Minutes before Don Davis was to be executed last month, word came from the U.S. Supreme Court not to proceed. For now, Davis is still alive, a convicted murderer among the survivors of Arkansas Governor Asa Hutchinson’s April rush to execute eight death-row inmates before state’s supply of midazolam expired and could no longer be considered safe to use in bringing about death.
The execution, along with that of inmate Bruce Ward, was stayed based on a legal question over what sort of mental-health assistance indigent defendants should receive. Davis was sentenced to death after evaluation at a state hospital and denied a mental-health expert to assist in his defense. His case raised the same question that is currently before the Supreme Court in McWilliams v. Dunn.
That case goes back to 1986, when James McWilliams was sentenced to death for the rape and murder of a convenience-store clerk in Alabama. McWilliams did not receive a mental-health expert to assist in his defense, and the state claimed that he was only entitled to a court-appointed expert—one who would be shared by the prosecution and defense.
That psychiatrist testified that McWilliams had no serious mental illness but had tried to feign one. A stack of health records landed on the desk of his attorney shortly before the trial with no one to interpret or make sense of their implications.
So the question is whether this sort of mental-health assessment, from a court-appointed expert (often referred to as a neutral or independent expert) is sufficient and fair. McWilliams’s case argues that indigent defendants claiming to be mentally ill or incompetent to stand trial must be provided with a psychiatrist who will work with the defense, confidentially, in assessing these claims.
Scott Braden, who represents Davis and Ward, said in a statement: “The Arkansas Supreme Court recognized that executing either man before the court answers this question for Mr. McWilliams would be profoundly arbitrary and unjust.”
And so while this question remains open before the U.S. Supreme Court, these men’s lives hang in the balance.
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“Independent expert is a misnomer,” said Jessica Brand, legal director of Harvard University’s Fair Punishment Project and a long-time defense attorney. “When people are appointed as experts, they’re coming in with all kinds of biases. And people who are appointed by the trial court, who do they want to please? The trial judge. Defense counsel has very different interests. That is hugely problematic.”
“What would it mean if an expert said the defendant’s affect is flat, for example?” posits Stephen Lally, a professor of forensic psychology at Argosy University. “There is an important role to be played simply in interpreting technical terminology. Having just one expert doing the quote-un-quote neutral evaluation doesn’t fill that need.”
There is also the question of confidentiality. A meaningful psychiatric evaluation involves candor and disclosure about all aspects of life. Anything less can compromise the objectivity of the endeavor. As Brand put it, “If you’re giving this information to someone who’s going to report back to the trial judge and prosecutor, you have no idea what they’re going to do with that information.”
This is the perspective that seemed to be shared by Justices Elena Kagan and Stephen Breyer during hearings in McWilliams v. Dunn last week. Kagan quoted what she called the “money sentence” from the precedent-setting case:
“We hold that when the defendant makes this preliminary showing that mental health is going to be at issue, the State must assure the defendant access to a competent psychiatrist who will assist in evaluation, preparation and presentation of the defense.”
Meanwhile the state’s briefs have argued that McWilliams is requesting “partisan experts.” Using the phrase repeatedly highlights a contrast to the seemingly preferable “independent experts.” McWilliams attorneys reply that of course such “partisan experts” are exactly the type that is hired by defendants who can afford the cost.
What may have been the key counterpoint, though, came last week from Justice Neil Gorsuch: “Where’s the stopping point? Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps?”
This is the question, then, and it gets to one at the heart of psychiatry. Is mental health to be understood and approached in the same way as other areas of medicine? Should it try to be? That basic conceptualization of the field seems to be what makes the question of neutral or impartial experts so divisive.
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“Mental health is at least somewhat unique, because for centuries there has been a concern that we not act against people who lack basic mental capacity to make decisions on their own,” said John Petrila, a forensic-psychology scholar with Meadows Mental Health Policy Institute in Dallas. “It involves a certain amount of analysis and intricacy that is different from other areas of science or medicine.”
In recent decades, psychiatry has been pulled between two conceptual poles. One is a more empirical, medical model of disease based on objective sets of diagnostic criteria, labels, and standardized treatment approaches. The other is a more individualistic approach in which every case is unique, and the practice is entirely reliant on diagnostic insights and expert opinions that can only come from one-on-one interviews.
The latter approach has posed problems of legitimacy for the field throughout the years. In studies of people who are seen by more than one psychiatrist, the consistency of the diagnosis varies. One may consider you depressed and suggest a serotonin-modulating pill, while another may say no such thing. This degree of variation is less common in other medical specialties, as is the basic fact that few objective standards exist by which any given psychiatrist’s diagnosis can be proven right or wrong.
