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On Being Insane in Medico-Legal

Places: The Importance of Taking a
Complete History in Forensic Mental
Health Assessment
a
Peter C. Gaughwin
a
Barrister and Solicitor, Crown Solicitor's Office , Adelaide,
Australia
Published online: 04 Mar 2011.

To cite this article: Peter C. Gaughwin (2005) On Being Insane in Medico-Legal Places: The
Importance of Taking a Complete History in Forensic Mental Health Assessment, Psychiatry,
Psychology and Law, 12:2, 298-310, DOI: 10.1375/pplt.12.2.298

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 On Being Insane in Medico-Legal
Places: The Importance of Taking
a Complete History in Forensic
Mental Health Assessment
Downloaded by [McGill University Library] at 08:51 27 October 2014

Peter C. Gaughwin
Barrister and Solicitor, Crown Solicitor’s Office, Adelaide, Australia

osenhan’s experiment (1973) showed that it is not difficult to simulate symptoms of psychiatric illness. A

R Parliamentary Committee in New South Wales and research from overseas have shown that, in the medico-
legal context, such practices continue to exist. To illustrate the argument, there will be a discussion of Post
Traumatic Stress Disorder. It is argued that such practices not only bring the area of mental health into disrepute,
they also have the effect of distorting negatively the outcomes of litigation and raise ethical questions about the
misuse of mental illness for personal benefit. It remains the case that expert mental health practitioners have an
ethical duty to educate both the practitioners who employ them and the courts in general as to the reality of what
constitutes mental illness. They can begin this action by taking thorough histories from plaintiffs. The term ‘mental
injury’ or variations thereon, used in most criminal injuries compensation legislation, provides an opportunity to
appreciate that being a victim of crime is often likely to result in distress that is more than transient and hence
compensable, but not necessarily something that has to become pathological. That does not mean that some
people will not develop psychopathology or have pre-existing psychopathology exacerbated. To adopt such an
approach for personal injury matters in general may resolve some of the tensions experienced by mental health
practitioners when they enter the forensic arena.

The Rosenhan Experiment persons, whom we can call ‘pseudo-patients’ as

In January 1973, the journal Science published
an article by Professor D L Rosenhan, Professor
of Psychology at Stanford University. The title
of his article was ‘On Being Sane in Insane
Places’. It was an article that provoked a great
deal of discussion.
Briefly, Rosenhan described an experiment
whereby 8 sane people of varying occupations
gained admission to 12 different psychiatric
hospitals in the United States. Of these 8
did Rosenhan, the truth in relation to 7 of them
was not known to hospital staffs. Rosenhan was
the eighth pseudo-patient and he had revealed
his identity to the hospital administrator and
chief psychologist.
After calling the hospital for an appointment,
the pseudo-patient arrived at the admissions office
claiming that he/she had been hearing voices.
Apart from alleging the symptoms and falsifying
name, vocation and employment, there was no
other alteration in the history of the person.

Correspondence to: Peter C. Gaughwin, Barrister and Solicitor, Crown Solicitor’s Office, GPO Box 464, Adelaide,
South Australia 5001, Australia. E-mail: gaughwin.peter@agd.sa.gov.au

