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Insanity of Insanity Defense (2nd International Conference and Expo on Clinical Psychology)

Uploaded 10/28/2018, approx. 25 minute read

Esteemed colleagues, the debate about the culpability of mentally ill or mentally challenged people.

This debate is millennia old. In the Babylonian Talmud, in the Bishna, the sacred writings of the Jews 2,500 years ago, we find the same.

It is an ill, wrong thing to knock against a deaf mute, an imbecile, or a minor. He that wounds them is culpable, but if these people wound him, they are not culpable.

If mental illness is culturally dependent, and if it mostly serves as a social organizing principle, what should we make of the insanity defense? What should we make of not guilty by reason of insanity, NGRI?

On the other hand, if mental illness is a viable series of clinical entities, and these clinical entities are objective and neutral, the equivalent of, shall we say, tuberculosis or cancer in medicine, then again, what are we to do with the insanity defense?

People like Jeffrey Dahmer and Ted Bundy, vicious serial killers, were declared seen by the courts. There is psychiatric insanity and legal insanity, and there's a gulf, there's an abyss between them.

The question is why? Why don't we have universally agreed upon definition of insanity, which can be easily implemented in psychiatric or therapeutic settings and in courts?

A person is held not responsible for his criminal actions if he cannot tell right from wrong. To use the legal phraseology, if a person lacks substantial capacity either to appreciate the criminality or wrongfulness of his conduct, then he has diminished capacity. And diminished capacity is only one element.

The other element is that the person did not intend to act criminally, not intend to act the way he did, wrongfully. In other words, that he lacked mens rea.

And the third element is that the person could not control his behavior, that he had an irresistible impulse.

These handicaps are often associated by laymen with mental disease or with mental defects or with mental disorders or with mental retardation.

Mental health professionals prefer to talk about an impairment of a person's perception or understanding of reality. They talk mostly, they discuss mostly, the reality test and whether the reality test is impaired or intact.

Mental health professionals hold or regard guilty but mentally ill verdicts to be contradictions in terms, to be oxymorons. Either you're guilty or you're mentally ill. You can't be both.

But in courts there's quite a few, there are quite a few verdicts of guilty but mentally ill.

All mentally ill people, all of them, operate within a usually coherent worldview with consistent internal logic and even with rules of right and wrong, with a kind of personalized or customized form of ethics. Yet these rarely conform to the way most people perceive the world.

The mentally ill therefore cannot be guilty because they have a tenuous grasp on the reality that the rest of us share.

At least, this is the view of psychiatry.

Yet experience teaches us that a criminal may be mentally ill even as he maintains a perfect reality test and thus is or can be held criminally responsible.

Again, Jeffrey Dahmer for example.

The perception and understanding of reality, in other words, can and does coexist even with the severest forms of mental illness.

The psychiatric limited test of reality or using the reality test is insufficient and life presents complicated nuanced cases which cannot be black and white.

This makes it even more difficult to comprehend what is meant by mental disease.

If some mentally ill people maintain a grasp of reality, if they know right from wrong, if they can anticipate the outcomes of their actions, if they are not subject to irresistible impulses, which is the official position of the American Psychiatric Association, if they don't fulfill any of these conditions, in what way are they different to us, the so-called normal or healthy folk?

If we also share the same attributes, if we have a perfect reality test, if we perceive and understand reality perfectly, if we don't have irresistible impulses, if we know right from wrong, etc., and yet we are not mentally ill in which sense other people are mentally ill.

And this is why the insanity defense often sits ill with mental health pathologies deemed socially acceptable and normal.

Take for example, love, or take religion.

Many would argue that they are mental health pathologies and yet because they are socially acceptable, they are not deemed as such.

Let's consider a case study.

A mother bashes the skulls of her three young sons. Two of these kids die. She claims to have acted on instructions that she had received from God and she is found not guilty by reason of insanity.

The jury determines that she did not know right from wrong during the killings.

