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THE PSYCHOLOGICAL ASSESSMENT OF PERSONAL INJURY CLAIMANTS WHO HAVE HAD ROAD TRAFFIC ACCIDENTS: PROBLEMS AND ISSUES

This article was written as an essay as part of work undertaken by the author for his MSc in Forensic Psychology at Manchester Metropolitan University.

Background

The background to this project is provided by my work as a clinical psychologist in part-time private practice since 1992, undertaking medico-legal assessments on personal injury cases. To date (2000) I have performed over 300 such assessments, the bulk of claimants having experienced road traffic accidents (RTAs) (see Endnote 1). Data on 204 adult RTA clients were analysed by M.Sc. student Ms. Laura Gross of the Department of Probability and Statistics at the University of Sheffield. An account of this work is given in her unpublished thesis (Gross, 1999) and is described in the Appendix to this essay.

I have attended a number of training courses concerned with this kind of work and I list these in the Appendix, along with principal sources of information that I have consulted in the preparation of this essay. This includes a literature search in 1998 by students at the University of Sheffield's Department of Information Studies as a course assignment. I have topped this up myself with a search of the most recent literature.

Introduction

Psychological assessment of clients who have suffered as a result of the negligence or (in the case of criminal injuries) malevolence of others can, if he or she chooses, form a major part of the work of a forensic psychologist. It is apparent from my own experience of over eight years, and consultations with colleagues, that instructions are most commonly for RTA victims. Others include accidents at work, occupational stress where there is deemed to be employer liability, injuries sustained in public places, medical negligence, and assessments for the Criminal Injuries Compensation Board.

The psychologist is required to give his or her opinion in several or all of the following main areas:

  1. The psychological suffering that has arisen as a result of the accident and its consequences, the latter referring to physical injury, loss of amenity, unemployment, financial difficulties, and so on
  2. The effect of the claimant's psychological injuries on his or her ability to work
  3. The prognosis for the claimant's psychological injuries
  4. Treatment for the psychological injuries
  5. The longer-term effects of the accident (e.g. future mental health, the ability to work and, although rarely, life expectancy).
  6. Very occasionally, liability

Number 6 would arise where, for example, a psychologist could offer expert opinion on any allegations of negligent action by a defendant in the case of a psychological procedure (e.g. Heap, 1996).

It is worth pointing out at this juncture firstly that, unlike criminal cases, where the prosecution is required to 'prove beyond reasonable doubt' the defendant's guilt, in civil actions such as personal injury claims, the claimant's case is won or lost 'on the balance of probabilities'. Secondly, unlike other witnesses, experts are able to give their opinions as opposed to their factual observations. Thirdly, in recent years, as a result of the review of the rules and procedures of the civil courts in England and Wales by the Master of Rolls, Lord Woolf (Civil Procedure Rules, 1999), courts are allowed to direct that evidence be given by a single expert, jointly appointed by both parties (op.cit., Rule 35.8). This contrasts with the adversarial arrangement, whereby experts' opinions are not infrequently favourable to the instructing party. This is regrettable but arguably inevitable; hence it may be asserted that joint instructions impose a greater responsibility on the expert to be balanced and objective, not the easiest of requirements to fulfil when assessing psychological difficulties and disorders.

In this essay I consider the problems that arise for the psychologist who is assessing personal injury with reference to the first five of the above items, limiting the presentation to RTA claimants, although much of the discussion is relevant to other forms of accident.

A Typical RTA Claimant

The following profile is from my own database of RTA claimants. This reveals an approximate 2:1 ratio of females to males (Gross, 1999). An RTA claimant is therefore more likely to be female. Accordingly for ease of communication I shall refer to the claimant in the feminine form.

