Information on how to deal with impaired clients, professionals and judges, and description of the programs for the treatment of impaired individuals.
By Mike McCulley, Family Lawyer
This paper is intended to serve as a guide for how we, as attorneys, deal with impaired individuals, whether they are our clients, our opposing counsel, or the judges before whom we practice. The starting point for this discussion is to define impairment as may be caused or exacerbated by certain recognized disorders, to describe many of those disorders which we frequently encounter, and to reference the sources of information about such disorders. Following that will be a description of the programs and facilities available for the treatment of impaired individuals. Finally, some practical advice will be offered as an aid in dealing with such individuals in the context of a lawsuit.
VI. Mood Disorders
Mood disorders include depressive disorders and bi-polar disorders. DSM-IV recognizes two major depressive disorders, the single episode disorder (296.2x) and recurrent disorders (296.3x). The essential difference is that in the first diagnosis, the individual has suffered only one major depressive episode, and in the second there have been two or more such episodes, and a criterion for both disorders is that there has never been a manic episode.
DSM-IV defines a major depressive episode as follows:
(A) Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations.
(1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). Note: In children and adolescents, can be irritable mood.
(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others)
(3) significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.
(4) insomnia or hypersomnia nearly every day
(5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
(6) fatigue or loss of energy nearly every day
(7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)
(8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
(9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or specific plan for committing suicide
(B) The symptoms do not meet criteria for a Mixed Episode.
(C) The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
(D) The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
(E) The symptoms are not better accounted for by bereavement, (i.e., after the loss of a loved on), the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.
There are a number of bi-polar disorders, and the distinctions are beyond the scope of this article. However, they may occur when a person has had one or more manic episodes. In certain types of bi-polar disorders, the individual suffering the disorder has cycles of depressed and manic symptoms.
DSM-IV gives the following criteria for a manic episode:
(A) A distinct period of abnormally and persistently elevated, expansive, or irritable mood, lasting a least 1 week (or any duration if hospitalization is necessary)
(B) During the period of mood disturbance, three (or more) of the following symptoms have persisted (four if the mood is only irritable) and have been present to a significant degree:
(1) inflated self-esteem or grandiosity
(2) decreased need for sleep (e.g., feels rested after only 3 hours of sleep)
(3) more talkative than usual or pressure to keep talking
(4) flight of ideas or subjective experience that thoughts are racing
(5) distractibility (i.e., attention too easily drawn to unimportant or irrelevant external stimuli)
(6) increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation
(7) excessive involvement in pleasurable activities that have a high potential for painful consequences (e.g., engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments)
(C) The symptoms do not meet criteria for a Mixed Episode
(D) The mood disturbance is sufficiently severe to cause marked impairment in occupational functioning or in usual social activities or relationships with others, or to necessitate hospitalization to prevent harm to self or others, or there are psychotic features.
(E) The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication, or other treatment) or a general medical condition (e.g., hyperthyroidism).
Note: Manic-like episodes that are clearly caused by somatic antidepressant treatment (e.g., medication, electroconvulsive therapy, light therapy) should not count toward a diagnosis of Bipolar I Disorder.
Mental healthcare professionals report that common problem of individuals suffering from bi-polar disorder is their tendency to discontinue taking their medications without the knowledge or consent of their prescribing physicians. Therefore, an individual having been diagnosed and treated for this disorder who begins to exhibit manic or depressive behaviors may simply have stopped taking the prescribed medication.
VII. Personality Disorders
DSM-IV recognizes ten personality disorders. The simplified definition of such a disorder is “an enduring pattern of inner experience that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or adulthood, is stable over time and leads to distress or impairment.”
As with other disorders, one may have personality traits, which are common to specific personality disorders, but do not rise to the level of being diagnosed as disorders. It is only when these traits are inflexible, maladaptive, and cause significant impairment or distress that they meet the criteria of disorders.
DSM-IV gives the general criteria for personality disorders:
(A) an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture. This pattern is manifested in two (or more) of the following areas:
(1) cognition (i.e., ways of perceiving and interpreting self, other people and events)
(2) effectivity (i.e., the range, intensity, lability, and appropriateness of emotional response)
(3) interpersonal functioning
(4) impulse control
(B) The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.
(C) The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.
(D) The pattern is stable and of long duration and its onset can be traced back at least to adolescence or early adulthood.
(E) The enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder.
(F) The enduring pattern is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., head trauma).
DSM-IV groups the personality disorders in three categories called “clusters”, and they are designated Clusters A, B, and C. Each of the disorders in a single cluster has certain general similarities. Cluster A includes Paranoid Personality Disorder, Schizoid Personality Disorder, and Schizotypal Personality Disorder. Cluster B includes Anti-social Personality Disorder, Borderline Personality Disorder, Histrionic Personality Disorder, and Narcissistic Personality Disorder. Cluster C includes Avoidant Personality Disorder, Dependent Personality Disorder and Obsessive-Compulsive Personality Disorder.
