An Analysis of Serious Psychological InjuryFollowing UK Military Service ­ RushmiSethi

Abstract

An analysis of serious psychological injury following UK military service at work withreference to case law, published journal articles, and medical evidence. Exposure tointense combat is among the most commonly associated traumas with PTSD.Military personnel wounded in action e.g. military air accidents, or involved in direct

combat, puts those in a high­risk group for developing PTSD. Depression may occur as apsychological response to severe physical injury and chronic disabling conditions after military combat.Vulnerability factors are thought to increase the likelihood of depression in the presence of provokinglife­events. Pronounced negative thinking and flashbacks suggests that cognitive behavioural therapymay be helpful. A confiding relationship and a job could therefore be factors which protect againstserious psychological injury. It is in the claimant’s best interests to be seen by an experiencedconsultant psychiatrist and/or psychologist with relevant knowledge.

Introduction

Serious psychological injury following military service is an esoteric concept. It can include injuriessuch as Post Traumatic Stress Disorder, Traumatic Brain Injury, Chronic Pain, Depression and PostTraumatic Amnesia. This article is a review of journal articles and medical evidence with regard toserious psychological injury from 1997­2014 and endeavours to link this material effectively to anaccount of the relevant military case law.

The author of this article is a lawyer, not a medical practitioner nor a member of the UK Armed Forces.The intent of this article is to provide a layperson’s guide to some important psychologicalconsequences which may manifest after military service.

Review of Serious Psychological Injury

There are several conditions which may present following military service. They are discussed below.

Post Traumatic Stress Disorder (PTSD)

There are many definitions of Post Traumatic Stress Disorder (PTSD). In the UK, it is thought PTSDarises as a delayed or protracted response to a stressful event or situation (of either brief or longduration) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasivedistress in almost anyone (e.g. natural or man­made disaster, military combat, serious accident,witnessing the violent death of others, or being the victim of torture, terrorism, rape, or other crime)(WHO ICD­10, The ICD­10 Classification of Mental and Behavioural Disorders World HealthOrganisation, Geneva, 2010 F43.1 Post­Traumatic Stress Disorder definition). The USA definition ofPTSD is a severe anxiety disorder that can develop after exposure to any event that results inpsychological trauma (American Psychiatric Association (1994) Diagnostic and statistical manual ofmental disorders: DSM­IV Washington, DC: American Psychiatric Association ISBN 0­89042­061­0).

In a small proportion of cases the condition may follow a chronic course over many years, witheventual transition to an enduring personality change (F62.0). According to Dr Martin Baggaley,Consultant Psychiatrist, prognostic factors for developing chronic PTSD include: depression in themonths greater than the trauma (Freedman et al., 1999); peri­traumatic dissociation (Shalev et al.,1996); irritability and alcohol misuse (Blanchard et al., 1996); and lack of social support (Perry et al.,1992) (Baggaley M, “Psychiatric Injury” APIL London regional group meeting, 21 November 2012).

According to the United States Department of Veteran Affairs, the DSM­V is the fifth edition of theDiagnostic and Statistical Manual of Mental Disorders, published by the American PsychiatricAssociation. This manual shows the criteria broadly used in the United States to classify mentaldisorders. The International Classification of Diseases (ICD) is the classification used since 1994 bythe World Health Organisation (WHO). The ICD­10 Classification of Mental and Behavioural Disorders:Clinical Descriptions and Diagnostic Guidelines give international guidelines for the diagnosis of PTSD.The DSM­V and ICD­10 criteria for diagnosis of PTSD are similar but there are also some differences.

According to the Royal College of Psychiatrists, diagnostic symptoms for PTSD include re­living theoriginal trauma(s) through flashbacks and/or nightmares, avoidance of stimuli associated with thetrauma and emotional numbing, and increased arousal – such as difficulty falling or staying asleep,

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anger and hyper­vigilance. Formal diagnostic criteria (both DSM­V and ICD­10) require that thesymptoms last more than one month and cause significant impairment in social, occupational, or otherimportant areas of functioning. However, ICD­10 states that all diagnostic symptoms must arise within6 months of the traumatic event. The symptoms of PTSD are part of a normal reaction to narrowly­avoided death.

Reed, a speciality registrar in child and adolescent psychiatry of Oxford Health NHS Foundation Trust,defines PTSD as ‘a severe, prolonged, and impairing psychological reaction to a distressing event’,and argues that a diagnosis of PTSD is easily missed (Reed R, “Easily missed? Post­traumatic stressdisorder” BMJ 2012 344: e3790). The vast majority of military psychological injury claims relate to thedevelopment of PTSD.

English Case Law

In Laughton v MoD [1996] QBD (Wilcox J) 9 May 1996 unreported, the claimant, aged 25, wasundergoing helicopter training at work when the aircraft crashed, and he suffered serious back injuries.The claimant had served eight years in the Army and was someone who excelled in sport. Liability wasadmitted, the issues at trial related solely to quantum. It was agreed that the claimant sustaineddamage to the intervertebral disc between the forth and fifth lumbar vertebra, and had developedPTSD in the aftermath of the helicopter crash and continued to suffer nightmares over the incident atthe time of trial aged 30. His honour judge Wilcox concluded that the claimant has suffered seriousphysical and psychological disability as a result of this accident. He has also had to give up the careerhe loved in the army. The claimant was awarded £521,328 total damages which included £35,000damages for the pain, suffering and loss of amenity, and £7,500 damages for loss of congenialemployment.

