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Law and the Concept of Psychiatric Disorder

When the presence of a psychiatric disorder is the reason for applying the law differently to a particular person or applying different laws it must be assumed that the concept of psychiatric disorder warrants such. This assumption is justified only when two conditions are met. The first condition is that the nature and seriousness of the psychiatric disorder can be reliably determined, including a reliable prognosis. The second condition is that the theories and explanations which impart meaning to the psychiatric disorder can provide reasonably definite answers to questions that are asked in a legal framework.

Regarding the first condition, in Chapter V psychiatric disorders were found to be empirically anchored in disorders in which the range of behaviors and experiences is limited and stereotypical. However, determining the presence, nature, and prognosis of such disorders is barely reliable. It is in itself difficult to indicate just how much certainty is minimally necessary for the purpose of a legal hearing. If the degree of certainty required for proving that a crime has been committed – and that would seem reasonable in cases where the presence or absence of a psychiatric disorder has a decisive influence on the ruling – is the standard, then it can be affirmed that such is not attainable in psychiatric diagnostics. Evaluations by different, impartial experts could augment certainty in those cases that their opinions are unanimous, but if they differ, they will only augment uncertainty. Experience in the United States suggests that the latter will often be the case. That alone is enough reason to advocate evaluations by two psychiatrists independently from each other in cases that involve important legal decisions.

The question of the reliability of psychiatric diagnoses and prognoses at the level of practical arguments consistently returns in this chapter. At a theoretical level that reliability, except for in the most blatant of cases, cannot be considered adequate for this purpose. Not only is predictive validity scant in psychiatry but the reliability of the information which the person involved transmits to the psychiatrist is extremely difficult to assess when there is not full cooperation between the person and the psychiatrist, as was observed in chapter V, 3.4.3. This affects the reliability of conclusions drawn from such findings as well.

As to the second condition, in chapter VI the basic theory to which a particular therapist subscribes was found to heavily influence his notion of the restriction of freedom and autonomy. Based on views of varied fecundity the emphasis in some cases is put on circumstances that exculpate the patient while in other cases it is put on the justification of providing opportunities for the patient (and others). How these explanatory theories compare with the truth can after all not be scientifically solved. In therapy this question is ultimately less important than the fecundity of the views: utility, purpose, and fecundity determine their legitimacy.

So in treating psychiatric disorders the ultimate question is not whether these theories are true in an ontological sense nor whether liberty and autonomy are truly restricted in an existential sense. The point is whether it is true in a practical, operational sense, and in what way the patient can be held responsible so as to provide him with an optimal opportunity to recover from his illness. This does not mean that I advocate the view that explanatory theories are exclusively opportunistic. Every such theory attempts to reconstruct reality as well as possible. This holds true for legal explanatory theories as well as psychiatric ones. A theory is meaningful when it provides understanding of events and thus a basis for an effective approach.

The converse can be asked as well. Does the fact that a certain therapy is effective prove that the theory on which the therapy is based conveys reality? There are at least two possible answers. A particular treatment may succeed because it renders a part of the reality of a person’s problems and existence visible and unveiling that reality heals. But a treatment may also succeed for instance because it is effective in stimulating the person to change, because it poses a challenge which the person cannot (or does not want to) resist. In that case the explanatory theory would be functioning as a “stimulation strategy.” The treatment works “finally” and not “causally.” So-called paradoxical therapies even base themselves on this principle. Furlong contends that Gestalt therapy, transactional analysis, and Janov’s “primal scream” therapy work because they offer patients handy frameworks of explanation for their disorders. By providing insight into matters feelings of helplessness are converted to comprehension, returning patients’ power over the situation. In an essay about psychoanalytic theory Haley claims that this therapy works by placing the patient “one down.” Many more such examples could be listed. The point is that the enigma of whether explanatory theories in psychiatry, inasmuch as they are applicable to therapy, are effective because they are correct and reflect man as he really is, or whether their value is determined by the insight they make possible and their utility as forms of treatment, is unsolved and in principle insoluble.

In itself this may be a relatively academic question. It turns into a most pressing question as soon as such a theory is lifted out of the context in which it was developed and in which it is useful and valid. Psychiatric theories are intended for and usable in the context of diagnoses and treatments. This means that psychiatrists’ ideas about psychiatric disorders are determined and directed by this context. The value these theories have outside this context is unclear. It also means that using psychiatric theories of explanation in a legal context is not legitimate unless such “transposition” has been found to be admissible. In Chapter VI, 5 it was argued that the therapeutic relationship between psychiatrists and patients is marked by patients’ voluntariness, cooperation, and trust in their psychiatrist, making it an asymmetric contractual relationship. This moral context is essential for fairly all hermeneutical explanatory theories in psychiatry. At the same time it is essentially different from the moral context in legal matters in which there generally is neither voluntariness nor a contractual relationship between the judge and the person appearing before him. Szasz’s insistence on this is an important accomplishment. He has demonstrated that “transposing” psychiatric explanatory theories to a legal context is in principle inadmissible.
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