Abstract
In England and Wales, there is a three-year limitation period in most personal injury actions. In some HCA cases, and in professional negligence cases, it is six years. This is the period during which the claim must be brought. It begins in theory when the cause of action (i.e. the index incident) occurred. In HCA and clinical negligence cases, it begins when the claimant has the relevant ‘knowledge’: (1) that the injury was significant (whether a reasonable person with the claimant’s knowledge would have considered the injury sufficiently serious to justify suing a defendant who did not deny liability and had the means to pay, an objective test for which the impact of the claimant’s injuries on his ability to issue proceedings is not a relevant consideration (A v. Hoare [2008] UKHL 6); (2) that the injury is attributable in whole or part to the act or omission which constitutes the alleged negligence or breach of duty; and (3) the identity of the defendant.
I cannot leave this case without expressing my profound gratitude to counsel on both sides … for the deep humanity with which they have conducted this tragic case.
Psychiatric reports in personal injury cases are requested in the following circumstances:
road traffic and industrial accidents involving physical injury;
clinical negligence cases:
medical negligence resulting in psychiatric injury;
negligence in mental healthcare;
employment stress;
historical child abuse (HCA);
‘nervous shock’;
mere mental or emotional distress.
Related issues are limitation and malingering.
Limitation
In England and Wales, there is a three-year limitation period in most personal injury actions. In some HCA cases, and in professional negligence cases, it is six years. This is the period during which the claim must be brought. It begins in theory when the cause of action (i.e. the index incident) occurred. In HCA and clinical negligence cases, it begins when the claimant has the relevant ‘knowledge’: (1) that the injury was significant (whether a reasonable person with the claimant’s knowledge would have considered the injury sufficiently serious to justify suing a defendant who did not deny liability and had the means to pay, an objective test for which the impact of the claimant’s injuries on his ability to issue proceedings is not a relevant consideration (A v Hoare [2008] UKHL 6); (2) that the injury is attributable in whole or part to the act or omission which constitutes the alleged negligence or breach of duty; and (3) the identity of the defendant. ‘Attributable’ means ‘capable of being attributed to’ or ‘a real possibility’ (Spargo v North Essex Health Authority [1997] 3 WLUK 252).
This leads to questions such as when actual knowledge was acquired and whether the claimant had constructive knowledge at an earlier date. In a negligence case, a claimant may not acquire actual knowledge until their solicitors receive a report from an expert who attributes significant injuries to a breach of duty. In an HCA case, the claimant may not acquire actual knowledge until receipt of a report that attributes significant psychiatric damage to the alleged abuse.
What constitutes ‘actual knowledge’ partly depends on the ‘particular patient’:
Whether or not a state of mind … is properly to be treated … as knowledge seems … to depend, in the first place, upon the nature of the information which the claimant has received, the extent to which he pays attention to the information as affecting him, and his capacity to understand it. There is a second stage at which the information, when received and understood, is evaluated. It may be rejected as unbelievable. It may be regarded as unreliable or uncertain. The court must assess the intelligence of the claimant; consider and assess his assertions as to how he regarded such information as he had; and determine whether he had knowledge of the facts by reason of his understanding of the information.
‘Constructive knowledge’ refers to how a claimant would have had ‘actual knowledge’ if they had asked the right questions or sought the right advice earlier. The Limitation Act 1980, s 14(3) refers to ‘knowledge which he might reasonably have been expected to acquire … from facts observable or ascertainable by him’, including ‘facts ascertainable with the help of medical or other appropriate expert advice which it is reasonable for him to seek’. Although the words ‘reasonable’ and ‘reasonably’ represent an objective test, personal or individual characteristics can be taken into account. Psychiatric evidence may be needed as to their nature and potential effects.
What amount to relevant characteristics can be problematic. In Adams v Bracknell Forest Borough Council [2004] UKHL 29, an intelligent man with severe dyslexia had not sought any advice about his literary difficulties because he did not want to talk about them. However, even though he had a social phobia, which arguably could have accounted for, or been connected with, his shyness and embarrassment, the court, on the basis that others with a similar dyslexia would not be so inhibited from asking the right questions or seeking expert help, ruled that his shyness and embarrassment should be disregarded; these characteristics were not relevant as they were strictly personal characteristics. There are likely to be further cases that require judicial decisions on the eligibility of characteristics. In such a case, you should do the following. Ensure that characteristics are specified with clarity. Refer to the evidence for their existence. Make clear whether they are a feature of a recognised mental disorder, thus allowing a distinction to be made between, for example, shyness as an ordinary personality characteristic and shyness as a feature of Asperger syndrome. Explain how the characteristic affects such processes as the abilities to pay attention to, understand and evaluate personally relevant information and make reasonable enquiries.