In Lapham v MoD [1997] QBD (HH Judge Richard Walker) 4 November 1997 unreported, a land roverwas driven by a fellow private soldier at work, and in which the claimant, male aged 22, was a front­seat passenger, careered off the road and turned over. The claimant suffered a fractured skull withsevere facial injuries, a spinal fracture and a perforated eardrum. Following extensive hospitaltreatment, the claimant was left suffering from PTSD. He was discharged from the army as beingmedically unfit. The claimant was awarded £127,000 settled damages, including legal costs.

In Multiple PTSD Claimants v MoD [2003] EWHC 1134 (QB), Owen J dealt with the case of multipleclaimants in combat conditions which led to the development of PTSD. Here, the MoD did not owe aduty to maintain a safe system of work for armed forces personnel engaged with the enemy in thecourse of combat; however it could not be said that all claims for personal injury sustained in combatwere not justiciable. According to barrister, Jonathan Dingle’s talk on such military claims, thejudgment did not consider physical injuries (Dingle J, “Suing Private Ryan” 218 Strand Chambers/APILmilitary special interest group meeting, 12 May 2008). Chronic pain which is later discussed may havebeen a relevant factor to consider. Owen J did not refer to road traffic accidents which could havehappened anywhere and whose cause was not in any sense related to combat or hostilities. The MoDtook the point in just one case – Nicholson v MoD (2004 – unreported).

In New v MoD [2005] EWHC 1647 (QB) (29 July 2005), a former soldier who was suffering from PTSDwas awarded general damages of £50,000 against the MoD following the decision ([2003] EWHC1134) that they were in breach of duty on the basis that if he had been referred for treatment when hispsychiatric problems first began he would probably have been able to live a stable domestic and sociallife; to function sufficiently well to remain in the army if he had wished to do so; and to secure and holdremunerative employment commensurate with his abilities when he left the army. The claimant’sservice record was one of consistent and exceptional achievement. Before and during the claimant’sfifth tour of duty in Northern Ireland he had been suffering from undiagnosed mild to moderatedepressive episodes with marked anxiety features. Over several years following his discharge from thearmy the condition worsened, which eventually led to the breakdown of his marriage. The claimant hadworked for long periods but had been increasingly unable to retain a job. The claimant had chronicPTSD at the time of the court hearing before Owen J, and the case fell towards the upper end of theJSB guidelines.

In Hibbert v MoD [2008] EWHC 1526 (QB) (2 July 2008), Owen J gave judgment for the defendant. Aclaimant soldier could not show that a military psychiatrist had negligently failed to recognise that hewas suffering from PTSD and, accordingly, his claim against the Ministry of Defence that his conditionhad been aggravated by that negligence failed. The military psychiatrist determined that the claimantwas not suffering from PTSD as defined by the criteria in DSM III R and that, unless required, nofurther treatment was necessary. After the claimant went absent without leave and crashed his car hewas again seen by the military psychiatrist, who, for a second time, concluded that the claimant wasnot suffering from PTSD. Some years later, the claimant was admitted to hospital and diagnosed assuffering from resistant PTSD for which he received medication and was discharged from the army. Itwas held that the claimant was suffering from symptoms that could be described as suggestive ofPTSD at a sub­clinical level but was not, at the relevant time, suffering from the condition.

In Sylvestre v MoD [2012] All ER (D) 219 (Mar) (29 March 2012) the claimant, born in 1970, enrolledas a volunteer in the territorial army in 2000, and was on a six­month tour of duty in Iraq in 2004. Inearly 2004, the claimant, then aged 34, was escorting two paramedics from Iraq to Kuwait City whenthe vehicle in which he was travelling as a passenger suffered a blow­out at high speed. The driver lostcontrol of the vehicle and the claimant was thrown from the vehicle. He had not been wearing aseatbelt and suffered a number of injuries including a compression fracture of the C5 vertebra. He was

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temporarily paralysed and although that was largely resolved, his right arm remained spasticated andhe had very limited use of his right hand. The claimant developed PTSD and depression, and hesuffered from neurological issues including erectile dysfunction. He brought proceedings against thedefendant. In 2008, judgment on liability was entered by consent on a 75%­25% basis in the claimant’sfavour. The issue at the instant hearing was what damages the claimant, then aged 42, was entitled tofor pain, suffering and loss of amenity. Judge McKenna decided that the claimant would be awardedjust over £140,000 for pain, suffering and loss of amenity, having had regard to the relevant JSBguidelines and having made a significant reduction on account of the overlap between the variousinjuries suffered by the claimant.

How Prevalent is PTSD ?

According to a recent study by King’s College London which examined the effect of deployments toIraq and Afghanistan on the mental health of military personnel from 2003 to 2009, PTSD ratesamongst UK troops are not as high as previously thought. The investigators show that the mostcommon mental health problems reported by personnel continue to be alcohol misuse and commonmental health disorders, rather than probable post­traumatic stress disorder. In addition, overall, theprevalence of mental health disorders in the UK armed forces remains stable between 2003 and 2009.On the other hand, the study also showed that deployed reservists still have a higher prevalence ofprobable post­traumatic stress disorder than non­deployed reservists despite several initiatives by theMinistry of Defence. There was a significant association between deployment and probable PTSD inregular personnel who had a combat role during deployment. When reservists return to civilian life,some experience difficulties and need support not only from the Ministry of Defence, but also fromacross government, including the Department of Health and the Department for Work and Pensions.Research has shown that providing adequate support and health care for the UK's armed forcesshould be an important concern for the country's next government in whatever form it takes (Fear NT,Jones M, Murphy D, Hull L, Iversen A, Coker B et al. at King’s College London, “The mental health ofUK military personnel revisited” (15 May 2010) The Lancet, 375: 9727: 1666).

