The Influence of Posttraumatic Stress Disorder to the Legal System
Posttraumatic stress disorder diagnosis and its implementation in the judicial system has been a source of considerable controversy. In terms of civil law, a diagnosis of posttraumatic stress disorder is recognition that an external event can be the direct cause of a mental disorder. In the criminal law system, posttraumatic stress disorder is perhaps unique among psychiatric problems in that it is invoked by both the prosecution and the defence.
Legal Issues on Diagnosis of posttraumatic stress disorder
- Civil Law
- Criminal Law
- Forensic Cases
Civil Law
The most common use of a PTSD diagnosis in civil law is to obtain some form of personal injury compensation. The rationale is that the development of posttraumatic stress disorder following an event that was not the person’s fault is a just reason for that individual to be compensated for their psychological suffering by whoever is responsible for the event’s occurrence.
The diagnosis of posttraumatic stress disorder represents the culmination in a lengthy history of the concept of mental injury as a compensatable category within the legal system. Conditions that today would be regarded as psychiatric problems appeared in the late 19th and early 20th centuries as physical disorders.
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However, as the availability of compensation for mental disorders has become more widespread, there has been a concomitant increase in levels of suspicion about the validity of symptoms reported by traumatized individuals. This is because of the perceived possibility that the posttraumatic stress disorder that they present with is motivated by material gain.
A clear prediction for those who claim that posttraumatic stress disorder is usually nothing more than a form of compensation neurosis would be that, once litigation has been completed, the symptoms would quickly disappear. However, the available evidence seems to indicate that this is not the case. One could even turn such arguments about compensation neurosis on their head by suggesting that the effects of the litigation process on trauma survivors are so sufficiently distressing as to turn a number of people away from litigation, even in situations where they have a perfectly justified case.
The idea that litigation may influence core posttraumatic stress disorder symptoms through a process of traumatization in this way is gathering considerable currency in the current literature. Posttraumatic stress disorder patients pursuing litigation are required to confront their traumatic history during interviews with lawyers and consultants, in the making of statements, and in courtroom testimony. This compromises their characteristic efforts at avoidance of trauma-related information and predictably can result in the resurgence of intrusive thoughts, images and dreams, as well as increased hyperarousal.
The adversarial system of justice will pit the plaintiff once again against the defendant who may have been perceived by the victim as the cause of the trauma. This may exacerbate any sense that a posttraumatic stress disorder patient has of vulnerability and victimization. Finally, a trauma victim who invariably has already sustained major loss as a result of the original traumatic event, will also be taking a financial and personal risk when pursuing litigation because a positive outcome is not always guaranteed.
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Criminal Law
Controversy concerning the diagnosis of posttraumatic stress disorder is not only a function of civil law. Increasingly, the dissociative states that are associated with posttraumatic stress disorder have been used as part of criminal defences against a number of offences. Almost the only way that posttraumatic stress disorder can qualify a defendant for any such kind of defence is for the disorder to have manifested itself at the time of the crime in a full-blown dissociative state or flashback.
The defendant would then have the burden of proving that he or she lost contact with reality for a short period whilst the crime was committed. Despite the appeal of posttraumatic stress disorder to criminal defence lawyers, an insanity defence has historically been mostly unsuccessful. Posttraumatic stress disorder is a better candidate for a diminished capacity defence, in which the distress at the time of the trauma has compromised the individual’s ability for rational thought and behavior.
In addition to being used by the defence in this way within criminal law, posttraumatic stress disorder has been called upon by the prosecution in a number of cases as evidence that a crime of some sort must have been committed. The argument goes that the existence of posttraumatic stress disorder is evidence for the existence of the trauma and that is evidence for the existence of a crime.
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Forensic Cases
Appraising posttraumatic stress disorder is an extremely sensitive issue when criminal or civil legal outcomes are riding on the diagnosis and there are two major and somewhat contradictory problems facing the assessor in a potential posttraumatic stress disorder case in the forensic arena. The first is the fact that the genuine trauma survivor is likely to under-report symptoms and distress as a function of efforts to avoid recollections of the trauma and discussion of the problems that have ensued as a result of it.
The spectre of possible faked posttraumatic stress disorder cases means that some individuals may present with posttraumatic stress disorder symptoms that are overstatements or complete fabrications in relation to how they actually feel. Even the use of open-ended initial questions is not proof against falsification of symptoms. The symptoms for posttraumatic stress disorder are widely available and somebody could just trot them out in their own words upon the appropriate cue.
A tool that a good assessor might use is to insist on clear and detailed illustrations of each symptom. Knowing what the symptoms of posttraumatic stress disorder are is one thing, but being able to illustrate each symptom with details from one’s own autobiography is an altogether more complicated issue. A good interviewer should therefore pick up on the fact that spontaneous illustrations of symptoms that the claimant has made up will have a vague, undetailed and stilted quality.
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References:
Post-traumatic Stress Disorder and Mental Injuries
Compensation & PTSD: Consequences for Symptoms and Treatment
Posttraumatic Stress Disorder
Assessment and Diagnosis of Posttraumatic Stress Disorder
Definition of Dissociation for People With PTSD
Dissociative Subtype of PTSD
Reexperiencing/Hyperaroused and Dissociative States in Posttraumatic Stress Disorder
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