PSYCHIATRY, PSYCHOLOGY AND LAW

298 VOLUME 12 NUMBER 2 2005 pp. 298–310

Once admitted to the psychiatric ward, the
pseudo-patient ceased simulating symptoms of
abnormality. These pseudo-patients were never
detected. Each was discharged with the diagnosis
‘schizophrenia in remission [Rosenhan 1973:252].
Once discharged, the pseudo-patients were ‘stuck
with that label’.
Rosenhan commented:
But what holds for medicine does not hold
equally well for psychiatry. Medical illnesses,
while unfortunate, are not commonly pejora-
tive. Psychiatric diagnoses, on the contrary,
carry with them personal, legal and social
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stigmas [1973:252].
It is probably not hyperbole to say that, 30 years
later, that situation remains essentially the same,
notably with the public and decision-makers
[Nairn & Coverdale 2005; Wrigley, Jackson et al.
2005; Kelly 2004], notwithstanding advances
made in the understanding of mental illness, for
example depression, by groups such as
BeyondBlue [Jorm, Christensen, Griffiths 2005].
Yet, as experience shows us, in the medico-legal
context, particularly when the obtaining of finan-
cial reward is the possible outcome, plaintiffs,
unlike the community in general, seem more than
happy to be diagnosed with mental illness and the
more serious the better! Another observation of
Rosenhan comes to mind: ‘Any diagnostic process
that lends itself so readily to massive errors of this
sort cannot be a very reliable one’ [1973:252].
Purpose of Article
While Rosenhan seems to have had a different
purpose when he published his article, some of its
implications remain true for persons entering the
legal environment with claims for nervous shock,
mental injury or whatever descriptive label is
applied to psychiatric illness.
The purpose of this article is to consider the
implications for expert mental health witnesses,
mental health and psychiatric patients in general,
the legal system and plaintiffs themselves, when
plaintiffs suddenly suffer psychiatric injury in the
context of litigation, but who have not shown any
previous history of such illness. The corollary of this
is those persons who have a history (whether brief or
chronic) of psychiatric illness, but fail to mention
this to the mental health expert.
In order to develop the purpose, I will consider
first the way victims of crime legislation throughout
ON BEING INSANE IN MEDICO-LEGAL PLACES
Australia deals with psychiatric illness. I will then
consider various diagnostic tools used to detect
psychiatric illness. The psychiatric illness discussed
will be Post Traumatic Stress Disorder (PTSD). I
will argue that a formal psychiatric diagnosis should
not be necessary for purposes of obtaining compen-
sation and that the rush to give someone a formal
diagnosis has the potential to damage seriously the
credibility and reality of mental illness and thus the
way patients suffering from such illness are treated.
Mental Injury
Other than in New South Wales, the legislation
dealing with victims of crime compensation in the
various states and territories of Australia does not
use the term psychiatric or psychological disorder.
Rather, the term ‘mental injury’ or a variation of
that is used. That is the term that will be used in
this article.
A helpful analysis of the way courts view the
term ‘mental injury’ in the victims of crime juris-
diction can be found in Freckelton [2001:131ff],
who refers in particular to the test or definition
provided by Olsson J in T v State of South
Australia (1992) 59 SASR 278:
[T]he statute obviously has in contemplation
something more than a condition of mere
sorrow and grief, nevertheless, what the Court
is required to do is consider the situation of a
claimant following a relevant criminal act and
contrast it with that which pre-existed the act in
question. Leaving aside proven considerations
of mental or nervous shock, if the practical
effect of the conduct has been to bring about a
morbid situation in which there has been some
more than transient deleterious effect upon a
claimant’s mental health and wellbeing, so as
adversely to affect that person’s normal enjoy-
ment of life beyond a situation of mere sorrow
and grief, then, in the relevant sense, the person
has sustained mental injury.
Olsson J also commented [at 288]:
[I] am of the opinion that the definition
contained in the statute does not require the
Court to conclude that the evidence unequivo-
cally establishes that symptomatology exhibited
by a claimant is such as to warrant medical
classification as some recognizable psychiatric
condition, as a prerequisite to coming to a
conclusion that a claimant has proved the
existence off a relevant injury. Indeed such a
conclusion would run counter to its express terms
(my emphasis).
299
 PETER C. GAUGHWIN
The Full Court in HK & Others v The State of
South Australia & Anor (1997) 190 LSJS 174 not
only affirmed the test propounded by Olsson J,
but went further:
It is not necessary for a plaintiff to establish a
defined psychological or psychiatric injury as,
for example, injuries are defined in the
Diagnostic and Statistical Manual of Mental
Disorders (4th edn).
This, then, is different from the position that the
High Court has taken in general personal injury
matters, where it has again required that, if psychi-
atric illness is claimed, then the illness must be a
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‘recognizable psychiatric illness’ [Tame v New
South Wales; Annetts v Australian Stations PtyLtd
(2002) 76 ALJR 1348]. The Ipp committee stated
that it must be a ‘recognized psychiatric illness’,
which it has been argued is a narrower test from
that propounded by the High Court [Loane &
Luntz 2005:356–357]. The requirement for
victims of crime, therefore, is arguably much
wider: it recognises a level of distress or grief that
is more than transient but not pathological and
which does not necessarily label one forever with a
history of psychiatric illness.
The South Australian position has been
followed by Mildren J in the Northern Territory
Supreme Court in Alfonso v Northern Territory &
Thompson [1999] NTSC 117.
In a sense the above comments support the
position taken by the Diagnostic and Statistical
Manual of Mental Disorders [4th edn, Text
Revision] (DSM-IV-TR) [APA 2000 at pages
xxxii–iii]:
When the DSM-IV categories, criteria, and
textual descriptions are employed for forensic
purposes, there are significant risks that
diagnostic information will be misused or
misunderstood. These dangers arise because of
the imperfect fit between the questions of
ultimate concern to the law and the informa-
tion contained in a clinical diagnosis. In most
situations, the clinical diagnosis of a DSM-IV
mental disorder is not sufficient to establish the
existence for legal purposes of a ‘mental disor-
der’, ‘mental disability’, ‘mental disease’, or
‘mental defect’.
In other words, victims of crime legislation mostly
recognises that one can be distressed in more than
a transient fashion, but nonetheless does not seek
to medicalise the distress; medicalisation of
modern life is pervasive and arguably unhelpful
300
[cf. Parker 2004] and brings about the wastage of
scarce medical resources.
Thus, it may be said that, if lawyers in this
jurisdiction require medical practitioners or allied
health practitioners such as psychologists to
provide a diagnosis of mental injury according to
the criteria in the DSM-IV-TR, then they are in
error, not only because of what the courts have
said, but also because the DSM-IV-TR is not the
only diagnostic manual used. For example, the
public hospital system in South Australia, for
recording purposes, requires the use of the
International Classification of Diseases [10th edn;
WHO 1992] (ICD-10).
It would be contrary to the intent of the legis-
lation if someone who suffers for more than a
transient period with some symptoms of, for
example, a depressive disorder, could be excluded
from receiving compensation because they do not
meet the full diagnostic criteria for a depressive
disorder as set down in either the DSM-IV-TR or
the ICD-10. However, in an adversarial context, if
plaintiffs (or more accurately their lawyers) and
supportive mental health experts wish to push a
particular diagnosis, then the scene is set for
dismissal of the diagnosis by the court if a defen-
dant’s expert provides a more compelling
argument for why the diagnosis could not fit [see
for example Morgan v Tame (2000) 49 NSWLR
21]. This could also result, as a consequence, in
the loss of an award of compensation, or a lesser
award than might otherwise have been the case,
because the key issues have become clouded by
arguments over diagnostic criteria.
The Prevalence of Mental Injury and
Psychiatric Illness and the Importance
of Taking a Thorough History
While the law in the criminal injuries compensa-
tion jurisdiction does not require the establishment
of a recognised psychiatric illness for a person to be
compensated for mental injury, nonetheless a
number of persons who are victims of crime are
likely to have a recognised psychiatric illness or
disorder. But not all persons.
Goldney [1998:155] points out that ‘At any one
time about 15–20% of the community have suffi-
cient symptoms to warrant a psychiatric diagnosis,
and, more often than not, there are a number of
factors which contribute to a person’s emotional
distress. However, sometimes medico-legal reports