When you analyse the mental health of UK military personnel, one has to take into consideration theeffect of ‘stigma’ attached to serious psychological injury. In the case of Hibbert v MoD [2008] EWHC1526 (QB) (2 July 2008) paragraph 65, the military psychiatrist refers in the course of his evidence tostigma attached to psychiatric illness or disorder in the armed forces. Perceived stigma andorganisational barriers to care can influence the decision to seek help for military personnel when theyare suffering from mental health problems (Osorio C, Jones N, Fertout M, Greenberg N, “Perceptionsof stigma and barriers to care among UK military personnel deployed to Afghanistan and Iraq” (2012)Anxiety, Stress and Coping, 1­19i Routledge). The conclusion of research examining the relationshipbetween stigmatizing beliefs, perceived barriers to care, and probable PTSD in 23,101 UK militarypersonnel deployed to Afghanistan and Iraq both during and after deployment, suggest that stigma isnot a fixed entity and that it fluctuates with the type of environment in which military personnel findthemselves, in particular, the pressurized circumstances of deployment. It was found that stigma andbarriers to care perceptions were significantly, and substantially higher during deployment than whenpersonnel are returning home (Osorio C, Jones N, Fertout M, Greenberg N, “Perceptions of stigma andbarriers to care among UK military personnel deployed to Afghanistan and Iraq” (2012) Anxiety, Stressand Coping, 1­19i Routledge).

A BMJ study has found that military "personnel who were deployed for 13 months or more in the pastthree years were more likely to fulfil the criteria for post­traumatic stress disorder, and have multiplephysical symptoms" (Rona RJ, Fear NT, Hull L, Greenberg N, Earnshaw M, Hotopf M, et al., “Mentalhealth consequences of overstretch in the UK armed forces” BMJ 2007;335:603). It was alsoconcluded that a clear and explicit policy on the duration of each deployment of armed forcespersonnel may reduce the risk of post­traumatic stress disorder. An association was found betweendeployment for more than a year in the past three years and mental health that might be explained byexposure to combat.

Multiple injury symptoms are reported to be associated with increased risk of PTSD (Schneiderman AI,Braver ER, Kang HK, “Understanding Sequelae of Injury Mechanisms and Mild Traumatic Brain InjuryIncurred during the Conflicts in Iraq and Afghanistan: Persistent Postconcussive Symptoms and PostTraumatic Stress Disorder”, (2008) American Journal Epidemiol 167:12, 1446­1452). Studies haveconfirmed that combat­related mild traumatic brain injury doubled the risk for PTSD (Stein MB,McAllister TW, “Exploring the Convergence of Posttraumatic Stress Disorder and Mild Traumatic BrainInjury”, (2009) American Journal of Psychiatry,1­9).

Treatments for PTSD

Psychological conventional treatments include: trauma focused cognitive behavioural therapy (TCBT)and eye movement desensitisation and reprocessing (EMDR). Cognitive behavioural therapy (CBT)focuses on a person’s distressing feelings, thoughts and behaviour and helps to bring about a positivechange. In TCBT, the treatment concentrates specifically on the memories, thoughts and feelings thata person has about the traumatic event. EMDR aims to change how you feel about memories of thetrauma and helps you to have more positive emotions, behaviour and thoughts (NICE ClinicalGuidelines). CBT helps when the claimant is willing to do homework of keeping a thought diary. EMDRdoes not require the claimant to do homework because questions are asked after the treatmentprovided i.e. ways to reduce anxiety, and then eye movement takes place (Dr Holmshaw M,“Psychological assessment and management of traumatised children” Moving Minds/ APIL child injury

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special interest group meeting, 24 November 2009).

The Royal College of Psychiatrists have an online guide to complementary and alternative medicinesthat may also help in treatment of PTSD along with conventional treatments(<http://www.rcpsych.ac.uk/mentalhealthinformation/therapies/complementarytherapy.aspx> accessed28 October 2013).

Traumatic Brain Injury (TBI)

Mild traumatic brain injury (MTBI) accounts for 70­90% of all treated brain injuries (Cassidy JD, CarrollLJ, Peloso PM, Borg J, von Holst H, Holm L et al, “Incidence, risk factors and prevention of mildtraumatic brain injury: Results of the WHO collaborating centre task force on mild traumatic braininjury” [2004] Journal of Rehabilitation Medicine Supplement 43: 28­60). MTBI is usually caused by arelatively mild blow to the brain that causes just enough physical injury to possibly compromise thenormal brain functions of memory, attention, mental organisation, and logical thinking (Holli KK,Harrison L, Dastidar P, Waljas M, Limatainen S, Lukala T et al, “Texture analysis of MR Images ofpatients with Mild Traumatic Brain Injury” [2010] BMC Medical Imaging 10:8). Brain trauma can becaused by a direct impact or by acceleration alone, which includes falls, vehicle accidents, andviolence (Dardis R, “Management of head injuries” APIL West Midlands regional group meeting 15March 2005).

