Psychiatry's Problem Child: PTSD in the Forensic Context (Part 2)

Abstract

Objective: The aim of this paper was to consider whether the Courts in their application of Criterion A for post-traumatic stress disorder (PTSD) in the civil forensic context are in harmony or in conflict with psychiatry.

Method: Discussed are five cases from the civil forensic jurisdiction that considered plaintiffs' submissions that, as a consequence of some wrong, they suffered PTSD.

Results: The Courts have been quite consistent in their approach to PTSD – where there has been conflicting expert evidence as to whether a plaintiff has PTSD, the stressor which brings about this disorder must be extreme (i.e. objectively life-threatening).

Conclusions: The Courts have been consistent in their application of Criterion A and, as such, are consistent with what the DSM-IV-TR requires before the diagnosis can be made. Such an approach ensures that merely unpleasant events, irrespective of how subjectively upsetting they may be, do not qualify for the diagnosis of PTSD. Psychiatrists, therefore, have an enormous responsibility when they provide expert evidence in relation to psychiatric issues that arise in legal matters.

Keywords

expert evidence forensic psychiatry post-traumatic stress disorder

An earlier paper considered problems with the nature and application of Criterion A (1) of post-traumatic stress disorder (PTSD) in expert forensic assessment.[1] Here, I will consider the approach the Courts have taken to Criterion A (1).

THE APPLICATION OF CRITERION A IN THE CIVIL FORENSIC JURISDICTION

Introduction: the Annetts cases2–4

Shea[5] and Simon[6] have pointed out that the DSM-IV[7] widened the class of people who can suffer PTSD as a consequence of a life-threatening event, so that now, for example, persons learning of the death of, or injury to, a loved one as a consequence of an extreme (i.e. life-threatening) incident can suffer PTSD, even if they were not present.[7] The DSM-IV-TR maintained this wider class.[8]

In personal injury cases, the law has assumed a similar stance.

The Annetts cases concerned a claim by the parents of a young jackaroo for what the law quaintly calls ‘nervous shock’, when they were informed of his death some months after it occurred.2–4 At first and second instance, the Annetts' claims were dismissed by the Supreme and Appeal Courts of Western Australia.[2], [3]

Prior to Annetts, the law in both England[9] and Australia[10] did not allow recovery for psychiatric injury when the news of the life-threatening incident was communicated by a third party, largely on the grounds of foreseeability and proximity, and the Courts applied this law.[2], [3]

The High Court took a different view.[4] While the earlier Annetts decisions[2], [3] accepted the contention in Jaensch v Coffey[10] that a plaintiff did not have to perceive directly the trauma to qualify for a finding that he/she suffered psychiatric injury as a consequence of the trauma, nonetheless there had to be some proximity to the event.[10] The High Court removed this qualification, though it did require that there be some close relationship between the plaintiff and the victim of the trauma.[4], [11] This is a qualification evident in the DSM-IV[7] and its successor, DSM-IV-TR.[8]

While the Annetts cases were not specifically about a claim for PTSD arising from a tort,2–4 nonetheless it can be implied from them that, in assessing whether a plaintiff has PTSD, the nature of the stressor will be very important for a Court when it has to determine whether this illness has arisen and, as a consequence, whether a defendant is liable. The cases which follow exemplify this approach.

In the civil forensic context, Courts have been slower in some instances to accept that a plaintiff has PTSD, in particular when the trauma to which the legal action relates cannot be objectively described as traumatic. In this sense, as Tennant has recently remarked, the law and psychiatry have come into some conflict.[12]

By civil forensic context, I mean that legal jurisdiction where a person (‘the plaintiff’) seeks to obtain compensation howsoever defined from another party (‘the defendant’) for injuries, psychiatric or physical, they perceive are caused by a tort or wrong of the defendant. The civil forensic context is probably one of the few areas of life where persons are happy and willing to tell the world that they are suffering from psychiatric illness![13]

The cases to which I will refer in this paper are those where the nature of the trauma required for PTSD has been the subject of comment by judges.

