Battered Plaintiffs - injuries from hired guns and compliant courts

Jean Lennane

April 2000 

Dr Jean Lennane is a psychiatrist now working in private practice in Sydney. An active and vocal unionist during the fourteen years she worked as director of drug and alcohol services at the Rozelle Hospital in Sydney, she was eventually sacked in 1990 for publicly criticising cuts to mental health and drug and alcohol services in the public health system. She then became aware for the first time that the term 'whistleblowing' applied to what had happened, found what was then a small body of research on the subject, and became involved in setting up the self-help organisation for whistleblowers now known as Whistleblowers Australia, and adding to the now very substantial body of research.

Jean was founding president of WBA, then vice-president, and is now president again. Since it was founded in mid 1991, WBA has become an influential and almost too respectable body, lobbying for a better deal for whistleblowers - that is, for employers, public and private, to stop shooting the messenger. She has also become aware, from information from the hundreds of whistleblowers who have contacted WBA over the years, that Australia is in deep trouble from widespread corruption, especially in our law-enforcement agencies; also at all levels of our legal system, aided and abetted, regrettably, by some members of her own profession.

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It is bad enough to suffer an injury at work, or the savage retribution routinely meted out to whistleblowers. But as is well known in whistleblowing circles, if the injured person then tries to obtain redress through the ‘justice’ system, they are likely to suffer further injury from the system itself- in some cases, more severe and damaging than the original one. This is such a problem, at this stage so insurmountable to the great majority of would-be plaintiffs, that my routine advice to patients wanting to try litigation is basically - "Don’t". However many still do; some really have no choice but to try; some are caught up with ‘hired guns’ while still employed, forced by the threat of losing their jobs for refusing to obey a lawful order. (If you want to dispute that the order is in fact lawful, of course you end up in court anyway.)

Hired guns

Hired gun psychiatrists are covered in more detail in my chapter on bullying in medico-legal examinations, in ‘Bullying, from backyard to boardroom’ (ed. McCarthy, Sheehan and Wilkie, 1996). There are hired guns in other medical specialties, but they appear to be most frequent, and most vicious, in psychiatry - probably because, as a ‘soft’ science, lacking the hard evidence of X-rays and tissue examination, psychiatry is more open to opinions, no matter how outrageous.

This is unfortunate for the victims on two counts: firstly, a psychiatric diagnosis carries a severe stigma in our society, and however sane the victim may in fact be, some mud can be expected to stick, particularly among their enemies. It is thus an extremely effective way to discredit the victim together with their complaints, and supposedly confidential reports are commonly overtly or covertly circulated where they can do most damage. Secondly, a psychiatric examination, on a traumatic issue, is often traumatic in itself because the patient is compelled to relive the trauma. This is acceptable for the purpose of therapy, but purely for medico-legal purposes will almost inevitably add another injury to the psyche. If the psychiatrist is an abusive hired gun, and if the patient is forced by the system, as many are, to see a number of them, the additional injury can be severe. Also most whistleblowers, and many Workers’ Compensation claimants, do develop psychiatric problems such as depression, anxiety, and post-traumatic stress disorder, for which they will need help, usually from a psychiatrist. If the trust necessary for an effective therapeutic relationship has been damaged or destroyed by a traumatic earlier encounter with a hired gun psychiatrist, the effect can be devastating, and a condition that should have been relatively easy to treat can become crippling.

The two main situations where hired guns are employed are in whistleblowing cases, when the employer wants to discredit and if possible get rid of the employee; and in Workers’ Compensation cases where the employee is claiming for a psychiatric injury, and the employer wants to avoid liability. Whistleblowers can, and commonly do, end up in both situations, after the victimisation and harassment they are subjected to at work in due course causes a major depressive illness. However there are important differences in the two situations, especially the ‘diagnosis’.

Hired guns in whistleblowing

In this situation the employer will want a diagnosis that ‘proves’ the whistleblower is a nut-case, rat-bag, and troublemaker; that the issues on which they have blown the whistle can therefore be safely ignored; and they can justifiably dismiss or medically retire the whistleblower. The diagnosis in that case is almost invariably a paranoid personality disorder (i.e. the whistleblower has been misinterpreting or imagining both the malpractice and/or corruption they complained about, together with the harassment and victimisation that almost invariably follow someone making such complaints). Occasionally the hired gun can stretch the diagnosis to a paranoid illness, such as paranoid schizophrenia. This is uncommon in Australia, where we don’t (yet) have the convenient diagnosis used in Soviet psychiatry to deal with dissidents there. ‘Creeping’ or ‘sluggish’ schizophrenia was an illness confined to the USSR, with no symptoms apart from the urge to dissent:

"The presence of sluggish schizophrenia does not presuppose noticeable personality changes and the absence of such symptoms does not prove the absence of the illness itself."