The WHO collaborating centre task force on MTBI defines MTBI as including: confusion ordisorientation; loss of consciousness for 30 minutes or less; Post­traumatic Amnesia for less than 24hours, and/or other transient neurological abnormalities such as focal signs, seizure and intracraniallesion not requiring surgery; Glasgow Coma Scale score of 13­15 after 30 minutes post­injury or laterupon presentation for healthcare (Quinn D, “Controversies in the assessment of Mild Traumatic BrainInjury and Post Concussional Syndrome” Halliday Quinn Associates/ APIL West Midlands regionalgroup meeting 10 June 2011).

In both the USA and UK, brain injuries can be classified into mild, moderate, and severe categories(Saatman K, Duhaime A, “Classification of traumatic brain injury for targeted therapies” [2008] Journalof Neurotrauma 25 (7):719­38). The Glasgow Coma Scale (GCS), the most commonly used system forclassifying TBI severity, grades a person's level of consciousness on a scale of 3–15 based on verbal(whether you can make any noise), motor (whether you can move), and eye­opening reactions tostimuli (Marion D, Traumatic Brain Injury (1999) p.4 Thieme Medical Publishers ISBN 0­86577­727­6).A score for each of these three areas is added up to give a total for adult claimants. According to theNHS website on diagnosing a head injury, (<http://www.nhs.uk/Conditions/Head­injury­severe­/Pages/Diagnosis.aspx> accessed 28 October 2013) a score of 15 (the highest possible score) meansthat you know where and who you are, you can speak and move as instructed, and your eyes areopen. A score of 3 (the lowest possible score) means that you cannot open your eyes and you cannotmove or make a noise. The score of 3 indicates that your body is in a deep coma (a sleep­like statewhere you are unconscious for a long time).

Ambulance attendance sheets record GCS as to how the patient is first seen. According to Dr DavidQuinn, about 5% of claimants with mild TBI have long­term cognitive difficulties (Quinn D,“Controversies in the assessment of Mild Traumatic Brain Injury and Post Concussional Syndrome”Halliday Quinn Associates/ APIL West Midlands regional group meeting 10 June 2011).

Both the CDC (Centre for Disease Control and Prevention) a United States government public healthagency, and WHO (World Health Organisation) for the UK, agree that mild TBI is due to a blunt ormechanical force that results in some type of transient confusion, disorientation or loss ofconsciousness lasting not more than 30 minutes, and possibly associated with transientneurobehavioral deficits and a GCS no worse than 13­15 ( “Assessment of traumatic brain injury, acute– best practice” BMJ 31 July 2012). It is generally agreed that a TBI with a GCS of 13 or above is mild,9–12 is moderate, and 8 or below is severe (Parikh S, Koch M, Narayan R, "Traumatic brain injury"[2007] International Anaesthesiology Clinics 45 (3): 119–35). However, the GCS grading system hasrestricted ability to predict outcomes. Hence, other classification systems such as the one shown in thetable are also used to help determine severity. A current model displayed by the Department ofDefence and Department of Veterans Affairs uses all three criteria of GCS after resuscitation, durationof post­traumatic amnesia (PTA), and loss of consciousness (LOC) (Department of Defence andDepartment of Veterans Affairs (2008) "Traumatic Brain Injury Task Force"http://www.cdc.gov/nchs/data/icd9/Sep08TBI.pdf).

It also has been intended to use changes that are visible on neuroimaging, such as swelling, focallesions, or diffuse injury as method of classification (Maas A, Stocchetti N, Bullock R, "Moderate andsevere traumatic brain injury in adults" (August 2008) Lancet Neurology 7 (8): 728–41). Grading scalesalso exist to classify the severity of mild TBI, commonly called concussion; these use duration of LOC,PTA, and other concussion symptoms (Hayden MG, Jandial R, Duenas HA, Mahajan R, Levy M,"Pediatric concussions in sports: A simple and rapid assessment tool for concussive injury in childrenand adults" [2007] Child's Nervous System 23 (4): 431–435).

Severity of traumatic brain injury

(Source: Department of Defence and Department of Veterans Affairs (2008) "Traumatic BrainInjury Task Force" http://www.cdc.gov/nchs/data/icd9/Sep08TBI.pdf)

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GCS PTA LOC

Mild 13–15 day0–30 minutes

Moderate 9–12 >1 to days >30 min to

Severe 3–8 >7 days>24 hours

The only difference in the above table used in the USA, and the UK is that where it states “mild”, theterm “minor” TBI is often used instead in the UK.

In the Guardian newspaper it stated that:

“Hundreds of troops returning to the UK from Iraq and Afghanistan are suffering brain injuries causedby exposure to high­powered explosions or minor blows to the head, it emerged yesterday.

The Ministry of Defence said that since 2003 about 500 servicemen and women had suffered "mildtraumatic brain injury" (mTBI) ­ which can lead to memory loss, depression and anxiety.” (“MoD revealsscale of brain injuries among Iraq and Afghanistan veterans”, The Guardian newspaper, 16 January2008).

