INTRODUCTION In order to recover damages for mental injury, legal opinion is that is necessary to prove that the claimant has sustained a recognisable psychiatric illness caused by the defendant's breach of duty. A recognisable psychiatric illness is not shock, grief, distress or some other emotion, but a positive illness recognised as such by psychiatrists.

This does not mean a ìnervous breakdown.. you don't have to establish that the claimant totally fell apart, had to be sedated or hospitalised.. it is enough to show that he suffered an illness such as depression, post-traumatic stress disorder or chronic fatigue syndrome. .. the claimant may appear entirely normal.. even.. working, but experiences flashbacks..or visits from what Churchill called ìthe black dog..what is vital is that there is a defined illness leading from the initial shock...

THE EVIDENCE NEEDED Expert evidence from someone adequately qualified to give it, such as a psychiatrist or a clinical psychologist. The court is unlikely to accept the opinion of an orthopaedic consultant on a psychiatric/psychological issue, but might well accept the evidence of the claimantís general practitioner in a small case."

To summarise, therefore, in cases where there is a possible psychiatric injury, the lawyer requires Expert psychiatric evidence of recognised psychiatric illness leading from the initial shock, and I begin by considering these three points separately:

1 PSYCHIATRIC EXPERT TESTIMONY
2 RECOGNISED PSYCHIATRIC ILLNESS
3 CAUSATION (LEADING FROM THE INITIAL SHOCK)

1) PSYCHIATRIC EXPERT TESTIMONY As previously indicated, the opinion of the patient's GP might be acceptable in a small case, but where a significant mental injury is suspected, the lawyer will need to instruct someone who will be recognised by the Court as an expert in this field.

This will usually be either a psychiatrist or a psychologist. I now consider the differences between the two professions, and between the reports they provide to the Courts.

A psychiatrist is a medical doctor. After a minimum of 5 years, he or she gains qualifications denoted MB or BM, B Ch., and then does the probationary houseman year. They will then train for a further (minimum) 6 years in psychiatry, and will sit a further postgraduate qualifications (MRCPsych (Membership of the Royal College of Psychiatrists)) before becoming eligible for appointment as a Consultant Psychiatrist.

A psychologist is not a medical doctor. They take a first degree of BSc or equivalent, followed by 3 years or more of postgraduate training to become one of various types of practitioner, for example, a Chartered Clinical Psychologist.

Lawyers sometimes ask how they should choose whether to instruct a psychiatrist or psychologist in a given case.

Obviously, speaking as a psychiatrist, my views may be somewhat biassed on this, but I think that a report from a psychiatrist is generally regarded as a more  weighty opinion by the court, since a psychiatrist is a medical doctor with a wider training. A psychiatrist has powers such as the prescription of medication and in respect of the Mental Health Act, which are not available to a psychologist. Psychiatrists but not usually psychologists have charge of inpatient beds. Psychiatrists will frequently lead an NHS clinical service where the team includes a psychologist, through the converse is not usual.

However, in certain areas, a psychological report is indispensable. For example, neuropsychologists are needed in cases of brain injury, where quantitative testing of memory and other intellectual functions is required.

In summary, a medical report from a psychiatrist has been generally regarded as having more weight, and this probably continues to be the case. However, there are specific areas where a report from a psychologist is needed.

FIRST CATCH YOUR EXPERT There are various ìmedicolegal agencies which act as intermediaries, but the reputation of this sector, at any rate with doctors, is low, as many of them have gone bust owing money. Presumably agencies have some attractions to lawyers in making expert opinion more easily available.

Websites and directories can help lawyers find experts directly.

Ultimately, however, it seems that word of mouth remains the best way for lawyers to find psychiatric and other experts. A continuing relationship between lawyer and expert may offer mutual advantages.

Academic eminence may be key in certain fields, but is not necessarily accompanied by the ability to produce satisfactory reports or perform well in the witness box.

Lawyers may wish to know whether an expert they propose to instruct has had training for medicolegal work.  Membership of organisations such as the Society of Expert Witnesses shows a certain minimum standard in the expert, as it may require references from lawyers who have previously instructed him. However, this would presumably not be regarded as a substitute for a personal recommendation.

