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Attention Deficit Disorder: An Untold Story in Criminal Law

Adult Attention Deficit Disorder affects 4% of the population, and an even higher percentage of criminal defendants. It is a valid diagnostic concept, and treatment with correct medications is usually effective in some behavioral change.

Some Quick Facts About Attention Deficit Disorder (ADD)

· ADD starts in childhood, and more often than not does not go away in adult life.
· Studies have shown that young adults with ADD are 7 times more likely to get arrested for felonies than their non ADD peers, and 9 times more likely to be incarcerated.
· Current estimates are that 4% of the general population is affected with ADD.
· The problems ADD causes during childhood morph into different sorts of problems during adulthood.
· ADD is not psychobabble, and is not due to too much sugar, too much TV, or late bedtimes.
· ADD is associated with specific findings on brain imaging, and positive improvements with specific medications
· ADD has a strong genetic component.
· Compared to adults without ADD, adults with ADD are more likely to be diagnosed with substance abuse problems, anxiety disorders, and mood disorders of all sorts.
· Just as children with ADD will have more than their share of problems fitting in with school, adults with ADD will have more than their share of problems fitting in with spouses, bosses, and society in general.
· Just like cholesterol, there is often a “good ADD” component, that can be associated with high levels of creativity, energy, and intuition. Thus, even symptomatic ADD adults can be successful in professions and the creative world.

The Delayed Discovery of Adult ADD

For decades, ADD was seen as a children’s problem. Before psychiatry became an organized specialty, pediatricians were aware of children who disrupted their classrooms and seemed to be naughty without explanation. The Nineteenth Century remedy was to somehow find better ways of punishment, often physical. Pediatrician’s added discipline counseling to their therapeutic armentarium.

In 1902, one of England’s leading pediatricians, George Frederic Still, M.D. studied 20 children who were defiant, very emotional, disobedient, and just didn’t do well at controlling themselves. These children came from “good” stable homes, as children from families with poor parenting skills and heavy domestic problems were excluded from his study. He speculated on a biological cause, perhaps with genetic involvement. His theory of genetic link was backed up when it was found that family members had more than their share of alcoholism, depression, and behavior problems.

After World War I, there was a worldwide encephalitis (brain-inflammation) epidemic. Some children who succumbed to this illness were left with permanent behavior change for the worse. This supported theories that associated brain damage with bad behavior.

The first evidence for a medical remedy for some cases of bad behavior turned up in 1937. Pediatrician Charles Bradley, M.D. was diagnosing children with difficult neurological problems. There were no MRIs, CT scans, or PET scans. The best way to get a picture of the brain was often painful: Pneumoencephalography. Spinal fluid was drained from around the brain, replaced with air, and an x-ray was taken of the skull. Due to spinal fluid loss, some children were left with ongoing headaches. Dr. Bradely tried these children on the stimulant Benzedrine, in the hope it would hasten the replacement of drained spinal fluid. Benzedrine did not help the headaches, but did produce striking improvement in schoolwork and behavior for some children. It didn’t seem logical that a stimulant would improve behavior problems, but so it was. Although Bradley’s work was published in a prominent medical journal and was reported in the press, little further research on stimulant treatment for behavior was done until the 1960s.

By the early 1970s, when I had my Child Psychiatry training, many psychiatrists and pediatricians had adopted the new method of prescribing stimulants, such as Ritalin, for “hyperactive children.” Some of the fundamental principles I learned at that time turned out to be false.

· False Principle #1: The syndrome was officially given a pre-ADD name of MBD---Minimal Brain Damage---implying a healthy brain got damaged.
· False Principle #2: MBD mostly affected boys.
· False Principle #3: Most of the boys would get over it when they grew up; the small number that didn’t would wind up on drugs or in jail.

By the mid 1970s, serious follow-up studies on these children were taking place. Indeed, most children that had MBD grew into adults with adult-version symptoms. And these symptoms tended to improve with stimulant medications.

The “Dark Ages” of Adult ADD

The medical profession now had the information to proceed, and important studies on “MBD” adults continued. But the fact that adults had a newly clarified and unique problem amenable to treatment, quite simply, did not catch on with psychiatrists treating adults until the 1990’s.