Hoge and others submit after their research that the epidemiology of combat­related mild traumaticbrain injury is poorly understood. The results of their research show that soldiers with mild TBI,primarily those who had loss of consciousness, were significantly more likely to report poor generalhealth, missed workdays, medical visits, and a high number of somatic and postconcussive symptomsthan were soldiers with other injuries. However, after adjustment for PTSD and depression, mild TBIwas no longer significantly accompanied with these physical health outcomes or symptoms, except forheadache (Hoge CW, McGurk D, Thomas JL, Cox AL, Engel CC, Castro CA, “Mild Traumatic BrainInjury in US Soldiers returning from Iraq” 31 January 2008 The New England Journal of Medicine358:5, 453­63).

According to the research of the King’s Centre for Military Health Research, the prevalence of mild TBIin UK military is lower than that in the US military. Symptoms of current PTSD and alcohol misuse areassociated with mild TBI. Symptoms of mental disorder predated occurrence of mild TBI. The majorityof post­concussion symptoms were not associated with mild TBI (Rona RJ, Jones M, Fear NT, Hull L,Murphy D, Machell L et al., “Mild Traumatic Brain Injury in UK Military Personnel returning fromAfghanistan and Iraq: Cohort and Cross­sectional Analyses” (2012) Journal of Head TraumaRehabilitation 27:1, 33­44).

Recently, in the Sunday Times newspaper, it was reported that:

“More than 600 British troops have suffered brain injuries caused by exploding bombs and blows to thehead in Afghanistan. ...

Of the 616 servicemen and women who have suffered a traumatic brain injury in Afghanistan, at least22 suffered severe brain injuries.

Traumatic brain injuries can have a devastating impact on soldiers’ lives, Sharp said[professor/consultant neurologist at Imperial College London who conducted a study on British soldierswho suffered brain injuries in Afghanistan]. [Soldiers] struggle to stay employed within the army [and]can run into difficulty with their home life.” (“600 veterans of Afghanistan left with brain injury”, TheSunday Times newspaper, 11 August 2013, p.11).

Clearly, research has shown that as the UK military engagement in Afghanistan continues and morepersonnel are deployed, the demand for help from military health services, the NHS and the servicecharities will increase (Sundin J, Forbes H, Fear NT, Dandeker C, Wessely S, “The impact of theconflicts of Iraq and Afghanistan: A UK perspective” April 2011 International Review of Psychiatry 23:2,153­159).

English Case Law

In Jebson v MoD [2000] 1 WLR 2055 CA it was held that the Ministry of Defence’s duty as the carrierof off­duty soldiers on an organised evening out could include a duty to supervise drunken passengers.Here, a former soldier who sustained severe injuries when he fell from MoD’s lorry during the returnjourney from a social event organised by the Company Commander, appealed against the finding thathis drunken act of climbing onto the roof of the moving lorry was not reasonable foreseeable by MoD.The court held, that the claimant’s conduct was within a genus of behaviour which was foreseeable,hence it was within the scope of the MoD’s duty of care. It was not necessary that a precise injuryshould be foreseen; instead it was sufficient to show that an injury of a given description was likely tooccur, Jolley v Sutton LBC [2000] 1WLR 1082 applied. However, the claimant’s actions were sofoolish, that damages should be assessed at 25% of liability.

In MacIntyre v MoD [2011] EWHC 1690 (QB) (QBD) an army officer’s claim for damages for a severeTBI sustained in a rock fall during an army climbing expedition was dismissed. There had been nobreach of duty of care by the leaders of the expedition who held the appropriate qualifications to leadthe climb and who had undertaken proper risk assessments and continuous reviews of the situation.Spencer J held that it was a tragic accident which was not caused by any negligence on the

Defendant’s part ([2011] EWHC 1690 (QB) (QBD)).

Chronic Pain

Marcus Grant notes that, chronic pain as a concept is often viewed through a prism of disbelief,particularly in the minds of compensators. It is pain that persists long after the soft tissue lesion thatperpetuated it has resolved. Pain signals continue firing within the nervous system for weeks, months,even years, sometimes forever (Grant M, “Spinal Injuries and Chronic Pain” by CPD Webinars, 13December 2010).

Chronic pain may originate with an initial trauma/ injury or infection, or there may be an ongoing causeof pain. However, some people suffer chronic pain in the absence of any evidence of body damage.The emotional toll of chronic pain also can make pain worse. Psychological factors such as anxiety,stress, depression, anger, and fatigue interact in complex ways with chronic pain and may decreasethe body’s production of natural painkillers. There is considerable evidence that unrelenting pain cansuppress the immune system. Due to the mind­body links associated with chronic pain, effectivetreatment requires addressing psychological as well as physical aspects of the condition (WebMDMedical Reference <http://www.webmd.com/pain­management/guide/understanding­pain­management­chronic­pain> accessed 28 October 2013).

According to the research of Stimpson and others, it was concluded that ‘pain is an unpleasantexperience and can have a debilitating impact on a person’s life’ (Stimpson N, Unwin C, Hull L, DavidT, Wessely S, Lewis G, “Prevalence of reported pain, widespread pain, and pain symmetry in veteransof the Persian Gulf War (1990­1991): the use of pain manikins in Persian Gulf War health research”(2006) Military Medicine 171:12, 1181­1186).

English Case Law

In Best v MoD [2007] EWHC 1254 (QB) (QBD), the MoD was not liable to a soldier for an injuryallegedly sustained by him while participating in a training exercise conducted by MoD officers, as theevidence given by the soldier and his witnesses was inconsistent and lacked credibility. The claimanthad suffered an injury to his right testicle while at an army training establishment. He underwentsurgery but suffered a secondary infection and aggravation of the injury in a fall. Almost two years afterthe alleged incident the claimant was declared unfit for service by a medical board and laterdischarged from the army. It was puzzling that the claimant had not sought medical attention for theinjury until four months after it occurred.

