Exploring the Interplay of Post-Traumatic Disorder and Legal Dynamics

Introduction

Post traumatic disorder is the only psychiatric illness where the aetiology is clearly attributed to. The disorder has become increasingly prominent in the legal system to such an extent that its exponential increase in prominence had created the suggestion that non biological factors were influencing its prevalence. In particular, the rise of litigation and manipulation of the disorder for legal purposes had been attributed to the observed trend. For students who are delving into this complex topic, seeking psychology dissertation help offers invaluable support in navigating the intricate theories and research that surround post-traumatic disorder.

This essay will focus on the reasons for such views to have come about in two parts. The essay will first set out the current definition of post traumatic disorder and the significance of PTSD in law. Using authorities from the tort law and criminal law, the essay will explore how post traumatic disorder is used in cases related to negligence and as a defence against criminal liability. The second part will focus on the diagnosis and its interactions with the law. The essay hopes to convey that whilst the diagnosis no doubt exists, it is over inflated, manipulated and therefore, a significant portion of cases are likely caused by the law.

DSM

Mental injury from disasters and tragedies have been documented in literature and writing even prior to any records in scientific studies. The Iliad of Homer and Odyssey had described soldiers traumatised by war. Terms like soldier’s heart, shell shock, railway spine all came about to describe a syndrome of distress related to trauma. After the Holocaust, awareness of the symptoms became more prominent even though majority of survivors returned to work with few indicators of impairment.

Biological findings in PTSD are undeniable. Classic areas of brain affected are amygdala, hippocampus, prefrontal cortex with inhibitory control influencing emotional and memory functions. Insula and singulars cortex also involved. Amygdala is over active. However, both clinically and in the forensic setting, neurological findings in the brain have seldom been used to diagnosis PTSD. Akin to the use of neuropsychological testing in diagnosis in the legal setting, neuroimaging has not been deemed diagnostic in clinical psychiatric practice. This is primarily based on the acceptance that there are varied responses to trauma. The presence or absence of neuroimaging changes has not been deemed to be sufficient evidence to ascertain the presence or absence of the disorder.

‘History of PTSD and Trauma Diagnoses - Shell Shock to the DSM’, Trauma dissociation
Ibid.
Joel Sadavoy, ‘Survivors: A Review of the Late-Life Effects of Prior Psychological Trauma’ (1997) 5(4) The American Journal of Geriatric Psychiatry 287 (‘Survivors’).
Gerald Young, ‘PTSD in Court II: Risk Factors, Endophenotypes, and Biological Underpinnings in PTSD’ (2017) 51 International Journal of Law and Psychiatry 1 (‘PTSD in Court II’).
Ibid.
Ibid.

It has been said PTSD is a trendy political diagnosis to excuse any behaviours. It was invented by a society wanting to find someone to blame and compensation for the distress. This is one of the claims that need to be responded to by law and the legal system if PTSD is to continue being a relevant factor in determining defence under the law. The use of PTSD as a defence for excusing criminal behaviour suggests the need for such response. Around the time of Vietnam Veterans return from an unpopular defeat in the 1980s, DSM III brought about post-traumatic stress disorder. A variety of psychological complaints had since been attributed to the diagnosis of PTSD – personality disorder, anxiety, depression, substance abuse, even psychotic illnesses. It was postulated as a way antiwar psychiatrists and veterans caution the government in future participation in someone else’s conflict. Some argued that PTSD was an ideological concept disguised in medical terms. For instance, in 1981, Newsweek described PTSD as a “malady that Vietnam vets brought home with them that has now landed in the courts as the latest wrinkle in the insanity defense”.

Clearly, everyone did not agree that PTSD could offer a valid or legitimate defence for escaping criminal or tortious liability. On the other hand, in psychiatry, the development of PTSD as a phenomenon continued. New terms were used to accompany this diagnosis. Rumination of the traumatic event was known as re-experiencing. Phobic fear associated with the event became avoidant behaviour. Hyperarousal came to stand for physiological symptoms of anxiety. Prior to the formation of this diagnosis, veterans were documented to have symptoms of anxiety, sleep disturbance and poor concentration. After DSM, the mention of social avoidance and startled response was noted. UK veterans from the Gulf War were the first generation of veterans exposed to the DSM. UK veteran files did not contain ‘flashbacks’ from 1854 until the Gulf War. This illustrates how the diagnostic symptoms have been influenced by the language of the time. When a diagnosis is only reached by reporting and observation of symptoms, the accuracy of lexicon is vital, and changes can have significant influence on meaning and diagnosis.

Peter Gaughwin, ‘Psychiatry’s Problem Child: PTSD in the Forensic Context (Part 2)’ (2008) 16(2) Australasian Psychiatry 109 (‘Psychiatry’s Problem Child’).
‘PTSD History and Overview - PTSD: National Center for PTSD’
David Samuel Bell and John Reginald Champion, ‘PTSD: Another Forensic Epidemic of Pseudo-Illness’ (2013) 45(2) Australian Journal of Forensic Sciences 113 (‘PTSD’).
Wilbur J Scott, ‘PTSD in DSM-III: A Case in the Politics of Diagnosis and Disease’ (1990) 37(3) Social Problems 294 (‘PTSD in DSM-III’).
Bell and Champion (n 9).
Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Bell and Champion (n 9).
Ibid.
Ibid.
Edgar Jones et al, ‘Flashbacks and Post-Traumatic Stress Disorder: The Genesis of a 20th-Century Diagnosis.’ (2003) 182 The British journal of psychiatry : the journal of mental science 158 (‘Flashbacks and Post-Traumatic Stress Disorder’).