seem to ignore this fact. Selective reporting of
events, with an uncritical focus on one event, even
if it has been dramatic and has resulted in appar-
ent severe physical and emotional trauma, is
usually not helpful to victims as they will unwit-
tingly be encouraged to attribute all their
problems to the external event, with an abdica-
tion of personal responsibility for other areas of
their life’.
The reality then is that psychiatric illness rarely
arises from one particular event and, in general, is
often the result of a combination of many factors,
some of which may be inherited and/or are a
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consequence of social or environmental factors.
An offence may bring pre-existing symptoms to
notice, but that is a world away from saying that
the illness or injury arose from the offence [see for
example, Henderson, Andrews and Hall 2000; see
also McFarlane 2000: 899]. For example, in a
study of victims of the civil, religious and national
conflicts in the territory of the former Yugoslavia
in the 1990s, Jovanovic et al. [2004] found that
those who suffered PTSD as a consequence of the
conflict were, in the main, those who lacked
family and social support after the trauma. Thus,
the question might be asked: Does the injury arise
from the offence, or from factors subsequent to
the offence [cf. Andrews v State of South Australia
and Andrews (1996) Unreported Judgement No:
(SA) D3479; Re Grady (1987) 89 FLR 64]? By
way of another example, peer-reviewed research
has shown that the avoidance of psychopathology
in victims of child sexual abuse is dependent on
factors before and after the offending, as well as
the nature of the abuse (e.g., was it penetrative or
non-penetrative?) and length of time of the abuse
(e.g., was it a one-off incident, or did it extend
over a period of time and was the offender family,
non-family but known, or unknown?) [Nurcombe
2000; Mullen and Fergusson 1999:88–93].
McFarlane [2000:898] has argued that ‘an
oversimplification of the issues of aetiology …
does not address legitimate concerns about defin-
ing appropriate liability’. Goldney [1998:155]
cautions that, when the focus in the medico-legal
context becomes the event for which one is seeking
compensation, then ‘Such a focus can become
overwhelming and self-defeating, and can be very
challenging to overcome in therapy’. This may
also be another reason why persons asked to write
medico-legal reports should not take on the victim
for treatment, for reasons previously stated: the
ON BEING INSANE IN MEDICO-LEGAL PLACES
focus in medico-legal matters is quite different
from that in therapy [Gaughwin 2004a:46ff].
History
This logically brings us to the question of history.
History is defined in part by the Pocket Macquarie
Dictionary [1982:429] as ‘the branch of knowl-
edge dealing with past events; the record of past
events, esp. in connection with the human race
…’. Psychiatric history is no different. Two funda-
mental principles should be observed: from where
can the onset of the symptoms be dated and what
is in the content of the symptoms that may give a
clue to the nature of the hidden feelings involved
[cf. Malan 1979:3]?
Similarly, a person’s history should enable the
assessor to understand where the incident fits in a
wider history: how people love, make meaning, re-
order chaos and how to put into the world what was
not there before [Vaillant 1993:4]. He then quotes
Kohlberg who stated that ‘Basically, clinical
psychology as a research discipline is the study of
lives or of life careers’[at page 175]. There is no
reason why a legal requirement cannot have a thera-
peutic outcome in addition to a financial benefit.
What is called ‘the Maudsley method’ is a style
of history-taking that is commonly taught to
psychiatrists and derives its name from the
Maudsley Hospital in Britain, where the method
was developed. It should probably be taught to all
mental health practitioners, irrespective of the
therapeutic paradigm learnt. As Sainsbury
[1980:133] has commented: ‘One should … learn
to record material in a standard form, remember-
ing to cover each item in the history schema. If
this is done, important areas are less likely to be
overlooked, and if the patient has omitted to give
information in some areas, these can be opened up
to him (sic)’. Thus, for example and to be a little
facetious, if a claimant for compensation has
learnt, say, the symptoms of PTSD and repeats
them to the mental health practitioner, but in the
course of telling his/her story relates a series of
events undertaken whilst ‘suffering’ this illness and
which are inconsistent with being ‘clinically signifi-
cantly impaired or distressed’ (Criterion F for
PTSD), then the examiner should be able to point to
this problem in his report. A court can then deter-
mine how credible is the plaintiff’s evidence. A form
