FREE CHAPTER from 'A Practical Guide to Psychiatric Claims in Personal Injury - 2nd Edition' by Liam Ryan

03/03/21. The law relating to claims for psychiatric injury is complex, varied, and hard to grapple with and can often appear labyrinthian. This is a practical guide for dealing with personal injury claims involving psychiatric injuries and is aimed to assist both the newcomer and the experienced practitioner alike.

As our understanding and acceptance of the nature of psychiatric injury has grown over the last two decades, so has the regularity of such claims appearing in practice as well as the varied ways in which they arise, be it a straightforward psychiatric reaction to injury or a complex stress at work claim.

This work breaks the topic down into practical and easily assimilable components to assist practitioners and supplement their knowledge through a combination of detailed discussion of the law, coupled with practical suggestions for practise.

This Second Edition is updated and expanded particularly in the areas stress at work and the latest developments in secondary victim claims.

CHAPTER TWO – DIAGNOSIS

The bedrock of any claim for a psychiatric injury, is identifying one’s presence. A psychiatric injury to be actionable must a recognisable psychiatric disorder, and will be found almost always to fall into either ICD 10 or DSM IV. The necessity for reliable, robust and persuasive expert opinion is always of importance, but so is the witness evidence of a Claimant.

The concept of general damages and the cause of psychiatric injury is in and of itself worthy of several books on its own. This chapter is designed to give a practical outline of and guide to the topic and how to approach general damages and injury, from a practical standpoint.

This chapter is not designed to replace the need for psychiatric evidence, but rather to act as a useful set of sign posts to help practitioners identify what they may well be dealing with in the claims they encounter.

Common psychiatric injuries

When assessing the value of Psychiatric injuries, the first port of call should be chapter 4 JSC Guidelines. In case of physical injury chapter 7 JSC Guidelines. (orthopaedic injuries) is often going to be used in conjunction with chapter 4 (A) JSC Guidelines.  in assessing the dual nature of an injury.

The chapter and its brackets are very broad, and can encompass disorders from depression to agoraphobia. This work is not intended to give a full and complete breakdown of how and why every type of injury or disorder arises, but rather to set out a broad and practical roadmap so that a practitioner will, when meeting a Claimant, better understand and formulate their approach as to how to deal an injured person.

The JSC guidelines are a useful yardstick in the assessment of general damages, but not definitive. The bracket itself highlights that the following points need to be considered when looking at the entirety of the injury:

1. The injured person’s ability to cope with life and work.
2. The effect on the injured person’s relationships with family, friends and those with whom he or she comes into contact.
3. The extent to which treatment would be successful.
4. Any future vulnerability.
5. Prognosis.
6. Whether medical help has been sought.

Comparable cases are often referred to in settlement discussion and hearings but it has become increasingly obvious that they are reported for a singular reason, that they represent a “good result” for either the Claimant or Defendant. Therefore they have over the last decade become increasingly more partisan than of application, but still should be looked to for broad guidance. This chapter does not intend to recount, and analyse these for this reason.

The types of psychiatric conditions themselves, are as individual in their impact as the person they affect and this work does not intend to describe each and every type of disorder that can be suffered. Rather, the three main disorders which the practitioner will encounter are:

1. Depression
2. An anxiety disorder
3. An adjustment disorder

It should be remembered that this work deals with recognisable psychiatric disorders. Injuries falling short or shy of this classification would be classed as a minor injury and fall into chapter 13 JSC guidelines, for example travel anxiety.

Depression

Depression is in modern society, a word that is sometimes thrown about. It’s not uncommon to hear someone say “I’m depressed” in relation to disappointment, but depression, as an illness is far worse. The symptoms of depression can include”

1. A persistent and continuous low mood
2. Feeling hopeless and helpless
3. Low self-esteem
4. Feelings of guilt
5. Feeling tearful
6. A lack of motivation
7. Constant procrastination
8. Suicidal thoughts
9. Inability to sleep

Depression can also manifest with physical symptoms and these can include a number of points, but most notably:

1. Weight gain or loss
2. Constipation
3. Unexplained aches and pains
4. Feeling of no energy or vitality
5. Low sex drive (loss of libido)
6. Disturbed sleep

Depression is a common, and serious illness and in personal injury claims, it is not uncommon to see injured persons react to a physical injury or inflicted disability with some form of depression. It is also possible that persons who suffer from depression will be vulnerable to future relapses of their condition. Practically, the danger of this future deuteriation should always be considered, and contingencies made in any schedules of loss to reflect the same.

