Plaintiffs v Defendants

Plaintiffs v Defendants - [2011] VSC 158 - VSC 2011 case summary — Zoe

[174]

The presence and extent of impairment is a medical issue, and is assessed by medical means. This Guide has been designed for use by medical practitioners; in evaluating psychiatric impairment in accordance with this Guide clinical information has to be obtained and assessed, together with an examination of the individual's mental state.

The evaluation of psychiatric impairment in accordance with the Guide is meant to be informed by clinical judgment, based on appropriate training and experience, and the specific rating criteria are not meant to be used in a 'cookbook' fashion.

The descriptors associated with particular classes for each [mental] function are intended to be indicative only. They are intended to provide an overview of the type and severity of symptoms expected for each particular class. It would be futile to attempt to list all relevant symptoms and would be onerous for the assessor. The absence of a particular symptom in the list of descriptors does not mean that that symptom is to be disregarded. The assessor may be required to justify why that/those symptom(s) is/are associated with a particular class of severity.

It is ultimately for the clinician, and no one else, to make the clinical judgment whether a specific rating criterion is present. If the clinician doubts that a particular symptom or abnormality of mental function is present, even after hearing the patient describe it, the item should be rated as not present. This convention is advocated in the Structured Clinical Interview for DSM-IV Axis I Disorders, and it is important to emphasise that the evaluation of psychiatric impairment, like diagnosis, is based on 'ratings of criterion items, not of answers to questions'.

The method described in this Guide involves the assessment of the severity of six specific mental functions into five classes of increasing severity. The different classes are combined to produce a total psychiatric impairment. Use is made of a modified form of the table that was in the second edition of the AMA Guides.

[208]

The claimant told the Panel that she has felt upset and anxious from the time of the incident. She said she imagined her father crawling in pain over to the door to get help. She said that she had difficulty getting off to sleep and staying asleep, and she began to drink alcohol each night to help her sleep, consuming about 3 glasses of chardonnay a night, and 1-2 bottles a day on weekends.

The claimant told the Panel that in May 2008, she was on her way to the hospital with a friend when she received a phone call 'that father had had a turn'. She said that her legs went numb, [she] could not breathe, and she feared she was having a stroke. She recovered in a few minutes after stopping the car and getting out to walk. She said that she had about 9 further panic attacks over the course of the next year, the last one being 'just before his death'.

The claimant told the Panel that during the course of the next year and following her father's death, she 'felt sad and empty, and cried a lot'. She said 'I wasn't feeling my best; I was in a slump, dragging myself out of bed'. She said that 'it felt too painful to want to be here', but she did not want to die. She said that she did not lose interest in herself and her life, but she struggled, was not really motivated at work, and she relied unduly upon her business partner to fill gaps she left, and the business did not do as well as it should have. She was spending a lot of time visiting her father.

The claimant told the Panel that in early to mid 2009, she began to be angry and argumentative, and was unable to cope with confrontation. She said that she felt 'angry with life; about my father; about life in general; with the situation (incident); with everything'.

The claimant told the Panel that she continued to feel depressed, anxious and angry throughout 2009. She said in September 2009, she established her present business partnership. She said that a few months prior to the Panel examination, she 'realised where this (depression) could all end up, and that he wouldn't want that; I have been teaching myself to cope with it a lot more'.

The claimant told the Panel that 'for the past couple of months, I have been getting back into things - I have my days, but I am okay'. She said she has taken up power walking 6 days a week, and she has stopped drinking alcohol apart from 1-2 drinks occasionally at social events. She said that she has generally 'detoxed', and no longer drinks caffeine, and has reduced her cigarette consumption back to her usual 10 a week.

The claimant told the Panel she still feels anxious at times, but does not have panic attacks, and she 'misses my father every day' but she is comforted by talking to him in her mind, and lifted by getting more involved in things, and talking with friends. She said that she tends to avoid talking with her family, because it upsets them. She said that she is able to have good memories of her father.

The claimant said to the Panel that although she talks to her father in her mind, she does not have a conversation with him, she does not hear his voice, and she has not ever had any hallucinations or like experiences in any modality, nor any significant misidentifications or misperceptions. She said that imagining her father crawling across the floor happens 'only sometimes' at a frequency of no more than every couple of months.