Where the patient is already under psychiatric care, a report might be instructed from the treating psychiatrist. (This is often done in smaller criminal cases.) This might be a cheaper option in civil cases, but has potential disadvantages in that the report is likely to lean somewhat in favour of the patient, as clinicians naturally tend to try to assist those under their own care. There is also a potential conflict of interest between their duty to the patient and duty to the Court. Furthermore, many or indeed most clinical psychiatrists have limited training in and enthusiasm for the specific requirements (e.g. post-Woolf) for the provision of reports.

These various factors may make such reports less able to withstand scrutiny by the legal process.

Approved under Section 12 of the Mental Health Act means that the doctor has a certain amount of experience in psychiatry (3 years plus) for the purposes of assessing patients, under the MHA but many of the people who have it are GPs and it is not a guarantee of medicolegal expertise.

2) RECOGNISED PSYCHIATRIC ILLNESS Psychiatric illness is defined essentially by the psychiatrist recognising the characteristic patterns of symptoms (complained of by the patient) and signs (findings of the doctor on examination).

These characteristic patterns denoting illnesses such as depression or anxiety are ìfinal common pathwaysî, that is, the same clinical picture can be produced by a variety of different causes.

The cause of the illness is not necessarily predictable from the clinical picture. Current international systems of classifying psychiatric illness such as DSM or ICD (see below) are essentially descriptive, and do not make assumptions about the presumed causes of the various illnesses. (In this respect, they represent a necessary and welcome retreat from the Freudian / psychoanalytic dominance of early editions of the American DSM classification.)

Hence, we must consider separately:

• Is there a recognised psychiatric illness?
• If so, what has caused it?

In practice, recognised psychiatric illness means a condition described in one of the two major classifications, DSM or ICD.

DSM stands for Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM-IV), of the American Psychiatric Association.

ICD stands for International Classification of Diseases, 10th Revision, known as ICD10. It is produced by the World Health Organisation, and is the official classification for the rest of the world, including the UK NHS.

ICD10 is free online. DSM is by subscription, though unofficial versions exist4.

DSM vs ICD Until the publication of DSMIII in 1980, US psychiatry, as previously indicated, was heavily influenced by Freudian and other psychoanalytic theories which, although of continuing interest to many, are now agreed to be without scientific basis. DSM since then has caught up with ICD in eschewing theory in favour of observation, and has gained in influence, bringing to prominence now-familiar terms such as major depression and PTSD.

DSM is sometimes seen as more rigourous, in that (see page xxx of the introduction) it requires that, in order to constitute a diagnosis, symptoms should be not just ìan understandable reactionî, bearing in mind the personís culture and circumstances. This introduces a threshold, which has to be crossed for symptoms to constitute a diagnosis, but the point is not made clear in the ICD.

Unlike ICD, which just covers the presence or absence of listed mental disorders, DSM is "multiaxial", trying to give a more holistic guide:

Axis I: mental illnesses, an illness being defined as a state of impaired health with a clear onset following a period of normal function.

Axis II: Personality Disorders and learning disability (formerly called Mental Retardation); here, the abnormalities are permanent, and are apparent from adolescence or earlier.

Axis III: Physical health problems.

Axis IV: Psychosocial and Environmental Problems ìis for reporting psychosocial and environmental stressors that may affect the diagnosis, treatment, and prognosis of mental disordersî.

Axis V: Global Assessment of Functioning Scale ìis for reporting the clinician's judgement of the individual's overall level of functioning and carrying out activities of daily living. This information is useful in planning treatment and measuring its impact, and in predicting outcome.

The DSM is sometimes referred to in reports, though usually just relating to Axis I. Reports should explain the terms DSM and ICD, and why they are being used.

CAVEATS CONCERNING DSM & ICD These systems are guides only, describing conditions coming to the attention of psychiatrists. They are not intended for lay use, but to summarise the assessment of the clinician. They were not designed specifically for medicolegal use.