of this method of history taking can also be found in
Byrne [1993–1997:6–561–566]. Appendix A
outlines a typical Maudsley method history.
301
 PETER C. GAUGHWIN
One might argue, then, that if thorough histo-
ries had been taken from Rosenhan’s pseudo-
patients, or if they had been considered more
deeply, they may not have been admitted to the
psychiatric hospital and may not have been left
with the diagnosis of ‘schizophrenia in remission’,
which when all the circumstances were considered,
was clearly erroneous.
I would submit that use of psychological
instruments such as the Beck Depression
Inventory and the Impact of Events Scale does not
replace the need for a thorough history and may
indeed prevent mental health experts from falling
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into error when writing their reports.
It appears to be the case therefore, that, to
paraphrase Goldney [1998:156], a combination of
‘enthusiastic legal practitioners’ and ‘uncritical
psychiatric (or psychological) opinion’ probably
serves to do more damage to claimants than a
straightforward and understandable recounting of
the distress felt as a consequence of being a victim
of an offence. The end result from ‘excessive
enthusiasm for the cause’ can be a loss for genuine
victims of appropriate compensation and excessive
compensation for those not so worthy. From a
wider policy perspective, if victim compensation
funds begin to seep too much, the result may be a
tightening of criteria for compensation, so that the
funds can continue to exist. Further, when a
formal (i.e., a DSM or ICD) diagnosis is given,
but should not be, the plaintiff is left with it
forever, irrespective of whether a ‘cure’ is
pronounced. This is also an ethical issue, in that
misuse of psychiatric diagnoses has the potential to
harm genuine sufferers if they become victims of
public cynicism.
Coaching ‘Insanity’
As noted previously [Gaughwin 2004b:22], a New
South Wales Parliamentary Select Committee into
victims’ compensation issues found that a number
of legal firms were ‘coaching’ their clients in the
symptoms of various psychiatric illnesses prior to
being seen by the ‘independent’ medical examiner.
Other problems have been outlined by Freckelton
[2001:82ff]. This does not appear to be solely a
problem for Australia.
Overseas reports have raised the same issue.
For example, Victor and Abeles [2004] opine that
coaching by attorneys on how to ‘beat’ psycholog-
ical tests in the context of personal injury or
disability litigation poses a serious concern for the
302
practice of psychological assessment and obviously
raises a number of ethical and legal questions.
Trimble [1985] reflected on the attraction of
PTSD injury in forensic settings and the problem
of malingering when he noted that lawyers might
coach their clients in the symptoms for further-
ance of a claim. Aronson, Rosenwald and Rosen
[2001] refer to the case of survivors of a major
marine disaster who reported a higher incidence of
PTSD than is usual and who had this confirmed
by a number of mental health professionals. Rosen
[1995], referring to the same incident, reported
that the incidence of PTSD reported was 86%,
much higher than had been reported in the scien-
tific literature, which suggested that lawyers may
have been coaching their clients in the symptoms.
In a recent study Freuh and his colleagues
[2005] found that a significant number of treat-
ment-seeking veterans may have misrepresented
their combat involvement in Vietnam, probably to
obtain the benefits that attached to Vietnam service.
As Tyrer [2005:552] points out in a comment on
the above report, notwithstanding exhaustive assess-
ment that produced a PTSD diagnosis, objective
records showed that 59 of the persons in the study
had never had combat exposure in Vietnam and 5
had never been in Vietnam!
That it is therefore arguable that persons
seeking a benefit can readily simulate PTSD
symptoms to obtain the benefit is also supported
by the findings of a recent study which found that
whilst 57% of the population reported lifetime
experience of specified trauma, the 12-month
prevalence of DSM-IV PTSD in the overall adult
population was 1.5% [Rosenman 2002].
Potential Problems With the Use
of Some Psychological Instruments
in the Forensic Setting
Experienced forensic and academic psychologists
have been to the fore in alerting professionals to the
potential misuse of otherwise well-validated instru-
ments when they are used in the forensic context.
Victor and Abeles [2004] report an instance of
a web site which provides information to various
parties on how to take the Rorschach, in particu-
lar in the context of custody disputes. The authors
point out that one of the problems with coaching
is that not only does it distort the results of the
psychological tests, but it can also bring into
question their integrity or validity.