In England and Wales, the limitation period does not begin to run if the person was ‘under a disability’: ‘the action may be brought before the expiration of three years from the date when he ceased to be under a disability or died, whichever first occurred, notwithstanding that the limitation period has expired’ (Limitation Act 1980, s 28(1)). Section 38(2) defines ‘disability’ as a person who is ‘an infant or of unsound mind’ – the latter meaning ‘lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings’.
The Limitation Act 1980, s 33 provides the court with a discretion to allow a case to proceed ‘out of time’. This is the fall-back position for claimants in HCA cases who fail the objective test as to their date of knowledge because the impact of their injuries on their ability to issue proceedings is regarded as a relevant consideration for the court in deciding whether to exercise discretion.
A psychiatric report addressing limitation issues should have regard to some of the circumstances to which the court is particularly directed: factors which have influenced the claimant’s decision to come forward at the stage at which he did and the corollary, which is: reasons for delay on the part of the claimant; the duration of any disability of the claimant arising after the date of accrual of the cause of action; the extent to which the claimant acted promptly and reasonably once he knew whether the act or omission of the defendant, to which the injury was attributable, might amount to a cause of action; the steps, if any, taken by the claimant to obtain medical advice and the nature of such advice as he may have received; and the effect of his psychiatric injuries on his ability to issue proceedings. An impairment of health that falls short of a ‘disability’ may be relevant (Davis v Jacobs [1999] 3 WLUK 90).
In Ireland, the limitation period for most personal injury actions is two years from the date of accrual of the cause of action or the date of knowledge (if later). As an authorisation from the Injuries Board is a condition precedent to the issuing of any proceedings claiming damages for personal injuries (other than clinical negligence claims), in reckoning any period of time for limitation purposes, the period beginning on the making of an application to the Board and ending six months from the date of authorisation is disregarded, so in effect the limitation clock stops. There is a proposal to increase the limitation period to three years in clinical negligence cases only.
The ‘date of knowledge’ requirements and the tests are similar to those in England and Wales. However, there is no provision for the discretionary judicial extension of the limitation period other than in ‘exceptional circumstances’ in cases brought under the Residential Institutions Redress Act 2002, which provides for financial awards to adults who have, or had, injuries received in residential care, and the Hepatitis C Compensation Tribunal Acts 1997–2006. Such exceptional circumstances could include the effect or impact of mental or physical health problems or conditions on the plaintiff. A person is under a disability if of ‘unsound mind’, which is not defined in the Statute of Limitations 1957. There is a conclusive presumption of such under the Lunacy Regulation (Ireland) Act 1871, s 48(2) for any person detained pursuant to any enactment authorising ‘the detention of persons of unsound mind or criminal lunatics’. This means persons detained under the MHA 2001 or because of unfitness to plead or following the special verdict of NGRI. Additionally, in cases of historical sexual abuse, under the Statute of Limitations (Amendment) Act 2000, s 2, a plaintiff is under a disability while suffering from any psychological injury caused by the perpetrator of the abuse and of such significance that their will, or ability to make a reasoned decision, to bring such an action is substantially impaired.
In Scotland, there is a ‘prescription period’ of three years in personal injury actions. It can be extended to account for any period when the claimant was not aware, and could not with reasonable diligence have been aware, of the claimed loss. However, the Limitation (Child Abuse) (Scotland) Act 2017 has removed the limitation period in child abuse personal injury claims.
Road Traffic and Industrial Accidents and the Effects of Allegedly Negligent Medical Care
In accident and medical negligence cases, the questions asked are often in the form:
To provide a medical report detailing relevant pre-accident/incident medical history, the injuries sustained, treatment received and present condition dealing in particular with the capacity for work and giving a prognosis. To specifically comment on any areas of continuing complaint, disability or impact on daily living and, if there is such continuing disability, the level of suffering or inconvenience caused and when, or if, the complaint or disability is likely to resolve.
The facts or assumed facts that you should set out include:
an account of the accident or alleged medical negligence (the index event);
a summary of the physical injuries sustained, if any, by the claimant – you are not an expert on physical injury, but this can help in understanding the psychological injuries;
the social consequences of the index event (e.g. mobility, employment, self-care, leisure activities);
psychological symptoms subsequent to the index event, often as described by the claimant, but ideally including information from any informants;
relevant medical history, derived both from the claimant and also medical records, including all psychiatric symptoms documented both pre and post the index event;
mental state examination.