But hold back.

Why exactly was she judged or declared insane?

Let's try to isolate the elements of her defense.

First of all, she claims that she believes in God, in the existence of a God, of God. She claims to fully uphold the conviction that there is a being, supreme being, eternal being, with inordinate and inhuman attributes.

We can agree or disagree about the existence of such a being. We can deem her to be irrational, but is she really insane?

It does not constitute insanity in the strictest sense because it conforms to social and cultural mores, creeds and codes of conduct in her milieu. Billions of people faithfully subscribe to the same irrational ideas, adhere to the same transcendental rules, observe the same mystical rituals and claim to go through the same experiences.

We can stand back and say, well, this is mass psychosis. This is a form of folie à plusieurs, shared psychosis.

But it is so widespread that it can no longer be deemed pathological, statistically speaking. It falls within the spectrum of normalcy.

So this first element of her defense, that God spoke to her, in my view, cannot be a part of the determination of her insanity.

She claimed that God spoke to her as do numerous other people.

Behavior that is considered psychotic, paranoid schizophrenia, in other contexts is actually lauded and admired in religious circles.

Some people who claim to have spoken to God went on to found whole new religions, Jesus, for example, or Muhammad.

Hearing voices and seeing visions, auditory and visual hallucinations, these are considered rank manifestations of righteousness and sanctity in very wide circles to this very day.

But perhaps it was the content of her hallucinations that proved her insane.

You could say, wait a minute, okay, that she believes in God doesn't render her insane. That she spoke to God or God spoke to her doesn't mean that she's insane because so many millions, maybe billions of people go through the same experiences.

So what is normal is statistically defined. And if billions should go through the same experience, then she's normal.

But is the content of her hallucinations is what God told her, what makes her insane.

She claimed that God instructed her to kill her boys, but surely God would not ordain such evil.

Surely a true benevolent God would not instruct someone to kill his or her own children.

Alas, the old and new testaments both contain examples of God's appetite for human sacrifice.

Abraham, the patriarch, Abraham was ordered by God to sacrifice his son Isaac, his beloved son.

This savage command by God was rescinded in the very last second when the knife was ready to Isaac's throat.

Jesus, the son of God himself, and an integral part of the deity, was crucified, sacrificed to atone for the sins of humanity. And it was at the direct behest and command of God.

When he was on the cross, Jesus cried out, why have you forsaken me?

A divine injunction to slay one's offspring would sit well with precedent and with the holy scriptures in Apocrypha, as well as with millennia old Judeo-Christian traditions of martyrdom and sacrifice.

Some of these traditions are alive and well in Islam, for example.

Okay, you see, maybe even the content of what she heard can be reconciled with religious injunctions, but her actions were wrong and they were incommensurate with both human and divine, or even natural laws.

What she did proves that she is insane.

Yes, her actions were horrific, but they were perfectly in accord with a literal interpretation of certain divinely inspired texts, with certain millennial scriptures, with certain apocalyptic thought systems, and with fundamentalist religious ideologies, such as the ones espousing the imminence of rapture, or such as Shehadah, martyrdom, in more extreme strands of fundamentalist Islam, such as Wahhabism.

Unless one declares these doctrines and writings insane, her actions cannot be construed as insane.

When you conform to an ideology or to a religion, then you are not insane. You may be considered radical, an extremist, fundamentalist.

The whole ideology or religious creed can be condemned as irrational or as cruel, but there's no hint of insanity in any of this.

We, as human beings, are motivated by ideological and religious systems and rituals. We are forced to the conclusion that the murderous mother is actually perfectly sane.

Her frame of reference is different to ours. That's true, but she has a frame of reference.

Hence, her definitions of right and wrong are idiosyncratic. That's also true.

They are not like ours. To her, killing her babies was the right thing to do, and in conformity with valued teachings and with her own epiphany.