The authors go on to say that one of the
problems is that psychological tests have been
developed, researched and validated with
uncoached samples, that is, clinical and non-clini-
cal populations.
This is an important point. Given that some of
the psychological tests that are used in a forensic
context are self-reporting [cf McGuire 1999], it is
not too cynical to suggest that it would indeed be
the unusual plaintiff who did not seek to make his
or her symptoms appear to be at the worst end of
the scale.
McGuire [1999:168] provides an interesting
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example of where symptoms of PTSD can be
simulated (or coached). He prefaces his example
by saying that a psychiatric or psychological
examination assumes honesty on behalf of the
person assessed, but goes on to say plaintiffs do
not necessarily tell the truth. He goes on to
provide the following:
Indeed, the author is aware of a case in which a
man was allegedly traumatized in the course of
a violent armed robbery at his workplace and he
gave a convincing account of trauma
symptoms. He was diagnosed with Post
Traumatic Stress Disorder by an experienced
psychologist, had applied for compensation and
was receiving counseling. The man was subse-
quently found to have been an accomplice to
the armed robbery and his symptoms could not
have been genuine since he was not actually
traumatized.
While it may be arguable whether or not an
offender could suffer PTSD from a particularly
violent action [cf. Raeside, Shaw & McFarlane
(undated presentation); Butler, Allnutt et al.
2005], clearly conduct contributing provisions in
the legislation would likely disentitle the person to
compensation, or at least have it considerably
reduced.
Bryant and Harvey [1998] are cited by
McGuire [1999] as finding in a study ‘that
students who were asked to generate a description
of the experience of traumatic imagery without
‘priming’ were not qualitatively different from real
PTSD sufferers with flashbacks. The authors
concluded that traumatic intrusive memory is
readily simulated … [at page 168]’.
A reverse form of coaching would appear to be
when the forensic examiner leaves out of his or her
report something which clinical experience might
suggest is relevant. In other words, while the
ON BEING INSANE IN MEDICO-LEGAL PLACES
claimant is not actually coached as to symptoms,
the forensic examiner may decide, either
consciously or unconsciously, that mention of
point X may harm the plaintiff’s case, particularly
the amount of compensation to be received,
because causation may become an issue for dispute
[cf Gaughwin 2004a: 47]
In the forensic setting, therefore, it is possible
that there is some form of coaching, whether by
lawyers or by guides on the Web, or in a reverse
sense by selective omission of details which a
Court may find significant. Forensic examiners
need to be alert to such practices.
If a forensic expert is too dogged or inflexible
in his/her opinion, there is the possibility that a
judge or cross-examiner could make the expert
look foolish and thus dent the expert’s credibility;
in a wider sense the expert’s profession may be
hurt by virtue of association [Gaughwin 2004b].
Responding to Coaching
I will now develop further the issue of the misuse
of psychological instruments in the forensic setting
and look at the ways this unfortunate practice can
be challenged.
It has been noted that, in the assessment of
patients, the chief difference between psychiatrists
and psychologists is that psychiatrists rely on the
history taken, whereas psychologists rely on a
number of psychological instruments [White &
O’Brien 1994].
While responses to both history and psycholog-
ical instruments can be coached, in the medico-legal
context there is more potential for psychological
instruments to be abused, because of the self-report
nature of some of the instruments.
Byrne [1993–1997:6–509], an experienced
forensic psychologist, has commented on the
problems that can arise with psychological
instruments:
Other tests are commonly used by psychologists
in medico-legal examinations. Unfortunately,
many of these are poorly chosen because the
items are quite transparent in what they are
assessing and most people have little difficulty
in understanding what the test is looking for. A
common example is the Beck Depression
Inventory. This is a very useful test in a clinical
situation … . Whilst this test is used by some
psychologists in a medico-legal examination,
this is unwise, since it is very easy for someone
to exaggerate his or her responses.
303
 PETER C. GAUGHWIN
McGuire (1999) had made similar comments in
relation to tests used in the detection of PTSD,
such as the Impact of Events Scale and Trauma
Symptom Inventory. One obvious reason as to
why these instruments should not be used in the
medico-legal context is that they are basically self-
report and, with the greatest charity in the world,
the conclusion that surely must be reached is that
it is highly unlikely that someone seeking compen-
sation will seek to minimise his/her symptoms.
However, with taking a complete history,
whilst one can learn a script, careful questioning
will often show up the inconsistencies.
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Thus, it behoves defence lawyers to be aware
of both the tests that are likely to be used and the
literature on those tests, if they wish to show that
the test is, in the context, likely to be unreliable.
Plaintiffs’ lawyers should similarly be aware, so
that the questions they ask will bring answers
which will provide potential for the test to be
‘rehabilitated’.
To take this point further, in their survey of
judges’ attitudes to expert evidence, Freckelton,
Reddy and Selby [1999: 35–36] noted that the
failure by experts to prove the bases of their
opinions was noted by a number of judges to be
particularly to the fore in both criminal injuries
compensation hearings and sentencing hearings.
By contrast, some judges responded that the
‘adducing of expert evidence where the bases had
not been properly proved was the fault of counsel,
not so much of the witnesses’.
In other words, it may be said that a percent-
age of those lawyers acting as counsel, together
with their instructing solicitors, are not sufficiently
versed in the issue on which they are cross-examin-
ing, including not being aware of the current peer-
reviewed literature on the topic. The causes of
such a lapse are probably multiple. For purposes of
this article I will focus on some inadequacies relat-
ing to cross-examination on PTSD.
PTSD
As has been commented previously, PTSD is an
area of controversy in the forensic arena
[Gaughwin 2004b; Freckelton & Selby 2005;
Freckelton 2001]. One reason for this is possibly
that PTSD, unlike other diagnoses in the DSM-
IV-TR, postulates its own cause [McFarlane 2000;
Freckelton 2001].
The consequence of this has been that some
lawyers tend to the view that this is most likely to
304
be the mental injury arising in victims of crime.
The reality is more sober. Based on empirical
studies, it is probably more the case that a victim
is less likely to get a PTSD than some other
psychiatric illness. In a paper in 1997, McFarlane
noted that ‘Post Traumatic Stress Disorder is the
exception rather than the rule after even the most
catastrophic of events …’ [1997:87]. In a later
paper McFarlane [2000] warned that PTSD is not
necessarily the result arising from a trauma,
something that can be clearly supported by
Rosenman’s report [2002].
Similarly, if the issue is whether one must
develop a psychiatric illness as a consequence of
trauma, then the comment of the distinguished
British child psychiatrist Sir Michael Rutter is
apposite: ‘the universal observation that even with
the most severe stressors and the most glaring
adversities, it is unusual for more than half of
children to succumb … . Although the risk of
depression following disturbing life events is
increased, it is usual for most people not to
become depressed [1985:598–611]’. That doesn’t
mean, though, that if one is so inflicted then one
is not going to have some kind of psychological
scar; the reality is, there will likely be a scar, but
the scar should not impede one’s life to any signif-
icant extent, provided appropriate attention is
given to it, often in the context of social or
environmental experiences [c.f Rutter 1984].
Freckelton [2001:347] in a provocatively
titled sub-chapter ‘Strategy in post-traumatic
stress disorder claims’ makes the following intro-
ductory points:
Real care needs to be exercised over the selec-
tion of psychiatrists and psychologists for
post-traumatic stress disorder compensation
applications. The criteria for selection should
be the mental health professional’s reputation
for objectivity and impartiality, their
preparedness to analyse rigorously whether
the applicant displays the requisite sympto-
matology, their level of clinical skills and
experience, their capacity to establish a
professional rapport with the applicant, and
their ability to communicate scientifically the
bases for their opinion.
Given that post-traumatic disorder remains a
highly controversial diagnosis with clouds
over its forensic legitimacy in part because of
the lack of scientific rigour that has been
applied to its diagnosis especially in the

