Law and Psychiatry

Borderline Personality Disorder and Related Traits

Persons with borderline personality disorder in a cavalier fashion, this article will use the term
(BPD) and related traits appear in many forensic “borderline” in a clinical (not a slang) sense to refer
psychiatry settings. Their clinical hallmarks affect- to this broader group of people.
ing judgment, insight, impulsivity, motivations,
and regulation of emotions, as well as their fre-
CLINICAL HALLMARKS
quently chaotic lives (internal and external), inac-
curate perceptions, rationalizations, and comorbid The clinical hallmarks of impaired judgment, insight,
syndromes can have a marked effect on many civil, impulse control, regulation of emotions, and motiva-
criminal, and institutional (e.g., corrections) tion, as well as chaotic internal and external lives,
issues. Individuals with BPD are overrepresented inaccurate perceptions, possible psychotic periods,
in civil, criminal, and child custody forensic situa- inappropriate rationalization, and comorbid disor-
tions. The character psychopathology of these indi- ders and syndromes can have a marked effect on civil,
viduals is substantial, but is often not obvious to criminal, and institutional (e.g., corrections) issues.
laypersons, including lawyers, judges, and jurors. What follows is a brief overview of many of these
The presence of BPD rarely affects basic responsi- effects rather than a comprehensive discussion.
bility for the person’s actions, nor does it usually
compromise most forms of competency. Function,
OVERREPRESENTATION IN FORENSIC
not diagnosis, is the key arbiter of forensic rele-
SITUATIONS
vance. BPD is associated with an increase in the
likelihood of doctor-patient problems, including Two things cause individuals with borderline pathol-
patient complaints and lawsuits that may not be ogy to be overrepresented in some civil and criminal
deserved. Forensic professionals evaluating per- forensic populations, and in correctional popula-
sons with BPD and related traits should be aware tions.1,2 First, the clinical characteristics already
of personal and professional bias, particularly that mentioned lend themselves to problems with or for
associated with true countertransference. (Journal other people, in couples, families, social interactions,
of Psychiatric Practice 2009;15:216–220) work environments, doctor-patient relationships,
and institutional living situations. Those problems
KEY WORDS: borderline personality disorder, bor- often become serious enough to warrant some legal
derline personality traits, forensic issues, custody action, or contribute to the individual’s becoming
involved with the law. Second, although their atti-
tudes and behaviors are often pathological, individu-
Forensic work can involve borderline personality dis- als with borderline symptoms (not always “patients”
order (BPD) and its traits in many different ways. in forensic matters) are usually healthy enough to be
When discussing forensically relevant topics, one involved in the whole panoply of human experi-
may refer to a broader population of people with sig- ence—relationships, work, society—rather than
nificant borderline traits and “Cluster B” character- being routinely sequestered or left out of it as a per-
istics, not just those who meet DSM-IV-TR criteria
for the personality disorder. Most of the comments in
this column are applicable to people with substantial WILLIAM H. REID, MD, MPH, is a clinical and forensic psychia-
traits, whether or not they qualify for the personali- trist and a past president of the American Academy of Psychiatry
and the Law. His website, Psychiatry and Law Updates, is
ty disorder diagnosis, and generally (but not exclu- www.psychandlaw.org. This column contains general information
sively) refer to women. For purposes of simplicity, which should not be construed as applying to any specific patient,
and understanding that the word is sometimes used nor as any form of legal advice.

