Dr Nigel Strauss recently presented to Lander & Rogers’ Health Law and Liability teams and their clients about the assessment of psychiatric impairment in civil claims.

As a psychiatrist with over 30 years’ experience and co-author of the “Guideline to the Evaluation of Psychiatric Impairment for Clinicians” (GEPIC), Dr Strauss provided an insider’s view into how psychiatrists use the GEPIC to assess psychiatric injury for the purposes of determining whether a claimant exceeds the 10% impairment threshold under the Wrongs Act.

With the recent rise in civil claims involving alleged psychiatric injury, knowledge of how psychiatric impairment is assessed is critical to determining whether a claimant is entitled to general damages - a key issue for medical indemnity and public liability insurers.

Psychiatric disorders

Dr Strauss explained a number of common psychiatric disorders seen in civil claims, including:

  • acute stress disorder;
  • post-traumatic stress disorder (PTSD);
  • generalised anxiety disorder;
  • adjustment disorder with depressed mood and/or anxiety;
  • panic disorder with/without agoraphobia;
  • obsessive compulsive disorder;
  • major depressive disorder;
  • pain disorder;
  • substance use disorder; and
  • dysthymic disorder.

Although abnormal grief reaction is commonly alleged in nervous shock claims, it is not a psychiatric disorder listed in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Dr Strauss explained that regardless, abnormal grief reaction is widely accepted by psychiatrists as a diagnosis.

Since Dr Strauss’ presentation, the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) has been released. DSM-V includes abnormal grief reaction and does not include the “Bereavement Exclusion” contained in DSM-IV, which discouraged diagnosis of major depression within two months of the death of a loved one. It will be interesting to see what implications this will have for nervous shock claims.

Using the GEPIC

An understanding of how the GEPIC operates is important when deciding whether or not to refer a claimant to the Medical Panel upon service of a certificate of assessment.

Under the GEPIC, psychiatric impairment is evaluated by:

  • assessing six mental functions (intelligence, thinking, perception, judgement, mood and behaviour) and determining which class (1-5) they fall into by reference to their severity (normal to slight, mild, moderate, moderately severe and severe); and
  • once a class has been determined for each mental function, determining the median class. The percentage impairment which correlates with that particular class is the overall percentage impairment for the claimant.

Dr Strauss provided the following insights into the GEPIC:

  • only consultant psychiatrists can use the GEPIC and issue certificates of assessment;
  • a psychiatric diagnosis is not required in order to exceed the threshold;
  • the descriptors in the GEPIC are indicative only and other symptoms can be relied upon if justified;
  • psychiatrists primarily use mental state examinations to evaluate impairment and they are reliant on self-reporting; and
  • documentary evidence can assist to counter a claimant’s version of events or support the existence of pre-existing psychiatric injury.

Case examples

Dr Strauss discussed case examples and some of the features that might be seen in differing levels of psychiatric impairment. Very broadly, he suggested that:

  • in mild (5-10%) impairments - the claimant may have psychiatric symptoms only, work and have only had minimal treatment;
  • in moderate (10-20%) impairments - the claimant may have a psychiatric diagnosis, not work and have seen a psychologist; and
  • in severe impairments (25%+) - the claimant may be suicidal, inactive and be seeing a psychiatrist.

He explained that if PTSD and adjustment disorders are diagnosed, the symptoms are significant and impairment may exceed 10%. If major depression is diagnosed, a claimant very likely exceeds 10%.

Claimants may not exceed the threshold where there has been a significant improvement or where there is pre-existing psychiatric impairment. Assessing pre-existing impairment is complicated and involves considering temporal, severity, level of activity, treatment and historical factors.

Conclusion

Dr Strauss’ insights have real practical relevance to the consideration of whether a claimant is entitled to general damages in claims alleging psychiatric injury or whether referral to the Medical Panel is warranted. In view of the recent rise in Wrongs Act nervous shock claims, an understanding of the GEPIC is invaluable for those in the medical indemnity/public liability space.