Explain ethical and legal considerations related to dissociative disorders

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I had an experience recently that I thought I’d write about. These days I often receive requests from various media sources wanting to interview me about something trauma related. Terrific, I typically think! Another type of opportunity to raise awareness and educate. Of course I am well aware that not all media is created equal; to the best of my ability I want to participate in ways that destigmatize and demystify mental health issues.

Recently I received one such request, a sort of fact finding, information gathering mission, from an organization purporting to be planning to make a documentary about dissociative identity disorder (DID). The stated goal was to present a more realistic view as compared to the over the top portrayals we are used to seeing. The call cited my writing on this topic, particularly my article United States of Tara Controversy where I address concerns about sensationalism of DID by the media.

Sounds good, right?

Unfortunately, it quickly became clear that what was really wanted was for me to serve up access to a DID client or clients who could perform on cue, perhaps with the therapist present to facilitate the process. How disappointing! This just sounds like more of the same. I’ve previously written about the negative impact of depicting only the “Tara” or “Sybil” extremes of DID as the norm. This experience also got me thinking about what, in my clinical opinion, is wrong with therapists participating in such endeavors. (In case you were wondering, I declined to participate any further).

A situation like this brings up issues for me related to confidentiality, dual relationships and the potential for exploitation of the client. Whose needs are being given priority in this situation? When I have seen shows like this in the past I have felt very ill at ease. I have wondered how the therapy was compromised by this extra-therapy activity and what the motives of the therapist were. His/her own fame? Increasing awareness and education? The best interests of this particular client?

And what of the therapy relationship? It is of course illegal and unethical for therapists to violate confidentiality, so in no way would I introduce a client to a documentary maker without their consent. But wouldn’t even raising this as a possibility alter the therapy relationship? Would a client feel compelled to say yes to please the therapist? Honored to be asked? Is it really possible to give informed consent when it may be difficult to anticipate exactly how such an activity might impact you and help or hinder your ongoing healing?

As a psychologist I agree to operate within my profession’s code of ethics. This involves engaging in a thoughtful, decision-making process, weighing whether extra-therapy activities constitute a dual relationship, and if so is there potential for harm? An excerpt from the American Psychological Association‘s Ethical Principles of Psychologists and Code of Conduct states:

A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

Would taking part in a documentary with a client be reasonably expected to do any of the above? Too likely for my comfort!

In closing, I share with you the opinion of the International Society for Study of Dissociation. They have included a section specifically addressing “Publications and Interactions with the Media” in their Guidelines for Treating Dissociative Identity Disorder in Adults:

The media and the public have a long fascination with DID, going back to the 19th century. Also, when doing a story, media reporters commonly want an individual to be the focus of the “human interest” aspect of the story. Thus, clinicians working with DID may find themselves targeted by the media asking to do a story on DID, usually with the request that the clinician provide a patient to be the story’s focus. In all interactions with the media concerning DID, the therapist’s primary responsibility remains the welfare of his/her patients. Thus, the therapist must maintain the highest ethical and legal standards of confidentiality with respect to clinical material. Appearances by patients in public settings with or without their therapists, especially when patients are encouraged to demonstrate DID
phenomena such as switching, may consciously or unconsciously exploit the patient and can interfere with ongoing therapy. Therefore, it is generally not appropriate for a therapist actively to encourage patients to “go public” with their condition or history. Patients who ignore this advice rarely have a positive experience and often wind up feeling violated and traumatized.

My gut reaction to not get involved was immediate. This was exactly the sort of media representation of any mental health issue that I want to see us move away from. I am glad there are resources like those I’ve quoted from above to help clinicians make informed choices when the decision does not seem clear.

Kathleen Young, Psy.D.

This entry was posted in Dissociation, Dissociative Identity Disorder, Health, Mental Health, Psychologist, Trauma and tagged American Psychological Association, Confidentiality, DID, Dissociation, Dissociative Disorders, Dissociative Identity Disorder, Dual Relationships, Ethics, Health, International Society for Study of Dissociation, Media, Mental Health, Psychologist, Psychotherapy, Stigma, Sybil, Therapy, Trauma, United States of Tara. Bookmark the permalink.

Persons with dissociative identity disorder (DID) often present in the criminal justice system rather than the mental health system and perplex experts in both professions. DID is a controversial diagnosis with important medicolegal implications. Defendants have claimed that they committed serious crimes, including rape or murder, while they were in a dissociated state. Asserting that their alter personality committed the bad act, defendants have pleaded not guilty by reason of insanity (NGRI). In such instances, forensic experts are asked to assess the defendant for DID and provide testimony in court. Debate continues over whether DID truly exists, whether expert testimony should be allowed into evidence, and whether it should exculpate defendants for their criminal acts. This article reviews historical and theoretical perspectives on DID, presents cases that illustrate the legal implications and controversies of raising an insanity defense based on multiple personalities, and examines the role of forensic experts asked to comment on DID with the goal of assisting clinicians in the medicolegal assessment of DID in relation to crimes.