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 LAW AND PSYCHIATRY
son with schizophrenia might be. Thus these individ- ex-husband returned the children after a visit,
uals are exposed to all the areas of life in which whereupon she immediately began to scream that
forensic issues may arise and can, among other he had harmed them. He left without further inci-
things, enter a forensic process by themselves (e.g., dent, but was soon served with an arrest warrant
by complaining about a perceived wrong, seeking a for assaulting her, beating her, and tearing her
lawyer to file a malpractice suit, or planning and exe- clothing, all in front of the children. One of the
cuting a criminal act). young children gave a statement that he “pushed
Mommy and he hurt her.” The charges were dis-
missed, however, when the mother’s housekeeper,
COMPETENCY, RESPONSIBILITY, AND
who came to the foyer after hearing her screaming,
INTENT
testified that after the father left the woman
The Legal Arena in Criminal and Child appeared unharmed, then tore her own clothing
Custody Matters and bruised her own arm.
The police department (not the husband) filed
Many forensic situations involve a determination of criminal charges of false reporting. She insisted
whether or not someone is competent to do some- on a trial, at which her defense attorney called her
thing or is responsible for his or her behavior. treating psychologist as a witness on her behalf.
Forensic professionals know that, although the The psychologist testified that the woman was not
behavior of persons with borderline symptoms is responsible for her false reporting and other
often impulsive or disorganized, it is almost always behavior because she had been under great stress
“competent” for most legal purposes, and the person and feared she would lose custody of her children.
is accorded responsibility for it. With a few excep- Her BPD, the psychologist opined, caused her to
tions—and noting that function, not diagnosis, deter- react to that stress “in away [sic] that was logical
mines competency and responsibility—“borderline” in her confused mind even though she knew it was
behaviors are not so far from “reality” that the per- illegal.” Nevertheless, a jury found her responsible,
son lacks intent or fails to know what he or she is and she was convicted and placed on probation.
doing or whether or not it is “wrong” (in a legal or
moral sense). Impulsivity and lack of emotional reg- The Societal View
ulation may be obvious, but few criminal courts or
juries exonerate people solely because of borderline Most mental health professionals understand the
characteristics or behavior. deep pathology associated with BPD and severe bor-
Similarly, issues of legal competency are rarely derline traits. Many of us recognize the frustration
affected by borderline symptoms or traits. People and pain our borderline patients experience, not
with those traits are almost always found competent being able to tolerate or enjoy mature relationships,
to stand trial, enter into contracts, marry, authorize and failing again and again to meet deep internal
or refuse treatment, and do myriad other things. The needs with ineffectual external objects and behav-
most common exceptions arise when borderline iors. How can we convey these genuine flaws and
symptoms and traits interfere with behaviors that incapacities to those who make legal decisions, espe-
require ongoing attention, objectivity, and/or empa- cially in criminal and family courts, in order to see
thy, such as parenting, and/or when severe border- that our patients get the special consideration they
line characteristics carry an unacceptable risk of seem to need?
harmful behaviors such as child neglect or abuse. In my opinion, we shouldn’t, at least not in any
Nevertheless, to continue with this specific example, way that implies that symptomatic BPD should war-
when children must be removed from the home of an rant exoneration or other extraordinary treatment
individual with borderline pathology, the action by the law. “Society” seems to agree. Laws and social
should be based on the parent’s unacceptable and mores are primarily based on behavior, not symp-
unmanageable behavior, not on the diagnosis per se. toms or diagnoses. Society must do what it can to
deal with behaviors that interfere with its smooth
A person diagnosed with BPD was engaged in a operation. One way is to establish some behaviors as
custody battle for her small children. One day, her “crimes”; another is to provide some humane way to