Criterion A of PTSD required the stressor to be “a stressor that would evoke significant symptoms of distress in almost anyone”. Kaplan and Sadock conceptualised the stressor to be “outside the range of human experience”. DSM III R incorporated this into the criterion although it allowed for person to learn of serious threat or harm to significant others. Notably, the definition of Criterion A has not provided any test to link the subsequent symptoms to the event in any of its evolution. DSM III specified the severity of stressor needed to be “extreme” or “catastrophic” to be deemed trauma. DSM IV lost the quantifying statement. This led to concerns of gradual dilution of the diagnosis which will be discussed later in the essay. DSM IV and DSM IV TR were essentially the same for PTSD. DSM IV TR added criterion A2 where the person had to experience “intense fear, helplessness or horror.” Thus the implication was someone watching horrors on TV or disasters could suffer from PTSD. It is limited by the need of proximity to the patient involved. In the most recent edition, DSM 5 has 20 symptoms grouped in 4 clusters.

Over a period of time, some criticism of the clinical definitions of the different PTSD criteria have been noted in the clinical field itself. There is also significant empirical evidence that indicates gaps or weaknesses in the clinical methods for assessment of PTSD. These ought to be considered in the legal context and responded to in the legal reform or legislation also. Criterion A2 has been criticised as asking a clinician to assess a person’s emotional response to trauma to decide if an event was traumatic. It has been challenged that it does not help with identifying PTSD but confounds the response with the stimulus. It was removed in DSM 5. Thus, the stressor no longer need to cause the intense fear, helplessness, horror in the person. Anyone who survived an event but did not experience traumatic reaction can potentially have PTSD.

Other criteria had changed in meaning through change of language. There is a different quality of the symptom D7 from “restricted range of affect” to “persistent inability to experience positive emotions”. In field studies, D2 and D 3 and D 4 did not add to understanding in 320 military veterans. Symptoms have been criticised to be repetitive and overlapping. D3 persistent negative or distorted beliefs, expectations or cognitions rely on observer inference rather than being objectively defined symptoms. In the 1940s, the World Health Organization took over Bertillon’s system and expanded it to include statistics on causes of injury and disease, producing the first version of the International Statistical Classification of Diseases, Injuries and Causes of Death (ICD). ICD 11 is the guideline compiled internationally which also contained mental illness diagnostic guidelines. ICD 11 emphasises clinical use, to be maximally intuitive to help communication, conceptualisation, implementation and application of the classification. ICD is not to define or elucidate a disorder’s “real’ nature, structure and interrelationship. PTSD in ICD 11 has core of 6 symptoms in 3 clusters – re-experiencing group, avoidance group, arousal group. One symptoms in each category is required for diagnosis of the disorder. It also has a separate but related diagnosis of complex PTSD requiring three more symptoms clusters – affect dysregulation, negative self-concept, and interpersonal disturbance, one from each. In a study involving 1212 Germans with traumatic history, Kliem et al found ICD 11 and DSM 5 gave different information. Patients diagnosed by the two set of criteria would only receive PTSD together in less than 50% of the time. O Donnell et al 2014 examined 510 patients in 4 Australian hospitals. Using a structured interview to assess for PTSD 72 months after trauma, DSM 5 compared to ICD 11 resulted in greater prevalence of PTSD with DSM 5 6.7% compared to ICD 11 at 3.3. Only 42% met criteria for both systems. This evidence indicates that there is no fool proof system in clininal field for diagnosing PTSD or the kind of PTSD correctly. Clinicians may not be able to predict if PTSD would affect a person under a given set of circumstances. Multinational study of diagnostic interviews to DSM IV, DSM 5, ICD 10 ICD 11 found that all 4 definitions had such low concordance that suggested to combine all 4 definitions together for future studies.

Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Ibid.
Ibid.
Center for Substance Abuse Treatment, Appendix E: DSM-IV-TR Criteria for Posttraumatic Stress Disorder (Substance Abuse and Mental Health Services Administration (US), 2009)
Ibid.
Ibid.
Meaghan L O’Donnell et al, ‘Impact of the Diagnostic Changes to Post-Traumatic Stress Disorder for DSM-5 and the Proposed Changes to ICD-11’ (2014) 205(3) British Journal of Psychiatry 230.
Michele Bedard-Gilligan and Lori A Zoellner, ‘The Utility of the A1 and A2 Criteria in the Diagnosis of PTSD’ (2008) 46(9) Behaviour research and therapy 1062.
Ibid.
‘PTSD Diagnostic Criteria from the DSM’ (n 21).
Bedard-Gilligan and Zoellner (n 26).
Ibid.
Ibid

To summarise the discussion in this section, it may be said that there is a fluidity of symptoms and changeable nature of diagnostic criteria, which have added to the scepticism over the scientific nature of the illness. Given this scepticism in academic work involving PTSD, it becomes important to understand how PTSD diagnosis affects legal outcomes of cases, particularly those in the area of law of tort and crimes, where liability is generally related to fault or intent. Liability can be escaped on the basis of PTSD diagnosis.

In 2010, US government conducted a large scale governmental study of PTSD and its impact on service members. On its finding of large number of comorbidities and dysfunctional symptoms, it recommended to increase access to treatment and rehabilitation options including to incarcerated veterans who may have PTSD. The public and elected leaders were recognising the responsibility the public have on these veterans. Public sentiment had been recommended to be used to argue to judges that they also have a duty to show compassion and promote rehabilitation of veterans.

‘International Classification of Diseases’
Ibid.
O’Donnell et al (n 25).
Ibid.
Ibid.
Gerald Young, ‘PTSD in Court I: Introducing PTSD for Court’ (2016) 49 International Journal of Law and Psychiatry 238 (‘PTSD in Court I’).
Ibid.
O’Donnell et al (n 25).
Ibid.
Bell and Champion (n 9).
Brockton D Hunter and Ryan Christian Else, ‘Legal Strategies for Defending the Combat Veteran in CriminalCourt’ (2017) 43 36.
Ibid.
Ibid.