ìBest estimatesî rather immutable scientific truths, there are differences between DSM and ICD, and between successive editions. They are ultimately no more than consensus statements of committees of clinical researchers, but nevertheless do form a useful summary of the ìstate of the artî.

Real patients seldom fit neatly into the categories, indeed they may have more than one diagnosis, as they are not mutually exclusive.

GENERAL EFFECTS OF DISTRESS An accident may precipitate an episode of mental illness. However, the psychological effects of an accident, even without a frank episode of illness, may have a significant impact on the patient, for example:

• regarding co-operation with medical treatment of physical injury, for example failure to engage in physiotherapy or rehabilitation or to take medications as prescribed
• subtle effects on family, work or social life, such as "she's less sociable..more irritable..not really herself.."

TYPES OF SYMPTOMS A variety of feelings are seen, including:

• shock & distress in the early stages
• anxiety
• depression
• personality change
• substance misuse
• not usually psychotic symptoms
• chronic pain/ whiplash

COMMON PSYCHIATRIC ILLNESSES AFTER ACCIDENTS

Acute stress reaction ICD code F43.0. This is a transient, post-trauma reaction, which typically begins in minutes, and resolves in hours or days. The subject may be dazed and disorientated, with agitation, and emotional upset. There are prominent anxiety symptoms, e.g., sweating, pounding heart, flushing. It is present in up to a third of people after a road traffic accident. It usually resolves naturally, but if it does not can develop into PTSD (though PTSD may occur without the acute stress reaction).

Adjustment disorder ICD code F43.2: This is probably the commonest diagnosis following the occurrence of a significant life change or stressor. It consists of a short period of distress and emotional disturbance, with a mixture of depression and anxiety symptoms. It resolves within 6 months of onset (though a depressive subtype can persist for up to a year).

Depression The DSMís "major depression" is the most influential description in current psychiatric practice. Major depression is said to be present when a person has 5 or more of the following symptoms for more than 2 weeks:

• depressed mood
• inactivity and withdrawal from usual activities, a loss of interest or pleasure in activities that were once enjoyed (such as sex)
• a dramatic change in appetite, often with weight gain or loss
• trouble sleeping or excessive sleeping
• agitation, restlessness, and irritability
• fatigue and lack of energy
• feelings of worthlessness, self-hate, and inappropriate guilt
• extreme difficulty concentrating
• thoughts of death or suicide

ICD contains similar definitions for depressive episode F42, mild moderate and severe. Terms such as endogenous and reactive depression have been dropped as they are not felt to describe real differences.

Anxiety disorders A group of related disorders, which overlap with each other and with depression. The main types are:

Generalized anxiety disorder F41.1 Anxiety that is generalized and persistent but not linked to any particular situation (i.e. it is "free-floating"). The dominant symptoms are variable but include complaints of persistent nervousness, trembling, muscular tensions, sweating, lightheadedness, palpitations, dizziness, and epigastric discomfort. Fears that the patient or a relative will shortly become ill or have an accident are often expressed.

Panic disorder F41.0 The essential feature is recurrent attacks of severe anxiety (panic), which are not restricted to any particular situation or set of circumstances and are therefore unpredictable. As with other anxiety disorders, the dominant symptoms include sudden onset of palpitations, chest pain, choking sensations, dizziness, and feelings of unreality (depersonalization or derealization). There is often also a secondary fear of dying, losing control, or going mad.

Social phobias F40.1 Fear of scrutiny by other people leading to avoidance of social situations. More pervasive social phobias are usually associated with low self-esteem and fear of criticism. There will be avoidance distress and often panic and depression.

Agoraphobia F 40.0 A fairly well-defined cluster of phobias about being in a situation it would be hard to escape from, such as being away from home, entering shops, crowds and public places, or travelling alone in trains, buses or planes. Avoidance of the phobic situation is often prominent.

Specific (isolated) phobias F40.2 Phobias restricted to highly specific situations such as spiders, heights, thunder, etc. Though the triggering situation is discrete, contact with it can evoke panic as in agoraphobia or social phobia.