Morgan v Tame[14]

The facts

On 11 January 1991, in Richmond, NSW, Mrs Tame was driving her car when a vehicle travelling on the wrong side of the road collided head on with Mrs Tame's car. Both drivers were taken to hospital for treatment and blood-alcohol readings were taken. Mrs Tame, a non-drinker for 20 years, recorded a zero blood-alcohol level. The other driver recorded 0.14.

Mrs Tame suffered a number of physical injuries for which she received treatment. In August 1994, she received from the insurer a substantial sum of money. However, prior to receiving this money, Mrs Tame developed anxiety about the payment of physiotherapy invoices, which had previously been paid promptly by the insurer. She was referred for counselling in April 1992.

In June 1992, Mrs Tame learnt from her lawyer that the accident report sheet showed that, at the time of the accident, she had a blood-alcohol reading about three times over the mandated limit. This was an obvious mistake and it was rectified very soon after, with an apology from the NSW Police Service. From all accounts, no negative legal sequelae for Mrs Tame flowed from the mistake.

Mrs Tame then took the decision to sue the police officer (Constable Morgan) for the error.

The trial

In her evidence at trial, which was quoted by the NSW Court of Appeal at page 27, Mrs Tame “… said in evidence that she was very shocked, it was like a blow. ‘I couldn't believe that [a mistake like that] could happen.’ She began to worry about how many people would be told and her good name would suffer”.

The Appeal Court noted that she developed a number of symptoms which included rumination about what people would think (that her reputation would suffer) and obsessional thoughts about the police mistake. The Court also noted that Mrs Tame was nothing but genuine, even if her reactions were irrational.

In June 1995, Mrs Tame was diagnosed by her psychiatrist with a ‘psychotic depressive illness’. When the matter came to trial, Mrs Tame submitted that as a consequence of this mistake she suffered PTSD.

While the trial was about whether Constable Morgan had been negligent and whether it was foreseeable that his mistake could result in the illness Mrs Tame suffered (Mrs Tame failed on this point), a side issue became a discussion of whether Mrs Tame could have suffered PTSD from the mistake that triggered the illness. There was no medical evidence to suggest that Mrs Tame could not have suffered from a psychiatric illness as a consequence of the mistake.

The Appeal Court took the unusual step of heading one section of its judgement as “The Respondent Mrs Tame did not suffer PTSD” (at paragraph 99).

The Appeal Court then goes on to look at the evidence for PTSD and its development in psychiatry since 1980, when it first appeared in the DSM-III.[15] Its conclusion (at paragraph 108) was that the stressor that triggered Mrs Tame's psychiatric illness came nowhere near the type of stressors that DSM-IV-TR[8] requires for a diagnosis of PTSD to be made.

There was some discussion, however, in the arguments before the Court about the fact that the qualifying stressor criterion for PTSD in the DSM-IV-TR[8] had been widened from DSM-III.[15] Similarly, it considered the view put forth that the stressor criterion had moved away from the nature of the stressor to the nature of the perception of the victim (at paragraph 106), something of which Tennant is particularly critical.[12]

With respect to those who hold such a view, it appears that there has been some conflation of the ideas related to the stressor per se and the subjective response to it, such that there appears to be, certainly in legal circles as suggested by McFarlane,[16] the accepted, even if erroneous wisdom that anything can now qualify as the stressor that brings on PTSD, such that people can easily recall their response to a stressor in line with Criterion A (2). Such recall has been found to be problematic.[12]

The fact remains that the DSM-IV-TR continues to require, as did the DSM-III, and as does the ICD-10,[17] that the stressor to which PTSD is attributable must be one that is extreme (i.e. life-threatening). Thus, the qualifying stressor has not been widened; rather, what has been widened is the category of persons who can qualify for the diagnosis. Thus, the almost subjective requirement of Criterion A (2) becomes irrelevant as far as PTSD goes, if the person with the subjective response has not met Criterion A (1).