Her grasp of reality, the immediate and later consequences of her actions, was never impaired. She knew what she was doing, and she believed that she was obeying a higher authority, as expressed via auditory cues and via religious teachings.

It would seem that sanity and insanity are relative terms dependent on frames of cultural and social reference, and they are statistically defined.

They are not objective, immutable entities.

There isn't, and in principle can never be, or can never emerge, an objective medical scientific test to determine mental health or disease unequivocally.

Cultural context, societal background, and historical precedent are all crucial.

Someone is considered mentally ill if he or she fulfills or meets five conditions

One, that his conduct rigidly and consistently deviates from the typical average behavior of all other people in his cultural society that fit his profile.

So whether this conventional behavior is moral or rational is not material.

In Nazi Germany, someone who was not a psychopath and was not narcissist would have been considered socially deviant and perhaps even insane.

So is what matters the statistical aspect. There is no value judgment, and there is moral no principle that is applicable.

What the majority of people do, this is the background against which we judge insanity.

The second test is whether his judgment and grasp of objective physical reality is impaired or not.

The third test is whether his conduct is not a matter of choice, but whether it is innate and irresistible. The fourth test is whether the behavior causes him or others discomfort, whether there is ego distantly.

And the fifth test, whether this behavior is dysfunctional, self-defeating, self-destructive, even by the person's own yardsticks.

That's it. These are the five tests of insanity. Descriptive criteria aside, what is the essence of mental disorders has just been described.

But these are statistical tests and self-reporting tests.

What are mental health disorders? What is insanity? Are they merely physiological disorders of the brain or brain chemistry? If so, can these disorders be cured by restoring the balance of substances and secretions in this mysterious organ?

And once equilibrial and homeostasis are reinstated and restored, is the illness gone, or is it still lurking there under wraps, so to speak? Is the whole thing reversible? Is it waiting to re-erupt?

Are psychiatric problems inherited? Are they rooted in faulty genes, though amplified by environmental factors? Or are they brought on by abusive and wrong nurturance, nature versus nurture?

Even these most basic questions are far from determined. These questions are the domain of the medical school of mental health.

Others cling to the spiritual view of the human psyche, whatever that is. They believe that mental ailments amount to the metaphysical decomposure of an unknown medium akin to ether in physics a hundred years ago. And this medium is the soul.

Spiritual healers, spiritual thinkers, believe in or adopt a holistic approach, taking in the patient in his or her entirety, as well as the milieu, the environment within which the patient contextually operates.

The members of the functional school of mental health regard mental health disorders as perturbations, disturbances in the proper statistically normal behaviors and manifestations of so-called healthy individuals.

So functional school uses dysfunctions as the framework within which to describe mental health disorders.

The sick individual, ill at ease with himself, egodystonic, or making others unhappy, a deviant. The sick individual is mended or fixed when rendered functional again by the prevailing status of his social and cultural frame of reference.

It's a mechanical approach akin to a garage where you bring the patient in and there's a mechanic and the mechanic works on the patient, all kinds of cogs and wheels and nuts flying in the air, and then the patient emerges from the garage fully fixed, healed, and cured.

In a way these three schools are akin to the trio of blind men.

These blind men render disparate descriptions of the very same elephant. Still they share not only the subject matter which is the elephant but to a counter intuitively large degree they share a faulty methodology.

As the renowned anti-psychiatrist Thomas Szasz of the State University of New York as he wrote in his article The Lying Truths of Psychiatry, mental health scholars regardless of academic predilection infer the etiology of mental disorders from the success or failure of treatment modalities and medications.

They apply some treatment, they give some medication, and then if the symptoms disappear, they say well now we know what the disease is. If we know which parts of the brain the medication modifies or interferes with or intervenes in we know where the disorder is and we even know what the disorder is.

But of course this form of reverse engineering is methodologically very wrong. It is unprecedented also. We don't do this in other areas of science like physics.

So this form of reverse engineering of scientific models is sometimes used in other fields and it is sometimes acceptable but only if the experiments meet the criteria of the scientific method.