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LAW AND PSYCHIATRY
stop noncriminal aberrant behavior or to separate one day invited her to a social occasion. He
those who display such behavior from those who may allowed the relationship to proceed further and,
be harmed (e.g., via civil commitment, which after the relationship soured, she sued the psychi-
includes mitigating harm to the patient herself and atrist for his inappropriate social and sexual
trying to ameliorate the problem). behavior. The doctor attempted to cite her seduc-
Society does not tolerate repeated insults to public tive behavior to mitigate his responsibility and,
sensibilities for very long. If a perpetrator is clearly through his attorney, pointed out a number of
unable to know what he or she is doing, for example, exaggerations and inconsistencies in her testimo-
or to participate in trial proceedings, a “psychiatric” ny (attempting to use her borderline characteris-
solution may be found (such as finding the person tics to impeach her credibility). The relevant facts
not guilty by reason of insanity). On the other hand, were clear, however; the psychiatrist lost the case
jurors and other citizens are rarely interested in and his medical license was suspended.
exonerating or exempting those who have caused
pain or loss to others but who appear “normal” in On the other hand,
most respects. Individuals with borderline traits or
symptoms usually don’t look or behave truly inca- A woman with severe borderline traits and a
pacitated to the public, even when a psychiatrist or history of childhood sexual abuse visited a psy-
psychologist sees obvious internal disruption. chotherapist whom she knew to have a reputation
In addition, it is my experience that most impul- for sexual activity with his patients. Her purpose,
sive, emotionally volatile people (and many who are in retrospect, was to seduce him into a sexual sit-
psychotic) adhere to laws and social norms when uation and then sue him. She surreptitiously
society expects them to do so. Both habit and expec- recorded several sessions in which she spoke and
tation of consequences contribute greatly to stopping behaved seductively but the therapist did not
at red lights, refraining from stealing, and avoiding appear to respond inappropriately. One day, he
violence, even in people whose psychiatric symptoms finally returned her rather open flirtations with
are substantial. As a matter of social policy, it would what appeared to be tentative, but clear, innuendo
be unfair to victims, perpetrators, and the rest of us of his own. Soon after that session, she called a
to stop holding people to a standard of good and law- lawyer, who met with her to discuss her prediction
ful behavior, or for the legal system to expect some- of impending sexual behavior by the therapist.
thing less of persons solely because they exhibit She offered to return to the therapist to gather
psychiatric symptoms (when their psychiatric func- more recorded evidence. The lawyer, who was the
tion doesn’t preclude responsible behavior). second she had consulted, quickly realized that
the woman’s own behavior and personality char-
acteristics significantly compromised any poten-
CIVIL LITIGATION AND LAWSUITS
tial lawsuit and, after speaking with a forensic
First, people with BPD can be wronged, and can psychiatrist, declined the case.
deserve compensation or other consideration just as
any other person when compensation is supported by Malpractice Allegations
the facts of a case. It is unreasonable simply to
assume that a person’s symptoms, allegations, or Physicians and other clinicians are at least partially
explanations are automatically suspect just because justified in their frequently held view that borderline
a clinician has found borderline characteristics, even patients are difficult to treat, and that caring for
if those characteristics appear in a forensic context. them can lead to a disproportionate number of com-
plaints and lawsuits. This is a population who, what-
A woman with clear symptoms of borderline ever else may prompt a clinical visit, come to the
personality disorder was seen by a psychiatrist office with an increased potential for problems in
who became enthralled by the attention she treatment, unreasonable expectations, poor clinical
appeared to give him during clinical appoint- outcome, and difficulty in the clinician-patient rela-
ments. He had documented her various symptoms tionship. Many potential problems are founded in
and behaviors well, including sexual ones, and volatile transferences, which are fertile ground for