Typically the claimant's accident occurred six months to three years prior to the psychological assessment. She may have been a passenger or a driver. Following the accident she was diagnosed with a 'whiplash' type of injury and may still be complaining of some aching in the neck and often the lower back. The accident, even though comparatively minor, was a shocking experience and for days or weeks afterwards she dwelt on it. For weeks or even months she dreamt about the accident twice or more times per week. For the same amount of time she experienced vivid intrusive images that may at times qualify as 'flashbacks'. For weeks or even months her sleep was impaired, her physical injuries being only partly responsible, and it is not yet 100% recovered. She remains very anxious both as a driver and passenger. Her family complain that she is more irritable than usual and there are times when she feels low in mood and weepy. She was off work for several weeks after the accident but on her return resumed full duties, although she finds VDU work or heavy lifting very uncomfortable. She is very angry about the accident and with the driver who caused it. She has no previous psychiatric history, although she may have consulted her doctor in the past with symptoms of depressed mood or 'stress'.

The Psychologist's Report: Issues and Problems

Much of the psychologist's report will consist of information - in expanded form - exemplified by the above. This information is usually derived from an interview with the claimant and often a separate interview with a confidante such as a spouse.

The validity of information given at interview

How valid is this information likely to be? One problem is that the claimant is seeking financial compensation and, moreover, is angry with and ill-disposed towards the person whom she regards as the cause of her misfortunes. Her spouse or other informant may corroborate her account, but he or she is usually on her side and they will most likely have discussed the problems she claims to be having.

Even if she does not consciously exaggerate her problems, could she not do so unwittingly? She is placed in a position where she has to 'display her wounds' and to examine her life since the accident for any problems and negative symptoms that she has experienced. Consequently she may be inclined to commit errors of attribution, overstating the role of the accident when attempting to account for any difficulties post-dating it.

Reference to existing records and reports

A possible solution to this problem is to check for consistency between the claimant's account at interview and any other reports. As is known, however, while validity depends on reliability, the reverse is not the case. The claimant's accounts will become reliable (i.e. consistent) with repeated rehearsal. Her general medical practitioner's records are perhaps one of the best independent sources of corroboration, although illegibility of written entries presents real problems. Unfortunately, any paucity of consultations relating to psychological problems may reflects the patient's unwillingness to be open about them for fear of being designated a 'psychiatric case' or because of the belief that they are not problems with which her doctor can be of assistance.

Despite this, medical records can provide a useful check on some aspects of validity. For example, a claimant assessed by the author lost his job after an accident and became depressed and sexually impotent. His doctor's records corroborated his account of his depressed state of mind, but it was clear that his impotence predated the accident and was due to a prostate condition and its treatment. In another case a claimant also described how she had become depressed after her accident, and her doctor referred her to the practice counsellor. The medical records confirmed this but made clear that her depressed mood was associated with family problems and difficulties in acculturation. Her accident was not mentioned in the correspondence. Of course it may be that in both of these cases the accident compounded the claimants' problems, but it is very difficult for the expert to give a balance-of-probabilities opinion with due confidence in such instances.

Validity and the use of psychometric scales

Some psychometric tests have checks for malingering or exaggeration of symptoms. Many of these measure cognitive abilities (see the review by Rogers, Hammell & Liff, 1993), so a question arises as to how well they can represent exaggeration of symptoms associated with traumatic stress, such as hyper-arousal, mood disturbances and avoidant behaviours. Doubts may also be expressed about instruments such as the Minnesota Multiphasic Personality Inventory (MMPI-2), which have checks for symptom exaggeration as well as understating symptoms (Berry, Baer & Harris, 1991). The question of malingering by RTA litigants has been recently reviewed by Koch et al (1999). These authors quote estimated incidences of malingering ranging from 3% to 40%, but their own MMPI data on inpatients do not suggest that these claimants are inclined to exaggerate their symptoms more than non-litigating patients. (Failure to disclose psychological symptoms is unusual amongst claimants, but is not inconceivable.)