Dissociation is a general term that refers to the separation of any normally integrated psychological processes, encompassing both dissociative amnesia and the dissociative state. The first case of multiple personality disorder, now known as dissociative identity disorder (DID), was described by Paracelsus in 1646.1 After a steady rise in DID symptom reports during the 19th century, interest in DID waned in the early 20th Century because of a variety of factors, including the death of Jean-Martin Charcot, reports of patients faking DID, and affairs between patients and therapists. According to Index Medicus, between 1903 and 1978 there was a decline in dissociative reports and a rise in Eugene Bleuler's newly identified disorder, schizophrenia.2

Media attention and popular culture later resurrected interest in dissociative symptoms. For example, Mary Shelley's Frankenstein and Robert Louis Stevenson's Strange Case of Dr. Jekyll and Mr. Hyde, intriguingly illustrated individuals with multiple personalities. Movies such as Sybil and The Three Faces of Eve also resurrected popular interest in the phenomenon.3 In the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III),4 dissociative disorders were labeled as Axis I. Controversy, however, spiked with media attention.5 The reliability of the DID diagnosis, the lack of childhood cases, and consistent evidence of blatant iatrogenesis in the practice of DID proponents have called the diagnosis into question.6

Today, it is generally agreed that a required antecedent of dissociation is a traumatic event.7 Theoretically, harm by a trusted caregiver forces one to split off awareness and memory of the trauma to survive the relationship. These memories and feelings recede into the subconscious and emerge later in the form of a separate personality. This process happens repeatedly at different times, so that different personalities develop, containing different memories and performing different functions that are helpful or destructive. Later, dissociation becomes a coping mechanism for individuals when faced with further stressful situations.8

Constitutional predisposition for development of a dissociative disorder includes personality traits, such as being easily hypnotized, mental absorption, suggestibility, and a tendency to fantasize.9 Co-morbidities with dissociation include posttraumatic stress, borderline personality, somatoform, and eating and substance-abuse disorders.10

DID may also result from co-morbid mental illness or other medical conditions, including complex partial seizures. While it is beyond the scope of this article to provide an in-depth review of neuropsychological and neuroanatomical studies of personality and memory, advances in neuroimaging techniques serve to remind us that much remains to be learned in the area of neurobiology.9

Dissociative pathology, despite the renaming of multiple personality disorder (MPD) to DID, remains an Axis I disorder in the DSM-IV-TR.11 Although the American Psychiatric Association Work Group has proposed new diagnostic criteria for DSM-5, scheduled to be published in May 2013,12 its current criteria are listed in Table 1. The purpose of the DSM-IV-TR is to provide clear descriptions of diagnostic categories to enable clinicians and investigators to diagnose, communicate about, study, and treat people with various mental disorders.13

Table 1

DSM-IV-TR DID Criteria11

Utilization of the DSM, however, becomes challenging in legal situations. The DSM influences, but does not control, the definition of mental disorder in the test of criminal responsibility.14 Ultimately, the judge or jury decides whether the accused has proven that he suffered from a mental disorder that meets the statutory requirement(s), often including inability to appreciate the nature and quality of the action in question.15

In cases of NGRI with multiple personalities, the astute defense attorney will utilize one of three legal approaches.16 The alter-in-control approach, which is the prevailing defense, considers the key question to be what alter (personality) was in control at the time of the offense and whether the alter meets the insanity standard. The each-alter approach considers whether each personality meets the insanity standard. Finally, the host-alter approach considers the key issue to be whether the dominant or primary personality meets the insanity standard.

The dissociative state has emerged as an important consideration in numerous legal cases.17 Legal and mental health commentators are divided about whether dissociative disorder warrants an acquittal for insanity. Complexities arise when evidence of a dissociative state or dissociative amnesia is offered in court. One such complexity concerns how each phenomenon relates to personal control over behavior. Arguments have been made for excusing those with DID from responsibility. Some experts believe that a person with DID is a single person in the grip of a very serious mental disorder and that such a person is unable to fulfill the ordinary conditions of responsible agency (autonomy and self-control).18

In support of DID's being exculpatory, an argument can be made that since courts have acquitted defendants who show evidence of automatism, a dissociative state,19,–,21 the same should be the case for DID. The Canadian case R v. Stone,22 conversely, held that exculpation hinges on whether criminal behavior is involuntary, regardless of the state of consciousness.23

The recognition of MPD as a mental illness that would excuse criminal responsibility did not occur until Billy Milligan was declared insane in 1978 (State v. Milligan).24 In that case, the argument for application of the insanity defense to the case of DID was that the defendant did not have an integrated personality. Rather, coexisting within the same individual were both criminally responsible and nonresponsible personalities. Public outrage was extraordinary, given that this serial rapist was not held culpable, and afterward, most DID defenses did not hold up, as shown in Table 2. For example, when Nathan Darnall25 was charged with murder, he pleaded insanity due to multiple personalities. The court found that he was most likely malingering his alters, and even if alters did exist, having alter personalities was not a mental disease that would preclude having responsibility for the murder.

