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Legal Mind Case and Commentary No 26: Psychological harm following sexual abuse. Procedural aspects of psychological assessment - Koch HCH, Milner P and McFadyen K

27/02/20. This is the twenty-sixth in a series of Case reports and Commentaries from Professor Koch and colleagues.

Background: Analysis of psychological harm in a complex case. Issues emerging from this analysis involved credibility, diagnosis, causation and quantum assessment.

Key words: credibility, diagnosis, causation, quantum

Case: WCC v. Steer QBD [2019] EWHC 1874

Before: His Honour Judge Graham Wood QC 15.7.19.

The claimant sought damages for the injurious consequences of sexual abuse over, allegedly, a 3-year period (1978-81) at ages 8-11 years of age. The abuse allegedly related to seven separate incidents. The defendant was serving a five-year sentence at the time this claim commenced. The defendant was representing himself in this civil action and also counter claiming that the claimant was fabricating the claim and pursuing it dishonestly for financial gain.

During this appeal, Judge Wood made several comments about the psychological evidence and its complexity. These are summarised below: -

a) Credibility: the claimant altered her historical evidence during the hearing, admitting prior sexual abuse. This lack of disclosure was not thought to be undermining of the claimant’s credibility according to the claimant’s expert.

b) Witness Statement reliability: issues of inconsistency and motivation were evidenced. Potential contradictions were relevant to credibility.

c) Diagnosis: This is the assessment of the claimant’s mental health and complex conditions from which she is said to suffer from time to time.

Specific diagnoses made by the expert psychiatrist were: -

1) Adjustment Disorder 2) Harmful use of alcohol and solvents 3) Recurrent depressive disorder 4) Generalised anxiety disorder and 5) PTSD.

In giving evidence, the expert gave credence to the following diagnoses-related issues: -

· Historic compared to current symptomatology (PTSD being ongoing)

· Relapsing, remittent and intermittent/fluctuating nature (of affective, mood-related symptoms)

· Severity rating of PTSD (i.e., moderate or moderately severe)

· Variation dependant on daily reminders

· Exacerbation of pre-existing alcohol and substance misuse

· Relevance of a) early childhood experience and b) index experiences

· Complex causation (ref. chronic affective disorders)

· Small and/or major causative roles of life events

· Narrative relevance of anxious personality traits caused by early childhood relationship difficulties and dysfunctional attachment experiences

· PTSD attributed totally to the alleged abuse

· Clearly liability decisions had a bearing on much of the above diagnostic analysis

d) Causation: This is the attribution of any of these diagnostic conditions to the alleged abuse. Issue raised by His Honour included:

· Liability of findings and consistency of evidence

· Potential contentious areas of evidence

· Degree of embellishment about extent of the abuse

· Degree of false recollection and suggestibility as a result of events, or apparent events, occurring many years previously.

e) Quantum assessment issues

The recoverable heads of loss were represented by general damages for pain, suffering and loss of amenity and an additional claim for aggravated damages (possibly) together with the special damage claim for the future cost of therapy.

In arriving at the above quantum assessment, the following issues were addressed:

· Psychiatric damage generally (taking into account pre-existing condition(s)) and index event-specific psychiatric damage.

· Assessment of prognosis and assessment of potential outcome.

· Lack of ‘perfect precision’ in determining outcome and apportionment of damage.

· Application of ‘But For’ principle to indicate that, in this case, PTSD was 100% attributable to the index abuse.

· Some degree of aggregation of causative decisions as there is, in many aspects, an overlay of symptoms.

· Assessment of aggravated damage affected by the attitude and behaviour of the defendant.

· Assessment of special damages based predominantly on the costs of therapy.

Commentary

This Legal Mind Case and Commentary has been constructed to clarify some of the issues commonly addressed in complex sexual abuse cases with regards to psychological/psychiatric evidence. Any one individual case may have some or all of these issues pertaining to its deliberations at any stage of litigation.

With regards diagnosis, it would appear that the expert addressed the complexity and variability of the clusters of symptoms by specifying several diagnoses, before then culminating in the PTSD diagnosis as the main recurrent diagnosis, totally attributable to the index abuse. DSM-V and ICD-10, the two main classification schemes used by expert witnesses to classify mental disorders, encourages experts to identify the diagnosis which ‘best-fits’ the presentation of symptoms. This ‘single diagnosis’ approach can clearly expand, especially when there is significant pre-index morbidity. The labelling of 4-5 diagnoses does indicate that there is a difficulty in focusing on 1-2 main explanatory disorders. One’s sympathy, professionally, is with the expert who is faced with such a myriad of mental health symptoms.

In terms of research evidence to support the evidence given by the expert, a history of sexual abuse has been shown to be associated with a lifetime diagnosis of multiple psychiatric disorders (anxiety disorders, depression, post traumatic stress, eating disorders) in a largescale meta-analysis.

Careful and apparently skilful history taking helped to separate out appropriately causation for psychological difficulties, whilst offering a clear causation for the main diagnosis offered, that of Post-Traumatic Stress Disorder. Experts working on similar cases, should aim to ensure detailed history taking to ensure that the attribution can be justified in court. It is not uncommon for children who experience sexual abuse in childhood to experience other forms of adverse childhood experience and are more likely to live in dysfunctional households.

When assessing for the impact of sexual abuse, it is important to help a client separate out the impact of other events on their lives, to help them to build a coherent narrative and offer a clear testimony, this does not mean influencing their testimony but remaining calm enough to help them to piece together details clearly, and feedback when a narrative appears unclear. Discussing and describing abuse is anxiety making, and distressing, and this can make it difficult to offer a clear narrative. Patience, time and ensuring that the narrative offered by the client is not too heavily influenced by the anger and distress of those around them. A clear narrative will help clients to engage better with psychological therapy, and allow them to seek appropriate help and recompense, whilst also benefiting the legal process.

The other factor which was evident in the judge’s deliberations was how to assess duration and the intermittent nature of symptom experiences over a period of years, never an easy task.

With regards causation, the total 100% attribution of PTSD to the index abuse was clearly helped by applying the ‘But For’ hypothesis i.e., would the claimant have developed traumatic symptoms if the index abuse had not occurred although due consideration should be given to any pre-existing vulnerability attributed to earlier abuse.

A fascinating case prompting many diagnostic and causation-related questions and issues.

Authors

Prof. Hugh Koch, Dr Philip Milner and Dr Ken McFadyen.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (www.cv.hughkoch.com).

References

Chen et al. (2010). Sexual abuse and Lifetime Diagnosis of Psychiatric Disorders: Systematic Review and Meta-analysis. Mayo Clinic Proceedings, 85, 7, 618-629.

Dong et a. (2003). The relationship of exposure to childhood sexual abuse to other forms of abuse, neglect, and household dysfunction during childhood. Child Abuse and Neglect, 27, 6, 625-639.

Koch, HCH., Nokling, K.E. and Nolan, L. (2020). Legal Mind Case & Commentary No.25: Giving a range of opinions on psychological cases: Independence, Objectivity and Impartiality of CPR Part 35 experts. PIBULJ. January 2020.

Koch, HCH., McFadyen K., Crowther-Green, H. and Milner, P. (2019). Legal Mind Case & Commentary No.24: Gestmin and Witness Evidence. PIBULJ. November 2019.

Koch, HCH. (2016). Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch, HCH. (2018). From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. Expert Witness Publications. Manchester.

Image: cc flickr.com/photos/keoni101/6016744959

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