Trends in Psychological/Psychiatric Injury and Law: Continuing Education, Practice Comments, Recommendations

This literature review of the major topics in the field of psychological/psychiatric injury and law is aimed at developing commentary for practice in the area. The field is a fast-developing one, with over ten major topics that it needs to integrate. In particular, the present review focuses current work on: law (evidence, tort); forensic psychology; assessment and testing; psychological injuries (posttraumatic stress disorder, chronic pain, traumatic brain injury, other); the APA DSM-5 draft (Diagnostic and statistical manual of mental disorders; American Psychiatric Association 2010); malingering; causality; multicultural considerations; disability; the American Medical Association (AMA) Guides to the evaluation of permanent impairment (Rondinelli et al. 2008); models; and treatment. At the end of each section of the article, practice comments introduce critical issues in applying the research to psychological work in the area. Whether undertaking tort evaluations, disability, and treatment plan assessments or treating individuals with psychological injuries, the professional needs state-of-the-art information in all the areas listed in order to remain scientifically informed, comprehensive, and impartial. The article concludes with recommendations for an integrated field in psychological/psychiatric injury and law, study in the field, research in its major areas, best practice policies, for example in assessment and treatment, and model building.     

Breaking Bad: DSM-5 Description, Criticisms, and Recommendations

The special issue on the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition, American Psychiatric Association, 2013) in the journal Psychological Injury and Law has considered its changes relative to the DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision, American Psychiatric Association, 2000) from both a clinical utility and scientific point of view. Although the manual did not undergo wholesale change, the changes to diagnostic categories relevant to the area of psychological injuries (especially posttraumatic stress disorder, mild traumatic brain injury, and chronic pain) present both practical and forensic conundrums, complicating clinical and legal work in the area. The articles in the special issue number nine (including the present one), and involve ones on the major psychological injuries, as well as personality. Separate articles deal with forensics and ethics, with a final one considering forensic psychiatric work using the DSMs. The authors collectively indicate that the DSM-5 is rife with utility and scientific difficulties, although it still might be used in practice and for court in the context of careful, comprehensive assessments and critical analysis. More importantly, ongoing and future research should be considered in revising the DSM-5. Some of the articles review in depth the extant research on their topics and all make recommendations that are useful. The articles include those (in order in the special issue) by: Zoellner et al. (Psychological Injury and Law, 6, 2013); Biehn et al. (Psychological Injury and Law, 6, 2013); Schultz (Psychological Injury and Law, 6, 2013); Young (2013); Hopwood and Sellbom (Psychological Injury and Law, 6, 2013); Thomas (Psychological Injury and Law, 6, 2013); Gordon and Cosgrove (Psychological Injury and Law, 6, 2013); and an opinion piece by Frances and Halon (Psychological Injury and Law, 6, 2013), the chief chair of the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, 4th edition, American Psychiatric Association 1994).     

Ill-Treatment of Pain in the DSM-5

The just-published psychiatric diagnostic manual, the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), American Psychiatric Association (2013), has been lauded by its organizers (e.g., Regier, Kuhl, and Kupfer in World Psychiatry 12, pp. 92–98, 2013), but has been criticized on multiple grounds, as well. Several of its major diagnostic categories concern the area of psychological injury and law (e.g., tort cases involving posttraumatic stress disorder (PTSD), chronic pain, and traumatic brain injury (TBI)). The one for chronic pain seems the one most greatly changed. The approach to chronic pain in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision (American Psychiatric Association 2000) and the DSM-5 are compared, leading to an alternative diagnostic criteria list partly based on the changes in the DSM-5. The DSM-5 should be used with caution in forensic assessments. This applies especially to the psychological injury patient, including the pain one, given the high stakes involved and the need for accuracy in assessment based on a reliable and valid diagnostic system. Future iterations of the manual should be improved in both these regards.     