What I'm trying to say is that the faulty methodology is because we can never replicate the same situations. We can never repeat the experiments.

The theory we have must be all inclusive, it must be analytic, must be consistent, must be falsifiable, must be logically compatible, must be monovalent and must be parsimonious.

Psychological theories, even the medical ones, the role of serotonin and dopamine in mood disorders for example, all psychological theories are usually none of these things or satisfy a few of these conditions but not all of them.

So when we compare psychological theories to for example theories in physics, in both cases we might engage in reverse engineering. We might go from the outcomes of experiments to a theory.

But when we do this in physics it's because the experiment is replicable because we can repeat the same experiments all over the globe. Thousands of scholars and researchers and academics can repeat the same experiment and get the same result.

Not so in psychology. The outcome is a bewildering array of ever shifting mental health so-called diagnosis, expressly centered around western civilization and its standards.

Neurosis, a historically fundamental condition, literally vanished after the 1980s. Homosexuality according to the American Psychiatric Association was a pathology prior to 1973. BDSM bondage and sadomasochistic sex was a pathology prior to the fifth edition of the Diagnostic and Statistical Manual.

So until 2013, five years ago, if you engage in BDSM you were a deviant, you had a paraphilia but afterwards were totally normal. Seven years later in narcissism, seven years in 1918, narcissism was declared a personality disorder and that is almost seven decades after it was first described by Freud.

It's a landscape of shifting values. Clinical entities don't behave this way. Tuberculosis was defined 200 years ago and remains the same to this very day. It wasn't taken in and out of medical manuals.

And the situation is even much worse when we try to deal with personality disorder. Personality disorders are an excellent example of the kaleidoscopic nature and landscape of objective psychiatry.

The classification of Axis II personality disorders, deeply ingrained, maladaptive, lifelong behavior patterns, all of them in the Diagnostic and Statistical Manual, all of them in the Diagnostic and Statistical Manual. This classification has come under sustained and serious criticism from its inception in 1952 in the first edition of the DSM.

The DSM, the fourth edition, the fourth iteration and especially the text revision of the DSM adopted a categorical approach postulating that personality disorders are qualitatively distinct clinical syndromes, page 689.

And this is widely doubted and widely disputed and has been substantially modified in the fifth division in 2013.

Even the distinction made between normal and disordered personalities is increasingly being rejected. The diagnostic thresholds between normal and abnormal are either absent or weakly supported. The polythetic form of the DSM's diagnostic criteria, the fact that only a subset of the criteria is adequate grounds for a diagnosis, this generates unacceptable diagnostic heterogeneity.

In other words, people who are diagnosed with the same personality disorder may share only one criterion or even in extreme cases none.

How is this possible?

The Diagnostic and Statistical Manual to this very day fails to clarify the exact relationship between Axis II and Axis I disorders and the way chronic childhood and developmental problems interact with personality disorders.

The book contains little discussion of what distinguishes normal character or personality or personality traits or personality style according to Theodore Millon.

What distinguishes all these from personality disorders? Where is the threshold beyond which the personality is disordered?

There's a death, a lack of documented clinical experience regarding both the disorders and sounds and the utility of various treatment modalities.

Numerous personality disorders are not otherwise specified. A catch-all basket category.

Cultural bias is evident in certain disorders such as borderline, antisocial, schizotypal.

The emergence of dimensional alternatives to the categorical approach has been acknowledged even in the previous edition of the DSM.

In page 689 it says, an alternative to the categorical approach is a dimensional perspective that personality disorders represent maladaptive variants of personality traits that merge imperceptibly into normality and into one another.

Very helpful.

But someone like Brian Blackall received a more lenient sentence for murdering his parents because he had narcissistic personality disorder.

We don't even know what is a personality disorder. We don't even know whether Brian Blackall was normal or not.

And yet we had the audacity both as a court and as a psychiatric profession to claim that he had diminished responsibility.