The claimant told the Panel that she attended a single family group grief counselling session in early 2009, but did not find it helpful. She has not otherwise had any mental health treatment of any kind.

The claimant told the Panel that her general health is good and she does not have any treatment for any medical condition.

The claimant told the Panel that she works 40-70 hours a week, power walks for about an hour 6 days a week, spends time with her partner, with 3 close girlfriends and with her business partner, and shares domestic and personal financial matters with her partner. She said that she is required to take a Certificate IV in loan management but has not enrolled as yet.

The claimant told the Panel that her past history is unremarkable for psychiatric or psychological conditions and for significant medial illness or injury, and that her only other significant loss was the death of her dog in 2005. She said that she was the closest amongst her siblings to her father and that he 'was my best friend; I could talk to him about anything'.

[245]

The claimant said to the Panel that he had felt not close to his parents when growing up, and that he had 'cut off' from his father as a young man, but that since returning to live at home, he had 'made an effort to get acquainted with him; "I realized that he did the best he could to give us happiness". He said that he felt 'quite sad' about the loss of his father, but did not describe ongoing grief. He said that he has just returned from having taken his father's ashes to scatter in Scotland on the anniversary of his death.

The claimant told the Panel that he considers that he 'was born highly sensitive' and that anxiety 'is in my makeup'. He said that as a child he looked 'for ways to extract myself, to escape' but he did participate in activities such as sports. He said that he started drinking alcohol (beer) at age 11, was drinking regularly by age 13-14, and was smoking marijuana regularly by age 18. He said his consumption was a slab of beer over 24 hours, and ¼ - ½ ounce of marijuana a week. He occasionally used amphetamines and [on] several occasions, used LSD.

The claimant told the Panel that he 'felt a lot of freedom being wasted', and that he did not ever suffer any psychotic symptoms, nor any withdrawal symptoms. He said he did suffer panic attacks 'after a bender', 'could have bouts of anger' and 'was not growing emotionally'.

The claimant told the Panel that he considered that he had habitually been 'depersonalized most of the time'. He said that he meant by this 'having to extract myself, escape; feeling emotionally drained; bodily tired'. He said that he was able despite 'dissociating' to continue to complete complex activities, that others would not notice any change in his demeanour, and that he did not ever have periods of time or matters for which he could not account, nor did he ever experience having been absent, lost or end up in another place through unknown means. He said that he had bouts of feeling depressed and hopeless, becoming inert and having suicidal thoughts. He felt the bouts 'came as a result of the depersonalisation'.

The claimant told the Panel that about twenty years ago, he consulted a psychiatrist, and was diagnosed with dissociative disorder, and was treated with psychotherapy and antidepressant medication. He said that various antidepressants were tried but did not seem to help.

The claimant told the Panel that he was working sporadically and there was relationship strain. He commenced seeing a psychologist in 1998 at the time when he was provided the disability support pension. He attended Alcoholics Anonymous and stopped drinking alcohol. He said that once he was not using alcohol, 'the depersonalization got worse' and he could no longer tolerate marijuana. He stopped using that and said he has been abstinent from all substances for 12½ years.

The claimant said that he was then referred to another psychiatrist and commenced on a new antidepressant, Efexor XR 50 mg daily with very good effect.

The claimant told the Panel that he continued to attend AA and to take the antidepressant medication, but he ceased all specialist mental health treatment and 'managed himself'. He said that he no longer felt depressed or suicidal and the anxiety was less intense. He said that once he was secure in living with his parents, he built up a life for himself, with music, writing and busking, and he also trained as a massage therapist. He said that he 'weaned himself off' the Efexor, reducing the dose to 75 mg daily. He said that with the reduced dose and with the increasing needs of his parents, he had lost some of his wellbeing and participation, including busking, and then once he had the sole care of his mother after the incident, he stopped busking all together and became more disconnected and discontent.

The claimant said when asked about the way in which the incident affected him, that 'it was mainly the fact that my mother needed me as a carer; my life became more stressful'. He said that 'my dissociation became more intense; I became more anxious'.

