Do traditional medicolegal assessments serve victims of historical abuse well?
The medicolegal assessment landscape has changed rapidly since the Wrongs Act came into place in 1958, and the GEPIC (Guidelines for the Evaluation of Permanent Impairment for Clinicians) was utilised to assess permanent injury, at least in Victoria, in 2006. Other states have similar scales and assessment tools gazetted for use to determine whether a claimant or examinee is indeed permanently impaired from an injury. But do we need a new approach with the demand for personal injury claims related to historical abuse matters, some dating back more than 7 decades before the assessment takes place?
When the Royal Commission into Institutional Responses to Child Sexual Abuse was appointed in 2013, it would have been impossible for the members to predict the number of victim-survivors who would come forward to take part. When the Final Report was delivered in 2017, many victim-survivors began compensation claims either privately or through National Redress Schemes. A critical factor of the claim is the expert psychiatric report written after assessment by a consultant psychiatrist specifically trained in medicolegal practice. And the demand for independent expert reports increased dramatically, with a lack of psychiatrists ready to undertake the work.
Similar progress has occurred for victims of Forced Adoption Schemes, particularly in Victoria, which took place through the middle half of the last century. In Victoria, part of these assessments involves completing a GEPIC assessment and determining whether the victim meets the threshold for what is called a permanent impairment. In some cases victim survivors seek redress are in their 7th decade of life, being forced to surrender their baby when as young as 15 years old. Often they have lived a full life when told initially to forget about their child and move on. They often did try this and created lives, which poses challenges for the psychiatrist asked to answer questions about permanent impairment.
Permanent injury assessments are clearer when a physical injury has deemed a person totally incapable of continuing their previous work role due to a physical injury arising in the work or the transport accident setting. But deciding on the impact of abuse that has occurred decades prior to the assessment seems to be a completely different thing.
It is possible with training and experience to apportion the impact of an incident of abuse with regards to the ability to complete education, gain stable employment or enjoy long-term enduring relationships. Psychiatric experts do this in a qualitative manner and are usually posed questions that entail the probability of apportionment rather than an absolute amount.
Understandably one can never be completely certain that a person has followed a certain trajectory in life because of an incident or incidents of childhood abuse. There is no specific framework for this, and each psychiatrist undertaking these assessments is generally guided by their colleagues and their supervisors to train them in the intricacies of performing such assessments for victims with a history of abuse and consequent development of traumatic sequelae. The only formal assessment courses for psychiatrists keen to branch into the subspecialty of medicolegal work involve training related to the Wrongs Act, written over 60 years ago, and in Victoria, the GEPIC, created in 2006.
There is a paucity of evidence regarding the validity and reliability of the GEPIC and other guides for assessing permanent injury. Yet they continue to be used in the personal injury space, possibly because nothing has been developed since, and it’s a case of “well, that’s how we have always done it”. Given that the Guides have not been updated for decades, and the nature of work required of medicolegal experts in increasing amounts since the Royal Commission, as more claimants come forward, is it time to start the discussion about the best and most accurate way to assess them?
In addition to this is the oath all Doctors undertake to First, Do No Harm, and the awareness within the psychiatric speciality of the need for trauma-informed practices in every area of work. Abuse law and forced adoption assessments are very distressing for those having to undertake them. In many cases, it is the only time they have ever disclosed details of past abuse. It is not uncommon for examinees to become re-traumatised within the session, and can be observed to experience flashbacks and dissociative episodes. They invariably recount that leading up to the assessment, they had noted a re-emergence of nightmares and poor sleep, and more intrusive thoughts of the past abuse. The role of the independent medicolegal expert is to maintain independence and ultimately observe their obligations to the relevant courts and jurisdictions, not to the examinee. This can feel uncomfortable when psychiatrists in clinical practice have total responsibility to the patient.
As more of my colleagues move into this field away from clinical practice, and more victim-survivors come forward I do consider it timely to open up this conversation. I discuss these complexities regularly with my clinical supervisor, and I don’t have a legal background, but I do wonder if members of the legal profession consider the same complexities. Ultimately too, the expert on the impact of abuse in every area of a person’s life is the person themself. The psychiatrist’s role is to interpret their account and diagnose symptomatology, preparing a report to go with their claim. With more of our work guided by lived experience and as the body of victim-survivors of childhood abuse grows, perhaps it is timely to ask them what they think too.
Dr Helen Schultz is a consultant psychiatrist, professional writer and medicolegal expert specialising in institutional abuse and forced adoption assessments. She works in Melbourne, Australia and can be found on Linkedin at @drhelenSchultz
