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The importance of mental health support during civil claims

Zahra Awaiz-Bilal, senior associate, Bolt Burdon Kemp

To mark mental health awareness week, HMi asked consultant psychiatrist and medico-legal expert Dr Nick Cooling and Zahra Awaiz-Bilal, senior associate in the Abuse team at lawyers Bolt Burdon Kemp, to take a look at the specific issues medical professionals need to be aware of when supporting a patient through a court case.

Having worked with survivors of child abuse for many years, we know that it can have a significant impact on their mental health. Many of our clients suffer from serious psychiatric injuries including anxiety, depression, adjustment disorder and post-traumatic stress disorder, to name a few; and we know that child sexual abuse can also play a role in substance misuse, self-harm and suicidal thoughts.  These issues can hugely affect a person’s quality of life and day to day functioning as well as their ability to maintain interpersonal and professional relationships.

By the time our clients come to us, they are ready to move forward and address some of the burdens – self-blame, guilt, shame and embarrassment – they have carried throughout their lives.

What is a civil claim?

Where a person has suffered sexual abuse, which may have occurred when he or she was a child or more recently as an adult, that person is entitled to pursue a civil claim. Such a claim falls under the law of “personal injury” and can be brought directly against the perpetrator of the abuse and/or the organisation that employed them if the abuse occurred in the perpetrator’s professional capacity.

Examples of the latter include abuse by teachers, priests, Scout leaders, foster parents and many other roles of a similar nature.  In those cases, we can successfully hold the school, the church, the Scout Association or the local authority responsible under the legal principle of “vicarious liability”.

The primary purpose of a civil claim is to compensate abuse survivors for the harm they have suffered as a result of the abuse and the impact this has had on their lives. Whilst no amount of money would ever be sufficient to undo the damage suffered by abuse survivors, we can seek compensation for various aspects of an individual’s life which have been affected because of the abuse and its subsequent impact on their mental health and development.

Loss of earnings, both past and future, are often claimed where a person has been unable to work or their career has been hampered or they have been restricted in their earning capacity. Disadvantage on the labour market reflects the impact an individual’s mental health difficulties may have on their ability to secure employment.  Wasted expenditure on alcohol can be claimed where a person has been diagnosed as suffering from alcohol dependence syndrome, as a direct result of the abuse they suffered, consuming excess amounts of alcohol to self-medicate against the symptoms of poor mental health.

And, of course, the most crucial element of every claim is the cost of specialist, private therapy.  This is not just limited to immediate therapy needs but can also include provision for “top up” therapy which an individual may require throughout their life, especially where the prognosis is poor, the damage is likely to be permanent and there is a high likelihood of future relapse in response to psychosocial stressors.  This prospect of further treatment can be a protective factor for many of our clients during the litigation process.

Notwithstanding the above, we understand that the motivation for many abuse survivors who bring a civil claim is not financial recompense but the need to heal.  Monetary damages can compensate survivors for tangible losses but they cannot redress the emotional and psychological harm caused as result of the abuse. For this reason, we routinely seek an acknowledgment of the wrong done and a formal apology, as part of the civil claim, knowing this can play a profound, reparatory function in the healing process for survivors by validating their experience and confirming that they did not do anything wrong.

Role of a medical expert

Consultant psychiatrists and/or psychologists play a key role in the civil claim process, providing lawyers and courts with expert evidence on psychiatric condition, causation and prognosis as well as regarding optimum psychiatric and psychological treatment for abuse survivors.

The role of a medical expert can also involve assessment of mental capacity according to the Best Interests Check-List and considering whether a client is a ‘vulnerable witness’, as per the Civil Procedure Rules (CPR): Practice Direction 1A – Participation of Vulnerable Parties or Witnesses.  The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing, can participate fully in the proceedings and that parties and witnesses can give their best evidence.

Joint discussions with other experts provide a forum for deliberations about best-practice treatment and providing a range of opinion for the court to consider, with reasoned arguments regarding condition, causation and prognosis.

Medico-legal reports provide written validation of people’s experiences. It is important for victims of abuse to have their experiences validated by means of a careful account of the abuse history and a reflective assessment of the long-term consequences.  A carefully considered report can be enormously helpful in terms of providing further psychological closure, as well as providing therapeutic focus for future treatment from a psychiatric and psychological perspective.

Expert reports form the basis of assessing the potential value of a client’s claim, not only for the psychological injuries suffered but also for any additional losses flowing from these, as mentioned above.

Importance of and access to therapy

Clinical history-taking and mental state examination may provide evidence of co-morbidity, which is causally related to historical abuse, for example, substance misuse, eating disorders and emotional over-eating, relationship difficulties, educational detriment and offending behaviour.

Specialist and timely therapy can be the catalyst in addressing the many issues abuse survivors face.  It can play a pivotal role in the healing process for survivors by acknowledging and validating their experience, reinforcing their moral worth and restoring their self-esteem.

It is well-recognised that complex post-traumatic stress disorder, as described in ICD-11, is associated with difficulties in mood regulation, poor self-esteem and feeling of guilt and failure related to the trauma sustained, as well as relationship difficulties and problems in terms of feeling emotionally close to others.  This complex symptomatology causes detriment with respect to family, personal, educational, social and occupational functioning.  In medico-legal assessments, these long-term deficits need to be carefully considered and the treatment package must be specifically tailored to the individual concerned, taking account of possible long-term physical health detriment, in addition to mental health detriment.

NHS IAPT services are unlikely to be able to cater for the psychological treatment needs of complex cases, because complex post-traumatic stress disorder, for example, may require up to 30 sessions of psychotherapy with an experienced clinical psychologist.  Short treatment interventions, for example time-limited CBT or EMDR, may be unlikely to provide sufficient closure and care needs to be taken to avoid re-traumatisation during the psychotherapeutic process.  Co-morbidity, for example, severe depression, may need to be addressed pharmacologically prior to psychotherapy.

Unfortunately, it is an inescapable fact that high quality treatment may not be readily accessible from NHS services or, if it is, it is often limited to a few sessions only and there are long waiting lists.  Consequently, thousands of trauma victims receive little or no psychological or psychiatric input at a time when they need it the most.

To ensure that survivors of abuse have specialist treatment and much needed emotional support when they need it the most, Bolt Burdon Kemp have launched a care fund for their clients, funding up to £2,500 worth of private therapy recommended by a medical expert. This will enable those most vulnerable to access mental health support, without fear of any financial burden.

Conclusion

Legal process for abuse survivors now provides a level of integration with mental health services, facilitating access to therapy for people whose long term physical and mental health detriment has been overlooked or never recognised.  Treatment outcomes can be life-changing and what is clear is that legal process can bring about access to many treatments, which would otherwise remain elusive or inaccessible for many survivors.

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