A major roadblock to changing the viewpoint of psychiatrists was the publication of the Third Edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association (DSM-III) in 1980. No other medical specialty organization had taken upon itself to come out with a “how to diagnose” compendium for the maladies within its purview. Sometimes nicknamed the “Bible” of Psychiatry, the manual hardly came close to divine revelation. It was a product of the opinions of mostly anonymous committees, and it lacked citations. An interesting history of how the DSM manuals were put together may be seen at the New Yorker Magazine website.

Adult ADD was left out in the cold, not only in the DSM-III, but in its successors, the DSM-III-R and the DSM-IV. The influence of the DSM manuals was enormous. It was accepted as an authoritative diagnostic code by all North American mental health providers, including psychologists, family therapists, and social workers. All introductory texts on psychopathology were based on DSM definitions.

DSM manuals turned up in courtrooms, as attorneys would use the authority of the DSM manuals to help experts prove that their client had Paranoid Schizophrenia or Posttraumatic Stress Disorder. However, a cult member who committed a crime under the undue influence of a cult leader was at a disadvantage, since Brainwashing was not in the DSM universe.

Most likely, Adult ADD will be included in the next edition --- DSM-V --- to be published in 2011.

Aside from the DSM problem, big drug companies didn’t develop marketing campaigns to encourage psychiatrists to look for Adult ADD in their patients so they could write additional prescriptions. Drug companies have an enormous influence on the prescribing behavior of MDs; they do this through advertising in medical journals, through sponsoring medical education activities, which include information on drug successes, and writing grants to potentially sympathetic scientists.

Now the Dark Ages are over. Drug companies have made up for their prior neglect, particularly Lilly, which is vigorously marketing its new product, Strattera. Drug companies no longer confine their prescription drug advertising to doctors, but now target potential patients. Internet sites and magazine ads challenge viewers: to “see if you have ADD,” and offer short screening tests to increase curiosity further. Also, current textbooks in psychology and psychiatry do discuss Adult ADD, in spite of its exclusion from the DSMs.

What Adult ADD is and How it is Diagnosed

All adults with ADD, by definition, had ADD in their childhood. However, an adult who routinely jumped off desks and tables during childhood will not be doing this as an adult. Instead he might routinely walk out of important meetings, claiming he is bored. Or he might be like the noted Hollywood Agent who works off a four foot high desk without a chair because he can’t deal with sitting down. It’s a bit like a child who loves to eat hamburgers and has no interest in eating filet mignon; twenty years later he is a filet mignon connoisseur and won’t touch a hamburger.

The first order of business is to determine if an adult had ADD difficulties during childhood. The simplest way is to have the adult recollect his childhood days via a questionnaire of ADD symptoms that children have. Does the adult remember being diagnosed with ADD as a child? Did he do better on medication? Collateral information can include school records, old reports of child psychiatrists and psychologists, and brief interviews with family members. Many patients were recommended to take ADD medications as children, but their parents were against the idea.

Once a history of childhood ADD is established, a comprehensive history is taken to see if current difficulties are consistent with Adult ADD. A sibling or a child may have already been diagnosed with ADD, and this is helpful to know. There are no specific objective examination findings and psychological tests aren’t helpful in nailing down an ADD diagnosis. While adults with ADD have typical symptoms, patterns vary from person to person. One size does not fit all. However, they will have at least several of the following symptoms:

· Hot temper: recurrent difficulties with “losing it.” More often than not, temper spells dissipate as quickly as they started. This may be seen as an adult version of temper tantrums that are frequent with childhood ADD. Adults may be frightened over their temper, or may fail to understand why others are disturbed by their brief rages. This can occur with bosses, family members, or with rude store clerks.
· Impulsivity / Risk Taking: This is summarized in the old Broadway tune that begins “I try hard to be controlled, but I get carried away.” One extreme may be marked by a pattern of spousal abuse and neighborhood brawls. A spectrum of problems can be seen here, often with the same individual. There may be credit problems resulting from difficulty resisting “bargains on sale.” There may be a history of reckless driving. On an everyday level, there may be a pattern of interrupting other’s conversations or a long history of speeding tickets. Hobbies may include bungee jumping or skydiving.
· Rapidly shifting moods: Often a continuous trait since childhood. Spells of depression, “being bored,” and mild euphoria can run for several hours to a few days.
· Restlessness—internal or external: Difficulty sitting still with low tolerance for sedentary activities or waiting on lines; frustration if kept from being “on the go.”
· A mind that needs a leash: The adult may be overly distracted by extraneous noises and novelties, but struggling to keep track of appointments and personal items. There may be problems focusing on tasks that are not perceived as being interesting, and there may be hyper-focus on tasks that seem fascinating, to the exclusion of the rest of the environment.
· Poor stress management: May be thrown by minor changes or non-routine future plans, and dive into depression, anger, or mild panic. Often feeling “stressed out” or “overwhelmed” in the absence of serious stressors.
· Disorganization / Procrastination: Tasks become semi-forgotten, or multi-tasking can result in nothing being completed. There may be time management issues, which can include very irregular sleep and meal schedules. Intervals of accomplishment can be interspersed within “dead time.”

