By Mike McCurley (Texas)
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.
This paper is not intended to instruct or to encourage any attorney to attempt to practice psychology or medicine, to make any evaluation or opinion, or to recommend any course of therapy. Rather, because attorneys, and particularly family law attorneys, are in the unique position to regularly having individuals reveal behaviors and details about their lives, we are in a position to know when to recommend mental health treatment and should at least have a general understanding of mental disorders.
III. Mental Disorders and Impairment.
As Family Law practitioners and judges, we are probably the most likely professional group to encounter mental disorders and impairment except for mental healthcare professionals, yet we lack their education and experience in the field. Many mental disorders come about as the result of a pre-existing genetic predisposition combined with a stressor. In other words, someone who has a particular genotype, but who has never shown any symptoms of a mental disorder, may develop those symptoms when experiencing stress. Surely the distress of divorce or that of facing the possibility of losing custody of one’s children is about as great as most people will experience, so we, as professionals, should expect that those who are pre-disposed to mental illness may develop and be effected by that illness during the very period of our representation. Therefore, at least a basic understanding of mental disorders, the sources of information about them, and the programs available for treatment should be part of our professional educations.
The type of impairment we are likely to encounter in our professional practices may result from recognized mental disorders. The best source of information about such disorders is found in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, usually referred to as DSM-IV, published by the American Psychiatric Association. Unquestionably some forms of impairment may be due to physical disorders, and the introduction to DSM-IV is quick to point out that there is much “physical” in “mental” disorders and vice versa, so the term should not imply a distinction between the two. Rather, the term has been used historically and the authors of DSM-IV have simply not found an appropriate substitute. It should be noted that DSM-IV also discusses disorders which are brought about by medical conditions.
In DSM-IV a mental disorder is described as “a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g. a painful symptom) or disability (i.e. impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom.”
The DSM-IV tends to treat mental disorders as diseases, as many of them are readily treatable. Therefore, for example, rather than describing an individual as an alcoholic, which would tend to classify that individual, such a person is described as “an individual with alcohol dependence”.
IV. DSM-IV & Mental Disorders Commonly Encountered
The DSM-IV is a comprehensive reference book, which groups mental disorders into various classifications and gives each a specific numbered code. Each disorder is defined by specific criteria, and often the diagnosis requires that a combination of these criteria occur during a specified period of time. With many of the disorders, there is a discussion of how such disorders may relate to the culture, age, and gender of the person with the disorder. Where several disorders are similar and one might be mistaken for one another, DSM IV distinguishes similar disorders from the one being discussed.
While this article does not purport to group mental disorders in terms of severity or their amenability to treatment, a few of the ones commonly encountered in family law practice will be described merely as a means of describing use of the DSM-IV in spotting a potential problem in a client, lawyer or judge. No attorney should attempt to diagnose through the use of DSM-IV or otherwise, unless that attorney has the proper mental health training. Rather, DSM can serve as a basic guide for spotting a problem that should be referred to a mental health care professional.
V. Substance Abuse
Some of the most common mental disorders encountered in family law are substance abuse disorders. While many such disorders are similar, DSM-IV distinguishes between those specific to the use of alcohol, amphetamines, caffeine and cannabis, cocaine, hallucinogens, inhalants, nicotine, opiates, sedatives and other types of drugs.
While there are several disorders that may be induced by the use of alcohol, there are only two diagnoses under the category of “alcohol use disorders.” These are alcohol dependence (303.90) and alcohol abuse (305.00). It is noted that 90% of American adults have used alcohol, and 60% of males and 30% of females have had one or more adverse experiences related to alcohol use. If such individuals are impaired to the point of being dangerous drivers or missing work, they may also be impaired in their ability to assist you in representing them or to take your advice.
Alcohol dependence and alcohol abuse have the same criteria listed for substance dependence and substance abuse in DSM-IV.
The following is the DSM-IV criteria for substance dependence:
A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of substance
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for withdrawal from the specific substances)
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.
(3) the substance is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control substance use
(5) a great deal of the time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects
(6) important social, occupational, or recreational activities are given up or reduced because of substance use
(7) the substance use is continued despite knowledge of having a persistence or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption)
The following is the DSM-IV criteria for substance abuse are as follows:
(A) A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)
(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by a substance use)
(3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)
(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)
(B) The symptoms have never met the criteria for Substance Dependence for this class of substance.
“Dependence” on alcohol or any other substance is more serious than “abuse”, and may develop from repeated abuse. Alcohol abuse may be indicated by poor job and school performance, the neglect of childcare or the household, in the use of alcohol in hazardous circumstances (such as driving) and may be the reason for legal problems (arrest for public intoxication or driving while intoxicated). Abuse may be indicated when these behaviors continue despite knowledge that alcohol poses significant social, medical or legal problems for the individual. It is when the individual develops tolerance, demonstrates withdrawal symptoms or has developed compulsive behaviors related to its use that a diagnosis of alcohol dependence may be appropriate.
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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.