The following issues are long neglected in the Diagnostic and Statistical Manual. Hopefully they will be tackled in future editions as well as in current research.

But who knows? Their omission from official discourse hitherto is startling and telling.

The profession is avoiding its own shortcomings.

There is an issue of the longitudinal course of the disorders, the temporal stability from early childhood onwards. There is an issue of genetic and biological underpinning of disorders. There is an issue of development of personality psychopathology during childhood and its emergence in adolescence.

There is severe problem of comorbidity of various disorders. There's an issue of interactions between physical health and disease and personality disorders, effectiveness of various treatments, top therapies, psychopharmacology, etc.

The field is utterly virgin, I would say, after decades of studies.

Indeed, the biochemistry and genetics of mental health is a very thorny issue. Certain mental health afflictions are either correlated with the statistically abnormal biochemical activity in the brain or they are ameliorated with medication.

Yet these two facts are not facets of the same underlying phenomenon.

In other words, that a given medicine reduces or abolishes certain symptoms does not necessarily mean that these symptoms were caused by the processes of substances affected by the drug administered.

Causation is only one of many possible connections and chains of events. Correlation is another. A third event may have influenced both.

To designate a pattern of behavior as a mental health disorder is a value judgment or at best a statistical observation.

Such designation is affected regardless of the facts or brain science.

Moreover, as we just said, correlation is not causation.

Deviant body biochemistry, what used to be called in the 17th century polluted animal spirits, these exist, but are they truly the roots of mental perversion?

It is not clear what triggers what.

Do the aberrant neurochemistry or biochemistry, do they cause the mental illness or is it the other way around exactly? The mental illness causes the problems in biochemistry and neurochemistry.

That psychoactive medication alters behavior and mood is indisputable of course, but so do illicit and legal drugs, certain foods. A food can be conceived as a whole medication, but also interpersonal interactions.

So there are changes in behavior and mood. Environment affects behavior and mood incessantly.

But that these changes were brought about by prescription and that this prescription is desirable. This is both debatable and tautological.

Let me explain what I'm saying. What I'm saying is this, first you define mental illness, then you give a medication and then the medication works.

You see, the medication is good, but the medication is good because you started from a point that there is mental illness. You made a value judgment that the person is mentally ill and that mental illness is bad for the person and for his social milieu, for his nearest and dearest, for others.

And it is because of this value judgment that the medication is considered good or effective.

If a certain pattern of behavior is described as socially dysfunctional or psychologically sick, clearly every change would be welcomed as healing and every agent of transformation would be called a cure.

The same applies to the alleged heredity of mental illness.

You see, the problem is that there is not enough information.

Single genes or gene complexes are frequently and sensationally associated with mental health diagnosis, personality traits or with behavior patterns, but too little is known to establish irrefutable sequences of causes and effects. Even less is proven about the interaction of nature and nurture, genotype and phenotype, epigenetics, the plasticity of the brain and the psychological impact of trauma, abuse, upbringing, role models, peers and other environmental elements.

We don't know enough. It's hubris and arrogance to claim otherwise.

Nor is the distinction between psychotropic substances and talk therapy that clear-cut. Words and interactions with the therapies also affect the brain, also changes chemistry, also changes and rewire neural pathways, albeit more slowly perhaps. But who knows, maybe more profoundly, maybe more irreversibly, we simply don't know.

Medicines, as David Kaiser reminds us, Against Biologic Psychiatry, medicines treat symptoms, not the underlying processes that yield these symptoms.

And there is the issue of the variants of mental disease. If mental illnesses are bodily, if they are empirical, they should be invariant both temporally and spatially. They should also be invariant across cultures and societies.

And this to some degree is indeed the case.

But psychological diseases are not context-dependent, but the pathologizing of certain behaviors is context-dependent.

Suicides, substance abuse, narcissism, homosexuality, eating disorders, anti-social ways, schizotypal symptoms, depression, even psychosis are considered sick by some cultures and utterly normative or advantageous in other cultures.