In the study by Jennifer Wilson on Prosecutor pre-trial attitudes and plea bargaining behaviour towards veterans with PTSD found that persecutors viewed veterans as less blameworthy for the same offense than non-veterans. They were more likely to empathise and identify with veteran defendants as well as finding them less criminally culpable than with non-veteran defendants. Veterans were offered more treatment focused programs as opposed to just jail or probation. It was thought that prosecutors recognise that military life vastly different from civilian life. Adjustment was difficult. Thus having a diagnosis of PTSD gives advantage in litigation.

In Nevada v Matthew Sepi, Matthew Sepi shot two gang members due to hyperarousal symptoms of PTSD. It was agreed that charges would be dropped if he completed a substance abuse programme and PTSD treatment programme. In North Dakota v Brock Savelkoul, Savelkoul had an armed standoff with the North Dakota State Patrol with the intention of suicide by police. Charges of felonies and misdemeanour were all significantly reduced on agreement that he would plead guilty to the misdemeanour of reckless driving with 30 day prison sentence if he remain in counselling for three years because his behaviour were attributed to PTSD.

Thus, a diagnosis of PTSD can lead to significant advantages for the defendant. However, given the uncertain nature of the scientific evidence on PTSD, it becomes necessary to consider whether and to what extent PTSD can be used to dilute the liability of the defendants in cases involving tortious or criminal liability. The next part of the discussion in this essay will revolve around understanding how PTSD affects the decisions on liability of the defendant under the law of tort and crimes.

Tort and PTSD

Unlike criminal law, where menatal incapacity is specifically recognised as a defence against liability, tort law does not recognise any such specific defences on the basis of lack of mental capacity. Under the law relating to negligence, defences of volenti non fit injuria, contributory negligence, illegality, and risk are recognised, but there is no defence of mental incapacity. There has been some academic interest in whether mental incapacity can be recognised as a defence under tort law. One argument is against the use of mental incapacity defence in negligence cases. The opposing argument, made by Korrell and later by Gougkamp, is that the test of mental capacity should be applicable in determining liability in negligence as well. Gougkamp argues that insanity of the defendant could be responsible for negligent behaviour and ought to be considered as a defence where applicable.

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Ibid.
Jennifer Kelly Wilson et al, ‘Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior toward Veterans with Posttraumatic Stress Disorder’ (2011) 8(4) Psychological Services 319.
Ibid.
Ibid.
Ibid.
Hunter and Else (n 42).
Ibid.
Ibid.
Jenny Steele, Tort Law: Text, cases, and materials (Oxford University Press 2010).

The courts have increased tort liability to provide the public, insurance to injuries resulting from accidents. The aim was to provide those of lesser means, who could not have insurance, to be protected. Thus forcing employers to purchase insurance to avoid expensive tort actions. On the other hand, liability had been extended through strict liability, relaxation of causation standards, particularly by allowing recovery for emotional and other non economic losses. In this way, tort law had forced purchasing of high level of provider insurance.

Safeworks Australia had recognised the diagnosis as a disease thus is compensable. Worker’s rehabilitation compensation act means a worker can make a claim for compensation and the onus is on the employer to dispute the claim. Despite there being a possible case of mental incapacity of the defendant, courts have been hesitant to not attribute liability to the defendant in cases of negligence. It has been argued that “as between an insane person who injures another and an innocent person, it is more just for the insane person to bear the loss he caused than to visit the loss on the injured person”. The objective of this approach appears to be that an innocent person ought not to bear the loss or consequences for the negligent actions of another even if caused by mental incapacity. However, there may be a different approach taken by courts when the conduct of the defendant is not voluntary because for the person to be at fault, their conduct must be voluntary. This is demonstrated by the decision of the court in Slattery v Haley, where a driver lost control of a car after he was stung by a bee, but the court did not attribute liability to the driver as his act was not voluntary.

The cases indicate that there is no uniform approach to dealing with mental incapacity related negligence. This is not so for criminal liability, in which case mental incapacity of the defendant plays an important role in mitigation of culpability for the crime. Criminal responsibility arises where the party accused of the crime knew what he was doing and he was not labouring under a defect of reason or from disease of the mind, which would mean that he did not know what he was doing, as explained by the court in the following paragraph:

Ibid.
Patrick Kelley, ‘Infancy, Insanity and Infirmity in the Law of Torts’ (2003) 48 Am J Juris 179; William M Landes and Richard A Posner, The Economic Structure of Tort Law (Harvard University Press 1987) 127–30.
Harry JF Korrell, ‘The Liability of Mentally Disabled Tort Defendants’ (1995) 19 Law & Psychol Rev 1.
James Goudkamp, ‘Insanity as a tort defence’ (2011) 31(4) Oxford Journal of Legal Studies 727.
Ibid.
Terri R Day and Ryan CW Hall, ‘PTSD and Tort Law’ in Colin R Martin, Victor R Preedy and Vinood B Patel (eds), Comprehensive Guide to Post-Traumatic Stress Disorder (Springer International Publishing, 2014) 1
Ibid.
Ibid.
‘Deemed Diseases in Australia August 2015’ 111.
‘Australian-Workers-Compensation-Statistics-2016-17_1_1.Pdf’
Williams v Kearbey 775 P 2d 670 (Kan Ct App 1989) 672.
Slattery v Haley [1923] 3 DLR 156, [160].

