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We looked recently at some of the new psychiatric diagnoses appearing in the latest International Classification of Diseases and their potential for increasing the damages payable following bodily injury.
In a similar vein, the psychological impact of COVID-19 health risks or the national quarantine could trigger further psychological harm in personal injury claimants already dealing with the physical or mental consequences of an accident, and expose compensators to additional claims inflation.
Complications
The UK Government’s response to COVID-19 has involved the introduction of a number of quarantine measures, including self-isolation, social distancing and shielding.
A very recent study in The Lancet compared research on the psychological impact of quarantine during the following outbreaks: SARS, Ebola, H1N1 influenza pandemic, Middle East Respiratory Syndrome and equine flu. The study found an increase in anxiety and anger, post-traumatic stress symptoms (PTSD), depression, and acute stress disorder, as well as alcohol abuse and dependency behaviours. The main factors predictive of this were:
- Length of quarantine, whether more or less than nine days.
- Lack of access to basic supplies such as food, water and clothes.
- Availability of their regular medical care and prescriptions .
- Financial loss with no advance planning, particularly for those on lower incomes.
Research output in relation to the current pandemic is growing. The American Psychiatric Association has issued guidance to its members that people suffering from pre-existing mental health problems are particularly vulnerable to COVID-19 complications. The British Psychological Society has published an article which hypothesises that people suffering from obsessive compulsive disorder may develop overly-regimented handwashing routines, to the extent that they develop irritant dermatitis.
Causation
In many cases, mental health issues arising from the COVID-19 outbreak and Government’s response will not be causally linked to a personal injury claimant’s accident and would have arisen anyway. However, additional damages might be recoverable in the following scenarios:
- Claimants who would not have suffered psychological distress but for an accident-related vulnerability; and
- Claimants already suffering an accident-related psychiatric disorder, whose treatment and recovery phase might now be prolonged.
For example, a claimant already suffering PTSD might display a behavioural reaction to COVID-19 that qualifies for the heightened diagnosis of Complex PTSD, such as inappropriate emotional responses or difficulties sustaining relationships. Or a claimant already suffering immobilising injuries, and therefore unable to leave the house for the permitted one form or exercise a day, may be more susceptible to Gaming Disorder if spending long hours playing video games.
Compensators and their experts will be faced with some legally and medically complex causation issues surrounding whether the same psychological pressures would always have affected a claimant anyway and so should be excluded from the claim, or alternatively were at least partially due to the after-effects of the index accident.
Counter-measures
Most psychological treatment is still conventionally delivered face-to-face via talking therapies. In serious cases, residential admissions can be required for in-patient rehabilitation.
COVID-19 is challenging therapists to adopt new remote treatment protocols for infection control purposes. Video counselling and tele-psychiatry are not new concepts, but surprisingly there has been limited UK research on its efficacy. We expect, however, that more will appear over the coming months. In response to the current restrictions, the European Federation of Psychologists’ Associations (EFPA) is undertaking an urgent review of video counselling by its membership in order to compile best practices for this form of therapy. The British Psychological Society’s Division of Neuropsychologists is preparing to issue guidance to its members imminently.
Tele-medicine offers various practical solutions during the quarantine phase, by providing service continuity for those who are self-isolating, by allowing clinicians who are self-isolating to carry on treating patients, and by facilitating geographical coverage in areas where there might otherwise be insufficient resources due to pandemic effects or otherwise. We have already seen in recent weeks that the UK case management sector has necessarily switched over to a remote-working model.
Tele-psychiatry, however, presents some unique challenges compared with general tele-medicine provision. In the Unites States where tele-psychiatry is more commonplace, the American Psychiatric Association guidelines for its use include considering the availability of emergency medical facilities, the efficacy of the patient’s support system and the ability to contact those in the support system in an emergency. If a claimant lives alone, the treating psychiatrist or psychologist will have to carefully weigh up the benefits of the consultation versus the risks of the patient having an adverse emotional reaction if there is no support system, limited emergency medical resources available due to the pandemic, and the claimant has a history of self-harm, attempted suicide, or substance abuse.
Comment
The lessons learned by clinicians during the pandemic, and the research that will inevitably follow, have exciting potential for expanding future mental health services and ushering in new treatment pathways that were already in the pipeline but have been accelerated by the global health crisis.
Compensators can seek to support wellbeing and, in doing so, mitigate potential claims inflation by reviewing caseloads to try to identify claimants who may be at risk of further psychological harm during COVID-19, especially if living alone, or in small accommodation, or financially vulnerable. In some cases, simple practical advice or support may be enough to prevent a deterioration, such as better technology to stay connected or home equipment for exercise. In others, initial mental health screening by questionnaire or video call may catch any early warning signs and enable appropriate remote intervention before symptoms worsen.
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