In the Opinion, set out:
any psychiatric diagnosis;
causation, considering predisposing, precipitating and maintaining factors;
treatment given and recommended;
present condition;
Any Relevant Medical History
A history of psychiatric disorder may indicate a predisposition, or what the law recognises as a vulnerability, to psychiatric disorder. This does not weaken or invalidate the claim. According to the ‘egg-shell skull’ doctrine, the defendant must take the victim as they find him. If as a result of unforeseen vulnerability, the injury is more severe, the defendant may nevertheless be liable for the injury in full. There may also be the issue of whether a psychiatric disorder was present at the time of the index event or would have occurred in any event.
Where previous physical ill-health has been complicated by psychiatric symptomatology, and especially if, with recurrence, chronicity or deterioration, the psychiatric symptoms have become more frequent or more severe, there will be the question of whether psychiatric symptomatology subsequent to the index event is related to the pre-existing and ongoing physical ill-health.
Diagnosis
Set out any psychiatric diagnosis or diagnoses. In straightforward cases, a paragraph on each diagnosis may suffice. It has become common convention to use ICD or DSM diagnoses. This is unnecessary unless you are asked to use them, but it can facilitate comparison of the opinions of two or more experts. If you rely on them, be aware of, and consider referring to, the cautions about their medicolegal application.
ICD-10 does not include any caution as to medicolegal application, although it makes it clear that it provides ‘general diagnostic guidelines’ and (p. x):
These descriptions and guidelines carry no theoretical implications, and they do not pretend to be comprehensive statements about the current knowledge of the disorders. They are simply a set of symptoms and comments that have been agreed, by a large number of advisors and consultants in many different countries, to be a reasonable basis for defining the limits of categories in the classification of mental disorders.
Similarly, DSM5 (p. 21) states: ‘Diagnostic criteria are offered as guidelines for making diagnoses, and their use should be informed by clinical judgment.’
DSM5 (p. 25) is also more explicit and specific, referring to how it was not developed:
… to meet … all of the technical needs of the courts and legal professionals … the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When … employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood … because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-5 disorder … does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specific legal standard.
ICD and DSM are the product of committees. The ICD provides broader criteria, allowing more people to be diagnosed; the DSM is more restrictive, so a smaller number of people meet the diagnostic criteria. Their diagnoses are not based on research to establish their validity or on any objective laboratory test, but it is not unusual at an experts’ meeting to find a psychiatrist ruling out a diagnosis because the claimant is one short of the required number of symptoms required by DSM. In R (B) v S (Responsible Medical Officer, Broadmoor Hospital) [2005] EWHC 1936, the court held that it was ‘a fair criticism of Professor H’s reports that … he adopted an over-rigid application of the DSM and ICD criteria’. One of the court’s findings was that ‘the setting of four days [for the duration of symptoms] is an arbitrary minimum’. This is entirely consistent with the Introduction to ICD-10 (p. x): ‘Statements about the duration of symptoms are also intended as general guidelines rather than strict requirements; clinicians should use their own judgement about the appropriateness of choosing diagnoses when the duration of particular symptoms is slightly longer or shorter than that specified.’
Whether relying on DSM or ICD, be familiar with the potential legal challenges to diagnostic testimony (Hagan and Guilmette 2015). Notwithstanding such challenges, their use is encouraged by lawyers. In Litigating Psychiatric Injury Claims, Marshall, Kennedy and Azib advocate the use of ICD or DSM as ‘a framework to “fit” an illness to and therefore justify it as recognisable … [because] without a label that is recognisable, a claimant is likely to have an uphill struggle to achieve compensation without a psychiatric condition that will fit one, or more, of the diagnostic descriptions’.
In Hussain v The Chief Constable of West Mercia Constabulary [2008] EWCA Civ 1205, we are told that: ‘A recognised psychiatric illness is one which has been recognised by the psychiatric profession. In general, they are illnesses that are within the ICD …’, and for ICD also read DSM.
That was unfortunate for the pursuer in Rorrison v West Lothian College (1999) Rep LR 102. A psychologist’s evidence that her ‘emotional symptoms constituted psychological damage’ was accepted, but the court found that she ‘had not pleaded any disorder that was recognised in DSM-IV … There is no evidence that she has ever been diagnosed by a psychiatrist as suffering from a recognised psychiatric disorder … The action accordingly falls to be dismissed.’