“This view [not holding the insane liable in tort] has plausibility, and it would be perfectly sound and unanswerable if punishment were the object of the law when persons unsound in mind are the wrong doers. But when we find that compensation for an injury received is all that the law demands, the plausibility disappears…the question of liability in these cases…is a question of policy, and it is to be disposed of as would be the question whether the incompetent person should be supported at the expense of the public…if his mental disorder makes him dependent, and at the same time prompts him to commit injuries, there seems to be no greater reason for imposing upon the neighbours or the public one set of these consequences rather than the other.”

Therefore, the courts would be more likely to hold defendants liable despite their mental incapacity because the purpose of the tort law is not to impose culpability but to compensate the wronged plaintiff.

Causation is crucial in establishing liability. Whereas, courts have allowed compensation against a defendant despite his mental incapacity at the time of the commission of the tort, historically, courts have been reluctant to award damages for pure psychological harm to the plaintiff due to the lack of objective proof and diagnosis. This indicates that there is a problem of diagnosis, which may not impact the defendant’s defence against tortious liability because of the reasons discussed above, but which may impact the plaintiff who themselves may have been caused PTSD due to the acts of the defendant.

In Australia, no recovery was allowed for psychiatric injury from learning the news of life threatening incident due to lack of foreseeability and proximity until Annetts v Australian Stations Pty Ltd. The parents of a young jackaroo were informed of his death some months later, and consequently ‘nervous shock’ was claimed. The claim was dismissed at Supreme and Appeal Courts of Western Australia, but the High Court ruled differently. This was in line with the DSM IV criteria where persons learning of the death or injury to a loved one can from a life threatening incident may suffer from PTSD.

In Morgan v Tame, Mrs Tame was hit by another car whilst driving. Both drivers were treated in hospital and blood alcohol readings taken. A year later, she was informed by her lawyer that the accident report showed she had the elevated blood alcohol reading although it was soon found to be erroneous. Whilst it was quickly rectified, Mrs Tame sued the police officer involved for negligence. As a consequence, she claimed to have suffered PTSD. 4 years after the accident she did have a diagnosed psychotic depressive illness. The Appeal Court specifically reasoned factors that led the Court to conclude that Mrs Tame did not suffer PTSD. It did note that the stressor had shifted weighting towards the perception of the stressor rather than type of stressor. Nonetheless, the Court determined that the stressor bore no resemblance to the DSM IV TR examples of types of stressors for PTSD.

Peter Shea, ‘M’Naghten Revisited: Back to the Future (The Mental Illness Defence- A Psychiatric Defence- A Psychiatric Perspective)’ (2001) 12(3) Current Issues in Criminal Justice 347.
Yancey v Maestri 155 La Ct App 1934.
Annetts v Australian Stations Pty Ltd [2000] WASCA 357; Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Morgan v Tame [2000] NSWCA 121.

Thus, since Annetts v Australian Stations Pty Ltd, a person who makes a personal injury claim, may seek recovery for emotional distress damages as a result of the physical harm suffered. Factors required are (1) proximity to the scene of the accident (2) shock resulting from sensory and observation of the accident at the time and (3) close relationship between the plaintiff and the victim. This is not dissimilar to the exposure criterion of the new DSM 5 for PTSD.

From 2009-2018 there were 195 PTSD claims from 79 occupations lodged with WorkCover in Tasmania with PTSD being 3.4% of all mental illness claims. 83.6% claims for PTSD are accepted compared to 93% total workers compensation claims over the same period. The primary reported incident type and cause being violence and or verbal assaults with 94% claims of this type accepted. From 2008-2018, where exposure to traumatic incidents is inherent in their work, 15.9% of the claims made by first responders were related to PTSD. 90% first responder PTSD claims were accepted. With majority of claims being accepted it is not difficult to consider cases being brought about for litigation purposes.

The need to establish proximity between illness and accident/ incident is illustrated in Howe PTY Ltd v Motor Accidents Insurance Board . The worker had a car accident travelling to work. Blow CJ deemed it did not arise out of employment. The accident was a result of negligence of the other driver who died. The worker had PTSD. It was a disease not an injury so compensation was allowed; thus, it must not only arise out of or in the course of the employment but, employment must also contribute a substantial degree. The PTSD was from fatal collision. The collision was by the other driver being negligent. Hence, it did not warrant a conclusion that his employment was the major or most significant factor in the causation of the PTSD. The claim itself would suggest that PTSD is used as a cause for recovery of damages.

Problems with the diagnosis of PTSD arise if individuals visit the GP too early causing the latter to misattribute illness to a normal reaction to a stressful situation, or if symptoms arise from performance management but was not disclosed to the GP. Once a person believed they have a diagnosis, if an independent psychiatrist did not feel the symptoms warranted diagnosis, it would engender significant resentment which would likely perpetuate the worker’s symptoms. Furthermore, tensions between claimant and insurer arises when recovery parameters are not met with under the system. But psychological illness does not fit well into “normal” illness parameters. This additional stressor may impede the motivation for claimants to recover.

Ralph Slovenko, ‘Legal Aspects of Post-Traumatic Stress Disorder’ (1994) 17(2) Psychiatric Clinics 439.
Stephen Carey and Jacqui Triffitt, ‘Ministerial Review Relating To Establishing Entitlements Under The Workers Rehabilitation And Compensation Act 1988 For Workers Suffering Post Traumatic Stress Disorder (Ptsd)’ 50.
Ibid
Ibid
Ibid
Ibid
Howe PTY Ltd v Motor Accidents Insurance Board [2017] TASSC27; Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Carey and Triffitt (n 83).

The following section turns to the series of claims against Commonwealth in 1964 when sailors on the aircraft carrier Melbourne were involved in a collision with HMAS Voyager resulting in 82 deaths and the sinking of the Voyager. The initial High Court ruling forbade claims to be made against Commonwealth, which was over turned in 1982. Voyager survivors and families and later Melbourne sailors also began to make claims. These related to claims involving PTSD.