Impairments with ADD

Again, keep in mind not every ADD adult has all of the above symptoms. And many ADD adults are still able to excel with brilliance in activities for which they feel a passion. But only having several symptoms can produce difficulties in coping with less passion producing activities. The impairments listed below can occur in people without ADD, but they are particularly common and recurrent in ADD adults.

· Legal Problems: This can run the gamut from violent behavior to excessive speeding tickets. ADD adults have more than their share of divorces. Poorly explained failure to make court appearances or file tax returns may be a reflection of ADD.
· Substance Abuse: Of course there are legal problems here too. There is also an increased incidence of tobacco use. But not all substance abusers have ADD.
· Getting injured: Can be a function of a need to act before thinking, involvement in high risk activities, bad driving, and mouthing off to the wrong people.
· Relationship Issues: Temper flares, stress and time management struggles can challenge friendships, marriages, and ties with children. Family life can be complicated if one or more of the offspring have ADD.
· Job Problems: There may be insubordination, poor time management, and difficulty relating to co-workers. Adults with ADD may appear to be underachievers, and do earn less on average than other adults with comparable IQ’s.
· Low Self Esteem: Adults with ADD may realize that they can’t get so many of their good intentions, goals, and even brilliant ideas to become reality. Others may perceive them as “lazy,” “space cadets,” or having “attitude problems”. In spite of tangible life achievements, many are left with a complex idea that they are “losers.”


If the diagnosis of Attention Deficit Disorder seems likely, much doctor-patient discussion is necessary. Some patients who have ADD already suspected that they have it and/or know they had it as children. Some patients have been told they have ADD, but they don’t think they do. Some patients don’t know what Adult ADD is and are surprised to hear about it.

Treatment is almost always about medication, but not only about medication. Education as to the nature of ADD is important. Helpful short articles to read are starting points. I also suggest a few books. A problem is that many ADD Adults, even college graduates, have developed a habit of reading very little, books in particular; reading an article or two may be as far as this gets.

There are two classes of medications for treatment. One group includes variations on amphetamine preparations, including Adderal, and its “cousin”, methylphenidate (Ritalin); these are all controlled substances, and patients must personally show up at a pharmacy to get the prescription filled. The other group consists of one medication (for now), Atomoxetine (Strattera), which is not controlled, and may be refilled by phone or ordered by mail. The first group has been around for decades, and thus may be safer with respect to any undiscovered long-term effects. Strattera is still under patent and is expensive for patients without drug insurance coverage. Wellbutrin, used as an antidepressant, is a backup treatment alternative.

There is no way to tell which medication will be the right one for any given patient, and what the optimal dose will be. There may be side effects, such as headache, elevated heart rate, nausea, vomiting, insomnia, jitteriness or feeling “weird. These may clear up after a week or two, may go away with decrease in dosage, or may require a switch to a different medication. Finding the right drug and the right dose can be a trial and error process. Complicating things, patients may already be on one or more psychiatric drugs. However, even starting at a low dose, patients may notice positive changes within hours. Positive response may enable decreased dosage or even discontinuance of other drugs the patient is taking.

Even though they are controlled substances, drugs from the amphetamine and Ritalin group are not addicting or habit forming if taken as directed. On the other hand, they can be dangerous if ground up and then snorted and injected.

Success in treatment is measured by achievement of various treatment goals. The patient and doctor may not see eye to eye as to what the goals should be. I saw a highly intelligent law school graduate with a history of ADD treatment during childhood, who was struggling in his review for the Bar Exam; he didn’t want to start learning about Adult ADD, or to talk about his entire life. He only wanted short-term medication to tide him through several weeks of preparation and then be able to concentrate on writing his essays. Optimal treatment requires a “holistic” approach in addition to medication. This can be worked out with the treating psychiatrist, as well as non-medical therapists, counselors, coaches, vocational counselors, organizing specialists, or dieticians.