Not all judges are taken with ICD and DSM. His Honour John Cockroft said that between one case and another he forgot what the acronyms stood for. He also commented that there is too much emphasis on attaching a label to the claimant’s condition; it is the contents of the jar, not the label, that matters. He recalled psychiatrists agreeing everything relevant to the claim, but vehemently disagreeing as to diagnosis. His approach concurs with that taken in Noble: ‘[T]he precise characterisation of Mr. Noble’s psychiatric disorder does not signify. What matters are the symptoms of Mr. Noble’s condition and the prognosis.’ This echoes Gunn and Taylor (1993, pp. 102–103):
The doctor thus must attempt to determine the existence of any psychiatric disorder and its relation to the incident. The court is more concerned with the existence of disorder in itself, its attribution, and its consequences than with niceties of diagnosis and classification. Diagnostic terms should be used simply and conventionally, but it is unnecessary to follow slavishly definitions from textbooks and glossaries such as DSM III or ICD.
Justify the diagnosis by reference to the psychopathology. Indicate the extent to which the evidence from the medical records and any other corroborative evidence supports the diagnosis. Make clear if the diagnosis is based entirely on self-report. If diagnoses made by other experts are not supported, indicate this and say why. Where there is a range of reasonable opinion, state what other diagnoses may reasonably be made and indicate why yours is to be preferred.
Causation
Identify the conditions or disorders that would not have occurred ‘but for’ the index event (see Chapter 2, ‘The Liability (Breach of Duty and Causation) Report’). Identify those which would have occurred in any event. If there are multiple causes, distinguish them and distinguish between tortious and non-tortious causes. The doctrine of material contribution, which does not apply in Ireland, acknowledges that injury may have several causes which are not divisible. If the injury is indivisible, make this clear.
Beware of percentage apportionments between predisposing factors, the index event and independent precipitating or maintaining factors. It is common to see an apportionment along the lines: 20 per cent genetic predisposition, 20 per cent vulnerability from earlier life experiences, 40 per cent the index event and 20 per cent subsequent independent life experiences. This does not assist. It does not explain what difference the index event has made – ‘but for … ?’ Instead, have one paragraph beginning ‘As a result of the accident …’, then a paragraph beginning ‘In the absence of the accident …’.
Beware relying on epidemiological evidence to prove causation: ‘by its very nature, the statistical evidence does not deal with the individual case’ (Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10). If you rely on epidemiological evidence, be able to assist as to ‘how reliable the evidence is – whether, for example, the study has been properly constructed and, in particular, what the confidence intervals are’ because ‘[w]hat significance a court may attach to (epidemiological evidence) must depend on the nature of the epidemiological evidence’.
Treatment Received and Recommended
This section can often be brief. Set out the form or forms of drug or psychological therapy that have been employed. Make clear if treatment has been insufficient, such as an inadequate antidepressant dosage or too little cognitive behavioural therapy (CBT). Make clear if there is treatment that ought to have been given that has not been given.
If the claimant has not complied with treatment, explain why. So, ask about failure to attend appointments, discontinuation of medication or a frequency of repeat prescriptions which suggests that medication has been missed. This is because a claimant is under a duty to mitigate her loss. A distinction has to be made, by the parties or the court, between the claimant who is simply uncooperative with treatment and one whose failure to comply with treatment is understandable – misunderstandings, appointments at genuinely inconvenient times or places, intolerable drug side effects, difficulty in engaging with the therapist, etc.
If there are outstanding requirements as to treatment, these have to be set out with sufficient detail for the treatment to be costed, as it may need to be obtained independently, and for it to be arranged.
Present Condition
‘Present condition’ means the severity of the injury in terms of the degree of suffering and impairment of functioning or functional deficit. Although the categories of damage in the Judicial College Guidelines mix up condition and prognosis, it is usually helpful to consult them and ensure that here information is provided as to matters taken into account in deciding the severity of the injury (Box 8.1).
Box 8.1 Matters Taken into Account by Lawyers and the Courts in Deciding the Severity of the Damage Sustained under the Judicial College Guidelines
(i) the injured person’s ability to cope with life and work;
(ii) the effect on the injured person’s relationships with family, friends and those with whom he or she comes into contact;
(iii) the extent to which treatment would be successful;
(iv) future vulnerability;
(v) prognosis;
(vi) whether medical help has been sought;
(vii) claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage … Others have an element of false imprisonment. The fact of an abuse of trust is relevant … A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognized, or even denied. Awards should take into account not only the psychiatric effects of the abuse on the injured party but also the immediate effects of the abuse at the time that it was perpetrated, including feelings of degradation.