[282]

The claimant said to the Panel that after the patient's death on 16 June 2009, her general practitioner prescribed her something to 'pep me up', but the medication made her feel nauseated and she ceased it after a few doses. She did not have any further psychotropic medication; she said she felt she was taking enough medication for all her physical health problems. She said that she had not had any counselling of any kind, but she agreed that she had attended a family grief counselling session; she said this was not helpful to her.

The claimant told the Panel she started 'picking up' about a year ago in that she was taking better care of herself and eating regularly, and she started walking over to the coffee shop for an outing. She said she continued to miss her husband, to feel sad and teary, and to cry herself to sleep at night, but she was able to enjoy company.

The claimant told the Panel that 'for the last few months' she has been getting out some more, going weekly to the bowls club. She said that she has always been energized by social events and being active, and she feels she is coping well in that respect, but that she still feels she 'should be better'. She worries about 'making other people unhappy', and about worrying her family, so that she tries not to cry in front of them. She said she has always worried about the family, and about them being happy.

The claimant told the Panel that her appetite is good, her weight is her normal weight, and she has energy, interest, and looks forward to things, but that she is restricted and frustrated by her physical mobility limitations and pain. She said her sleep is restless because of pain.

The claimant told the Panel that she is independent in dressing and toileting but is unable to shower unassisted or wash her hair, because of her poor shoulder mobility. She walks with a limp and uses a single point stick inside, a walker outside - this has been the case for at least 3 years. She said that she has meals on wheels, but is 'able to make tea and toast', and 'can do a lot for myself' about the house, but relies on her son as her carer for all the heavy work, and for transport. She said she has never driven: 'I was too nervous to be allowed'. She manages her own household accounts and pays some bills over the phone, but her son does the banking.

The claimant told the Panel that of her several chronic health conditions, it is her musculoskeletal problems which are most bothersome. She said that she has generalized osteoarthritis with pain, slowness, and restriction of movement, and she is fearful of 'doing something wrong' and causing further injury. Her past medical history also includes:

[322]

The claimant told the Panel that she reduced her hours at work from fulltime to 2½ days a week in about mid 2008 - 'I had to work fulltime till then financially with family commitments'. She said she visited her father daily and focused on researching as much as she could about dementia so as to assist her father and the family.

The claimant said to the Panel that she 'was so obsessed to get father better; trying to make up for what had happened' that she neglected her partner and her younger son. She said that she broke up for a time with her partner and in about March 2009 moved in with her sister. After about 6 weeks, she re-set her priorities when her younger son 'had some trouble with the police' and she and her partner reconciled.

The claimant told the Panel that when her father died on 16 June 2009, she felt relief because 'he suffered terribly, and when he no longer knew me, it was horrible - my grief was watching him get worse'.

The claimant told the Panel that there was a meeting with the Respondent which 'affected me terribly - they said that there was not an incident report made; they lied about what had happened'. She said that she believed that based upon her own nursing experience that her father should not have been left unattended. She said that she was distressed by visions of imagining him crawling across the floor to get help. She said that the thought of her father in that situation 'comes back to mind when things (or conversations) happen to remind me', occasionally.

The claimant told the Panel that throughout the time from the incident at the hospital up till her father's death, her emotional and interpersonal life was under strain. She said she kept on going to work, but apart from that and trying to help her father she neglected everything else, including her own routine health needs, leisure, and family life. She said her husband felt she was neglecting him, which led to their separation, and she lost the closeness she used to have with her son. She said that she feels that she has still 'lost something' with both her husband and her son, although things are generally okay.

The claimant told the Panel that she has felt worrisome, finds it difficult to relax, and feels driven to keep busy and be ready, in case something happens. She said that she worries about her mother. She said that she has asked friends not to phone after about 7pm as she assumes a phone call means something has gone wrong.

The claimant told the Panel that her mood is 'labile', and said she 'does get down - I never used to be' and that she may feel down for some hours before her mood lifts or she gets busy. She estimates her mood as 3-4/10 on a scale of 1-10, where 10 is a normal mood. She said that she has never felt hopeless or not wanting to live, and that she can feel very happy and normal.

She said that she feels angry that the incident occurred, about the circumstances in which it occurred, about her sense of being lied to by the respondent, and by the summation by the respondent that 'it is a hopeless case', which she took to be a comment about her father's condition.

At a glance

Court

Decision date

Before

Source

Judgment (400 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)