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Poor mental health should be no barrier to justice

2nd December 2020

Poor mental health should be no barrier to justice

The current personal injury system creates unacceptable additional financial and personal hurdles for people who experience poor mental health says Steven Santy, a personal injury specialist with Higgs & Sons.

Every experienced personal injury lawyer will have seen medical reports stating words to the effect that “the continuance of this litigation is having a harmful effect on the claimant’s mental health”. 

In other words, the pursuit of rightful compensation for injuries suffered due to the negligence of another party can take a heavy toll on a client’s state of mind.  Often this renders claimants with a mental health history vulnerable to relapse, following the trauma suffered in their accident.  At best, I believe the litigation process lacks empathy for claimants who suffer from poor mental health. At worst, it loads the dice heavily in favour of the defendant.

This was evident in a case settled recently.  My client Grant had a motorbike accident in 2016. Many years prior to the accident, Grant had been diagnosed with a somatoform condition called Somatic Symptom Disorder (SSD). This condition is characterised by an extreme focus on physical symptoms – in Grant’s case lower back pain – that causes major emotional distress and problems with functioning. Essentially, the emotional reaction to the physical symptoms suffered is not normal.

Grant was not suffering SSD at the time of the accident, however. Furthermore, in the months following the accident, it appeared he would recover from his back injury. He even attempted to return to work as a HGV driver.

Yet over time, Grant realised that, instead of easing, his pain worsened, resulting in extended time off work. This in turn created financial worries and a fear that he was suffering a relapse of his pre-existing SSD. Matters spiralled and sadly Grant deteriorated, with physical symptoms perpetuating a psychological reaction – and vice-versa.

I took this case over from another law firm some 12 months after the accident. Grant had already been examined by a medico-legal GP who, with no regard for Grant’s prior condition, suggested that his spinal symptoms would be short-lived. This resulted in an over-optimistic prognosis.

Based on this flawed conclusion, many lawyers would have advised Grant to settle the claim. This illustrates a stark failure to understand how mental health can impact upon an accident victim’s rehabilitation and recovery.

One of my priorities on taking over the case was to appoint a spinal surgeon to review the pre-accident records. From an orthopaedic standpoint, the surgeon felt Grant should have fully recovered within nine months. However, he recognised that it was Grant’s “pronounced psychological response to the accident” that was causing his pain to persist and recommended an opinion be sought from a psychiatrist with expertise in somatoform injury.

It transpired that Grant had indeed suffered a relapse of his SSD. Sadly, he is unlikely to improve or return to any paid work.

I could now start to think about quantifying his claim for damages.  However, Grant was mistaken in thinking that the end of the case was in sight at that point.  As it progressed, Grant had to overcome a number of other hurdles, which would be particularly challenging in light of his state of mind.

Grant participated in two face-to-face conferences with his barrister.  This involved not only re-visiting the circumstances of the accident and how Grant’s life had been turned upside down ever since, but also a “dummy” cross-examination, designed to evaluate Grant’s credibility and how he would likely perform as a witness.

Grant was interviewed by a psychiatrist appointed by the defendant which meant re-living the accident and its impact once again, knowing that any inconsistency could be seized upon and used to undermine his case. 

A common theme throughout was how difficult Grant would find giving evidence and being cross-examined in court when his case eventually reached trial.  This is inevitably a very stressful part of the process for any claimant.  But for someone in Grant’s position, the prospect of being in the witness box was almost unbearable. 

As the litigation progressed, attention turned to insurance for Grant’s mounting legal costs, which as it turned out, proved far more expensive because of his pre-existing condition.  Is it fair that someone with poor mental health – caused or aggravated by the negligence of a defendant – bears a higher insurance premium to access the law than other litigants?

Eventually we achieved a substantial settlement for Grant, though the process took much longer and cost substantially more than I would envisage for most other clients. Grant sent me an email following settlement in which he reflected on the obstacles he faced, adding:

I'm sure you now have more insight into how difficult it is for people like me. Sick people need to be looked after. As I have a voice and an okay mind, I can tell you how I feel. But some poor souls have, through one thing or another, lost their ABILITY to voice what they need to say.”

As a profession, we have to appreciate the barriers to justice faced  by those with poor mental health. Clearly our adversarial system will  not change but, at present, it undoubtedly works against those who  face additional obstacles.

The necessary change cannot be achieved by one isolated group. It  requires buy-in and concerted action by claimant lawyers, defendant   insurers, defendant lawyers, counsel and experts on both sides.   However, as we have seen in other areas such as Serious Injury   Guide and The Rehabilitation Code, where there is a genuine will to   work together we can bring about real change for good.

Grant in happier times, before his accident

 

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