The data analysed by Gross (1999) included scores for the Beck Depression Inventory (Beck, 1988) the Symptom Checklist (Derogatis, 1983), and the Impact of Event Scale (Horowitz, Wilner & Alverez, 1979), as well as the author's subjective ratings of extent of previous psychiatric history, severity of injuries, degree of restriction on activities, and so on (see Appendix). The normative data thus compiled allow the psychologist to compare the psychometric data obtained with those predicted by the circumstances of the accident. A common finding in the literature (see Koch et al, 1999) is that psychometric measures of impairment or psychopathology indicate a wider range of symptoms and undue symptom severity in the case of malingerers when compared with non-malingering patients. Hence, when higher-than-expected scores are obtained on the above scales, one needs to look for reasons for this, and symptom exaggeration could be one of them.

Use of psychophysiological methods

The use of psychophysiological methods such as heart rate and galvanic skin response in the presence of reminders of an RTA has been investigated by Blanchard et al (1999) and Neal et al (1999). Unfortunately this work has only been aimed at finding a way of corroborating a diagnosis of PTSD, and while the results are in the expected direction (greater arousal in those subjects so diagnosed), the scope for misclassification of a single claimant is high. This is not surprising in view of the known modest correlation between the physiological, cognitive and behavioural components of anxiety (Eysenck, 1997).

The implication of exaggeration of physical symptoms

Suspicions of exaggeration of psychological dysfunction may be raised where there are good indications that this is happening in the case of physical injuries, particularly when this is evident during a medical examination. Even so, the generalisation is not inevitable, and psychological suffering may magnify physical suffering such as pain and disability, owing to fear of further injury. Covert video surveillance occasionally reveals that a claimant is significantly less physically restricted in daily activities than he or she has claimed. This kind of evidence tends to compromise any formulation that relates the claimant's reported depressed mood to the impositions placed upon him or her by residual physical injuries.

Providing a diagnosis

In many reports, the psychologist or psychiatrist is required to provide a diagnosis for the claimant's psychological problems. The most common diagnoses in personal injury cases involving RTAs are post-traumatic stress disorder, specific phobia (for car travel), and depressive illness (Blaszczynski et al, 1998). These are recognised as mental disorders and defined in the two commonly used diagnostic guides, namely the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV) (1994) and the International Classification of Mental and Behavioural Disorders (ICD-10) (1992). There are a number of important factors that impinge on the provision of a diagnosis in the report and these will be considered now.

Although it may be argued that amongst the sum total of all consultations in general medical practice, the formal application of 'the medical model' is the exception rather than the rule (Skrabanek & McCormack, 1989), the specification of a correct diagnosis assumes central importance in determining what treatment is prescribed. This is much less the case in routine psychiatric practice, in which treatment tends to be more determined by the patient's reporting of symptoms and their intensity (e.g. anxiety, depressed mood, mania, delusions and auditory hallucinations). Consequently the routine provision of a formal diagnosis is usually of less significance. Specifying a diagnosis however, is more significant for forensic purposes and in personal injury cases. In the latter instance, for the purposes of settling the claim for compensation, the question addressed is 'Did the accident cause a psychiatric disorder?' In the case of Nicholls v Rushton (1992; see Wheat & Napier, 1997) the Court of Appeal decided that a claimant could not be compensated for 'ordinary shock'. Hence, psychological injury must fall into the category of a psychiatric disorder before compensation for psychological suffering is considered.

Unfortunately the classification of mental disorders, such as that provided by DSM-IV, is based on a count of a set of criterion symptoms that must exceed a certain threshold to fulfil a diagnosis. For example, for a DSM-IV diagnosis of PTSD five conditions must be fulfilled and within some of these a minimum number of specific symptoms must be present. Where a diagnosis is made for a claimant whose trauma and symptoms fall short of this, then the expert's report may be challenged by the defence.

