Personality Disorders Should be Considered in More Legal Cases

©2020 Bill Eddy, LCSW, Esq.

A landmark case in Australia and a study in California both reached the same conclusions in the last month: personality disorders should be considered in more legal cases. This is what we have been saying with High Conflict Institute since our founding in 2008. Our readers may find this interesting, because most of us are used to considering personality disorders as a form of mental illness because they are included in the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association, 2013, currently the “DSM-5.” In reality, personality disorders are interpersonal disorders, yet they can also be hidden disorders.

In Criminal Cases

In Australia, on August 25, 2020, the Court of Appeal of the State of Victoria (highest court in the state, which includes the major city of Melbourne) ruled that “personality disorders can be considered a mitigating factor in the same way a judge or magistrate can find mental illness reduces an offender's moral culpability…. Whether and to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinized by the sentencing court." (Cooper, A. “Landmark ruling gives judges power to consider personality disorders,” The Age, August 25, 2020.)

This decision is important because legal systems in the United States, Australia and probably most other countries have considered that personality disorders are not a mental illness and should not be considered in criminal cases as a reason to alter anything—up to now.

For example, in the high-profile case of the kidnapper of 14-year-old Elizabeth Smart in the United States in 2002, a federal court of appeal considered the question: “Is he competent to stand trial or does he have a severe-enough mental illness that prevents him from understanding the proceedings and his role in it?” (Eddy, B. High Conflict People in Legal Disputes, 2nd Ed., 2016, 122.) The court found that the kidnapper did not have a mental illness, such as schizophrenia, but instead had a narcissistic personality disorder and an antisocial personality disorder and therefore was not mentally ill and could competently stand trial. They essentially found that he was a con artist and knew what he was doing. This appears to be the current standard across the United States. In this case, this made sense.

However, in the Australian case of Daylia Brown, she was a teenager (17) when she went on a fire-starting spree in several stores in Melbourne (fortunately, no injuries). She was found guilty of her crimes and sent to an adult prison, but the judge believed that her severe personality disorder should be taken into account in reducing her sentence and getting her some help. At the time, the governing standard said that personality disorders could not be considered as a mitigating factor, because they were not a mental illness under the law.

The prior case was that of Michael O'Neill, who murdered his partner and also had a severe personality disorder. But in that case “the Court of Appeal ruled personality disorders do not impair mental functioning,” based on long-standing decisions. The judge in Daylia Brown’s case asked that her lawyers appeal his required ruling, because he thought that her personality disorder (including a history of personality change since she was 8 years old, cutting on herself as a teenager and suicidal thoughts) should be considered as a mitigating factor in getting her sentence reduced. It was noted that in some cases a personality disorder can cause more impairment than other mental illnesses. (Cooper, A. “Judge urges appeal as teen with personality disorder jailed over arson,” The Age, March 3, 2020.)

In this case considering her personality disorder appears appropriate, as the judge himself said. However, a personality disorder is not a get-out-of-jail free card. It totally depends on the facts of the case. The impact of a personality disorder on sentencing should be based on the testimony of a mental health professional, as the Court of Appeal stated. They do not expect that this will change the sentence in most cases.

I am very interested in these cases, as my law students in Australia (4-day intensive courses at Monash University and Newcastle University every September/October) have written about this issue in some of their research essays.  

In Family Law

On September 1, 2020, an article reported on a study by the Santa Clara University School of Law on the significance of personality disorders in family law. The study included interviews with family lawyers, judges, and a custody evaluator.

They specifically found that narcissists “fundamentally thrive on conflict.” Also, the “narcissist’s perceived sense of infallibility and accompanying resistance to settle is amplified by the traditional civil process.”

Of the approximately 10% of family law disputes that go to trial, many are conflict-fueled separations. While most divorce cases are settled out-of-court in less than two years, high-conflict cases typically last two to five years and can involve scores of filings, endless delays, tens and hundreds of thousands of dollars in legal fees, and a high rate of attorney turnover. Worst of all, children become collateral damage and often wind up developing a wide range of mental-health issues.

….

Rarely are formal diagnoses made in family court. Thus, attorneys unequipped to recognize NPD traits struggle to meet their ethical obligations to serve as zealous advocates for clients taking untenable and unreasonable positions.

(Rosenfeld, E. “Opinion: Dealing with narcissists in the family law courtroom,” Mercury News, September 1, 2020.)

What Should be Done?

Their recommendations include attorneys becoming “educated about personality disorders such as NPD.” Also: “the State Bar should develop continuing legal education courses addressing how to recognize – and deal with – high-conflict personalities.”

We are glad to hear this and ready help, as we with High Conflict Institute and our trainers have been educating lawyers, judges, mediators and court-involved therapists for the past thirteen years about personality disorders and high-conflict personalities. We have live and already-recorded continuing education courses (as a California MCLE provider) focusing on narcissistic, borderline and antisocial personality disorders in family law cases, among many other offerings, on our website here.

The study also concluded that since “people with NPD see the courtroom as their stage, these cases may proceed more readily to resolution when judges encourage informal procedures such as in-chambers conferences, and avoid formal court hearings.” I would also suggest that mediation and collaborative divorce are informal procedures that can work even with those with personality disorders or traits in most cases, with well-trained mediators and other professionals. We provide such training, especially focusing on our New Ways for Mediation® method.

Conclusion

Whether in criminal law or family law, whether in Australia, the United States or other countries, the growing impact of personality disorders on the lives of those involved with legal systems is significant. All legal professionals need to have full knowledge of the dynamics of personality disorders so that individuals can be helped, rather than harmed, and so our society can be more effectively protected from their at-times extremely dangerous behavior. When professionals don’t understand personality disorders, cases are prolonged, resolutions do not truly address problems, and society becomes distracted by their dramas—or directly harmed.

People with personality disorders approach conflict differently—without self-restraint. Legal systems must understand them to make their lives better and society safer. The answers are not to be found in wasted efforts to give those with personality disorders more insight into themselves nor more opportunities for venting in court. The sooner we learn that the answers lie in giving them more structure (with empathy, attention and respect), while setting firm limits on their high-conflict behavior from the start, the better off everyone will be.

Hopefully, as more family law professionals understand high-conflict personality disorders, the legal system will provide the structure to focus them on learning self-management skills rather than letting them tie up the courts blaming each other. Hopefully, the criminal justice system will become wiser about appropriate settings for people with mental health disorders rather than focusing on punishment for all. Our courts have a mental health problem. Now, let’s address what to do about it.

Bill Eddy, LCSW, Esq. is the co-founder and Chief Innovation Officer of the High Conflict Institute in San Diego, California. Read more