Abstract
Peter C. Gaughwin, Adelaide, South Australia:
Trauma evidence, in particular Posttraumatic Stress Disorder (PTSD), has become an area of controversy in both psychiatry and the law 12. Part of the controversy can be found in understanding the nature of the stressor in the context of a patient's history. For psychiatrists and lawyers, trauma claims can be a litigation minefield. Professor Tennant's excellent paper [3] provides thoughtful consideration of this minefield.
As a lawyer, much of my day is now spent considering the assessments of psychiatrists on persons who have been the victims of crime, both minor and major. It never ceases to amaze me how plaintiffs, who are reported by the assessor as having no psychiatric history or personality problems prior to the crime, now suffer chronic PTSD and meet almost every sub-criterion of Criteria A-F for PTSD, as set down in the DSM-IV-TR. Often such a diagnosis is given when the stressor is objectively minor, such as a slap on the face, or discovering that someone has broken into one's home while one was away. Commonsense, even before rigorous clinical judgement is applied, ought to suggest that something here is askew.
Thus, from a legal perspective, doubts are raised as to the accuracy or otherwise of the psychiatrist's diagnosis. This then sets in train the kind of unfortunate process described in a series of articles, ‘Psychiatry in the dock’, published in The Australian last year. Playing ‘fast and loose’ with diagnostic criteria, as Simon has commented in discussing PTSD [2], is going to benefit no one, even if superficially it appears to do so [4].
However, even with persons with prior or existing psychopathology care needs to be taken, as Professor Tennant cautions. In the context of psychiatric injury, the question asked by the Courts is whether the stressor is of such a nature that, forseeably, the ordinary, robust person could suffer psychiatric injury as a consequence. If the answer is no, then the plaintiff fails; if the answer is yes, then damages are assessed accordingly [5]. The test does not apply, however, if the defendant has knowledge of the plaintiff's vulnerability [5].
Professor Tennant's final paragraph (p.84) ought to be enshrined in the training programs for all psychiatrists and lawyers. It is a very lucid description of the role of the psychiatrist in the forensic setting. Thus, when requested by a lawyer to write a report, a psychiatrist ought to remind the lawyer that his/her role in this context is not that of an advocate for either side. Such an approach may have the benefit of cutting down requests from lawyers who believe that PTSD in particular is a natural consequence for any person who has experienced a wrong. Those psychiatrists who feel they cannot be so objective may wish to consider, for the sake of their profession and those with whom they deal, whether they should be conducting forensic assessments. This assumes, however, that transference issues, or what Professor Tennant calls ‘positional biases’, are understood and in check. My experience, alas, suggests such an assumption may be ingenuous!