Anxiety disorders

Almost everyone at some point in their life is going to feel anxious, before exam results, speaking to new people or even going to somewhere new and different.

However, what happens when that sense of anxiety, becomes so heighted, and the person who experiences it, so vulnerable to an overly intense anxious reaction, that it starts to impact on their life negatively? That is one form of an anxiety disorder. Anxiety is (perhaps obviously) the main symptom of several other conditions which a practitioner can only be alive to, these include:

1. Panic disorders
2. Phobias – such as agoraphobia
3. Post-traumatic stress disorder (PTSD)
4. Social anxiety disorder (of particular use in cases where Claimants have to deal with customers in their workplace).

Adjustment disorders

In practice, an adjustment disorder is one of the most common injuries encountered in psychiatric cases. They are often temporary, meaning that they will persist and improve over time, but in essence cover situations where, due to a stressful or traumatic experience, the affected persons varies their behaviour to deal with it. Most people will experience such a disorder in their life and it is often brought on by the death a loved one, the loss of a job or the ending of a relationship. The symptoms of adjustment disorders can include:

1. A constant sense of anxiety
2. Avoidance behaviours
3. A constant feeling of upset
4. Social withdrawal
5. A lack of concentration
6. Fatigue

Post-traumatic stress disorder

Post-traumatic stress disorder can be a crippling illness and is dealt with by Chapter 4 (B) JSC guidelines. A person afflicted with post-traumatic stress disorder often relives the traumatic event through nightmares and flashbacks, and may experience feelings of isolation, irritability, and guilt. As an initial point to assist early identification, persons affected will often display a combination of  the following symptoms.

1. Trouble sleeping,
2. Suffer a lack of concentrations;
3. Are irritable;
4. Can be socially withdrawn;
5. Have difficulty controlling their temper;
6. Have an exaggerated startle response.

A core issue in a claim for post-traumatic stress disorder is that the injured person will have been exposed generally to events which have caused them to fear for their own, or another’s life, and physical integrity. The injury is often categorised by the presence of flashback. Practically, it can be helpful when dealing with a Claimants evidence to understand what these flashback are. They will often assist a medical expert in identifying what breach has been causative of this injury.

For example, in a case relating to a road traffic accident, the flash back will likely be to the accident itself. In a case of stress at work, it may well relate to specific parts of the Claimants experiences. The need to balance the issues of causation with breach are considered later in this work.

There is growing recognition that Post Traumatic Stress Disorder can result from many types of emotionally shocking experience including an accumulation of small, individually non-life-threatening events in which case the resultant PTSD is referred to as Complex PTSD.

Diagnostic criteria

The diagnostic criteria for Post-Traumatic Stress Disorder (PTSD) are defined in DSM-IV as follows:

1. The person experiences a traumatic event in which both of the following were present:
2. the person experienced or witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;
3. the person’s response involved intense fear, helplessness, or horror.

These parameters  fit almost always with any road traffic accident of moderate or greater severity. The criteria continue to describe the relevant factors required as “where the individual persistently re-experiences the traumatic event through the following criteria”:

1. Continuous symptoms;
2. Persistent avoidance;
3. Persistent symptoms;
4. Duration;
5. Resulting effect.

Continuous symptoms

These are characterised as:

1. Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions (flashbacks).
2. Recurrent distressing dreams of the event.
3. Acting or feeling as if the traumatic event were recurring (e.g. reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those on wakening or when intoxicated).
4. Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
5. Physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.