Psychotherapy for Psychological Injury: A Biopsychosocial and Forensic Perspective

This article reviews the predominant psychological approaches to therapy and other treatments in the field of psychological injury. Mostly, they concern cognitive behavior therapy and its variants. However, because of the simultaneous physical injuries or physiological effects that accompany these types of injury, practitioners should adopt an integrated biopsychosocial approach in treatment (Sperry, L., Treatment of chronic medical conditions: Cognitive-behavioral therapy strategies and integrative treatment protocols. Washington, DC: American Psychological Association, 2006; Treatment of chronic medical conditions: Cognitive-behavioral therapy strategies and integrative treatment protocols. Washington, DC: American Psychological Association, 2009). The paper presents a componential model of therapy that integrates the cognitive-behavioral, biopsychosocial, and forensic approaches. More research needs to be undertaken that takes into account the difficulties of conducting therapy with individuals who are expressing psychological injury. This will help in the quest to formulate evidence-based but flexible practice guidelines. The paper concludes with a model that may serve to scaffold the numerous psychotherapies that are available into a more coherent framework.     

The DSM-5 Draft: Critique and Recommendations

The series of articles in this special topic on the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) draft (American Psychiatric Association 2010), which is preparatory to publication of the DSM-5, deals with issues and disorders and conditions pertinent to the field of psychological injury and law. The articles describe and critique the changes anticipated for the diagnoses of posttraumatic stress disorder, pain disorder, and neurocognitive disorder, in particular. Further, changes suggested in the draft for personality disorder are analyzed with a critical eye. In addition, the articles examine the lack of change for dealing with malingering and the general lack of consideration of group differences such as for race, in areas pertinent to psychological injury and law. This summary of the articles concludes that some of the changes in the DSM-5 draft are premature, and it calls for continued research and evidence-informed bases for recommended changes for the DSM-V.     

Disentangling the Disability Quagmire in Psychological Injury: Part 1—Disability and Return to Work: Theories, Methods, and Applications

This paper critically reviews and integrates multidisciplinary literature informing conceptualization and determination of disability and return to work from a psychological injury perspective. It focuses on dissecting and disentangling the ambiguities and complexities of theories and definitions of disability, impairment, and return to work, highlighting the conceptual quagmires that affect both research and clinical methodology in the field. The paper discusses the strengths and limitations of the main theoretical perspectives on disability and return to work—social, medical, and biopsychosocial—and the associated applied perspectives, including the legal/administrative, clinical, and research oriented. It provides a special focus on the Americans with Disabilities Act and the American Medical Association’s Guides for the Evaluation of Permanent Impairment as leading applied perspectives. The paper also highlights the features and methodological implications of the integrative framework of the International Classification of Functioning, Disability and Health (World Health Organization, International classification of functioning, disabilities and health, WHO, Geneva, Switzerland, 2001). Finally, it draws implications for the field of psychological injury in a legal context.     

Chronic Pain in the DSM-IV and the DSM-5 Draft: The Pain of It All

The Diagnostic and Statistical Manual, DSM-IV-TR (American Psychiatric Association 2000) includes the diagnosis of pain disorder, and it has been revised in major ways in the DSM-5 draft (American Psychiatric Association 2010). Pain disorder has been relegated as a specifier of the new diagnosis of complex somatic symptom disorder. It cannot be diagnosed prior to 6 months of the pain’s onset. Also, there are still the pejorative connotations with which the disorder is associated. In terms of treatment, it might be more difficult to get treatment plans accepted as a result of the changes, and in terms of the legal arena, it might prove more difficult to have the disorder serve as the basis of action in legal proceedings.     

Early Intervention with Compensated Lower Back-Injured Workers at Risk for Work Disability: Fixed versus Flexible Approach

Low back pain (LBP), a leading cause of disability, has been linked with profound economic, personal, and social costs (Hills 2006; World Health Organization 2003). This significant effect propels research in identifying modifiable risk factors that protract LBP; these factors can be targeted in early intervention (EI) (Pransky, Journal of Occupational & Environmental Medicine, 49(3):249–251, 2007; Schultz et al., Journal of Occupational Rehabilitation, 17:327–352, 2007, Journal of Occupational Rehabilitation, 18(2), 140–151, 2008; White et al. 2013). This randomized controlled study evaluated the effectiveness of two approaches, fixed versus flexible, in delivering proactive, interdisciplinary EI with 63 workers within a workers' compensation interdisciplinary case management setting (i.e., WorkSafeBC, Canada). Off-work 4 to 10 weeks post-back injury, the workers were also at risk of protracted work disability (N?=?24 at high risk; N?=?39 at moderate risk). Fixed, protocol-driven, interdisciplinary, multimodal, clinical, occupational, and case management-based EI was compared with a flexible, individual need-driven EI with the same modalities as the fixed approach. Results showed a significant narrowing of the outcome gap between the two interventions. High-risk injured workers tended to benefit more from a fixed, protocol-driven approach, as shown in the pilot study (Schultz et al. Journal of Occupational Rehabilitation, 18(2), 140–151, 2008). The results indicated that moderate-risk workers benefitted from a more flexible, need-based, individual, and low-intensity approach as compared with a fixed approach. The flexible approach for moderate-risk workers was also less costly and consumed fewer rehabilitation and health care resources. Recommendations for future research and practice included larger sample sizes, controllability of research interventions, risk for disability-EI matching, and conditions under which a flexible delivery of multimodal EI is more efficacious than a fixed approach, and vice versa.     