It is then possible to grade the claimant’s condition by reference to the categories of severity in the Judicial College Guidelines, but this is not essential and it can be argued that this is for the parties or the court having regard to their evaluation of all of the evidence. Experts have been criticised for not using the classification, and experts have been criticised for doing so! Criticism may be avoided by using the classification and adding your acknowledgement that this is an ultimate issue ‘for the parties to agree or for the court to decide’ (an often helpful phrase in any report). The categories of psychiatric damage generally and specifically for PTSD are ‘severe’, ‘moderately severe’, ‘moderate’ and ‘minor’, but the criteria differ slightly.
In Ireland, questions to guide the assessment of the severity of an injury were set out in Shannon v O’Sullivan [2016] IECA 93 (Box 8.2). The standard form assessment report used by the Injuries Board asks the examining clinician to indicate the degree, if any, to which the claimant’s condition is currently affecting their ability in a range of activities, whether normal, mildly, moderately, severely or profoundly impaired. It also asks for the ICD classification of the claimant’s disease, and for the reporting clinician to indicate the degree (in 25 per cent quanta) to which they feel the claimant’s symptoms/disability have been caused by the index event.
Box 8.2 Questions to Guide the Assessment of the Severity of a Given Injury in Ireland
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
The effect on capacity for work or ‘earning capacity’ is usually of importance because often the loss of earnings claim is a major, and sometimes the only contentious, element of the sum of compensation claimed. So, state whether the claimant is under a disadvantage on the labour market and whether they are under a disability, as this affects the way in which their future loss of earnings is calculated. To be classified as disabled, three conditions have to be met:
the claimant has had an illness or disability which has lasted or is expected to last for over a year or is a progressive illness;
the claimant satisfies the Equality Act 2010 definition that their disability substantially limits their ability to carry out normal day-to-day activities (see Chapter 13, ‘Normal Day-to-Day Activities’); and
the condition affects either the kind or amount of paid work they can do.
The claimant may take longer to find work and they may be unable to do the same work as previously.
Prognosis
Cases cannot go on forever, but if you have not been paid for your report it may seem like it. Cases have to be settled by the parties or decided by the court on the basis of a prediction as to the course and outcome of the claimant’s condition, including the award of damages for what might happen in the future. This is often one of the most difficult parts of a condition and prognosis report. It is difficult enough to predict the course and outcome of a psychiatric disorder in clinical practice; it is more so where people know that the level of damages will take into account the duration and outcome of their condition. Here, the test in England and Wales is the ‘real’ likelihood of future events occurring or not occurring.
A further matter that sometimes has to be addressed is the risk of deterioration because in some jurisdictions a judge can award ‘provisional damages’ where the evidence persuades her that, although the chances of deterioration are less than 50 per cent, there is nevertheless a real risk that a substantial deterioration may occur in the future. Here, lawyers can and do expect percentages, set out for example as a 20 to 30 per cent risk, and accompanied by an estimate of how long the deterioration would last and with what effect on activities of daily living and employment. In Ireland, there is no provision at common law for ‘provisional awards’ and it is not provided for by statute other than in the context of awards made by the Hepatitis C Compensation Tribunal. The possibility of further adverse effects falls to be provided for, insofar as intuitively possible, by the making of a one-off award of damages, based on the probabilities, but noting the non-probable possibilities.
Also indicate whether or not the claimant has been rendered more vulnerable to psychiatric disorder in the future.
When the issue is life expectancy, psychiatrists are likely to identify with the neuropsychiatrist in Arden v Malcolm [2007] EWHC 404 (QB) who sought to defer to a medical statistician, declaring that he was ‘no expert on matters of life expectancy, although like anybody else in the field I am familiar with the literature, but I am not an epidemiologist, and the mathematics of calculating reduced life expectancy … is complicated’. However, the court followed Royal & Sun Alliance Insurance v T&N Ltd [2002] EWCA Civ 1964, holding that clinician experts should be the normal and primary route through which statistical evidence should be put before the court. Not least with Meadow in mind, psychiatrists ought to decline to give such statistical evidence. Fortunately, Mays v Drive Force (UK) Ltd [2019] EWHC 5 (QB) is supportive of such a position, it being held that statistical evidence is admissible in appropriate cases alongside the evidence of clinicians. Appropriate cases were identified as ones in which a number of potential co-morbid factors are in issue. So, in cases where the claimant smokes, is obese or has co-morbid physical diseases, recommend the instruction of a medical statistician.
Related posts:
Chapter 3 – Training, Development and the Maintenance of Expertise
Chapter 4 – Business Matters
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 12 – Reports in Immigration and Asylum Cases
Chapter 17 – Going to Court
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