Table 2

Using Dissociative Identity Disorder* as a Basis for Not Guilty by Reason of Insanity

The defense used in State v. Grimsley26 was insanity due to multiple personalities. The court ruled that it was immaterial what state of consciousness or personality the defendant was in as long as the personality controlling the behavior was conscious and aware of his actions. The defense in Kirkland v. State27 also asserted an insanity defense based on a psychogenic fugue. The court found that the law adjudges criminal liability of the person according to the person's state of mind at the time of the act, and the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which he would not have performed the act. State v. Jones28 found William Jones guilty of murdering a woman he met at a bar, despite expert testimony that his multiple personalities “paralyzed” him and hindered from knowing right from wrong.

More recently, courts have rejected the admissibility of DID evidence, including expert testimony, because the scientific evidence fails to meet reliability standards and therefore is not ultimately useful to the judge or jury. In State v. Greene,29 the defendant claimed that 1 of his 24 alters was responsible for killing his therapist. The Supreme Court of Washington affirmed that evidence of Mr. Greene's DID, including expert testimony, was not reliable and not admissible.

Similarly, in State v. Lockhart,30 Mr. Lockhart contested his conviction of first-degree sexual assault on the basis that he was not permitted to present evidence of DID to support his insanity defense. The West Virginia Court held that the diagnosis of DID was speculative and therefore did not meet reliability standards of evidence.

Admission of expert testimony into court regarding DID is an ongoing debate that involves forensic psychiatrists.31 While some courts have allowed testimony on dissociative disorders, others have denied the validity of dissociations or acknowledged the lack of scientific information available on the diagnosis. Evidence of dissociation in accused persons during acts of severe violence is highly problematic because of the legal significance of dissociative symptoms.32

When a report of dissociation emerges in a criminal case, the stakes are high. A major consideration is the possibility of malingering alter personalities to evade responsibility. If malingered symptoms were mistakenly viewed as valid evidence of a dissociative state (a false-positive error), the court could unjustly adjudicate the defendant NGRI.

The accurate determination of the credibility of symptoms in defendants is difficult because the primary source of information is self-report.33 There are motivations for malingered alters in criminal offenders. Feigned symptoms may serve to support a legal defense of NGRI to elicit sympathy, to raise doubt about the person's involvement in the crime, or to avoid using the much more risky and cognitively taxing approach of explicit deception.34 A motivation to malinger in psychopathic offenders may simply be pathological lying or even “duping delight.”35

In a medicolegal context, forensic experts who are asked to evaluate such a claim, should conduct a thorough investigation using multiple hypotheses and techniques.36 While DSM-IV-TR criteria are a useful tool, all relevant information, including clinical history and assessment, collateral information, and past and present behavior should be considered in a primary diagnosis. Experts must be suspicious of malingered alter personalities that manifest as exaggerated details of alter states.37

Historically, specific techniques used to evaluate a report of DID have included polygraph and symptom suggestion. The polygraph depends on the assumption that a person will show an emotional or physiological response when being deceptive, reflecting a fear of detection or guilt about lying.38 However, the polygraph is prone to false-positive errors and can also be fooled by means of countermeasures such as drugs or mental imagery.39

Experts now must use a multidisciplinary and multitechnique approach. An evaluation of the individual's verbal and nonverbal behaviors that could indicate malingering should be undertaken during interviews regarding the event in question. Self-report questionnaires such as the Structured Inventory of Malingered Symptomatology40 can be used to evaluate the tendency to exaggerate memory complaints (indicative of malingering). The Dissociative Experiences Scale41 can be employed as a screening instrument for dissociative symptoms, and structured interviews such as the Dissociative Disorders Interview Schedule42 can be used to assess whether the individual has a dissociative disorder.

It is important to recognize that converging evidence indicates that dissociative amnesia in defendants is authentic in some cases, despite the general skepticism from legal decision makers. Further, it can be concluded that dissociation is malingered in some cases, causing a significant challenge in medicolegal contexts.

DID and the insanity defenses are controversial, with clinical and legal implications. Truly experiencing a dissociative state could decrease an individual's capacity to control his actions and therefore diminish criminal responsibility. Defendants who claim DID, nevertheless, are usually regarded as having limited credibility because of the inherent possibility of malingering. Undoubtedly, some feign alter personalities in an attempt to evade punishment. However, genuine dissociation is seen in clinical practice, and remains an Axis I disorder.

When a defendant claims that an alter personality committed the crime, the court can have considerable difficulty in formulating a decision. Wrongful decisions regarding the authenticity of an individual's state at the time of the offense can be very costly, with the outcome that lighter or harsher sentences are given than is just.

In accepting evidence supporting the validity of claims of alter personalities, it seems clear that the important concern should be determining how to distinguish between genuine dissociation and malingering. Also, there should be validity testing and a better consensus on what is admissible in court testimony. The ultimate issue of DID as exculpatory for a criminal act remains a decision for the court.

As it stands, the forensic assessment of individuals who claim they should be acquitted by reason of insanity for crimes based on a dissociated state represents a most interesting challenge. A review of the literature and previous cases indicates that even when testimony is admissible and points to an individual's having distinct personalities that control his behavior, an insanity defense rarely has been successful.