In Russell v Commonwealth of Australia, Russell witnessed the collision and suffered PTSD. Court found the negligence of the Commonwealth directly caused the sailor to suffer PTSD, with secondary alcohol abuse. In Hill v Commonwealth, Hill was on the board the HMS Melbourne, and from here he saw the collision. Mr Hill alleged that due to the Commonwealth’s negligence, he suffered from PTSD, alcohol abuse and other disorders. The Commonwealth argued the plaintiff failed to prove he suffered from any psychiatric illness, arguing his accounts were unreliable. Court also found the plaintiff’s evidence unreliable, and ruled in favour of the defendant.

In Stankowski v Commonwealth, Stankowski was on board the HMAS Melbourne. Whilst he did not see the collision as he was below deck, he saw the back half of the Voyager with its light on, steam coming out of it. He saw men jumping into the water and boats picking up survivors. He was worried for one of his friends. Stankowski went through treatment and improved. His distress was evident, and he sought help before litigation years prior. Justice O’Keefe made some character judgment himself that it was his masculine stoicism that Mr Stankowski had not disclosed nightmares and tried to hide his symptoms whilst on ship after the incident.

In McLean v Commonwealth, the dispute was whether the plaintiff suffered from PTSD, and laryngeal carcinoma as a result of excessive cigarette smoking arising out of the traumatic events of the sinking of the Voyager. He was able to continue working on the ship and subsequent to naval carer, obtained a trade qualification. He was also involved in a car accident after the collision for which there were medical records documenting anxiety symptoms.

In Cavenett v Commonwealth, Cavenett was a 22 year old sick bay attendant on the HMAS Melbourne who had helped to pull sailors from the HMAS Voyager out of the water in the course of the rescue efforts. He made a claim against the Commonwealth for PTSD. The Commonwealth admitted negligence but contested both his injuries and their causes. The case discussed the various tests psychologists administer which helped to test the patient’s genuineness but, stressed the importance of functional impairment in making a diagnosis. In spite of the numerous experts called upon, Justice Gillard stressed that the court can carefully analyse the extensive evidence and form its own opinion. Court eventually held that the plaintiff at times did not tell the truth, thus rejecting parts of the plaintiff’s evidence. The plaintiff only received a reduced portion of damages. On appeal, the Victorian Court of Appeal upheld the decision, rejecting claims that the trial judge had impermissibly functioned as a clinician.

Russell v Commonwealth of Australia [1999] VSC 437.
Hill v Commonwealth [2005] NSWCA94.
Stankowski v Commonwealth [2004] NSWSC 198.
‘Stankowski v Commonwealth of Australia [2004] NSWSC 198 - BarNet Jade - BarNet Jade’
McLean v Commonwealth [1997] NSWSC Unreported.
Cavenett v Commonwealth [2005] VSCSA 88.
‘Cavenett v Commonwealth of Australia [2005] VSC 333 - BarNet Jade’ (n 64).para 69

In Burk v Commonwealth of Australia, Burk was on the HMAS Melbourne below deck at the time of the collision. Subsequent to the collision, the plaintiff continued with the navy and maintained sustained successful employment for over 18 years thereafter with a civilian company. Thus, the expert witness opinion was that there was little to suggest clinically significant impairment in function to warrant PTSD diagnosis. In its judgment, the trial judge went through each symptom of PTSD and commented on his view on whether the evidence fulfilled the criteria. In its subsequent appeal, the plaintiff’s own evidence acknowledged that he had a full life with work and marital relationships, which would refute the diagnosis of PTSD. The Appeal Court also found significant doubts on the credibility of Burk’s evidence. Nonetheless, the appeal was allowed.

The following cases were cases noted by Gaughwin to illustrate the way another legal authority interpreted the criteria of PTSD again demonstrating the Commission view of the need for objectively serious index event and subsequent objective evidence of impairment.

In Stoddart v Repatriation Commission, Stoddart contended that due to nature of his work, which includedchecking tunnels alone, working in sealed under water engine rooms where if the vessel was hit he would likely die, led to feelings of intense fear. But the defendant showed that there was never any active threat or call to action stations during his operational service. The Tribunal concluded:

“Factor 5(a) of the 1999 PTSD Statement of Principles (SOP), and Factor 5(b) of the Alcohol Abuse Statement of Principles, require that the person experience a severe stressor prior to the clinical onset of the conditions. Experiencing a severe stressor is defined as meaning that the person witness, or be confronted with, an event or events that involved actual or threatened death or serious injury, or a threat to the person’s or another person’s physical integrity. This is an objective test. Even if I was to accept the veracity of the applicant’s evidence, the events he has outlined do not objectively satisfy the relevant factors.”

In Woodward v Repatriation Commission, Mr Woodward was in the Australian Army and was in Vietnam in operational service 1969-1970. He alleged instances in his search for Viet Cong wherein various circumstances like being separated from the group, being frightened by noise of branch falling, helicopter flying close to the ground, led to intense fear and helplessness. AAT simply found, as a fact, that Mr Woodward’s evidence about his experiences in Vietnam did not point to his having experienced a severe stressor, as defined in the SOPs.

‘Cavenett v Commonwealth of Australia [2007] VSCA 88 - BarNet Jade - BarNet Jade’
Burk v Commonwealth of Australia [2006] VSC 25.
Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Department of Veterans’ Affairs, ‘AN02 FEDERAL COURT DECISION STODDART’,
Ibid, para 35.
Woodward v Repatriation Commission [2003] FCAFC 160.