Again, these symptoms are often experienced by individuals following a road traffic accident, and are simply never flagged up.

Persistent avoidance

It is also necessary for a Claimant to demonstrate persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) as indicated by at least three of the following:

1. Efforts to avoid thoughts, feelings or conversations associated with the trauma.
2. Efforts to avoid activities, places or people that arouse recollections of the trauma.
3. Inability to recall an important aspect of the trauma.
4. Markedly diminished interest or participation in significant activity.
5. Feeling of detachment or estrangement from others.
6. Restricted range of affect (e.g. unable to have loving feelings).
7. Sense of a foreshortened future (e.g. does not expect to have a career, marriage, children or a normal life span).

Persistent symptoms

Persistent symptoms of increased arousal (not present before the trauma) as indicated by at least two of the following:

1. Difficulty falling or staying asleep.
2. Irritability or outbursts of anger.
3. Difficulty concentrating.
4. Hyper vigilance.
5. Exaggerated startle response.

Duration

The symptoms above must last for more than one month.

Resulting effect

The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Practice points in assessing post-traumatic stress claims

It may well assist when dealing with individual who may suffer from PTSD to be aware that the most common reported symptoms of PTSD are:

1. 1. Hyper vigilance (feels like but is not paranoia)
   2. Exaggerated startle response
   3. Irritability
   4. Sudden angry or violent outbursts
   5. Flashbacks, nightmares, intrusive recollections, replays, violent visualisations
   6. Trigger events, which will be personal in each case
   7. Sleep disturbance
   8. Exhaustion and chronic fatigue
   9. Reactive depression
   10. Guilt
   11. Feelings of detachment
   12. Avoidance behaviours
   13. Nervousness, anxiety
   14. Phobias about specific daily routines, events or objects
   15. Irrational or impulsive behaviour
   16. Loss of interest
   17. Loss of ambition
   18. Anhedonia (inability to feel joy and pleasure)
   19. Poor concentration
   20. Impaired memory
   21. Joint pains, muscle pains
   22. Emotional numbness
   23. Physical numbness
   24. Low self-esteem
   25. An overwhelming sense of injustice and a strong desire to do something about it

Effectively these points represent a check list which a Claimant can look to address and answer by way of their witness evidence. Further, in dealing with medical experts, the criteria above represent “watchwords” which to a trained professional will indicate a case of PTSD.

Somatisation

Somatisation is generally defined as;

“The tendency to experience psychological distress in the form of somatic symptoms and to seek medical help for these symptoms, which may be initiated and/or perpetuated by emotional responses such as anxiety and depression”.

In essence it is where psychiatric issues cause a physical manifestation of the same. This can include;

1. Chest pains;
2. Tiredness;
3. Dizziness;
4. Generalised pain
5. Feeling sick.

The relationship between the mind and body is complex and not fully understood. When a person somatises, the mental or emotional problem is expressed partly, or mainly, as one or more physical symptoms. Chapter 8 JSC guidelines will assist on the quantification of such damages.

Practically speaking, it is not unheard of for a Claimant who suffers from, for example, Fibromyalgia, to see an accident or set of events re-aggravating or worsening this pre-existing injury. Expert evidence is likely to be needed from the relevant expert on this point but it is not an area of the claim that should be jettisoned simply as it does not appear to flow form the alleged breaches.

Conclusion

Again, this is not intended to be a full catalogue of all injuries a practitioner will encounter, but a broad overview of those most commonly encountered in practise.

The early receipt of well-reasoned psychiatric expert opinion will be essential. Practitioners are well advised to ensure that the instructed expert has access to both the Claimants medical and treatment records (if applicable) as well as proof of evidence to assist in focusing their minds.

When considering the evidence it is also pragmatic to ask on what literature the opinion is based. Once this is done, it is reasonable and proportionate for a practitioner to consider the same, and to form a opinion if the literature has been interpreted properly, and that the report in conjunction with this remains persuasive. Doing this at an early stage can often avoid, or at least flag up likely issues which may emerge in opposing expert evidence.

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