crimes compensation context, this places a
premium upon the quality of opinion forma-
tion by those used as forensic experts.
What follows is a development of the material in
Freckelton’s sub-chapter.
As already stated, it is not too difficult to learn
by heart the symptoms of PTSD and given that
some of the psychological instruments used to
detect the illness are self-reporting [McGuire
1999; Byrne 1993–1997], that is, they suggest to
persons the symptoms they should have, it is not
too hard to understand why PTSD is the illness of
choice for plaintiffs and their lawyers.
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However, the fact that the illness keeps getting
diagnosed, notwithstanding studies that suggest
that chronic PTSD is a relatively rare condition
[McFarlane 1997:89; McFarlane & Yehuda
2000:942–945], suggests that mental health profes-
sionals are not being as rigorous as they might
otherwise be when assessing plaintiffs. This may be
illustrated by reference to two DSM-IV-TR [APA
2000] criteria that, inter alia, must be met before a
diagnosis can be made, Criteria A and F:
Criterion A
The person must have been exposed to a
traumatic event in which both of the following
were present:
(1) the person experienced, witnessed, or was
confronted with an event or events that
involved actual or threatened death or serious
injury, or a threat to the physical integrity of
self or others
(2) the person’s response involved intense fear,
helplessness or horror. Note: In children, this
may be expressed instead by disorganized or
agitated behavior.
Criterion F
The disturbance must cause clinically signifi-
cant distress or impairment in social, occupa-
tional, or other important areas of functioning.
The ICD-10 [WHO 1992] requires the stressor
triggering the illness to be of ‘exceptional severity’.
It needs to be noted that the DSM-IV-TR at
page 467 qualifies further the nature of the
trauma: it must be of ‘an extreme (i.e., life-threat-
ening) nature’. It needs to be noted that the
authors of the DSM-IV-TR use the abbreviation
‘i.e.’, not ‘e.g.’. By any reasonable understanding
of English usage, ‘i.e.’ in this context means that it
must be; it is not an example. So, life-threatening
is mandatory, not just an example.
ON BEING INSANE IN MEDICO-LEGAL PLACES
Courts have also tended to take the view that,
for a finding of PTSD to be made, the nature of
the trauma must be objectively life-threatening,
not something subjectively experienced
(Freckelton 2001:346). Thus, a woman pushed by
an elderly, almost invalided old man could not get
PTSD from such an incident (Cleary v
Congregation of Sisters of Holy Family of Nazareth:
Unreported, NSW Supreme Court, 23 December
1996); nor could a woman who was wrongly told
that her blood alcohol level was above the legal
limit suffer a PTSD from such an error, notwith-
standing that three psychiatrists had diagnosed her
with the condition (Morgan v Tame supra).
Similarly, in Phillips v State of South Australia
and Lock (2000) Unreported Judgement
No:[2000] SADC 104), the judge accepted the
evidence of the psychiatrist called by the State of
South Australia that, notwithstanding that the
plaintiff had been assaulted by his neighbour and
the plaintiff may have felt scared, the incident was
not sufficient to qualify for Criterion A. In doing
so, the judge rejected the evidence of a psychiatry
registrar and a psychiatrist who both diagnosed the
plaintiff with a PTSD.
There appears to be no law on what is
required for something to meet Criterion F.
Neither is there any guidance in the DSM-IV-
TR or the psychiatry text books that I have
consulted as to what ‘clinically significant’
means.
Freckelton (2001:348) gives a clear explana-
tion for what ‘significant’ probably means in this
context, suggesting that it involves bringing
about changes of real magnitude in a person’s
life. This explanation is developed by Freckelton
(2005), where he points out that ‘significant’
may mean more than ‘minimal’ and less than
‘substantial’ for lawyers. I doubt that anyone
would disagree with that.
He then goes on to ask ‘but what effect on
the evaluation process does the adverb ‘clinically’
have?’
I want to develop this further by reference to
the Global Assessment of Functioning Scale
(GAF), Axis V in the DSM-IV-TR [cf. pages
32–34].
On the GAF scale the word ‘serious’ is used to
describe one level of impairment. Thus, it might
be argued that, for something to be clinically
significant, the symptoms being demonstrated are
serious and more than transient.
305
 PETER C. GAUGHWIN
A GAF score of 50 refers to serious impair-
ment in social, occupational or school functioning
(e.g., no friends, unable to keep a job). Below 50
the GAF refers to major impairment. A score of 60
refers to moderate difficulty in social, occupational
or school functioning, for example, few friends,
conflicts with peers or co-workers. Scores of
61–100 show ascending degrees of functioning.
One might argue, therefore, that clinically
significant impairment would require a GAF score
of 60 or less.
In considering Criterion F, history becomes
very important. The mental health expert needs to
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explore the life of the plaintiff prior to the traumatic
event. For example, did the plaintiff have few
friends prior to the trauma? Was he/she in conflict
with co-workers or peers? Or has this only occurred
post the trauma? In other words has there been a
significant or fundamental negative change to the
plaintiff’s life post the trauma (cf. T supra)?
When the history is considered, it may be the
case that plaintiff has had, for example, a longstand-
ing dysthymic disorder or a major depression that
has only come to be recognised as a consequence of
the trauma. A defendant can only be responsible for
that which his/her behaviour has caused or exacer-
bated, not what has been there before [cf. Bott v
State of South Australia and Dohling (1998)
Unreported Judgement No: D3776]. However,
using the egg-shell psyche principle, a defendant
can be responsible for awaking an illness that has
been dormant and which did not significantly affect
the plaintiff’s functioning until the experience of
the trauma [cf HK supra].
This is where a detailed history is crucial in
forensic assessment, so that the cross-examiner can
properly frame questions that bring about answers
that enable the decision-maker to bring down a
verdict that is, in all the circumstances, fair for all
parties. If lawyers do not understand clinical
concepts and are not prepared to learn them or seek
assistance with them, then they probably should not
cross-examine on them. Similarly, lawyers and expert
mental health witnesses should not allow courts to
labour under mistaken notions of what constitutes
psychiatric illness and what its aetiology is.
If ‘clinically significant’ requires a GAF score
of 60 or less, that is, serious impairment, then it
would become an important issue to determine
what it is that the plaintiff presenting with
symptoms of PTSD is doing with his/her life.
306
Coupled with that is the question of whether
the second use of the word ‘or’ in Criterion F
means alternatives, or whether it is being used in a
conjunctive sense. Thus, could a person who is the
victim of a PTSD type trauma have ‘clinically
significant distress or impairment’ in, say, one’s
social life, but not in one’s work life?
In my opinion, the answer to that question in
this context is likely no, though sometimes there
are exceptions. In general, though, if one has
significant distress or impairment in, for example,
one’s social life, it is unlikely that such significant
distress or impairment would not exist in, or come
to affect, for example, one’s occupational
functioning. The reason for this is, in my opinion,
that at some level social functioning interacts with
occupational functioning.
So, for example, if one has significant diffi-
culty interacting with one’s family, friends or
neighbours, it is logical that such a difficulty
would show itself in some form in the workplace.
Couple this with the symptoms in Criteria B, C,
D and E, and it is not hard to understand how one
could be significantly distressed or impaired and
how this is going to affect one’s life in general.
Similarly, if the plaintiff is able to recount
quite fluently all aspects of the traumatic experi-
ence, then one might wonder whether the expres-
sion of symptoms is something that has been
learnt, given that a key feature of PTSD is a reluc-
tance to discuss symptoms and the experience
[McGuire 1999: 167ff; McLean v The
Commonwealth (Unreported Judgement, NSW,
28 February 1997); McFarlane 1997; Kaplan &
Sadock 1998].
Conclusion
As Rosenhan’s experiment [1973] shows, it is not
difficult to simulate symptoms of psychiatric
illness. A NSW Parliamentary Committee and
research from overseas have shown that, in the
medico-legal context, such practices continue to
exist, notwithstanding that, despite many
advances in the general public’s understanding of
psychiatric illness, there continues to exist a
pejorative attitude towards psychiatric illness. It
would be pleasing to assume that this represents a
more open understanding of mental illness by
plaintiffs that is more far-reaching than in the
general community — but that may be assuming
too much! Such practices not only bring the mental
health area into disrepute, they also have the effect