This state of affairs leads to a number of unfortunate anomalies. A claimant who, say, only presents with a 'partial diagnosis' or 'sub-syndromal PTSD' (a term used by Blanchard & Hickling, 1999) still has problems and is still suffering. For example, suppose a claimant has experienced what he interprets as a life-treating incident (Criterion A in DSM-IV). He has had (or continues to have) nightmares and distressing intrusive thoughts and images, and experiences distress on exposure to reminders such as travel anxiety (Criterion B). He has problems sleeping and is irritable in mood (Criterion D). These symptoms have been interfering in his or her everyday life over the last six months (Criteria E and F). Yet he has none of the depressive-type symptoms (Criterion C) such as emotional numbing, avoidance of previously valued activities, and a foreshortened sense of future. Another claimant may qualify for the full diagnosis of PTSD (all criteria fulfilled) yet his or her symptoms may be milder than those of the former claimant. Clearly the former claimant is unfairly disadvantaged.

Diagnoses based upon symptom counts are often the result of arbitrary decision-making by the compilers of the classification system in question. Unlike illnesses with organic diagnoses, there is often no clear causal relationship between symptoms and diagnosis. For example, we may say that the symptom of headache is caused by the illness meningitis, but it would be logically flawed to say that the symptom of nightmares is caused by PTSD in a case in which the presence of nightmares is essential to the diagnosis in the first place.

These difficulties also arise in the diagnosis of depression and phobia, notably travel phobia. The explicit diagnosis of travel phobia, as opposed to the descriptive term 'travel anxiety', is also arbitrary in view of the less-than-precise criteria given in DSM-IV. For instance, most RTA claimants report anxiety for travelling by car, ranging from 'a bit nervous at junctions' to 'extremely anxious and vigilant all the time'. At what point does travel anxiety become travel phobia, a classified disorder? One solution is only to use the latter diagnostic label when there is actual avoidance of car travel. Again, however, there is the problem of 'how much'? A claimant's description of avoidance may be 'I ask my husband to drive if we go out together', 'I avoid the M1 motorway, but I rarely need to go that way', or 'Apart from taking the children to school I don't drive at all now'. In these cases one may rely on Criterion D of DSM-IV, namely 'The phobic situation(s) is avoided or else is endured with intense anxiety or distress', but again arbitrary decisions are often unavoidable. For instance, some claimants may say, 'If it wasn't for my job I wouldn't drive at all'. An example may be the self-employed taxi driver whose choice is to return to work or lose his or her livelihood.

It is difficult not to be cynical about this. With each edition of the diagnostic manuals comes new disorders, and with DSM-IV and ICD-10 we now have Acute Stress Disorder, which may apply to some claimants with more short-lived (two days to one month) post-traumatic stress than those diagnosable with PTSD. Acute Stress Disorder may be 'compensatable' (Wheat & Napier, 1997).

Problems also arise with retrospective diagnosing: was the claimant diagnosable with PTSD/depression/etc. for a period after the accident, but has made some significant recovery by the time of the assessment? Sometimes the expert is fortunate in that the claimant's medical records reveal that he or she was examined during the period in question and a diagnosis was given. This is not always an advantage, however, particularly when the report is for the defence, as when in the GP's written entries the initials 'PTSD' are scrawled. Was this an informed diagnosis?

Prognosis

The model letter of instruction to medical experts recommended by the Civil Procedures Rules (Annex C) includes the following:

'It is central to our assessment of the extent of our Client's injuries to establish the extent and duration of any continuing disability. Accordingly, in the prognosis section we would ask you to specifically comment on the areas of continuing disability or impact on daily living. If there is such continuing disability you should comment upon the level of suffering or inconvenience caused and, if you are able, give your view as to when or if the complaint's disability is likely to resolve.'

In order to provide a reliable prognosis, the psychologist must be able to draw on available evidence from follow-up studies of personal injury patients (unless he or she has evidence from his or her own practice). In reality there is not a great deal to go on. In the case of RTAs, claimants assessed after a period of several years may still be complaining of travel anxiety and other symptoms of post-traumatic stress. Some useful long-term follow-up data have been provided for RTA victims (those with PTSD and 'sub-syndrome PTSD') by Blanchard & Hickling (1999).