Without going into the full diagnostic criteria for any of the personality disorders, they are generally described as follows:
(1) Paranoid Personality Disorder is a pattern of distrust and suspiciousness such that other’s motives are interpreted as malevolent. The motives of others are always in question.
(2) Schizoid Personality Disorder is a pattern of detachment from social relationships and a restricted range of emotional expression. Such persons do not appear happy or sad, but seem cold and aloof.
(3) Schizotypal Personality Disorder is a pattern of acute discomfort in close relationships, cognitive or perceptual distortions, and eccentricities of behavior. Such persons are often uncomfortable in groups, cannot seem to fit in, and they tend to stay away from family members. This disorder may develop into Schizophrenia.
(4) Anti-social Personality Disorder is a pattern of disregard and violation of the rights of others. Such individuals are capable of being charming and persuasive, though in truth they care only for themselves. It may be said that their actions, rather than their words, define their true character.
(5) Borderline Personality Disorder is a pattern of instability in interpersonal relationships, self-image, and affects, and marked impulsivity. Borderlines are capable of being charming, especially at first, but they cannot accept blame, so when problems develop, they will turn on those they originally got along with.
(6) Histrionic Personality Disorder is a pattern of excessive emotionality and attention-seeking. Such persons need to be the center of attention, and they are overly dramatic in their descriptions of events. Situations falsely perceived as emergencies occur constantly. These individuals may be overly dressed for a particular event or occasion.
(7) Narcissistic Personality Disorder is a pattern of grandiosity, need for admiration, and lack of empathy. These individuals need to be the center of attention, and they believe they know everything. Consequently, they can be arrogant and condescending.
(8) Avoidant Personality Disorder is a patter of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation. They may be described as “needy”, requiring much care and reassurance. Such individuals may tend to reconcile rather than face the stress of a divorce.
(9) Dependent Personality Disorder is a pattern of submissive and clinging behavior relating to an excessive need to be taken care of. The lawyer must be careful not to become, in the eyes of the dependent person, a substitute for the spouse.
(10) Obsessive-Compulsive Personality Disorder is a pattern of preoccupation with orderliness, perfectionism and control. Such individuals are critical of things beyond their control, such as the care of children by the other parent. When they are deprived of control, they tend to act out. Small, tight handwriting is sometimes an indication of such a disorder.
There is another class of personality disorders designated as “Personality Disorder Not Otherwise Specified”. If an individual has traits of several different personality disorders, but does not meet all of the criteria for one disorder, this designation is used. It is also used when an individual has a personality disorder, but it is not one of the ten specified above. Passive-Aggressive Personality Disorder is an example of one that is not otherwise specified.
Mental healthcare professionals report that personality disorders can be difficult to treat. As mentioned, these disorders often have their onset in adolescence or early adulthood and the behaviors from individuals suffering from these disorders are typically inflexible. Furthermore, individuals suffering from these disorders may not consider their behaviors problematic.
The specific criteria for only two personality disorders will be given in this article. Experienced family lawyers are almost certain to encounter individuals with histrionic personality disorder (301.50) and narcissistic personality disorder (301.81) or at least traits common to these disorders.
DSM-IV defines histrionic personality disorder as follows:
A pervasive pattern of excessive emotionally and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
(1) is uncomfortable in situations in which he or she is not the center of attention
(2) interaction with others is often characterized by inappropriate sexually seductive or provocative behavior
(3) displays rapidly shifting and shallow expression or emotions
(4) consistently uses physical appearance to draw attention of self
(5) has a style of speech that is excessively impressionistic and lacking in detail
(6) shows self-dramatization, theatricality, and exaggerated expression of emotion
(7) is suggestible, i.e., easily influenced by others or circumstances
(8) considers relationships to be more intimate than they really are.
DSM-IV gives the criteria for Narcissistic Personality Disorder as follows:
A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
(11) has a grandiose sense of self-importance (e.g., exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements)
(12) is preoccupied with fantasies of unlimited success, power, brilliance, beauty or ideal love
(13) believes that he or she is “special” and unique and can only be understood by, or should associate with, other special or high-status people (or institutions)
(14) requires excessive admiration
(15) has a sense of entitlement, i.e., unreasonable expectations of especially favorable treatment or compliance with his or her expectations
(16) Is interpersonally exploitative, i.e., takes advantage of others to achieve his or her own ends
(17) lacks empathy: is unwilling to recognize or identify with the feelings and needs of others
(18) is often envious of others or believes that others are envious of him or her
(19) shows arrogant, haughty behaviors or attitudes
A divorce lawyer for more than 25 years, Mike McCurley is a name partner in the Dallas family-law firm McCurley, Orsinger, McCurley, Nelson & Downing. During his year of service as president of the American Academy of Matrimonial Lawyers, McCurley raised awareness among both parents and legal professionals about the negative effects divorce has on children.
In addition to learning to recognize impaired clients and in seeking to find assistance for them, we must not ignore the fact that physical and mental health issues affect the population, including lawyers and the judiciary.