The ‘Veterans cases’

Subjectivity and objectivity were considered by Justice Mansfield in Stoddart v Repatriation Commission,[18] and his finding was confirmed by the Full Court of the Federal Court in Woodward v Repatriation Commission.[19]

In these two cases, the Federal Court recognized that subjective perception does play a role in determining whether a person has suffered PTSD, but nonetheless a diagnosis of PTSD can only be reached if the stressor is such as to qualify as a ‘severe psychosocial stressor’.

Justice Spender followed these decisions in White v Repatriation Commission,[20] when he rejected the submission on behalf of Mr White that any event that evokes feelings of substantial distress should satisfy the definitions in the Statement of Principles (SOPs),[21] as the examples used by the SOPs were occurrences and not emotions. Justice Spender went on to hold (at paragraph 32) that:

Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a “severe psychosocial stressor” means that the examples given in the definition of “severe psychosocial stressor” would be not only irrelevant and devoid of utility, but positively misleading.

Thus, in the ‘veterans’ cases' the law has been prepared to accept that subjective perception is valid, as long as it is not ‘idiosyncratic’. This, I suggest, may be put in another way: an event that could, if viewed through the prism of commonsense and experience, be considered life-threatening (even if, in reality, it could not be), will suffice to come within the categories covered by Criterion A (1).

Cleary v Congregation of the Sisters of the Holy Family of Nazareth[22]

In this case, Justice Lee of the New South Wales Supreme Court found that a nurse who was pushed by an elderly, almost immobile patient could not possibly have experienced a life-threatening event. Justice Lee then, in explaining what he believed the law required for PTSD, went on to comment (at page 7), by way of example, that a bank teller could not get PTSD from an armed robbery if, in fact, the gun used was a replica and incapable of firing. With respect to His Honour, this is probably unfair, as any person looking at this situation would likely think this was a life-threatening situation. So, while objectively the teller could not lose her life, subjectively she believed that she could.

The more interesting question is, could the bank teller develop PTSD if told almost immediately the robbery was over that the gun could not have been fired, as it was a replica? It is in this context that critical incident stress debriefing may or may not feed the belief, such that it does or does not become psychopathological.[23]

First and colleagues,[24] in commenting on Criterion A, suggest that this criterion is meant to describe fairly serious and horrible events, not merely unpleasant ones. Such a position is similar to one taken by the judge in the next case.

Phillips v State of South Australia and Lock[25]

In this case, Mr Phillips was assaulted by Mr Lock. Mr Phillips, who had a science degree with a major in Psychology, was described by Judge Burley as an unsatisfactory witness who was prepared to tailor his evidence to obtain the maximum compensation. Not surprisingly, he was diagnosed with PTSD by both an experienced psychiatrist and psychiatry registrar.

The Court found that the assault consisted of two blows, one to his nose and one to his forehead, which left a haematoma. Judge Burley did not accept Mr Phillips' evidence that he feared for his life, by stating that the nature of the assault was not as severe as the plaintiff stated. Judge Burley found that this was another attempt by Mr Phillips to tailor his evidence to suit his needs (and presumably the sub-criterion for PTSD).

The judge was not critical of the psychiatrist called by Mr Phillips, saying that on the (inaccurate) history provided by the plaintiff it was possible to reach that diagnosis. Instead, the judge accepted the evidence of the psychiatrist called by the State of South Australia, that the assault was not the type of:

catastrophic event as characterized by Dr C … I accept his convincing explanation that the event [which triggers PTSD] must be genuinely of an horrific nature. In other words, the victim must experience horror in order for the condition to be induced. I do not accept that the assault perpetrated by the second defendant constituted such a situation. It was no doubt a frightening experience but it lacked, contrary to the plaintiff's assertion, the element that the plaintiff was put in fear for his life.

In the forensic, as in the clinical context, the history becomes critical.[13] An appropriately taken history ought to raise questions for the psychiatrist as to whether or not the symptoms described seem consistent with what a plaintiff describes as his/her daily life. In particular, if there is doubt about the nature of the stressor, does the history provided appear inconsistent with Criterion F for PTSD – is the plaintiff clinically significantly impaired?[13] This point is considered in the next case.