The tenacity of some post-accident symptoms may be understood from a cognitive behavioural interpretation of the claimant's coping strategies. For example, some of the symptoms of PTSD are believed to arise from a failure to fully confront the memory of the trauma and thus to assimilate it into existing cognitive schemas, or the failure of the schemas that represent core assumptions about the claimant's world to accommodate the facts of the trauma (Hodgkinson & Stewart, 1991; van der Kolk, 1996). Similarly, avoidance and safety-seeking behaviours (hyper-vigilance, bracing postures, 'braking for the driver', etc) may serve to maintain travel phobia, as has been hypothesised for other anxiety disorders (Neenan & Dryden, 2000). Avoidant coping strategies following RTAs have been associated with increased psychological distress and poor response to treatment (Bryant & Harvey, 1995a; Ehlers, Mayou & Bryant, 1998).

A 'saving clause' for the psychologist is sometimes the statement 'Psychological recovery is dependent on recovery from physical injuries'. This arises especially when the physical injuries prevent employment or valued activities, or the claimant has succumbed to 'chronic pain syndrome', which may be associated with the mutual interactions of pain, disability and mental state.

The psychological effects of litigation

Does the process of litigation itself encourage disability and compromise recovery? An affirmative answer so far as physical injuries are concerned (notably 'whiplash' and low back pain) is provided by studies of the incidence and outcome of these conditions when compensation is and is not available (Balla, 1982; Schrader et al, 1996) or has been eliminated by legislative changes (Carron, DeGood & Tait 1985; Cassidy et al, 2000; Mills & Horne, 1986).

The same is conceivable of the psychological reaction, and 'compensation neurosis' has traditionally been cited as a significant factor in claimants' clinical presentation and progress (Jacobson, 1999; Mayou, 1997). An added dimension is 'litigation stress'. A common observation is that claimants find the process of litigation wearying and often say, 'I'll only start to feel better when all this is over'. Koch and his colleagues (see Koch et al, 1999) have devised the Litigation Stress Scale to investigate the possible contribution of the litigation process to claimants' psychological presentation. Although they find a relationship between items on this scale and treatment outcome, it is clear that they adopt a very broad definition of 'litigation stress'. For example, 'slow physical recovery', and 'pre-accident hours worked' are items on the scale that correlate negatively with treatment response.

In fact there is not much reliable evidence that claimants' progress and response to treatment are as a rule compromised by the litigation progress, although there may be individual cases that are exceptional. Taylor, Fedoroff & Koch (1999) found that dropouts from treatment tended to express greater dissatisfaction with their insurance claim, but Mayou (1997) reports very little difference in clinical presentation between claimants and non-claimants and, importantly, no obvious differences in treatment outcome and no tendency for symptoms to improve on settlement of the claim (see also Bryant, Mayou & Lloyd-Bostock, 1997, and Blanchard, Hickling et al, 1998).

An exception may be where the claimant has been malingering or significantly exaggerating his or her symptoms in order to maximise compensation. The same may also arise in those claimants who are suffering financial uncertainty and hardship during the litigation period (Koch et al, 1999).

Finally Koch et al (1999) report that one of the items on the Litigation Stress Scale that correlated negatively with treatment response was self-reported number of 'health care appointments'. On this, the authors make the following comment:

'This confirms a common observation of forensic psychologists, who frequently comment that MVA litigants are over-assessed and receive too many concurrent treatments without benefit. The upshot of this is that such litigants frequently devote an undue amount of their time and energy to attending health professional appointments, which interferes with their daily functioning. If replicated, this finding may have ramifications for insurance policy with respect to assessment and rehabilitation of MVA victims, and suggests that more health care is not necessarily good for the patient' (pp 262-263).

Recommendations for Treatment

The aforementioned has an important bearing on another task of the expert, namely to give an opinion on whether or not the claimant requires treatment for the residual psychological problems.

Once more, the decision to recommend treatment is rather arbitrary, depending on whether the residual psychological problems are sufficient to warrant this, whether they qualify as a disorder, whether they will remit in time without treatment, and whether they will indeed respond to treatment. (According to solicitors whom the author has consulted on this matter, the question of whether the claimant is likely to take up the offer of treatment is not considered relevant.)