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 LAW AND PSYCHIATRY
misperceptions and primitive responses related to contact information with the other driver, and
anger, perceived abandonment or betrayal, and a hurriedly left for a pre-existing appointment with
host of other feelings. her massage therapist. She later sued the other
Lawsuits happen for some (combination of) pur- driver and her insurance company for enormous
poses, which may be reasonable or unreasonable, damages, alleging great pain and suffering (in
obvious or very subtle. When a patient is prone to her, not her child) which incapacitated her and
unreasonable feelings and perceptions associated necessitated dozens of doctor visits and appoint-
with relationships, including doctor-patient relation- ments with massage therapists, aroma therapists,
ships, the probability of a lawsuit (or some other and a “chakra balancer.”
action, such as malicious gossip, a licensing board When asked at trial how she justified her nor-
complaint, or a threat) increases. A lawsuit or other mal-appearing behavior just after the accident
response that is factually unreasonable, and often and her apparently nonchalant keeping of her
out of proportion to whatever error may or may not massage therapy appointment, she said, very con-
actually have occurred in the treatment, may be psy- vincingly and in a way that implied she expected
chologically explainable and/or factually frivolous, the jury to believe her, “I was in shock. I didn’t
but it’s still a lawsuit and a burden, regardless of the realize how much I was hurt… I had to get to my
eventual outcome. masseuse as soon as possible to be sure I wasn’t
hurt, and to keep us from developing even worse
Pseudo-rationality injuries” (both she and the child had massages).
The jury found the other driver liable for the
Lawyers (particularly inexperienced ones), friends, rear-end accident, but awarded damages of only a
and jurors routinely view persons with borderline few dollars.
pathology as essentially “normal”; most of these indi-
viduals don’t look very disturbed. Non-mental-
COMPLICATION OF COMORBID
health-professionals may notice eccentricities, but
DISORDERS BY BPD
everyone has eccentricities. Borderline patients are
often accomplished and well-educated. They usually BPD and related traits often complicate Axis I disor-
have jobs, interact with people, and may be lots of ders and other syndromes in a way that can have
fun in superficial social settings. Many have a super- forensic consequences, making them more sympto-
ficial sexuality that makes them popular temporary matic, more difficult to treat or manage, and more
partners, even when deeper relationships are prob- prone to become matters of forensic interest. For
lematic. Their willingness to speak out or do things example, substance abuse or dependence, impulse
others eschew because of social inhibition makes control disorders, stalking, and some forms of facti-
them exciting for some, and envied by others. tious disorder may be associated with criminal
Statements, affidavits, and testimony from such peo- behavior. Borderline traits make other impulse con-
ple are often coherent and convincing, even when the trol disorders, posttraumatic stress disorder, somato-
facts of the matter indicate otherwise. When cross- form disorders, dissociative disorders, pain disorders,
examined, they may have rational-sounding expla- and some mood and anxiety disorders harder to treat
nations for what seem to be unusual, even and more likely to end in patient dissatisfaction,
outrageous stories. “Pseudo-logical” explanations can poor outcome, or litigation. In particular, suicide risk
distract an evaluator or trier (judge, jury) from inap- and suicidal behaviors are much more difficult to
propriate behavior, as illustrated in the following manage in borderline patients than in those with rel-
example. atively uncomplicated Axis I disorders, which can
lead to tragedy and subsequent lawsuits.
A woman driving slowly in a construction zone
was hit from behind by another car at roughly 5
FORENSIC EVALUATION
miles per hour. She and her small child, in appro-
priate safety belts and with the child in an infant When one examines an evaluee with borderline per-
seat, acted normally after the bump. She got out of sonality disorder or borderline personality traits, one
the car, looked briefly at the bumper, exchanged should be aware of the many aspects of his or her

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LAW AND PSYCHIATRY
personality that create special nuances of defense, expectation (such as a treatment expectation or per-
transference, and countertransference. Most of these ception of support). Evaluators should be particular-
issues are familiar to experienced clinicians, but they ly aware of their biases for and against “borderline”
can be especially influential when evaluating indi- evaluees, and guard against being either pejorative
viduals with borderline pathology. or overly solicitous during the examination, when
Review the history carefully and completely before composing reports, and when testifying.
seeing the evaluee. Use independently corroborated
history to guide, and sometimes challenge, the con-
References
tent and process of the interview(s). Consider record-
ing the examination in some way. Be aware that 1. Black DW, Gunter T, Allen J, et al. Borderline personality
borderline evaluees, more than most others, may disorder in male and female offenders newly committed to
prison. Compr Psychiatry 2007;48:400–5.
inappropriately experience the forensic or adminis- 2. Nee C, Farman S. Female prisoners with borderline per-
trative examination as a treatment session, or may sonality disorder: Some promising treatment develop-
create some other unwarranted attachment or ments. Crim Behav Ment Health 2005;15:2–16.

220 May 2009 Journal of Psychiatric Practice Vol. 15, No. 3

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