And this was only to be expected. The human mind and its dysfunctions, it's alike all around the world.

But values differ from time to time, from period to period, and from one place to another.

Hence disagreements about the propriety and desirability of human actions and inaction. These are bound to arise in a symptom-based diagnostic system.

You cannot purge, purify, and exclude value judgment, cultural judgment, and social judgment from any system of systematic diagnosis.

Again, psychological diseases should not be context-dependent, but pathologizing certain behavior is always context-dependent, and behavior is a pillar in diagnosing psychological diseases.

As long as the pseudo-medical definitions of mental health disorders continues to rely exclusively on signs and symptoms, in other words, on reported and observed behaviors, they remain vulnerable to such discord and devoid of much sought universality and scientific rigor.

The mentally sick receive the same treatment as carriers of AIDS or SARS or the Ebola virus or smallpox. They are sometimes currently against their will, it's called mental asylum, and they are coerced into involuntary treatment by medication, psychosurgery, or electroconvulsive therapy. This is done in the name of the greater good, largely as preventive or preemptive policy, prophylactic.

Conspiracy theories notwithstanding, it is impossible to ignore the enormous interests vested in psychiatry and especially in psychopharmacology.

The multi-billion dollar industries involving drug companies, hospitals, managed health care, private clinics, academic departments, law enforcement agencies, all these gigantic industries rely for their continued exponential growth on the propagation of the concept of mental illness and its corollaries, treatment, and research.

I'm not saying that schizophrenia, paranoia does not exist, psychotic disorders, they exist of course. I'm not saying that people are not depressed, they are depressed, major depressive episodes. I'm not denying the reality of bipolar disorder or catatonia. That's not what I'm saying.

I'm saying that there's a whole gray area, and it is about 70 percent of all psychiatry and psychology. There's a whole gray area where diagnosis are not real, uniform, monovalent, invariant, immutable clinical entities. They are socially and culturally motivated, value judgments.

Abstract concepts form the core of all branches of human knowledge. No one has ever seen a quark, no one has ever untangled a chemical bond by hand, no one has surfed an electromagnetic wave or visited the unconscious. These are useful metaphors, theoretical entities with explanatory or descriptive power.

Mental health disorders are no different. They are shorthand for capturing the unsettling quiddity of the other. They are useful as taxonomies. They are also tools of social coercion and conformity, as Michel Foucault and Louis Althusser observed.

But relegating both the dangerous and idiosyncratic to the collective fringes, although it's a vital technique of social engineering, it is not science. And it definitely should not permeate the court system.

We should not bring the shortcomings and deficiencies of psychiatry and psychology and convert them off-handedly by sleight of hand into a science. And we should not convince laymen such as judges, prosecutors, and defense attorneys that we know what we're talking about.

In the vast majority of cases, we don't. It's too soon, too early. Everything is in its inception. It's just starting.

The aim is progress through social cohesion and the regulation of innovation and creative destruction. I agree. Psychiatry, therefore, reifies society's preference of evolution to revolution.

But in the worst case, it is, as I said, a tool of social coercion. Regulating social behavior and relegating dangerous elements, criminal elements, to enclaves where they cannot harm society and sometimes even themselves. This is a noble cause. And it should be unscrupulously and dogmatically pursued.

But we should not call this science. And we should not get ourselves confused. We should not convince ourselves in our own confabulation.

Mental illness is a very fuzzy concept open to debate and should be the subject of decades if not centuries of further study before we make arrogant grandiose claims in courts, universities, or elsewhere like mental asylum.

Thank you for listening. And I hope I haven't been too iconoclastic for your taste.

I am not a member of the anti psychiatry movement. I believe in the validity of some of the constructs. I believe in the benefits that humanity can derive from these fields of study.

But I am dead set against pretending that we have all the answers. We hardly started to ask the right questions.

Thank you again.

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