RTA claimants with post-traumatic stress, travel anxieties and depression do stand a good chance of significantly benefiting from a course of cognitive behavioural therapy (Hickling & Blanchard, 1999) but it is not easy to estimate how many sessions will be necessary and therefore what the predicted costs will be.

The recommending of treatment is complicated by a number of issues that seem largely to arise from the arbitrariness in the referral of patients in the National Health Service (NHS) for treatment. Neal (2001) comments thus:

'A literature review failed to find any scientific evidence to support the inferred hypothesis that most reasonable people with a psychiatric injury will seek to reduce their suffering by consulting their general practitioner' (p 26).

He goes on to summarise evidence of a reluctance on the part of accident (including RTA) victims to do so and presents the results of his own survey of 100 RTA victims with chronic physical and psychiatric injuries, revealing that while 94 of them consulted their GP about their physical symptoms, only 53 consulted regarding their psychiatric problems. Similarly, in a survey by Bryant & Harvey (1995b) only 44% of a sample of RTA victims who complained of significant psychological impairment sought professional help.

Some claimants at the time of assessment will have undergone, or be undergoing, the psychological therapy that specifically addresses the problems arising from their accident. Unless this has been arranged by their solicitor, they will have been referred for this treatment within the NHS by their general practitioner. In that case there is no need for the expert to recommend therapy, although sometimes it may be recommended that the claimant resume treatment if his or her problems have worsened since termination of treatment.

If the claimant has not been referred for treatment, then the expert may recommend this and it is usually assumed that this will be on a private basis, funded by the defence (e.g. the other driver's insurers). There is some unfairness in this, however, since it may be argued that if the claimant requires treatment, then his or her doctor ought to have already referred him or her for this. The doctor's failure to do so means that the claimant's suffering may be more severe than would otherwise be if treatment had been undertaken, and the defendant may be left to foot the bill for treatment. (Some years ago it was mooted that the NHS should charge the insurers of the negligent party for treatment of accident victims, but so far nothing has come of this.) This anomaly does not usually arise, in relation to the claimant's physical injuries, which are normally investigated and treated by routine referral to the relevant NHS specialist (see Neal, 2001).

This potential for unfairness is recognised by the guidelines for valuing claims for psychiatric injury (Judicial Studies Board, 1999) which list the seeking of medical help as a factor in determining the compensation awarded.

When a recommendation for treatment is made, the option remains for an NHS referral, but there may be a risk that this is ignored while the claimant awaits the settlement of his or her claim or the negotiation of an interim instalment to fund treatment.

In reality, if treatment is recommended, then on clinical grounds a referral ought already to have been made by the claimant's doctor to the appropriate NHS specialist; if not it should be done without delay. It is not usually in anyone's interest for treatment to be delayed by the litigation process. However, an exception may be made when there is clear evidence of 'litigation stress', in which case delaying treatment may be justified until the final settlement. For example, some claimants, as was stated earlier, are beset by worries over financial uncertainties and these will only be resolved on finalisation of their claim. In the experience of the author, there are occasionally claimants who are so fixated on the belief that they will not recover 'while the claim drags on' that they will probably not respond to any therapy until the claim is settled. Although, as has already been noted, symptom remission after the settlement is not the rule, Taylor et al (1999) did find that dissatisfaction with the compensation process was one characteristic of claimants who dropped out of treatment.

Finally, if the claimant has been seeing someone for treatment, the expert will have to decide if that person is appropriately qualified to treat the problems. For example, a practice counsellor or community psychiatric nurse may lack the knowledge and experience to effectively treat post-traumatic stress disorder. The expert may also need to bear in mind the comments and findings of Koch et al (1999) concerning those claimants who may have been adversely affected by the over-prescription of treatments that have proved ineffective.