Travel anxiety is a type of specific phobia, which is especially important after road traffic accidents; it has in the past been underdiagnosed. Features include

• mileage down, with avoidance of non-essential journeys
• slower driving (sometimes dangerously so )
• anxiety when passing scene of accident or in similar situations
• total avoidance of travel can occur
• change to safer car or safer transport method

Travel anxiety tends to be worse as a passenger, presumably because the subject feels out of control. There is often ìbackseat drivingî and ìphantom brakingî, i.e. stamping on a non-existent brake pedal.

Post-Traumatic Stress Disorder (PTSD) F43.1 Psychiatry has always recognized syndromes such as shellshock as disorders following traumatic events. However, it was only in 1980 that DSM III described PTSD; it appears in ICD also, and the diagnosis has evolved significantly since its introduction.

The traumatic event (DSM definition) must involve ìdirect personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associateî (criterion A1)

The personís response (criterion A2) must have involved ìintense fear, helplessness, or horrorî.

There are 3 cardinal groups of symptoms:

• re-experiencing the traumatic event (nightmares and flashbacks) criterion B
• avoidance of trauma-associated circumstances (cf. phobic anxiety) criterion C
• increased arousal (similar to generalised anxiety) criterion D

Finally, the symptoms must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).

PTSD: examples of stressors sufficient to qualify for Criterion A:

How common is PTSD? Community surveys show that exposure to traumatic events is the rule rather than the exception, having happened to up to 90% of subjects at some time. PTSD is much less common, being found in less than 10% in the same surveys. This apparent discrepancy is because:

• not all those exposed to a traumatic event develop PTSD
• PTSD tends to resolve naturally in many cases

As would be expected, rates of PTSD after accidents are somewhat higher, and figures of approximately 20% at 3 months and 15% at one year have been suggested amongst road traffic accident victims who attend hospital.

SOMATOFORM DISORDERS ìThe main feature is repeated presentation of physical symptoms (e.g. pain) together with persistent requests for medical investigations, in spite of repeated negative findings and reassurances by doctors that the symptoms have no physical basis.î

The category was introduced only in 1980 with DSM III. There are similar conditions in ICD. However, there are differences between the two systems in this area, reflecting continuing disagreement and uncertainty about them. Nevertheless, they are very important medicolegally.

Persistent somatoform pain disorder F45.4 ìThe predominant complaint is of persistent, severe, and distressing pain, which cannot be explained fully by a physiological process or a physical disorder, and which occurs in association with emotional conflict or psychosocial problems that are sufficient to allow the conclusion that they are the main causative influences. This diagnosis may be made in cases of chronic pain and whiplash.

The pain is regarded as not intentionally produced by the patient. The presence or absence of this diagnosis in cases of chronic pain not explained by physical injury may therefore be very important for the legal process,

Hypochondriacal disorder F45.2 The essential feature is a persistent preoccupation with the possibility of having one or more serious and progressive physical disorders. Normal or commonplace sensations and appearances are often interpreted by patients as abnormal and distressing, and attention is usually focused upon only one or two organs or systems of the body. Marked depression and anxiety are often present, and may justify additional diagnoses. The focus is on the fear of disease, rather than, as in somatoform pain disorder, the presentation of the pain itself.

Dissociative [conversion] disorders F44 The best known example would be a paralysis of a limb following a nervous shock; formerly known as hysterical paralysis, it would now be known as a dissociative motor disorder F44.1. The paralysis is regarded as not consciously produced, but there is no physical disease causing it.

These conditions ìtend to remit after a few weeks or months, particularly if their onset is associated with a traumatic life event. More chronic disorders, particularly paralyses and anaesthesias, may develop if the onset is associated with insoluble problems or interpersonal difficulties. These disorders are presumed to be psychogenic in origin, being associated closely in time with traumatic events, insoluble and intolerable problems, or disturbed relationships. The symptoms often represent the patient's concept of how a physical illness would be manifest. Medical examination and investigation do not reveal the presence of any known physical or neurological disorder. In addition, there is evidence that the loss of function is an expression of emotional conflicts or needs. The symptoms may develop in close relationship to psychological stress, and often appear suddenly.