In Wood v MoD [2011] EWCA Civ 792, 7 July 2011, the unrebutted evidence of a claimant who hadbeen exposed to organic solvents during the course of his employment with the RAF showed aprobable connection between heavy and prolonged solvent exposure and neurological damage. Theclaimant claimed that he had suffered permanent organic damage to his nervous system resulting in acondition akin to Parkinson’s disease that had been caused by his exposure to organic solvents duringhis service in the RAF. During the trial, the MoD made an admission of breach of duty but disputed thatthe breach had caused the claimant any damage. It maintained there was no satisfactory evidence thatthe solvents could cause permanent damage, that the claimant had not suffered any permanentneurological damage and that his symptoms were entirely or almost entirely due to psychologicalfactors. Dame Janet Smith gave the leading judgment and dismissed the appeal by the MoD, and heldthat the judge was entitled to accept the claimant’s medical expert evidence.

Depression

Depression is a big challenge to General Practitioners. It has an uncomfortable death rate and everyyear in an average medical group practice at least one successful suicide occurs which is potentiallypreventable: Corr v IBC Vehicles Ltd [2008] ICR 372.

Depression is a persistent exaggeration of the everyday feelings that accompany sadness and is inthree forms, mild, moderate and severe. ‘It is a disturbance of mood, of variable severity and duration,that is frequently recurrent, and accompanied by a variety of physical and mental symptoms, involvingthinking, drive and judgement’ (Wilkinson G, “Depression: Recognition and Treatment in GeneralPractice” (1989) p.4 Radcliffe Medical Press Limited).

Threatening types of life­events bring forward the onset of depression. Depression may occur as apsychological response to severe physical injury and chronic disabling conditions after military combat.Vulnerability factors are thought to increase the likelihood of depression in the presence of provokinglife­events. A confiding relationship and a job could therefore be factors which protect againstdepression.

In the Sunday Times newspaper, the issue of PTSD and depression after exposure to intense combatwas highlighted:

“The MoD’s figures, which do not include veterans or reservists, almost certainly represent only the tipof a mental health iceberg. Statistics released in response to a freedom of information request byPanorama indicate that PTSD and military suicides are on the rise.

There were 21 likely suicides of serving personnel in 2012, compared with 15 in 2011 and seven in2010. Panorama identified 50 suicides of soldiers and veterans last year. ... Of those 21 likely suicideslast year, 16 had served in Afghanistan or Iraq, compared with eight in 2011 and just three in 2010.

Last year 231 troops who had served in Afghanistan were given an initial assessment of PTSD.”(Harnden T, “Suicide among British soldiers”, The Sunday Times newspaper, News Review section, 14July 2013, p.2).

Suicide is an intentional act of self­destruction by a person cognisant of what he or she is doing andthe probable consequences. Misfortune, mental illness and isolation from society are the main causesof suicide. ‘Virtually all those who commit suicide (95%) are mentally ill before death: 70% are sufferingfrom depression and 15% from alcoholism’ (Wilkinson G, “Depression: Recognition and Treatment inGeneral Practice” (1989) pp.32­33 Radcliffe Medical Press Limited).

Deliberate self­harm (DSH), parasuicide and attempted suicide are non­fatal acts. The majority ofpatients applying DSH are not mentally ill. It is usually an impulsive response to a social crisis in aperson whose susceptibility has been increased by alcohol. The main purpose of DSH is usually toreveal distress. ‘Suicide is a major preventable cause of death, and DSH is one of the most easilyidentified risk factors for future suicide. At least 50% of those who commit suicide and DSH signal theirintention to their doctor’ (Wilkinson G, “Depression: Recognition and Treatment in General Practice”(1989) p.35, p. 38 Radcliffe Medical Press Limited).

The conclusion of a recent study at the King’s Centre for Military Health Research found that ‘a lifetimeprevalence of 5.6% for attempted suicide and self­harm is higher than previous research hassuggested. Younger service personnel, those who have experienced childhood adversity, those withother psychological morbidity, and ex­service personnel are more likely to report self­harm behaviours’(Pinder RJ, Iversen AC, Kapur N, Wessely S, Fear NT, “Self­harm and attempted suicide among UKArmed Forces personnel: results of a cross­sectional survey” (2011) International Journal of SocialPsychiatry pp.1­7).

Treatments for Depression

Anti­depressant drugs are particularly indicated when a diagnosis of moderate­to­severe depression ismade and the following symptoms are present:

Sleep disturbance;

Loss of appetite;

Loss of weight;

Loss of libido;

Loss of interests;

Inactivity;

Fatigue;

Marked anxiety;

Impaired concentration;

Suicidal thoughts;

Agitation or retardation

The presence of a number of these symptoms in association with depression is a useful measure ofthe patient’s ‘psychobiological response’; the more pronounced this response is, the more likely it isthat antidepressant drugs will help (Wilkinson G, “Depression: Recognition and Treatment in GeneralPractice” (1989) p.50 Radcliffe Medical Press Limited).