Similarly, in White v Repatriation, Mr White claimed he suffered generalised anxiety disorder and alcohol dependence or abuse because he suffered acute embarrassment when he could not open the bow door of the Landing Craft Medium and he was startled when he heard charges near his ship HMAS Sydney. Justice Spender rejected the submission that any event evoking subjective substantial distress would satisfy the standard of “severe psychosocial stressor”.

In Phillips v State of South Australia and Lock, Mr Phillips was assaulted by Mr Lock. The assault consisted of two blows but, Judge Burley did not accept that it was a life threatening event, and rejected Mr Phillips’ account that he feared for his life because the resultant injury left a haematoma only.

Both Cavenett and Burk suggest that the likely approach by the courts in PTSD claims in Australia is shifting toward examining the extent to which in each individual case, DSM-IV-TR criteria is met. Expert psychiatric evidence is relied upon but, the Court will make its own judgment on whether the evidence fit the criteria.

PTSD is superficially understood by the public, but the proper use of these criteria requires specialised clinical training that includes both a body of knowledge and clinical skills. This is illustrated when Justice Lee of New South Wales Supreme Court found that a nurse could not have suffered PTSD from being pushed by a close to immobile patient, he commented that a person could not suffer from PTSD if he was held at gun point where the gun was a replica and incapable of firing, even if the person was not aware of its inoperability. Psychiatric opinion on the hypothetic scenario would be opposite.

PTSD in criminal law

In the criminal context, conviction refers to establishing alleged perpetrator being responsible for the criminal act and whether the person at that time had the mental state to be aware of the consequences of the act. Proof of insanity under the M’Naughten standard recognises that a defendant is not criminally responsible if the act occurred as a result of mental disease whereby the defendant lacked capacity to understand the nature and quality of the wrongful conduct.

PTSD defence in the criminal law requires 4 elements: (1) pre trauma history as baseline; (2) history of the trauma; (3) post trauma history showing the change in the defendant; and (4) expert assessment of the defendant’s psychological condition and connection to the crime. The decision on legal responsibility of the defendant in insanity cases normally relies on the opinion from a mental health professional. For using a defence of insanity, automatism or dissociative flashback where the defendant believes he is back in combat and reacting in the way consistent with that environment, needs to be establishing. Defendant needs to establish that there was direct connection between the defendant’s mental disorder and criminal behaviour. Anger, irritability and reckless self destructive behaviour can also be used to excuse criminality.

White v Repatriation [2004] FCA633.
Phillips v State of South Australia and Lock [2000] SADC 104.
‘Post-Traumatic Stress Disorder: Proving and Defending Claims’
Ibid

Dissociation subtype has been included in DSM 5 under PTSD. It is associated with physiological undermodulation whereas PTSD without dissociation reflect physiological overmodulation.

In 1980, following the introduction of DSM III, PTSD was used as defense in State of New Jersey v Cocuzza where the Vietnam veteran who assaulted a police officer was found not guilty by insanity because he allegedly believed that he was amongst enemy soldiers in Vietnam. He was also holding a stick as if it was a rifle. After this case, DSM III was used in some other cases as well. However, there are also cases that suggest that the diagnosis of PTSD has been used by defendants to mislead the court. In this, there is a similarity between tort and criminal cases, which shows that in both kinds of cases PTSD may be misused by the parties concerned.

In People v Lockett Mr Lockett was charged with 18 robberies in Brooklyn 1980-1981. He raised PTSD insanity defence attributed to his service in Vietnam War. He consistently told the examining psychiatrists that he had horrific combat experiences from the war. He was deemed not responsible by reason of a mental disease. On receiving of his military records which were delayed in their delivery to the court, the records found that he was never in Vietnam. The plea had to be vacated.

In another case in 1979, Michael Pard v United States, Mr Pard was charged for attempted murder after he chased his ex-wife, her husband and an Oregon state trooper in his vehicle and firing a weapon. The psychiatrist asked a number of leading questions leading to the disclosure of symptoms of post-traumatic stress. This was recorded on video. Mr Pard told the psychiatrist he killed children and others in Vietnam. He was awarded 9.5 million as VA did not diagnose or treat his illness. In the subsequent civil claims which summoned the military unit records, found that his unit was mostly in administrative roles and saw very little, if any, combat.

In a case where a Vietnam helicopter pilot was charged with smuggling several tons of marijuana into Massachusetts, the defendant’s expert witness said that he was a veteran had an “action addiction” where he craved danger. The expert said the pilot was recreating their military mission. All that he wanted was the thrill. Thus, manipulation of PTSD symptoms has been shown to exculpate a person from blame.

Ibid.
Gerald Young, ‘PTSD in Court III: Malingering, Assessment, and the Law’ (2017) 52 International Journal of Law and Psychiatry 81 (‘PTSD in Court III’).
Hunter and Else (n 42).
Omri Berger, Dale E McNiel and Renée L Binder, ‘PTSD as a Criminal Defense: A Review of Case Law’ (2012) 40(4) Journal of the American Academy of Psychiatry and the Law Online 509 (‘PTSD as a Criminal Defense’).
People v Lockett 468 NYS 2d 802 (N Y Sup Ct 1983).
Hunter and Else (n 42).
Michael Pard v United States, 589 F Supp. 518, 521 (D. Or. 19 reas84).
Hunter and Else (n 42)..
United states v Krutschewski, 509 F Supp 1186 (D Mass 1981)

