitlements.

2015 Utah L. Rev. 803| (Download PDF)

The DSM-5 and Criminal Defense: When Does a Diagnosis Make a Difference?
Nancy Haydt

In June 2013, the American Psychiatric Association published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). The DSM-5 was intended to be an updated guidebook for the clinical diagnosis of mental disorders. It received mixed reviews from the mental health community. The reception from the forensic mental health community is likewise varied. The evolution of conceptualizing mental illness, its origins and treatment efficacy, may weaken the authority of the DSM and further confuse its application in forensic situations.2 This Article explores the possible effects of the DSM-5 in criminal cases.

2015 Utah L. Rev. 847| (Download PDF)

"I Expected It to Happen/I Knew He'd Lost Control": The Impact of PTSD on Criminal Sentencing After the Promulgation of DSM-5
Michael L. Perlin

The expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM-5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront—in a wide variety of cases—the impact of PTSD on sentencing decisions. And this, I believe, might lead to more robust debates over the impact of mental disability generally on sentencing outcomes.

2015 Utah L. Rev. 881| (Download PDF)

Diagnosis Dangerous: Why State Licensing Boards Should Step in to Prevent Mental Health Practitioners from Speculating Beyond the Scope of Professional Standards
Jennifer S. Bard

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are no scientifically valid methods to make these predictions for people who face long periods of incarceration in maximum-security prisons. Existing models of prediction consider the behavior of individuals in the free world. Moreover, the Supreme Court has upheld these predictions of dangerousness in capital sentencing hearings on the grounds that neither of the protesting professional organizations actually license mental health professionals. Therefore, this Article suggests that these state licensing boards be held responsible for assuring mental health professionals do not testify beyond the scope of medical support or evidence. In so doing, it analyzes cases in which health care professionals, in general, have been held responsible by state licensing boards for testimony that is beyond what is acceptable practice in that profession.

2015 Utah L. Rev. 929| (Download PDF)


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