Tamar Epstein's Heter: Let's call a spade a spade - The "heter" is based on embarrasing incompetence

Guest post by Ploni

An excellent recent guest post pointed out the difference between the meticulous and transparent way how the Haifa Bais Din went about its business in granting an הפקעת קידושין, as compared to this case.

I believe that it’s time to “call a spade a spade”: This whole supposed “diagnosis” imbroglio is really EMBARRASSING.

Who says? Dr. Allen Frances, who was Chair of the Task Force that published DSM IV in 1994 and before that helped prepare DSM III (published in 1980) and DSM III R (published in 1987).

… Unless, of course our anonymous רופא מומחה knows more than Dr. Frances does.

THIS IS A MATTER OF GROSS INCOMPETENCE, which assumes the illusion that mental health is like any other medical field. Dr. Frances KNOWS otherwise. This is NOT a matter of שיקול הדעת – not even remotely. RABBONIM NEED TO KNOW THIS!

What is necessary is a major campaign to educate the ציבור, including Rabbonim, laymen and the CLINICIANS themselves - who often don't know better.

Here are some examples of what Dr. Frances writes, quoted VERBATIM:

1. "PSYCHIATRIC DIAGNOSIS IS NOT BASED ON ANY PRETENSION OF MEDICAL OR SCIENTIFIC CERTAINTY. It is a descriptive and fallible art, informed by research but RELYING HEAVILY ON SUBJECTIVE JUDGMENTS AND NOT SUPPORTED BY OBJECTIVE BIOLOGICAL TESTS".

2. ... "Before making a diagnosis of mental disorder that will be used for forensic decision-making, a high threshold should be established for what constitutes reliable and valid diagnostic evidence of clinically significant distress or impairment. THE DISTRESS AND IMPAIRMENT SHOULD BE SO EXTENSIVE AND OBVIOUS THAT MOST OR ALL OBSERVERS WOULD AGREE UPON IT. ... Ambiguous cases of possible disorder might qualify for a clinical diagnosis to permit and facilitate treatment but do not necessarily satisfy what should be a much more rigorous forensic standard".

3. ... "The creators of the various versions of the DSM have always been fully aware of the important role it plays in legal proceedings … (e.g., DSM-IV; American Psychiatric Association, 1994; Melton, Petrila, Poythress, & Slobogin, 2007) … but they could not possibly give this one arena their highest priority. THE USES AND POSSIBLE MISUSES OF DSM IN FORENSIC SETTINGS RATE NO HIGHER THAN A DISTANT FOURTH ON THEIR LIST OF PRIORITIES, following well behind DSM's role in clinical care, in research, and in education … inevitable difficulties arise when one manual is used to do so many different purposes" …

4. ... "DSM-III placed this short forensic caution in a prominent place at the front of the book: … The use of this manual for non-clinical purposes, such a determination of legal responsibility, competency or insanity, or justification for third-party payment, must be critically examined in each instance within the appropriate institutional context. (DSM-III, p. 12, American Psychiatric Association, 1980). This caution focused on the nonequivalence of DSM clinical definitions and the requirements of the legal system. … The cautionary statement has been lengthened and included as a separate section starting with DSM-III-R (American Psychiatric Association, 1987). The cautionary statement in DSM-5 (American Psychiatric Association, 2013) is significantly expanded".

5. ... "it is our experience that the diagnoses offered as “expert” testimony are often poorly done, idiosyncratic, and display a disheartening lack of attention to the careful evaluation and documentation of the presence or absence of the specific, pertinent DSM criteria".

6. ... "DSM terms have become so familiar to the mainstream population that THEY CAN SERVE AS CONVENIENT SLURS, SUBJECT TO ONGOING MISINTERPRETATION AND MISUSE IN THE SERVICE OF WHATEVER CURRENT BONE THE PRINCIPALS ARE CHEWING ON. The labels sometimes themselves become the bones. The diagnostic argument joins and aggravates all of the other arguments".

7. ... "Impressionistic, unsupported diagnosis are often inevitable in the rush of ordinary clinical practice, but such SLOPPY DIAGNOSTIC PRACTICE SHOULD HAVE NO ROLE WHATEVER IN FORENSIC WORK WHERE THE STAKES ARE MUCH HIGHER AND THERE EXISTS TIME AND RESOURCES FOR A THOROUGH EVALUATION".

8. ... "the psychiatric diagnosis may actually be WORSE THAN WORTHLESS since inaccurate psychiatric diagnosis is very misleading in legal decision-making".

9. ... "Custody battles can become the most painful, disorienting, and distressing of human experiences. The diagnostic evaluations typically take place at the worst period in the lives of the principals and often bring out the worst in them. BREAKUP OF A FAMILY IS A TREMENDOUS STRESS TO ALL CONCERNED AND CAUSES SYMPTOMS THAT MAY NOT BE TYPICAL OF THE INDIVIDUALS' PAST OR FUTURE FUNCTIONING … Even those who are usually resilient during times of great difficulty may now become anxious, sad, angry, scared, erratic, on a rollercoaster of emotions and impulsivity … Whatever are their usual cognitive and behavioral tendencies will be exaggerated … EVALUATORS MUST TAKE INTO ACCOUNT THAT PARTICIPANTS ARE OFTEN PRESENTING AT THEIR WORST"…

10. ... "The DSM's caveat that there are “significant risks that diagnostic information will be misused or misunderstood” is NOWHERE MORE APROPOS THAN IN CUSTODY BATTLES".

Source:

Frances, A., & Halon, R. (2013). The uses and misuses of the DSM in forensic settings. Psychological Injury and Law, 6(4), 336-34