· Continuing Definition of Problems: Often patients minimize difficulties at home, and consultation with a spouse or significant other can be helpful.
· Identification of Talents and Strengths: For some patients this is obvious. Latent abilities may come to the fore with the help of medication.
· Organizational Assistance: This may include coaching with patients who seem allergic to schedules, or challenge in organizing their home or workplace.
· Family Counseling: ADD-linked problems in relating to family members, including children, need to be addressed.
· For Students: Working with colleges or graduates to delineate if accommodation is necessary.

Signs of Improvement:

ADD in childhood improvement is most often measured in terms of better all-around behavior and better grades. Documenting Adult ADD improvement is more complex, as the symptoms are more varied.

Improvement may include:

· Impulse Control, including aggressive impulses
· Decreased yen for substance abuse
· Out of Traffic Court
· Improved Effectiveness at Work or School
· Improved Marriage and Parenting
· More organized at home and work

Improvements may be subtle or dramatic. Much depends on the motivation of the patient. Some patients want no more than doing better at work or school; on weekends or when homework is done, they prefer to stop taking the medication to spend much of their free time watching TV or playing video games. Other patients are resistant to changing their characteristics. Some have successfully delegated challenging tasks to work subordinates, partners or spouses, and want to keep it this way.

Denial of the Reality of ADD

This is an issue that can be present in friends, family, as well as judges and juries. Some of this originates in the ongoing pronouncements of the Citizens’ Commission on Human Rights, an arm of the Church of Scientology, whose stated goal is to “investigate and expose psychiatric violations of human rights.” Other individuals, most of whom don’t have ADD, are convinced everyone can be as industrious, organized, and well behaved as they are, if they only simply try harder. Some patients have been exposed to these views, particularly if family members hold them, and it can make treatment more difficult.

There is no shortage of alternative practitioners who accept there is an ADD problem, but who are anti-medication. As a substitute, they offer various remedies, such as taking herbs, learning complicated eye-movement exercises, or having children drink coffee. Some of these alternative treatments can be time consuming and expensive, and although some patients experience mild placebo effects, there is no convincing evidence for their efficacy in most people.

Future Trends

The diagnostic titles “Attention Deficit Disorder” and “Attention Deficit Disorder with Hyperactivity” may one day be abandoned for adults. These terms fail to describe what the problem is.
Medco Health Solutions, Inc., which manages prescription drug benefit programs, reports that the number of younger adults, ages 20-44, using ADD medications more than doubled between 2000 and 2004. The rate of increase for women was 21 percent higher than that for men.

Unlike depression and anxiety, where much of the treatment is via prescriptions from primary care physicians, including internists and gynecologists, few non-psychiatrist MDs venture into treating Adult ADD. A survey showed that a majority of primary care physicians are not confident in diagnosing Adult ADD. This makes the increase in ADD prescriptions even more striking.

There are an increasing number of brain imaging studies that document the differences in brain function between ADD and non-ADD Adults. Potential new medications are being developed, as are new methods of drug delivery, such as patches. Eventually there will be increasing clarity in delineating which specific neurotransmitters at which specific brain locations are part of the problem and part of the solution.

Defendants who can be shown to have ADD, whether seemingly heading for Death Row or just to traffic school, will have another chapter in their story that needs to be presented to resolve their legal issues. It is too early to tell how this will play out in the courts and with parole boards. It should certainly have an impact in the sentencing process. Meaningful screening for and treatment of ADD may well become a common adjunct to drug diversion problems and referral to anger management classes. Controversy will certainly arise with respect to the issue of screening for this disorder in prison populations in order to provide needed treatment to inmates.

Acknowledgments: To the following pioneering psychiatrists: Paul Wender, Margaret Weiss, Gabrielle Weiss, Edward Hallowell, and John Ratey.

By John Hochman, MD
Forensic Psychiatrist, Expert Witness in Undue Influence and Adult Attention Deficit Disorder
Dr. Hochman has been practicing psychiatry in Los Angeles for almost 40 years. He has a special interest in his practice in Adult Attention Deficit Disorder, as well as extensive forensic experience. He trained at NYU Medical School and LA County-USC Medical Center.

Copyright John Hochman, MD

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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