Nevertheless, courts have allowed PTSD defence in a number of cases, like in R v McGee, wherein the defendant who a criminal lawyer, was acquitted of serious charge of failure to stop at the scene of a fatal accident and death by dangerous driving, because he dissociated during the time due to previous exposure to traumatic work he undertook as a defence lawyer. For women defendants, PTSD had been used as a defence to defend women retaliating against violent partners. In this, the defense lawyers had tried to use battered spouse syndrome as a subtype of PTSD, wherein the defence is that the violent act by the woman was a predictable response to long term abuse by the perpetrator of the abuse. The application of the battered wife syndrome has been haphazard to say the least. In Ibn-Tamas v United States, the woman shot her husband in an argument but, she was convicted. The court refused to admit the battered woman expert as witness to testify. In the UK however, the defence of ‘battered wife syndrome’ is accepted under the common law and applied by the Coroners and Justice Act 2009. In this syndrome, the victim may feel to be under constant threat from her abuser and she will be overwhelm by fear. It is considered a real psychological issue impairing rationality in the victim. This syndrome achieved legitimacy in the field of psychology and law. Section 56 of the Coroners and Justice Act 2009 recognises the defence of battered wife and Section 54 (2) provides that loss of control does not have to be sudden, which means that even premeditated crimes can be defended under the battered wife syndrome defence. This is one of the controversial parts of the defence because planned homicide can also be defended, as battered woman syndrome is now considered to be psychological condition. The use of the defence is justified on the ground that battered women display the same symptoms as those suffered by others who have undergone traumatic life experiences.

Feminists have argued that criminal law standard of self defence is based on masculine assumption that violent retaliation. Battered woman syndrome seen as an illness ignored the possibility that a feminine reaction in circumstances where abuse had been recurrent and chronic, may be a reaction that would occur to anyone in that situation, once the reaction exceeded the male standard of acceptable violence. Courts that saw the reaction as an illness had been criticised as narrative of gender politics and reasonable responses to male oppression.

Alan A Stone, ‘Post-Traumatic Stress Disorder and the Law: Critical Review of the New Frontier’ (1993) 21(1) Bull Am Acad Psychiatry Law 14.
Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).
Stone (n 164).
Ibn – Tamas v. United States, 407 A.2d.626. (D.C. 1979)
L E Walker, The Battered Woman Syndrome (New York: Springer Publishing Company, 1984).
Z Craven, Battered woman syndrome (Sydney: Australian Domestic & Family Violence Clearinghouse, 2003).
R v Ahluwalia (1992) 4 AER 889
M McMahon, ‘Battered women and bad science: the limited validity and utility of battered woman syndrome’ (1999) 6(1) Psychiatry, Psychology and Law 23.
Stone (n 121).
Ibid.

The above cases echoes aforementioned Vietnam veterans’ influence of ideology and political conflict in PTSD and its subtypes.

PTSD symptoms can also be used to make convictions. It had been used in rape trials such that the expert’s testimony of PTSD diagnosis would demonstrate the occurrence of rape. In Allewalt v State, both sides acknowledged a sexual act occurred. PTSD diagnosis was admitted to support the plaintiff’s claim that the act was not consensual.

PTSD has also been used in kidnaping trial in United States v Winters where the defendant claimed that the victim willingly went with him and became a prostitute. Expert evidence however argued that the victim might have developed PTSD which in turn produced learned helplessness hence there were no escape attempts.

PTSD symptoms can be used for the purposes of both plaintiff and defendant to prove or disprove the occurrence of an event. As the Court demonstrated its placing significant weight on expert psychiatric opinion, the role of a psychiatric expert witness is discussed.

Psychiatrists as Expert Witness

Mental health professional acting as witness are generally fact witnesses to testify on the factors of history elicited, symptoms observed, and treatment provided. Expert witnesses may provide more objective review of the case without the possible bias associated with forming therapeutic alliance with the victim.

But it is known for mental health professionals to compromise their expertise for the fees. In the American case of Barefoot v Estelle, two psychiatrists agreed on a diagnosis of sociopathic personality disorder without interviewing the person. Evidently, lawyers choose experts on the basis of whether they would be the best witness for their client rather than based on their scientific expertise. Moreover, adversarial court process is not suited for the presentation of scientific testimony. An example would be in the unpublished case of is L v State of South Australia and T, wherein the plaintiff L claimed that they were suffering from PTSD due to a minor assault by a heavily intoxicated neighbour. One psychologist and two psychiatrists assessed L. Plaintiff psychiatrist diagnosed PTSD but he did not comment on the plaintiff’s successful career and pilot licence. When the defendant psychiatrist assessed the plaintiff, he questioned the offence meeting Criterion A and also that the plaintiff’s success was inconsistent with criterion F for functional impairment. Moreover, it would be highly unlikely that a person with significant PTSD would be granted pilot licence. This case demonstrates that the psychiatrists themselves may have opposing approach to how they assess the individuals claiming PTSD. There is a lack of objectivity here which impedes the scientific and fair assessment of PTSD in courtrooms. Moreover,the psychiatric expert can present the link between incident, symptom and impairment but it remains in the realms of the Court to recognise the link or not.

State v Allewalt, 308 Md 89, 517 A2d 741 (1986)
Berger, McNiel and Binder (n 115).
United States Court of Appeals and Ninth Circuit, ‘729 F2d 602 United States v. Winters’ (1984) F2d(729) 602.
Stuart B Kleinman and Daniel Martell, ‘Failings of Trauma-Specific and Related Psychological Tests in Detecting Post-Traumatic Stress Disorder in Forensic Settings’ (2015) 60(1) Journal of Forensic Sciences 76.
‘Barefoot v Estelle (1983) No 82-6080 United States Supreme Court.
Stone (n 121).
Gaughwin, ‘Psychiatry’s Problem Child’ (n 7).

Psychiatrists, therefore, have an enormous responsibility when they provide expert evidence in relation to psychiatric issues that arise in legal matters. Their evidence may make all the difference between whether there is an accurate or inaccurate understanding of the aetiology and nature of psychiatric illness. Courts have been quite consistent in their application of Criterion A, when there has been conflicting evidence among experts as to whether a plaintiff has PTSD: the stressor referred to in Criterion A must be extreme (i.e. life-threatening) even though there are claims which test the resolve of the court to maintain this threshold.