Other disorders which may be encountered include substance misuse (this does not have to be frank addiction, but can just be excessive or harmful consumption e.g. F10.1 Mental and behavioural disorders due to Alcohol: harmful use) and conditions where there does not seem to be a diagnosable illness but the patient is ìnot quite the sameî (e.g. F62 Enduring personality changes, not attributable to brain damage and disease).

Please see my separate chapters for consideration of:
ASSESSMENT
CAUSATION
TREATMENT
CBT
PROGNOSIS

CONTROVERSIAL AREAS I now touch briefly on some aspects where lawyers may find themselves, either now or in the future, on uncertain or disputed ground.

I discuss malingering in general in a separate chapter, but there are a couple of points specifically regarding psychiatric injury which I now discuss.

Consideration of possible malingering is an intrinsically difficult area for doctors, who are trained to a caring profession; in daily clinical work, there may be a tendency to avoid the whole potentially explosive issue, especially if the doctor will still have to look after the patient after the question has been broached. So, the benefit of any doubt tends to be given to patient.

Of course, this may be fully appropriate in clinical practice, the doctor sometimes almost acting as the patientís advocate in their dealings with the work/ healthcare/ benefits systems. A more dispassionate approach is needed in medicolegal assessments, however.

Even lawyers may be chary of using the word, as it is tantamount to an accusation of deception. ..accusations of malingering should not be made lightly and are likely to incur the displeasure of the court unless supported by substantive evidence...

In Ford v. GKR Construction (C.A. Lord Woolf MR, Pill and Judge L.JJ, TLR 5/11/99) .. video evidence .. tended to suggest that the claimant was able to manage substantially better than she had been prepared to admit.. The defendants sought their costs .. on the basis that the claimant had failed to beat the payment in. The claimant was, nevertheless, awarded the costs of the action and the Court of Appeal dismissed the Defendantís appeal. If allegations of malingering or exaggerating symptoms were to be made, fairness demanded that the Claimant should have a reasonable opportunity to deal with them..The lesson to be drawn is that evidence of malingering should be adduced at the earliest possible stage and the claimant must be given every opportunity to deal with such evidence within the pre-action protocols for personal injury and clinical dispute claims.

Research and academic evidence on the question is conflicting. On the one hand, is the view of Miller, that ìcompensation neurosisî leads to exaggeration of problems until the award of damages, which then when the problems rapidly resolve. This is now generally regarded as an extreme view, based on highly selected and contentious cases.

However, the opposite idea, that outcome is not dependent at all upon the possible award of compensation seems equally untenable, with well-documented examples of malingering.

All this however is of little use in the assessment of the individual claimant. There are no tests or lie detectors in general use (though automated tests of effort in performing tests are in development, e.g. the TOMM, Test of Malingered Memory). Rather, we must rely on the overall clinical assessment, looking for the injuries to be in proportion to the ostensible cause, and for consistency of accounts and impairments within and between assessments.

SOMATOFORM DISORDERS These can be extremely controversial and difficult for all parties. Typically, a claimant report may describe a somatoform pain disorder, but a defendant report indicates no diagnosis, or alleges deliberate exaggeration. However, the issues are less likely these days to be tested in court, with apparent incentives to early settlements. From a medical point of view, these seem likely to remain grey areas.

POST-TRAUMATIC STRESS DISORDER arose in DSM III (1980) out of the US response to ex-servicemen returning from Vietnam. They were, of course, on the losing side, and came back to a US which had turned against them. Some developed problems, whether behavioural, mental, social or addictive, though did not have physical disability easily entitling them to state aid. Thus, PTSD can be seen at least in part as having been introduced into the DSM classification to provide a diagnosis which would be a way of helping such ex-soldiers, through entitling them to Veterans Affairs benefits.

This semi-political genesis of the concept brought with it some potential flaws, for example that the assessing doctor, has to decide whether the trauma described was bad enough to justify the diagnosis, when he was not there, and is essentially an expert not in traumatic events but in medicine.

And the assessment has to be done based on the patientís account, which may be coloured by many subsequent factors, such as his current mental state.

There are those who predict the eventual demise of the concept, though it appears likely to be with us for some time to come.