L v State of South Australia and T

(This case did not reach trial and therefore was not published. The content herein, though, is on the public record, as a result of a number of pre-trial hearings.)

In a criminal injuries compensation matter, the plaintiff, L, claimed he had suffered PTSD as a consequence of a minor assault by his heavily intoxicated neighbour. A psychologist diagnosed the plaintiff with PTSD, the psychologist describing it as chronic.

In assessing L, the psychologist outlined each of the criteria for PTSD, in a form not dissimilar to that provided by Justice Studdert in McLean v The Commonwealth[26] and which Freckelton has described as a template for PTSD cases.[27] What was missing from the report were what appeared significant factors in the history: that L had achieved First Class Honours in a university course and had obtained his private and commercial pilot's licence.

Two psychiatrists also assessed L, one (B) chosen by his lawyer and another (G) chosen by the State of South Australia. B diagnosed L with PTSD. In a fairly detailed report, B mentioned the university success and the pilot's licence. What was surprising was B's failure to comment on this factor and how this may raise questions about the diagnosis, particularly Criteria A and F, given the nature of the assault and L's success in two key areas. As I recall, B also had access to the assessment of L's credibility by the Magistrate who decided the assault case. The Magistrate effectively did not accept L's account of what the assault caused him.

When G assessed L, not only did he raise questions as to whether the offence met Criterion A, he also commented on L's success, indicating that, in his clinical judgement, this success appeared inconsistent with the nature of PTSD. Thus a question for both the psychiatrist and the Court is: could persons who achieve such success in their lives be considered to have clinically significant impairment in any aspect of their lives, as Criterion F requires before a diagnosis of PTSD is made?[13]

An application for third party discovery was issued on Civil Aviation Safety Authority for a copy of L's medical reports. The reason for this application was that the State of South Australia had received information that it was highly unlikely that a person with PTSD would be able to obtain a pilot's licence. A perusal of the records revealed that L, in answer to the question as to whether he had suffered anxiety, denied this to be the case.

It would have been interesting to see how a Court would have assessed this significant inconsistency in L's claim. Certainly, at an interlocutory stage, a Master of the District Court considered the issue significant enough to grant the State's application.

The position taken by the Master is not dissimilar to that noted by First and colleagues:[24] “In evaluating whether the stressor criterion should apply, it is important to take into account the context of the experience and the nature of the threat”.

Thus, as stated above, if there is some doubt about the nature of the stressor (i.e. does it meet the requirements of Criterion A (1)?) that the plaintiff claims caused PTSD, then Criterion F may assist in determining whether the plaintiff has PTSD.[13]

CONCLUSION: THE PSYCHIATRIST AS CLINICIAN AND EXPERT

As has been commented previously, the psychiatrist is the provider of specialist knowledge to the Court[28] and clinical judgement should be as rigorous in the forensic context as it is in clinical practice.[13], [24]

Thus, in the sample of cases that are referred to in this paper, the Courts have been quite consistent in their application of Criterion A, when there has been conflicting evidence among experts as to whether a plaintiff has PTSD: the stressor referred to in Criterion A must be extreme (i.e. life-threatening). As such, this is consistent with what the DSM-IV-TR[8] requires before the diagnosis can be made and ensures that merely unpleasant events, irrespective of how subjectively upsetting they may be, do not qualify for the diagnosis of PTSD.[24]

Psychiatrists, therefore, have an enormous responsibility when they provide expert evidence in relation to psychiatric issues that arise in legal matters. Their evidence may make all the difference between whether there is an accurate or inaccurate understanding of the aetiology and nature of psychiatric illness. Inaccurate evidence as a consequence of a fabricated history provided by a plaintiff is unfortunate. However, when evidence is tailored to meet the expectations of a plaintiff or defendant, then arguably this may be illegal – it is certainly unarguable that it is unethical.28–30

DISCLAIMER

The views expressed in this paper are personal and do not necessarily reflect the views of my employer.

Footnotes

Acknowledgements

I would like to thank Dr Ken O'Brien for his very helpful comments on an earlier draft of this article.

References

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