Summary

Traditionally there has been a distrust of pure psychological damage in the courts. Thus, in the case of PTSD without physical injuries, care is needed to resolve legal issues like establishing liability, with careful determination of proximate cause, assessing credibility, and any other issues relevant to the person that might be influencing their mental state. These need to be carefully apportioned as contributing factors before awarding damages.

As with any other psychiatric diagnosis, symptoms exist on a spectrum. The line where symptoms become pathological is arbitrary. DSM 5 had been criticised to pathologise normal reaction such as grief. Symptoms are expected in any person exposed to seriously threatening circumstances. When a symptom becomes a diagnosis requiring it to fulfil the “clinically significant impairment” criteria which is difficult to objectively define. The standard of exposure to the stressor has also changed over time.

There is a lack of correlation between trauma focused therapies with improvement from PTSD. Correlation had been noticed between compensation status and recovery.

Whilst the diagnosis nominates an index stressor to be the cause of symptoms, it has also been observed that psychosocial factors, particularly work environment related matters have an influence on the prevalence of PTSD.

Symptom over reporting has been found in numerous PTSD studies. Compensation had been linked with lower effort in testing and exaggeration of symptom severity.

From a population statistics point of view, trauma exposures in veterans had been decreasing but the rate of PTSD had sky rocketed since its inception.

There have been studies directly relating malingering to PTSD where claimants have been found to have given false testimony of trauma exposure forming part of the millions of dollars lost in insurance and compensation costs.

The diagnosis has significant public sentiment associated making it a particularly beneficial diagnosis because of its associated empathy elicited through the person being deemed a victim to circumstances.

PTSD had been used in negligence cases where the employer – state or private, was allegedly negligent of worker’s health leading to the injury. From the first accepted case of pure psychological injury in Annetts, there have been increasing claims for the diagnosis. In the forensic setting, the stakes are even higher, as the diagnosis has been used to acquit a person of responsibility in criminal acts.

Conclusion

There are definitive historical, scientific evidence to say that some people suffer pathological and psychological changes associated with trauma. But population statistics and psychological studies of symptoms and of patient characteristics have suggested significant symptom exaggeration particularly in those who would stand to benefit from a diagnosis, namely financial gain in tort and escape from conviction in criminal law. The potential benefits associated with the diagnosis is associated with the findings in trends and psychological studies. Whilst it would be presumptuous to say that all PTSD are falsified, it would be reasonable to conclude that a significant portion of the presentations are related to strategic vying for legal advantage.

Implications for expert witnesses

Thus, courts have become increasingly reliant on the evidence to fulfil each criterion of the DSM diagnosis, and in recognition of the importance of expert psychiatric evidence. However, the varying outcomes of these claims would also show that the Court will ultimately determine on the credibility of evidence and make its own interpretation of whether the diagnosis exists.

Being aware of the frequently nomogenic nature of the disease, the psychiatric expert witness should ensure comprehensive assessment for the diagnosis using confirmatory records, vigilance against exaggerations and grandiose stories or contradictory histories. Open ended interviewing questioning should be used, and the use of neuropsychological tests and physiological testing would be potentially adjunctive tools to diagnosis PTSD accurately.

The legal practitioner should ensure that the client evidence is truthful and consistent. Records of service, medical records should be consulted to ensure the veracity of claim before proceedings.

Bibliography

Articles/ Books

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Bell D and John Reginald Champion, ‘PTSD: Another Forensic Epidemic of Pseudo-Illness’ (2013) 45(2) Australian Journal of Forensic Sciences 113

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Craven Z, Battered woman syndrome (Sydney: Australian Domestic & Family Violence Clearinghouse, 2003).

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Hunter Brockton D and Ryan Christian Else, ‘Legal Strategies for Defending the Combat Veteran in Criminal Court’ (2017).

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Kleinman Stuart B and Daniel Martell, ‘Failings of Trauma-Specific and Related Psychological Tests in Detecting Post-Traumatic Stress Disorder in Forensic Settings’ (2015) 60(1) Journal of Forensic Sciences 76

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Caselaw

Annetts v Australian Stations Pty Ltd [2000] WASCA 357.

Barefoot v Estelle (1983) No 82-6080 United States Supreme Court.

Burk v Commonwealth of Australia [2006] VSC 25.

Cavenett v Commonwealth [2005] VSCSA 88.

Hill v Commonwealth [2005] NSWCA94.

Howe PTY Ltd v Motor Accidents Insurance Board [2017] TASSC27.

Ibn – Tamas v. United States, 407 A.2d.626. (D.C. 1979)

McLean v Commonwealth [1997] NSWSC Unreported.

Michael Pard v United States, 589 F Supp. 518, 521 (D. Or. 19 reas84).

Morgan v Tame [2000] NSWCA 121.

R v Ahluwalia (1992) 4 AER 889.

Slattery v Haley [1923] 3 DLR 156.

Stankowski v Commonwealth [2004] NSWSC 198.

State v Allewalt, 308 Md 89, 517 A2d 741 (1986)

People v Lockett 468 NYS 2d 802 (N Y Sup Ct 1983).

Phillips v State of South Australia and Lock [2000] SADC 104.

Russell v Commonwealth of Australia [1999] VSC 437.

United states v Krutschewski, 509 F Supp 1186 (D Mass 1981)

United States v. Winters (1984) F2d(729) 602.

Williams v Kearbey 775 P 2d 670 (Kan Ct App 1989).

White v Repatriation [2004] FCA633.

Woodward v Repatriation Commission [2003] FCAFC 160.

Yancey v Maestri 155 La Ct App 1934.

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