The problem of pre- and post-accident psychiatric problems and life stresses

Two important factors, unrelated to the accident, that may complicate the assessment are the presence of psychiatric problems in the claimant's pre-accident history and the occurrence of any such problems or misfortunes in the client's life after the accident, but unrelated to it. Ordinarily the claimant's pre-existing psychological vulnerability should not itself be used by the defence to obviate the claim of psychological harm arising from the accident. This is often referred to as the 'eggshell skull' principle (Rowe et al, 1999). However, the parties concerned will wish to know how much of the claimant's post-accident psychological symptomatology would be present anyway. This question is easy to answer in cases where, say, the medical records reveal that the claimant was treated for depression some years prior to the accident but has been well and off anti-depressants for a significant period prior to the accident. The assessment is trickier when the claimant regularly attends the surgery with anxiety or mood problems, or has suffered one or more adverse life events (e.g. bereavement, divorce or redundancy) in the period immediately prior to the accident. A similar complication for the expert is the occurrence of such events in the interval between the accident and the assessment.

These problems are not so crucial when it comes to assessing the predictable symptom pattern that is specific to an RTA - ruminations, nightmares and flashbacks relating to the trauma, distress and exposure to reminders and avoidance of such (notably travel anxiety), and so on. However, the full diagnosis of PTSD or depression is more problematic. In the former case this is because a number of the key symptoms are common to high levels of general stress, anxiety or mood disorder (increased arousal, insomnia, emotional numbing, withdrawal, etc) and with the kinds of claimants we are considering at the moment we cannot be sure if these are accident related.

Neuropsychological assessment

The final topic of this essay is the occasional requirement for the psychologist to assess the psychological effects of head injury. Unlike the previously discussed assessments, this will require the administration of a battery of cognitive tests, most likely including standard IQ and memory scales (e.g. the Wechsler Adult Intelligence Scale and the Wechsler Memory Scale) supplemented by tests that are especially designed for clinical neuropsychological purposes. This kind of assessment should only be conducted by a psychologist trained in clinical neuropsychology, but he or she should also be experienced in assessing the non-organic psychological effects of trauma, since these are likely to be present also. Indeed, it may be difficult to clearly identify which category certain symptoms - such as irritability, poor concentration and absentmindedness - are organic in origin and which are related to post-traumatic stress. Youngjohn (1997) has reviewed evidence suggesting that litigation increases the likelihood of self-reported 'neuropsychological complaints' (poor concentration, memory difficulties, irritability, etc.) and depresses performance on formal neuropsychological testing. However, Walton (1999) avers that outright malingering is rare.

In fact the question of 'minor closed head injury' or 'mild traumatic brain injury' and the associated 'post-concussion syndrome' may present diagnostic problems for the psychologist. In many RTAs the upper torso is thrust forward or otherwise thrown around under the restraining influence of the seatbelt, and the head may hit the windscreen or other parts of the vehicle's interior. Even if this does not happen the brain may impact with the skull cavity when the head suddenly accelerates and decelerates. The person may be transiently dazed and confused but there may be no loss of consciousness and post-traumatic amnesia may be minimal. Even so, symptoms reported one or two years post-accident may include irritability, headaches, poor concentration, absentmindedness, and impaired performance on cognitive tests (Parker & Rosenblum, 1996; Silverman & Devineni, 1999; Walton, 1999).

The psychologist may thus be able to provide evidence of neuropsychological impairment on formal testing. However, these kinds of mild brain injury are often not associated with hard neurological and neurophysiological signs (Walton, 1999). The advent of increasingly sophisticated brain scanning techniques such as PET, SPECT and MRI provides scope for greater support for the neuropsychologist (Silverman & Devineni, 1999), who may be challenged by the defence if a neurologist's opinion is negative for brain injury, and he or she may be justified in recommending that the claimant undergo a brain scan procedure.

Conclusions

This essay concerns people who, as drivers or passengers, have experienced RTAs that are often mild and are perceived to be due to third party negligence, and whom their solicitors have considered should be assessed for adverse psychological reactions. These claimants report a constellation of symptoms in such a consistent and spontaneous manner as to suggest that the 'post RTA syndrome' occurs naturally and is not the result of learning and coaching in a role that suits the demands of a compensation claim. (Delahanty et al (1997) have demonstrated that the same syndrome occurs with the same initial severity in RTA survivors who were responsible for their accident, although their recovery is more rapid than that of survivors of accidents for which another person was responsible.)