The 4 Ds of Forensic Mental Health Assessments of Personal Injury

The field of psychiatric/psychological injury and law concerns tort and other legal claims for injuries sustained in events at issue, such as in motor vehicle accidents (MVAs), worker compensation, or the veteran affairs (VA). The 4 Ds refer to the requirement that legal action in these types of cases can proceed when there is a duty, the duty has been discharged with dereliction, the resultant act has caused directly tortious harm, and damages are applicable. In contrast, the related 4 Cs refer to the conditions of effective forensic testimony. The principles of forensic mental health assessment (FMHA; Heilbrun et al., 2009) underscore the scientific requirements in forensic assessments, as do the American Psychological Association’s (APA, 2013) forensic specialty guidelines. For example, Brodsky’s maxims for effective work in court (Brodsky & Gutheil, 2016) cover a broad spectrum of ethical and practice guidelines for the profession. Similarly, Young (2016 a, b, c) has specified the parameters of admissible evidence in court, functioning ethically for the court, and the need to be comprehensive, scientifically informed, and impartial in forensic mental health assessments. All these sources lead to an integrated set of the principles for effective and ethical practice in the forensic arena of mental health work, referred here as the 4 Ds for the field of psychiatric/psychological injury and law. These revised 4 D principles involve Dignity, Distance, Data, and Determinations.     

Neurocognitive Disorders in DSM-V: Forensic Perspective

Although determination of diagnosis of cognitive impairments constitutes one of the core objectives of forensic neuropsychological assessment, the diagnostic criteria for cognitive disorders provided by the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR, American Psychiatric Association 2000) have been of low internal and external validity and limited utility. This paper reviews the evolution of diagnosis of cognitive disorders from current DSM-IV-TR to the proposed DSM-V (American Psychiatric Association 2010). The conceptual framework is tracked, along with the body of literature associated with the DSM-V proposal on Minor and Major Neurocognitive Disorders. The quality of evidence for internal and external validity is reviewed, as well as the fairness and utility of newly proposed diagnoses from both clinical and forensic perspectives. Significant conceptual, evidentiary, psychometric, assessment, and practical questions are raised related to the new classification, and recommendations are offered for improvement to the proposal of the DSM-V Work Group on Neurocognitive Disorders.     

Guardianship for crime prevention: a critical review of the literature

Cohen and Felson??s (Cohen and Felson American Sociological Review 44(4):588?C608, 1979) routine activity theory posits that for a crime to occur three necessary elements must converge in time and space: motivated offenders, suitable targets, and the absence of capable guardianship. Capable guardians can serve as a key actor in the crime event model; one who can disrupt, either directly or indirectly, the interaction between a motivated offender and a suitable target. This article critically reviews the literature on guardianship for crime prevention. Our specific focus is two-fold: (1) to review the way guardianship has been operationalized and measured, and (2) to review experimental and quasi-experimental evaluations and field tests of guardianship. Research on routine activities has had an uneven focus resulting in the neglect of the guardianship component (Reynald Crime Prevention and Community Safety 11(1):1?C20, 2009; Sampson et al. Security Journal 23(1):37?C51, 2010; Tewksbury and Mustaine Criminal Justice and Behavior 30(3):302?C327, 2003; Wilcox et al. Criminology 45(4):771?C803 2007). Evaluations of guardianship-related interventions demonstrate support for the theoretical construct; however, high-quality field tests of guardianship are wholly lacking. Implications for theory and research are discussed.     

