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Legal Issues
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Page Contents: Introduction / Insanity / Faking (Malingering) / Exaggeration and Lying / Complications to Psychotherapy / What is “Truth” Anyway? / Legal Cautions (Hypnosis; Suing for Compensation for Mental Suffering)

 

 
WHEN I conduct psychotherapy, I do not accept managed care, and so I always assume that clients paying me out of their own pockets really want help and therefore are not deliberately lying to me. Psychotherapy, after all, depends on honesty. Nevertheless, people do lie, for a variety of reasons—shame, guilt, fear, etc.—and the lies have to be dealt with as therapeutic issues. In such cases, clients essentially pay me for the privilege of resisting treatment.

But everything changes if a person

commits a crime and then wants to make a legal defense based on his or her mental condition;

is ordered by the judicial system to be psychologically evaluated, tested, or diagnosed;

is ordered by the judicial system to receive psychotherapy;

sues someone on the grounds of psychological damages.

In cases such as these, there are strong motives for deception which can cast the shadow of doubt on everything that is said in psychotherapy. Here are some points to consider.

 


 
Insanity

Pleading “not guilty due to a mental condition” is known as an insanity defense. Insanity is a legal term, not a psychiatric term, and so it doesn’t imply anything about the nature of the underlying disorder. Just about any major psychiatric disorder—a psychotic disorder (e.g., schizophrenia), a mood disorder (e.g., major depression), an anxiety disorder (e.g., PTSD), or a dissociative disorder (e.g., DID)—could be used as the basis for an insanity defense. 

  

In years past, drunk drivers who caused motor vehicle crashes used to argue that they were not responsible for their behavior because they were under the influence of alcohol. But eventually the legal system saw through the foolishness of this argument. If a person drinks willingly, and gets into a car willingly, then the resulting crash is not an “accident,” it’s the final event in a long string of intentional behaviors.[1]
 
Therefore, just as the “under the influence of alcohol” excuse was abused in the past, the insanity defense is often abused today as a way to “wiggle out” of personal responsibility for one’s behavior.
 
In its most charitable purpose, the insanity defense should simply be a way to recognize when a person’s judgment is impaired by psychological factors beyond his or her personal intention. In such a case, the person can be sent to mandated mental health treatment, rather than to prison.
 
Now, in a perfect world, a person found not guilty by reason of insanity would, in receiving mental health treatment, gain insight into his or her unconscious motivation, feel profound sorrow for the injurious behavior, and could then implore forgiveness from those he or she injured.
 
Unfortunately, we don’t live in a perfect world; we live in a world filled with social fraud and illusion. And that’s why a web page such as this must find its place on a psychology website.

  

 


 
Faking

Let’s be direct: some people will go to any lengths to avoid responsibility—and punishment—for their behavior. Some people will also do just about anything to get rich quickly. Whenever a crime has been committed, or compensation is sought for psychological damages, a clinician would be a total fool not to consider the possibility that a mental disorder could be outright fakery—clinically known as malingering.

 


 
Exaggeration and Lying

Even in cases involving genuine mental disorders, things may not be as simple as they seem on the surface.

Symptoms can be consciously exaggerated in order to get extra attention, special privileges, monetary compensation, or sympathy.

Just because a person has a mental disorder doesn’t mean that he or she is always telling the truth. This can really complicate things, even to the point of making it seem that the entire disorder is faked. For example, a person may have a genuine case of Dissociative Identity Disorder (DID), also known as multiple personalities, but if one of the personalities lies about just one aspect of the case, it might arouse enough suspicion that all the other facts about the case lose credibility.

 


 
Complications to Psychotherapy

If a person who has been victimized attempts to find healing through psychotherapy while litigation is still in process, there will always be some part of the person that unconsciously desires to remain disabled in order to “prove” the legal case. For this reason, true psychotherapy will be hindered, if not impossible. Vengeance may feel satisfying, but real psychological healing can happen only if the person gives up the pride of victim anger.

 


 
What is “Truth” Anyway?

With so much of our lives influenced by unconscious motivation, it can be nearly impossible to determine just why a person did anything. Whatever conscious reason a person gives for his or her actions, a dozen unconscious reasons could be in the background. So who’s to say what is the legal “truth”?

Considering all this, it can be said psychologically that no matter how much we try to tell the truth, we are always lying. Granted, the lies may not be deliberate, but, in all that is said, there is always something left unsaid. And there is always some motive left unspoken.

In fact, as long as anyone has something to gain there is reason for deception. Is the DA prosecuting a vicious criminal, or is he simply looking for a conviction to add to his record? Is the assistant DA prosecuting a rapist, or is she trying to get revenge on her father for having sexually abused her as a child? Is the defense attorney representing an innocent client, or is he more concerned about buying a yacht with his fee? Is the police officer giving an accurate account of her struggle with the accused, or is she distorting events in light of fights she has had with her husband?

In effect, the legal presentation of evidence amounts to nothing more than a person showing the court what he or she wants the court to see. And so innocence, if it is to be discovered at all, can be found only in that place where there is nothing to gain. Which, by the way, is also the place of humility. And love.

And yet, our entire legal system in the US functions on the concept of discovering the “truth.” Think about that.

 


The lesson to be learned here is this:
If someone has anything to gain from diagnosis or treatment—other than the personal satisfaction of learning how to live an honest and intimate life—don’t take
anything for granted.

 


 
Legal Cautions
 

Hypnosis

Once a client has been hypnotized or given a sedative drug to enhance memory or uncover past experiences, he or she may not be allowed, in some states of the US, to testify in any kind of civil or criminal proceeding. So if you expect to initiate a lawsuit in the future, it would be advisable to consult with an attorney before attempting any treatment that involves hypnosis or hypnotic drugs to enhance memory.

 
Suing for Compensation for Mental Suffering

In today’s world, it often happens that a person who is injured by another party tries to recover personal damages through a lawsuit (called a tort). If, however, the injured person includes mental suffering as a basis for monetary compensation, then confidentiality about any prior psychological treatment is lost and everything about the past clinical record becomes open to the court. So, if you have any history of psychological treatment that might be embarrassing if it became public knowledge, you should think twice about including psychological damage as grounds for any lawsuit.

 


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Notes:

1. See Stewart, A. E., & Lord, J. H. (2002). Motor vehicle crash versus accident: A change in terminology is necessary. Journal of Traumatic Stress, 15, 333–335.

 
Additional Resources
 
Internet:
Association of State and Provincial Psychology Boards — for the link to your state’s Board of Psychology.
The California Board of Psychology
Forensic Psychology Index Page
Legislative Council Website — the official site for California legislative information.
 
Related pages within A Guide to Psychology and its Practice:
Confidentiality
Consumer Rights and Office Policies
Diagnosis in Clinical Psychology
Hypnosis and “Negative” Hypnosis
Honesty in Psychotherapy
Other Applications of Psychology
Personality
Psychological Testing
Questions and Answers about Psychotherapy
Repressed Memories
Types of Psychological Treatment
The Unconscious
 
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INDEX of all subjects on this website
 
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Throughout this website, my goal is simply to help you realize that although life can be painful, unfair, and brutal, it doesn’t have to be misery.
 
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