The syndrome of problems and symptoms corresponds to that known to be precipitated by incidents that are interpreted by the person as placing him or her in great physical danger. However other psychological problems and disorders may arise from the consequences of the accident, such as continuous pain, disability, loss of employment and financial worries.

Psychological sequelae are often experienced as no less distressing by the claimant than the residual physical injuries such as neck and back pain, and often more so, and they may prove to be more tenacious and restricting. Hence there is no logical reason why they should not be considered when evaluating the claimant's compensation. There is little good evidence that the process of making a claim for financial compensation typically affects, in a major way, the claimants' reported psychological symptoms and difficulties and his or her progress and response to treatment. Nevertheless the expert should be alert to those exceptional cases where symptom exaggeration and litigation stress are significant factors.

A search of the literature (1985-2001) by the author revealed over 50 papers and chapters surveying the psychological effects RTAs and the major influences in determining severity and duration of problems and symptoms. Although not all victims in these studies were involved in litigation, these surveys provide experts with some idea of the predictability of any given claimant's alleged psychological injuries and disorder, and some indication of prognosis. Unfortunately, the data are all too often in the form of diagnoses, particularly PTSD, and their incidence, which varies greatly between reports (0 to 100% for PTSD according to a review by Blaszczynski et al, 1998; see also Bloom, 1999, and Endnote 2). More useful for medico-legal purposes would be factors influencing frequency, severity and duration of specific symptoms such as mood disturbance, intrusive imagery and dreams, and travel anxiety.

Recommendations

I have drawn attention to certain problems and anomalies in assessing psychological injuries due to RTAs, and in conclusion I would like to address three of these.

The first is the length of time that it takes for these claims to be settled. This is very unsatisfactory for the claimant and sometimes results in multiple assessments to provide updated accounts of his or her progress. This is obviously costly and, as was noted earlier, can adversely affect the claimant's willingness to engage in treatment and his or her response to this. Indeed, according to Mayou (1997), the impression of his and his colleagues is that many accident victims do not pursue claims because of the time, effort and inconvenience entailed.

These problems have been recognised in the report by Lord Woolf (Civil Procedure Rules, 1999) and he has indicated a number of changes that should be made to the way these claims are processed. These include the use of one expert by both sides. I have not in this essay addressed problems that can arise where one is instructed by just one side.

The second problem is the 'need to diagnose'. In my opinion it would be far better and fairer to the claimant to assess compensation predominantly on the basis of problems and symptoms, their severity, and the degree to which they affect the claimant's day-to-day life. The matter of whether a full diagnosis of a mental disorder is indicated should be of less significance.

Finally it is in everybody's interest at all times to ensure that any psychological treatment that the claimant requires is arranged as soon as possible. The most sensible way of doing this is by a referral from his or her doctor to the appropriate NHS specialist. In my opinion, the recommendation for private psychological treatment should only be made in exceptional circumstances. The matter of whether the NHS should be remunerated for such services is for others to decide.

Endnotes

1. I shall use the British term 'road traffic accident' (RTA) throughout, in preference to 'motor vehicle accident' (MVA) favoured by American authors.

2. One factor that may lead to the over-diagnosis of PTSD may be that, as Blanchard, Buckley et al (1998) point out, there is some overlap in the symptoms of PTSD and depression. Depressive symptoms, such as diminished interest and participation in significant activities and restricted range of affect, resulting from the consequences of the accident (e.g. constant pain, disability, loss of amenity, and financial loss) rather than the trauma of the accident should not be considered as DSM-IV Criterion C symptoms of PTSD.

References

Balla, J.I. (1982) The late whiplash syndrome: A study of an illness in Australia and Singapore. Culture, Medicine and Psychiatry, 6, 191-210.

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