The More You Say the Less It Means: Overreporting and Attenuated Criterion Validity in a Forensic Disability Sample

A recent publication in Psychological Bulletin by McGrath et al. (Psychological Bulletin 136:450–470, 2010) challenged the necessity of response bias indicators in applied psychological assessment on the grounds that there is insufficient empirical support that shows that they are able to moderate the prediction of substantive measures. The current study challenges their conclusions by examining the effects of response bias in a sample of 2,275 disability litigants. We utilized the validity scales of the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF; Ben-Porath and Tellegen, 2008) in order to establish a group of litigants who did not exhibit evidence of overreporting and compared them to a group of overreporting litigants. The overreporting group scored significantly higher on every Restructured Clinical Scale. Moreover, we compared the criterion validity between various substantive scales on the MMPI-2-RF and extratest measures [e.g., Beck Depression Inventory-II (Beck, Steer, & Brown, 1996)] and found evidence of significantly attenuated criterion validity in the overreporting group. Implications of the study in light of the review by McGrath and colleagues are discussed.     

Ambiguous Measures of Unknown Constructs: The MMPI-2 Fake Bad Scale (aka Symptom Validity Scale, FBS, FBS-r)

The Fake Bad Scale (FBS; Symptom Validity Scale) has fundamental psychometric flaws, interpretive problems, and potentially adverse societal consequences that are not appreciated by Ben-Porath et al. (Psychological Injury and Law 2(1), 62–85, 2009a, b). The FBS was constructed without due consideration to scientifically based guidelines for scale development (Clark and Watson, Psychological Assessment 7, 309–319, 1995; Jackson, Psychological Review 78, 229–248, 1971; Nunnally 1978; Holden and Troister, Canadian Psychology 50, 120–130, 2009). After almost two decades in existence, its face, content, and construct validity have not been established in the empirical literature. Oft-cited discriminant studies that appear to support the FBS are premature because of the scale’s unestablished psychometric foundation. In addition, these studies have significant methodological weaknesses that preclude definitive conclusions about what the scale actually measures. We review these weaknesses and recent legal cases that challenge the scale. We recommend that the FBS’s validity and fairness be addressed in an independent scientific review by the Buros Mental Measurement Test Evaluation System, a non-profit center specializing in the evaluation of commercially available tests.     

Sexual Harassment, PTSD, and Criterion A: If It Walks Like a Duck …

Sexual harassment and posttraumatic stress disorder (PTSD) are two topics that generate heated debate in the social science literature. When the two are combined in the civil litigation context, the intensity of the debate is heightened by the adversarial context of the courts. The current paper examines research on both sexual harassment and PTSD separately, before addressing the issues that arise for psychologists and psychiatrists who serve as expert witnesses in sexual harassment litigation. Proposed resolutions of controversies are offered that attempt to expand the knowledge base for expert witnesses on the topic of sexual harassment as well as work within the current Diagnostic and Statistical Manual (DSM-IV-TR; American Psychiatric Association 2000) framework of PTSD.     

Psychological Injury: Systems, Change Processes, Development

This paper presents a model of chronic pain [Young and Chapman (Pain, affect, nonlinear dynamical systems, and chronic pain: Bringing order to disorder. In G. Young, A. W. Kane, & K. Nicholson (Eds.), Causality of psychological injury: Presenting evidence in court (pp. 197–241). New York: Springer, 2007)]. It includes extensive coverage of the systems perspective. The paper expands the model to medically unexplained symptoms and provides a developmental model of how these may unfold and influence adult presentation after events such as accidents. Similarly, the model is examined for the developmental roots of personality disorder. The paper examines other threats to validity of diagnosis in cases of psychological injury.     

Assessing the Latent Factor Association Between the Dysphoria Model of PTSD and Positive and Negative Affect in Trauma Victims from India

The recent release of the DSM-5 comes with the division of posttraumatic stress disorder (PTSD) symptoms across four symptom clusters (American Psychiatric Association, 2013). This division is based on the support garnered by two four-factor models; Emotional Numbing (King et al., 1998) and Dysphoria (Simms et al., 2002) and a five-factor model; Dysphoric Arousal (Elhai et al., 2011). Much debate centered on the validity of the Dysphoria factor as a non-specific factor of PTSD within the Dysphoria model. In line with this, we assessed relations between the four factors of the Dysphoria model (Simms et al., 2002) and positive (PA) and negative affect (NA) in natural disaster victims (N?=?200) from Leh, India, using the PTSD checklist (PCL-S) and Positive and Negative Affect Schedule (PANAS short form). Confirmatory factor analysis was implemented to assess the best-fitting model for both the PCL (PTSD) and the PANAS (affect). Two optimal models (the Dysphoria model and a two-factor model for affect) were subsequently used to assess latent variable associations across constructs. It was hypothesized that differential associations between latent factors would be evident with the Dysphoria factor being highly correlated with negative affect compared to alternative PTSD factors. Significant correlations were found between factors of the Dysphoria model and NA (0.52–0.65, p?<?0.001). Comparing the association of pairs of PTSD factors with NA and PA, Wald’s tests revealed that no single PTSD factor was more related to NA than the other. Avoidance and Hyperarousal factors were correlated with PA. Results are discussed in line with literature questioning Dysphoria factor’s unique association with general distress.     

