The High Court recently refused a father's claim for damages
in the context of a failed sterilisation procedure. Baby
Samuel Hurley Ahern was conceived despite his mother having
undergone laparoscopic surgery to clip her fallopian tubes by way
of sterilisation. He died aged six months as a result of
severe physical defects which saw him hospitalised all his short
life.
Judge Ryan awarded the mother €100,000 damages to compensate
for her frustration, worry, pain, hospitalisation, distress,
bereavement, expenses and unspecified loss of earnings. In
assessing damages, he took account of the events of the six month
post-natal period.
Judge Ryan found that the father undoubtedly suffered similar
distress and anguish as the mother but he ruled that he was not
entitled to compensation because "the law sets a barrier
to the right to compensation for such painful experiences. It
requires proof that the claimant suffered a defined psychiatric
injury". Severe distress and emotional anguish was
not sufficient and Judge Ryan held that it would have been
necessary to invent a new head of claim to compensate the
father.
DSM revision
There could potentially be a very different outcome in a similar
case following the recent publication of the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders
("DSM"). The DSM is a reference
work consulted by healthcare professionals, which has undergone
major revisions since its first release in 1952. DSM is the
"psychiatric bible" used to diagnose and
classify mental disorders.
The fifth edition has been criticised[1] for reasons
including:
- The revision of the definition of mental disorder.
- The lowering of diagnostic thresholds.
- The introduction of new disorders without a clear scientific basis.
There is concern that the normal strains of everyday life have
been pathologised by the introduction of categories such as
"generalised anxiety disorder" and
"caffeine intoxication disorder" and that more
people will be diagnosed with disorders. This raises the
question of whether the courts in time will take a less restrictive
approach to the issue of psychiatric and psychological injuries in
circumstances where lower clinical thresholds may be more easily
met by plaintiffs. For example, a bereavement reaction which
lasts longer than two weeks would qualify as a depressive disorder,
which may have changed the outcome for Mr Hurley.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[1] For example, Dr Allen Frances, who is an Emeritus Professor of Psychology and was chair of the DSM IV Taskforce, has been vocal in his criticism of the DMS V. Sample articles include "DSM V in Distress : DMS is Guide not Bible, ignore its 10 worst changes", published 2 December 2012 on www.psychologytoday.com and also "Diagnosing the DSM" published 11 May 2012 on the New York Times Opinion page, www.nytimes.com.