of distorting negatively the outcomes of litigation
and raise ethical questions about the misuse of
mental illness for personal benefit. It remains the
case that expert mental health practitioners have an
ethical duty to educate both the practitioners who
employ them and the courts in general as to the
reality of what constitutes mental illness.
They can begin this action by taking thorough
histories from plaintiffs. The term ‘mental injury’ or
variations thereon, used in most criminal injuries
compensation legislation, provides an opportunity
to appreciate that being a victim of crime is likely
often to result in distress that is more than transient
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and hence compensable. The victims of crime juris-
diction recognises, wisely in my opinion, that
mental injury does not have to become pathological
in order to obtain compensation. Based on empiri-
cal studies, a small group of people may have an
injury that becomes pathological, or have an injury
that exacerbates pre-existing psychopatholgy.
Obviously, that will be compensated. However, and
with respect to those who believe it should, the
development of a recognised psychiatric illness
should not be the basis for obtaining compensation,
but rather the way a person’s emotional life has been
significantly, negatively affected by the trauma (not
things after the trauma) [T supra; Andrews supra],
whether that is in fact a recognised psychiatric
illness or something that may be sub-clinical. To
adopt such an approach to personal injury matters
in general may help resolve some of the tensions
experienced by mental health practitioners who
enter the forensic arena, as well as reduce some of
the dubious practices that have been highlighted in
clinical and legal literature.
Author Note
The views expressed herein are personal views and
do not necessarily reflect those of the author’s
employer.
Acknowledgments
I would like to thank Dr Ken O’Brien and
Professors Robert Goldney and Christopher
Tennant for their generous and helpful comments
on early drafts of this article.
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Appendix A