One Quintillion Ways to Have PTSD Comorbidity: Recommendations for the Disordered DSM-5

Galatzer-Levy and Bryant (Perspect Psychol Sci 8:651–662, 2013) have calculated the number of ways that Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5; American Psychiatric Association, 2013) posttraumatic stress disorder (PTSD) symptoms can be combined as over 600,000. They concluded that the amount is astounding and the category is rendered amorphous. PTSD often occurs in the context of polytrauma or comorbidity. The epidemiological literature indicates that the most common comorbid conditions in cases of PTSD include major depressive disorder (MDD), chronic pain, neurocognitive disorder due to traumatic brain injury (e.g., mild), and alcohol use disorder, with premorbid personality disorder possible, as well (which we consider as exacerbated due to the traumatic incident at issue, as in borderline personality disorder). We calculated the possible symptom combinations for each of these disorders and then in comorbid combination with PTSD (e.g., PTSD with MDD, but also when all six conditions are present). The number of symptom combinations in full polytrauma involving all six conditions listed is truly astounding, over one quintillion. Also, we reviewed the range of PTSD comorbidities, which adds to the symptom heterogeneity in cases. We make recommendations to prioritize symptoms in disorders as primary (e.g., unique, marker), secondary (e.g., core essential), and tertiary (e.g., common, cross-diagnostic). The latter tertiary type of symptoms in a disorder, if any, should be kept apart in its own criterion. This approach might help make the next version of the DSM more clinically useful both to clinicians and to court.     

Police GPS Surveillance on Vehicles and the Warrant Requirement: “For a While I’ve Been Watching You Steady”

The global positioning system (GPS) has become ubiquitous to modern American life. The system supplies direction for travel through navigation systems as well as employee monitoring capabilities (Rosenberg Washington Journal of Law, Technology, and Arts 6:143–154, 2010). Law Enforcement has also found GPS to be a valuable tool. The technology provides a relatively cheap and highly effective way to monitor a suspect’s movement. Depending on the device, travel data can be reported in real time or be retrieved from the implanted device at intervals (Shah Journal of Law, Technology, and Policy 2009:281–294, 2009). This paper will first explore the core foundational Fourth Amendment cases that shape the use of GPS devices by law enforcement. Next, the federal circuits and state supreme courts’ decisions that have addressed the use of GPS will be reviewed. Third, the case of U.S. v. Jones (2012), which was recently decided by the United States Supreme Court, will be examined. Last, the policy implications of the current legal landscape regarding the use of GPS by police will be discussed.     

Grasping Snakes and Touching Elephants: A Rejoinder to Garfield and Siderits

Some time ago I advanced on the pages of this journal a critique of the interpretation given by Jay L. Garfield and Mark Siderits (hereafter GS) of Nāgārjuna’s doctrine of the two truths (Ferraro, J Indian Philos 41(2):195–219, 2013.1); to my article the two authors responded with a ‘defense of the semantic interpretation’ of the Madhyamaka doctrine of emptiness (GS, J Indian Philos 41(6):655–664, 2013). Their reply, however, could not consider my personal understanding of Nāgārjuna’s notions of ?ūnyatā and dve satye. My interpretation of these notions was in fact absent in the paper GS responded, and was only related in a second paper of mine (Ferraro, J Indian Philos 41(5):563–590, 2013.2), still unpublished at the time of GS’s drafting of their ‘defense’. Therefore, in the present rejoinder, I found it appropriate, rather than responding point by point to the passages of GS’s reply, to advance a comparison between the semantic interpretation and my ‘realist antimetaphysical’ understanding of Nāgārjuna’s thought.