Recently, I encountered a couple of defense psychological experts which have openly testified that they do not use the DSM-5 when diagnosing and evaluating claimants. The question is whether these medical professionals, both of whom are based in the United States, should be given less weight because they do not use this basic diagnostic manual. Is it somehow wrong for a doctor to refuse to use the DSM-5?
What is the DSM-5?
The full name for the DSM-5 is the Diagnostic and Statistical Manual of Mental Disorders. The “5” refers to the Fifth Edition of the manual, which the American Psychiatric Association published a few years ago.
Until recently, every single mental health professional I have deposed has confirmed their use of the DSM-5, even in defense examinations. It was a no-brainer. Mental health professionals use the DSM-5. Period.
New Doctors Testifying That They Do Not Use the DSM-5:
The genesis of this post can be found in recent testimony I have elicited from defense doctors. One testified that he does not use the DSM-5 because he believes it is “too political.” The doctor even doubled-down on his refusal when he suggested that the DSM-5 could simply be a tool of big pharmaceutical companies. (Keep in mind that the DSM-5 was published only after a lengthy debate and peer-review process.)
Even more recently, a doctor testified that he does not use the DSM-5 because he prefers to use the ICD-10. The ICD is the International Classification of Diseases. The ICD has a collection of codes that medical professionals use to bill their services. The doctor was clear that he uses the ICD to get paid. (Never mind the fact that the DSM-5 includes both DSM and ICD codes.)
Both of these doctors are well-known in the Defense Base Act community. They are often hired to evaluate claimants for insurance companies.
Should Mental Health Defense Experts Use the DSM-5?
Frankly, I believe that all U.S.-based mental health providers should use the DSM-5. Defense experts are not immune from this preference. Failing to use the DSM-5 could be looked at as failure to adhere to current medical standards.
As support for this proposition, I suggest looking at two recent Eighth Amendment cases from the Supreme Court of the United States. The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In 2014 and 2017, the Supreme Court addressed the Eighth Amendment in cases where the defendants’ mental status was at issue. See Moore v. Texas, 137 S. Ct. 1039 (2017); Hall v. Florida, 134 S. Ct. 1986 (2014). In both Moore and Hall, the cases focused on the appellants’ IQ.
In Hall, Justice Kennedy, writing for the majority, described the DSM-5 as “one of the basic texts used by psychiatrists and other experts . . . .” See Hall, 134 S. Ct. at 1990 (emphasis added). From there, Justice Kennedy approvingly cited the DSM-5’s “framework” and “criteria” for diagnosing intellectual disabilities. Id. at 1991, 1994. In fact, the Court chose the DSM-5’s multi-factored consideration of an intellectual disability over a rigid IQ-number-based Florida statute that would “execute a man because he scored a 71 instead of a 70 on an IQ test.” Obviously, the Court valued the analytical approach that the DSM-5 preaches.
Earlier this year, the Court issued Moore, 137. S. Ct. at 1039. Again, the Court lauded the use of the DSM-5: “Even if ‘the views of medical experts’ do not ‘dictate’ a court’s intellectual disability determination,’ . . . the determination must be ‘informed by the medical community’s diagnostic framework.’” See Moore, 137 S. Ct. at 1048 (citing Hall, 134 S. Ct. at 2000). The “diagnostic framework” relied upon by the Court was found in “the most recent (and still current) versions of the leading diagnostic manuals—the DSM-5 and AAIDD-11.” See Moore, 137 S. Ct. 1049 (citing Hall, 134 S. Ct. at 1991, 1993-94, 1994-95, 2000-01). Further, Moore observed that while precedent “does not demand adherence to everything stated in the latest medical guide,” it also does not “license disregard of current medical standards.” Id. at 1049 (emphasis added).
What do Hall and Moore demonstrate? They demonstrate that the DSM-5 is a text that is trusted enough to use in determining whether a prisoner’s death penalty sentence violated the Constitution’s cruel and unusual punishment clause; and that the DSM-5’s diagnostic criteria are valid enough to be considered the “current medical standard.” See Moore, 137 S. Ct. at 1049.
Hopefully this is not a new trend. As an industry, we do not want to see a collection of defense doctors refusing to use the DSM-5.
Here are a few parting considerations:
- If the DSM-5 is trusted by the Supreme Court when determining life or death, why should the DSM-5 not be trusted enough for defense medical examinations of a person injured in a war zone?
- If a doctor who does use the DSM-5 is required to identify how a claimant meets each element (or does not need to meet a particular element), then should an opposing doctor be required to explain how the claimant does not meet each element of one or more DSM-5 diagnoses?
- Can a doctor who does not use the DSM-5 nevertheless use psychometric testing that is specifically keyed to the DSM-5 (like the MMPI-2)?