Pronounced negative thinking suggests that cognitive behavioural therapy (CBT) may be helpful. Theaims of a cognitive approach are to help the patient to recognise unhelpful automatic thoughts andthen replace them with more flexible and positive cognitive responses. ‘Cognitive techniques used inthe treatment of depressive disorders attempt to alter maladaptive thinking by using verbal techniques,including explanation, discussion, and questioning of assumptions’ (Wilkinson G, “Depression:Recognition and Treatment in General Practice” (1989) p.71 Radcliffe Medical Press Limited).

English Case Law

In Lyon v MoD [2011] Unreported, Leicester CC before Recorder Potts, 31 March 2011, the courtassessed the damages due to a corporal, aged 44, serving in the RAF following the MoD’s admissionof liability for the major depression he had suffered as a result of bullying and harassment fromcolleagues over a nine­month period in 2006, including general damages of £20,000 for pain, sufferingand loss of amenity. Taking into consideration the anxiety the claimant experienced by way ofhumiliation and the effect on his sense of dignity and pride caused by the acts of harassmentthemselves, and as part and parcel of his mental condition brought about by the bullying andharassment he received, his injuries fell within the middle bracket of the “moderately severe” bandwithin the JSB Guidelines. It was not appropriate to make a separate award for aggravated damagesunder the Protection from Harassment Act 1997, s.3(2) since that would duplicate the compensationreceived, Green v DB Group Services (UK) Ltd [2006] EWHC 1898 (QB) followed. The claimant wouldbe leaving the RAF as a result of his injuries and was entitled to £2,500 for loss of congenialemployment.

As a result of the claimant’s major depression, he was medically downgraded from active service andwas therefore unable to achieve further promotion to sergeant and above. But for his injury, caused bythe MoD’s breach of duty, the claimant would have been promoted to sergeant in 2007 and achieved

the rank of chief technician by 2012. He was awarded £8,333 for past loss of earnings. Theappropriate award for the claimant’s loss of future earnings from 2012 to 2021 was £116,081, Herring vMoD [2003] EWCA Civ 528, and Brown v MoD [2006] EWCA Civ 546 followed, in that where, at thetime of the accident, a claimant was in an established job or field of work in which he was likely to haveremained but for the accident, the working assumption was that he would have done so and theconventional multiplier/multiplicand method of calculation was to be adopted, the court taking intoaccount any reasonable prospects of promotion. Damages for lost earnings from 2022 to his normalretirement in 2031 were assessed at £20,000, Blamire v South Cumbria HA [1993] PIQR Q1 followed.Since the claimant would leave the RAF earlier than expected, he suffered a loss in respect of pensionprovision because his entitlement under any other pension scheme was likely to be much lessgenerous than an armed forces pension, he was therefore awarded £57,062 for loss of pension.

In Rayment v MoD [2010] EWHC 218 (QB), judgment was entered for the claimant. Various acts thathad the sole purpose of getting rid of an employee breached the Protection from Harassment Act1997, but the acts only led to a few months of mild to moderate depression and did not exacerbate theemployee’s existing psychiatric condition. The exacerbation of depressive illness was a blip and wasnot a deepening of an existing condition, and damages of £5,000 were appropriate. A further £500 wasallowed for the distress caused by the pornographic photos. Special damages of £1,060 wereappropriate for travel expenses and complimentary medical treatments following the claimant’s returnto work.

Post Traumatic Amnesia (PTA)

Post­traumatic amnesia (PTA) is a state of confusion that occurs immediately after a traumatic braininjury (TBI) in which the injured person is disoriented and unable to recall events that happen after theinjury (Lee LK, "Controversies in the sequelae of pediatric mild traumatic brain injury" (2007) PediatricEmergency Care 23 (8): 580–83; quiz 584–86). The injured person may be unable to state his or hername, where he or she is, what is happening and what time, day or year it is (Wilson BA, Herbert CM,& Agnes S, “Behavioural Approaches in Neuropsychological Rehabilitation: Optimising RehabilitationProcedures” (2003) Psychology Press New York, NY). People with PTA may encounter a brief loss ofconsciousness or even go into coma (Nordquist C “What is Amnesia ? What causes Amnesia ?”(2004) Medical News Today http://www.medicalnewstoday.com/articles/9673.php accessed 30October 2014).

When continuous memory returns, PTA is considered to have resolved (Petchprapai N, Winkelman C,"Mild Traumatic Brain Injury: Determinants and Subsequent Quality of Life. A Review of the Literature"(2007) Journal of Neuroscience Nursing 39 (5): 260–272). During PTA, new events cannot be stored inthe memory and approximately a third of patients with mild head injury are reported to have “islands ofmemory”, in which the patient may show brief periods of orientation and ability to remember someinformation (van der Naalt J, "Prediction of outcome in mild to moderate head injury: A review" (2001)Journal of Clinical and Experimental Neuropsychology 23 (6): 837–851). The good news is that signsof orientation and “islands of memory” are suggestions that the patient may be emerging from PTA(Wilson BA, Herbert CM, & Agnes S, “Behavioural Approaches in Neuropsychological Rehabilitation:Optimising Rehabilitation Procedures” (2003) Psychology Press New York, NY).

There are two types of amnesia: retrograde amnesia (loss of memories that were formed shortly beforethe injury, but remembers things that happened after it normally) and anterograde amnesia (problemswith creating new memories after the injury has taken place, while long­term memories from before theinjury remain intact) (Shaw NA "The Neurophysiology of Concussion" (2002) Progress in Neurobiology67 (4): 281–344). These two types are not mutually exclusive. Both can occur within a patient at onetime (Nordquist C “What is Amnesia ? What causes Amnesia ?” (2004) Medical News Todayhttp://www.medicalnewstoday.com/articles/9673.php accessed 30 October 2014).