Still, many in psychiatry have formally and forcefully resisted a move toward using concrete metrics to make diagnoses. This makes the question of neutral or impartial experts difficult. And this fundamental debate has recently been brought to a pitch by the arguments in the field that have erupted during and since the election of Donald Trump. Some believe that if there are objective measures by which illness can be assessed, then it should be possible to diagnose a person who has lived such a public life as Trump. In The New York Times, for example, 33 mental-health professionals wrote to the editor:
Mr. Trump’s speech and actions demonstrate an inability to tolerate views different from his own, leading to rage reactions. His words and behavior suggest a profound inability to empathize. Individuals with these traits distort reality to suit their psychological state, attacking facts and those who convey them (journalists, scientists). In a powerful leader, these attacks are likely to increase, as his personal myth of greatness appears to be confirmed. We believe that the grave emotional instability indicated by Mr. Trump’s speech and actions makes him incapable of serving safely as president.
Some mental-health professionals haven taken this argument further, applying diagnostic labels like narcissistic personality disorder and anti-social personality disorder. These psychiatrists and psychologists see it as an abdication of their professional ethics to stay silent while a mentally ill person is in a position to do harm to many people.
That’s the sentiment in a petition with 53,000 signatures from people who claim to work in mental health. “We, the undersigned mental health professionals,” it begins, “believe in our professional judgment that Donald Trump manifests a serious mental illness that renders him psychologically incapable of competently discharging the duties of President of the United States.”
The petition was authored and championed by John Gartner, a clinical psychologist based in Maryland and the author of The Hypomanic Edge: The link between (a little) craziness and (a lot of) success in America. Hypomania is a sort of step below mania, where a person is functional but on the brink—“high energy” if you will.
When I met Gartner, he might have qualified as hypomanic, in the rate of his speech and the breadth of this thoughts and borderline obsession with the cause of diagnosing Trump. (“I am an expert in malignant narcissism, and in 35 years of practicing and teaching, this is absolutely the worst case I’ve ever seen, the most malignant, the most destructive.”)
Though I shouldn’t call him hypomanic. Using diagnostic terminology for anyone who is not your own patient—anyone who has not consented to being diagnosed and whom you have not evaluated in person—is regarded as unethical by the American Psychiatric Association. This has been the group’s explicit rule since the 1964 Republican presidential candidate Barry Goldwater sued the editors of the magazine Fact over its publication of “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater.” The issue put forward 1,189 psychiatrists who “say Barry Goldwater is psychologically unfit to be president!”
“They were using psychoanalytic terms that required belief in inferential things about what was going on in his head,” Gartner recounted to me. “So, if he had an Oedipus complex conflict or was a latent homosexual, or if he was an anal character with potty training issues. So, he sued them. And he won. And he should’ve won because it was libel.”
But since then, some psychiatrists have argued that the rule is too sweeping. As a 2016 article in the Journal of the American Academy of Psychiatric Law argued, “Some third-party assessments are reckless, but [that does] not negate legitimate reasons for providing thoughtful education to the public and voicing psychiatric concerns as acts of conscience.” Gartner says much the same. He believes the science of the field as advanced enough to make the Goldwater rule less necessary and occasionally even inappropriate. He traces his reasoning to the publication of the third edition of the Diagnostic and Statistical Manual (DSM), published in 1980. In writing that edition, the eminent psychiatrist Robert Spitzer led an overhaul of the book that resulted in hundreds more pages outlining 265 categories of disorders. This edition left the DSM looking less like a simple dictionary of psychiatric terminology and more like a compendium of diagnostic criteria.
“The major improvement that Robert Spitzer wanted to make was that mental disorders should be diagnosable by clearly observable behaviors,” said Gartner. “So, things that aren’t based on inferences about inter-psychic processes, but things that basically anyone can observe.”
This is how Gartner and many of his co-signers now understand the manual. He read to me from the DSM’s list of “criteria for personality disorders.” In the case of anti-social personality disorder, they include: “exploitation as a primary means of relating to others, including by deceit and coercion; use of dominance or intimidation to control others … embellishment or fabrication when relating events,” and “anger or irritability in response to minor slights and insults.” Gartner points to multiple specific instances of these behaviors being recorded in the public record and corroborated by multiple witnesses.
“These are facts, insofar as facts exist,” he said. “And I think it’s important that we do stick to that idea that facts exist.”