Outline of suggested format for examination/history taking in forensic matters (based on the Maudsley
method and adapted from Sainsbury [1980]). See also Byrne (1993–1997).

1. plaintiff’s or defendant’s name and age

2. reason for attendance
3. present complaints/illness and their duration
A detailed chronological account of the symptoms from the earliest time a change was noticed. Any other
events occurring before attendance, but after the forensic event.
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4. medical history
5. family history:
• father: health, age or age at death, cause of death, personality, occupation
• mother: as above for Father
• siblings: date of birth and age or age at death (including any miscarriages and stillbirths); marital status,
personality, illnesses, occupation
• social position and general efficiency of the family, including any familial diseases including psychiatric
illnesses or disorders (e.g., anxiety, abnormal personality)
• home atmosphere and influence, particularly any salient happenings among parents and the rest of family
during the plaintiff’s/defendant’s early years, emotional relationship with parents, siblings or any other
important figure.

6. personal history
• date and place of birth: mother’s condition during pregnancy, whether full-term birth and normal deliv-
ery; breast or bottle fed; time of weaning; feeding difficulties
• early development: when were milestones such as walking, speaking, etc., met
• neurotic symptoms in childhood: e.g., night terrors, sleep walking, temper tantrums, bed wetting, thumb
sucking, nail biting, food fads, stammering, mannerisms, fear states
• health during childhood, e.g., physical and/or psychiatric illness, hospitalisation
• school: age of beginning and finishing; standard reached; evidence of ability or learning difficulties, hobbies
and interests, relationship with peers and teachers, attitude to study
• any tertiary education
• occupation (including any military service): age of starting work, jobs held and for how long, reasons for
leaving, remuneration, relationships with employers and work colleagues, satisfaction or reasons for
dissatisfaction, any Workcover claims and reasons for them
• any assessment/treatment by a psychologist or psychiatrist as a consequence of work-related issues.

7. mental health history

8. personality before offence:
• social relationships, particularly to family, friends and fellow workers or students and how these were
handled
• intellectual activities and interests, hobbies and recreations
• mood: e.g., cheerful, despondent, anxious, optimistic, pessimistic

309
 PETER C. GAUGHWIN

• standards: e.g., moral, religious, social, economic, practical

• energy, initiative
• fantasy life: daydreaming — frequency, content
• habits: e.g., eating, sleeping, drinking,, use of illicit drugs, smoking

9. forensic history, e.g., any criminal history, civil claims, family law matters, workers compensation;
outcome, e.g., imprisonment, award of damages, loss of custody of children
10. Mental State Examination
11. any external sources considered, e.g., documents sent by referral source, interviews with other people
etc.
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12. summary of facts and diagnosis (if there is or was one) and prognosis (and recommendations for treat-
ment if required).

NB
Sexual history. Whilst this is usually part of a general psychiatric history in clinical contexts, in forensic
matters such a history probably should only be taken when sexual issues are part of the claim for which
the person is being examined.

310