Retrograde amnesia sufferers may partially retrieve memory later, but memories are not retrieved withanterograde amnesia because they were not encoded properly (Rees PM "Contemporary Issues inMild Traumatic Brain Injury" (2003) Archives of Physical Medicine and Rehabilitation 84 (12): 1885–1894).

Treatments for Amnesia

Medical research has shown that many forms of amnesia fix themselves without being treated as thebrain heals itself (“Treating Amnesia” (2008) Neurology Now 4(4): 37http://journals.lww.com/neurologynow/Fulltext/2008/04040/Treating_Amnesia.20.aspx accessed 31October 2014). There are a few ways to cope with mild to moderate memory loss such as receivingcognitive behavioural therapy (CBT) or occupational therapy (OT). Photographs can help amnesiacsremember names and faces of friends, family and co­workers (Nordquist C “What is Amnesia ? Whatcauses Amnesia ?” (2004) Medical News Today http://www.medicalnewstoday.com/articles/9673.phpaccessed 30 October 2014). While there are no medications accessible to treat amnesia, underlyingmedical conditions can be treated to improve memory (Mandal A “Treatment of Amnesia” (no date)News Medical http://www.news­medical.net/health/Treatment­of­amnesia.aspx accessed 30 October2014). Although improvements occur when patients receive certain treatments, at present there is stillno cure for amnesia.

English Case Law

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In Daglish v MoD [2004] EWHC 2562 (QB) (QBD) judgment was given for the claimant. On 24 January1994, the claimant then aged 22, who was not wearing a seat belt, was injured in a road trafficaccident in Scotland whilst in the Royal Marines. He sustained a severe TBI when a service LandRover, driven by one of his colleagues, overturned. Liability was admitted by the MoD. The issue forthe court in this case was to decide whether a claimant’s psychiatric condition arose from a caraccident he suffered in 1994, or was part of coincidentally developing schizophrenia (Lindsay, S, CaseComment on Daglish v MoD [2004] EWHC 2562 (QB) [2005] JPIL, 1, C16­17). His Honour JudgeMichael Yelton preferred the claimant’s evidence and therefore found that the claimant suffered a TBIin the accident with some unconsciousness and post traumatic amnesia; and he thereafter sufferedpost­concussional syndrome for some months. Yelton notes that as a consequence of that brain injuryafter the accident, the claimant had sustained an organic personality disorder leading to behaviouraldisturbance, impairment of his judgment and difficulties in solving problems. The claimant had alsodeveloped a psychotic illness as part of the organic personality disorder (Daglish v MoD [2004] EWHC2562 (QB) para 56 Judge Michael Yelton; Lindsay, S, Case Comment on Daglish v MoD [2004] EWHC2562 (QB) [2005] JPIL, 1, C16­17).

Conclusion: is serious psychological injury following military service still an “esotericconcept”?

Exposure to intense combat is among the most commonly associated traumas with PTSD (Kessler etal., 1995). Military personnel wounded in action e.g. military air accidents, or involved in direct combat,puts those in a high­risk group for developing PTSD (Grieger et al., 2006; Sundin et al., 2011) (SundinJ, Forbes H, Fear N, Dandeker C, Wessely S, “The impact of the conflicts of Iraq and Afghanistan: aUK perspective” (April 2011) International Review of Psychiatry 23:153­159). According to Dr MartinBaggaley, Consultant Psychiatrist, prognostic factors for developing chronic PTSD include: depressionin the months greater than the trauma (Freedman et al., 1999); peri­traumatic dissociation (Shalev etal., 1996); irritability and alcohol misuse (Blanchard et al., 1996); and lack of social support (Perry etal., 1992) (Baggaley M, “Psychiatric Injury” APIL London regional group meeting, 21 November 2012).The NICE clinical guidelines on PTSD (CG26 para 1.9.3.1) state that drug treatments for PTSD shouldnot be used as a routine first­line treatment for adults in preference to a trauma­focused psychologicaltherapy (where a patient is not a suicide risk or is not a safety risk due to sleep deprivation).Depression may occur as a psychological response to severe physical injury and chronic disablingconditions after military combat. Vulnerability factors are thought to increase the likelihood ofdepression in the presence of provoking life­events. Pronounced negative thinking and flashbackssuggests that cognitive behavioural therapy may be helpful. A confiding relationship and a job couldtherefore be factors which protect against serious psychological injury.

Serious psychological injury following military service is an esoteric concept, and it is in the claimant’sbest interests to be seen by an experienced consultant psychiatrist and/or psychologist with relevantknowledge.

As the recent King’s College London study on examining the effect of deployments to Iraq andAfghanistan on the mental health of military personnel, concluded:

“The next UK Government has an ethical duty to support the continued long­term follow­up in healthcare of those who have served in Iraq and Afghanistan. The end of their active service in thesecountries should not signal the end of society's service to them” (Fear NT, Jones M, Murphy D, Hull L,Iversen A, Coker B et al. at King’s College London, “The mental health of UK military personnelrevisited” (15 May 2010) The Lancet, 375: 9727: 1666).

Rushmi Sethi

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