PI Brief Update

How Does Mental Health Affect Reliability in PI? - Dr Mark Burgin

30/09/24. Dr Mark Burgin discusses how the disability model provides an understanding of mental health as an issue when issues of reliability arise in PI legal cases.

To understand reliability the expert must consider the murderer who during a psychotic episode commits crimes. There is an inconsistency between capacity to make intent and the M'Naghten Rules. Whereas is it often clear that the person with psychosis has made complex plans and therefore the capacity to make intent, the M'Naghten Rules ask the following which instead consider culpability.

• Did not know the nature of their actions
• Did not know that their actions were wrong
• Were labouring under a defect of reason due to a disease of the mind

The difference between these two approaches causes problems with the understanding of reliability. A person may not have had intent; they did not make a decision to be dishonest or unreliable and even believed that they were being honest. They knew that it is wrong to lie and they were aware that they had not told the whole truth.

Courts can focus on one or other half of this problem for instance saying that the person should have told the whole truth whether they knew it would make a difference or not. The say that their intention is not material and any mental health problems such as anxiety is not material to their behaviour. This approach is harsh as a single mistake early in a personal injury claim can lead to S57 findings.

Equally a person whose mind was so disordered that they were unable to see reality can be found guilty of a crime simply because they could form an intention. There are good reasons why in law those who commit crimes are not given the chance to argue these points. The courts are already full of people who bring unmeritorious appeals based upon technicalities and there is an understandable interest in not adding to this problem.

Disability and Reliability

For a person who is not familiar with the justice system the process can as daunting as trying to get through to a bank call centre. Even when assisted by a lawyer who is not stressed and under pressure a normal person will struggle. Those with disabilities particularly mental health will get annoyed and be unreliable.

Although all humans are prone to making mistakes those with disability may have an increased risk of making a mistake. The justice system is generally blind to the functional restrictions in those who use it. This is a problem because many litigants are in the system precisely because they have impairments.

There are some normal behaviours which can cause problems such as giving the answer that is expected rather than a full answer. Any expert who asks about past medical history will recognise that about 50% of people will give a limited version. Some people will accurately state ‘not in the last 5 years’ or similar but most will simply falsely deny that they have ever had problems because they have decided it not relevant.

Those with functional restrictions due to depression and anxiety may be too embarrassed to give a full history. They may require support from the expert to find a term of words that they do not consider to be stigmatising. These advanced communication skills will not be part of the usual medical practice so additional disability training would be required particularly for those with possible psychosis.

Psychosis, paranoia, suspicion and delusions

Psychosis can be difficult to recognise and even experienced experts may miss the signs. The person will be reluctant to disclose their feelings and be suspicious of the expert. The assessment will however include inconsistencies that may be difficult to resolve without access to the medical records. The increased reluctance of lawyers to provide these records means that those with psychosis are likely to have reports that contain errors as has been highlighted by judges.

The disability analyst has an advantage over a psychologist as they can identify functional restrictions. The inconsistency between the lack of alleged symptoms and the restrictions provide the disability analyst with a clue that something is amiss. They can then request further information either correlative history or more often review of material evidence. The psychologist relies upon the symptoms and signs which can be misleading.

A holistic disability report can ensure that the issues of reliability are addressed early in the case. This report is rarely welcomed by the lawyers but has the advantage of reducing the risk of S57 issues being successfully raised. It is better to have a section in the report dealing specifically with inconsistencies rather than trying to ignore the issues. Psychosis can be confused with brain injury and high value cases have collapsed because of unreliable medical reports.

Legal Response to Unreliability

Lawyers will correctly argue that it is not for the medical expert to give advice to lawyers on legal processes. The current confusion between intent and culpability in mental health suggests that experts are not doing their jobs properly. If the medical experts were to address the issues fully then the legal responses would be logical and consistent.

The 3 main reasons why medical experts do not provide useful answers are they use the wrong model, they do not understand the question and the lawyers use fallacies. The correct model is disability as it is the only model that addresses both capacity and ability. The questions do not make any sense in the biomedical model or the biopsychosocial model so the courts are left confused by the answers.

The correct legal response will depend on the likely reason why the person did what they did. A person with psychosis may decide to hurt someone simply because they do not like them or because they believe that person is trying to kill them. A claimant may decide to say that their pain is continuing because they are trying to increase the claim or because they have misattributed pre-existing problems to their current symptoms.

Conclusions

Intent and capacity are two linked concepts and their interaction causes problems with those with mental health problems in courts. Even mild mental health symptoms can impair the person's reasoning and lead to problems with reliability. The medical expert must provide the court with the evidence as to mental functioning so that the court can determine the reason for the actions.

Experts must understand the legal principles behind their instructions as several judges have been critical. Where there are inconsistencies they should deal with them directly and resist instructions to remove them from the report. If a more serious mental illness is suspected then a disability analyst can be a better fit as they can find the likely cause of the inconsistencies.

The courts depend upon experts to explain the medical evidence in a form that they understand. Many experts only use biomedical or biopsychosocial models so cannot answer the court’s questions. Understanding culpability of a person with severe mental illness and a serious crime is high profile but this is a rare situation. There are many tens of thousands of claimants in PI who have mild mental illness whose reliability is questioned every year.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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