If it were so straightforward, of course, the question before the Supreme Court would be almost moot. A neutral, independent psychiatrist would be able to give an objective evaluation based on clearly observable or quantifiable evidence.
But this is where the American Psychiatric Association has pushed back hard.
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In the wake of so many psychiatrists attempting to apply diagnostic labels to Trump, this March the APA reaffirmed its support for the Goldwater rule. In a new statement from its ethics committee, the organization insisted that psychiatrists “should not give professional opinions about the mental state of someone they have not personally evaluated.”
“Such behavior compromises both the integrity of the psychiatrist and the profession,” the statement read. “When psychiatrists offer medical opinions about an individual they have not examined, they have the potential to stigmatize those with mental illness.”
Why, though, if there is an objective set of criteria, and a person has publicly displayed behavior that very clearly meets those criteria, should remote diagnosis never be possible?
Rebecca Brendel, a psychiatrist at Harvard’s Center for Bioethics, worked with the APA on the statement. As she explained it to me further, “The DSM has lists of criteria, but if you look in the front of the book, it says specifically, this is not a checklist, and it’s not a cookbook.
The APA’s position is that it would simply never be possible for mental-health professionals to use diagnostic language for anyone who is not their patient. Even if an elected official began––for example––insisting that the election he won had been rigged against him. Even if he did this while wearing a tin-foil hat. And this insistence—that there is simply no objective set of observable behaviors that can be said to constitute mental illness—poses challenges judicial situations. It becomes easy to dismiss an expert as “partisan.” Even a jury made up entirely of psychiatrists could not rightly judge a person to be mentally ill.
“Where you’re talking about areas where there is a standard protocol and scientific methodology—like with DNA testing—there are a very specific, validated steps that every examiner is supposed to follow,” said Brand, the defense attorney with the Fair Punishment Project. “And you can cross-examine an expert on it. Whereas when you’re talking about forensic psychiatry and forensic psychology, those fields are just, they’re—malleable isn’t quite the right word. But they really require a lot more subjective analysis.”
So what happens when that expert opinion is based largely on the words of the patient? And the disorder in question is characterized by deceitfulness?
Len Cruz spent 12 years as a psychiatrist in the U.S. Air Force, where he faced similar dilemmas. He tells me it was common for commanding officers to send him troops who had been “exhibiting unusual behavior” and ordering them to undergo a psychiatric evaluation. Among the ethical challenges, Cruz recalled to me earlier this year, was that officers were often sent to him who didn’t want to be there. “How do you penetrate beneath the surface to try to determine is this soldier is, you know, faking? There are some ways, but, boy, that’s not an easy interview.”
The question is obviously especially consequential when deeming a person malingering means they could be put to death. In assessing a person’s capacity in court, psychiatric diagnosis tend to be “of secondary importance,” explains Petrila, the forensic-psychology scholar. A person might be under tremendous stress, and have bipolar disorder, but if the person has a basic understanding of what the legal system intends to do, then they can be deemed competent to be executed. “The question is, is the person able to make decisions, to take in information. And it’s based on imprecise measures.”
Petrila thinks that guaranteeing access to mental-health experts is, in principle, a good thing. “But I’m also mindful that you don’t want to have kind of avalanche of experts. So now the prosecution has theirs, I’ve got mine. They disagree. So now we want a third expert, you know. It can become ludicrous,” he said.
“I’m in favor of the principle if it serves fairness,” he added, “but I’m not under any illusion that it solves quality issues or creates efficiency.”
From the subjectivity of diagnoses to the imprecision of assessing competence, mental health does seem unique among medical specialties. Gorsuch’s concern for a slippery slope could well be misplaced.
“I think mental health issues are unique because when you’re talking about criminal prosecution, that that’s where the relevant issues are,” said Stephen Lally. “And as a question of resources, yes, it would be cheaper to say nobody has such a right. Just like it would be cheaper in terms of resources to say that we don’t have a right to an attorney. But in a justice system that values fairness and a level playing field, it just seems like an important part of that is allowing the defendant to have access to a mental health expert who could help clarify and consult.”
Of course, acknowledging subjectivity and uniqueness of mental health do not—I think it’s important to state clearly—delegitimize the profession or challenge the reality of anyone’s suffering. Attempts to squeeze mental illness into the same medical model as orthopedic surgery and dermatology, though, do seem to. It may simply be that mental health is orders of magnitude more complex and deserves to be regarded accordingly.
No one I spoke with has a good sense of where the Supreme Court will come down in June. All expect it to be close.
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