"The morbid process develops very slowly so that its other manifestations remain imperceptible. Diagnostic difficulties increase if the subject relates in a formally correct way to the environment."

However this lack of symptoms, coupled with ‘reformist ideas’, particularly if expressed with ‘an unshakeable conviction of his own rightness’ was enough to land dissidents in the nightmare of psychiatric prison hospital, indefinitely, or until the administration of overdoses of psychiatric drugs and other ‘treatment’ led to the ‘fading away of delirious conceptions’ - i.e. willingness under that duress to agree to toe the Party line.

In Australia, the diagnosis of paranoid personality disorder has some striking similarities. For this diagnosis to be valid, a patient must have exhibited symptoms throughout their adult life, and in all areas of it, not just at work. Most whistleblowers are well above average as employees, and until they blow the whistle have exemplary work records, as well as being unremarkable in their family and personal lives. That is, there is no evidence to support the diagnosis of a paranoid - or any other - pre-existing personality disorder, and of course thinking that you are being persecuted once you really are being victimised is not a sign of mental illness. But just as lack of evidence wasn’t a problem in the USSR, it often presents no problems here:

"There is no past history of personality difficulties which I am aware of and from a psychiatric point of view I cannot establish the presence throughout his life of personality traits which significantly affected his work or social life. This is not surprising given Mr W’s defensiveness and projection of all his difficulties onto the Department."

"I found Mr T. to be very cooperative in the interviews and to have a cheerful and pleasant manner. This contrasted with accounts given to me by others, mentioned above, that he can at times be very belligerent and uncooperative. It was easy to see that he would be able to present his viewpoints in a very plausible manner to people who were in relatively brief contact with him, or who did not seriously challenge his statements."

Hired guns here, like their Soviet counterparts, have problems with the whistleblower’s conviction of his own rightness:

"He has developed compulsive behaviour based on his own set of high moral values.....This type of personality could qualify as a reason for retirement on medical grounds. If this did occur, it would have to be forced on Mr V, as he can see nothing wrong with his personality and merely considers himself a person of high integrity."

And with their persistence in pursuing authorities to try to get action on their complaints....

"There is every reason to believe he will continue in his present litigious activities writing numerous letters to parliamentarians, ministers and the PM etc. He is quite insightless into his mental condition....." "There seems little doubt that in the last year what had been a highly valued idea by him, that is exposure of corruption in the SRA, has become an obsession in the sense that he both cannot and will not put it out of his mind..."

And at the ‘overestimation of himself’ that caused problems for Soviet psychiatrists: "He was very grandiose regarding his abilities as a quarantine officer......." "..he may in fact have a personality disorder. His personality traits are such as to produce grandiose and obsessive behaviour..."


Hired guns in Workers’ Compensation

In this situation the employee is usually claiming for post-traumatic stress disorder, and the hired gun’s task is to show that he/she does not or could not have such a condition, despite in some cases the precipitating event having been extraordinarily traumatic by normal standards, e.g. the Voyager disaster. More details of such reports can be found in the chapter in the ‘Bullying’ book referred to above. In these cases the hired gun, rather than bending over backwards to find symptoms of psychiatric illness where none exists as in whistleblowing cases, has to perform complicated mental gymnastics to show there is nothing wrong, however compelling the evidence that the plaintiff is genuinely ill.

If the patient shows signs that would normally be taken as symptoms of illness, the hired gun will interpret this as malingering. An example:

"The prominent feature at this interview was what I consider to be overacting. The appearance of great anguish was so excessive that I can only regard it as histrionic. It is my impression that [his complaints] are manufactured for the purposes of elaborating upon what may have been a genuine disorder in the past.............In my opinion the state of the patient no longer meets the criteria of PTSD, but rather impresses me more as malingering hysteria......"

Or he will provoke the patient and interpret their response as indicating hostility rather than legitimate illness. An example:

Claimant’s account of the examination: "I found Dr X’s attitude from the start to be provocative and intimidating. He frequently smirked when I replied to his questions, and the whole interview with him was more in the nature of an interrogation. At a later stage of the interview Dr X sat me in a chair and asked me to hunch up my shoulders. [Dr X has no orthopaedic qualifications or expertise.] I indicated to him that I was in pain and that pushing down caused me pain. He asked me to hunch up my shoulders again and I refused. He pushed down on my shoulders hard."

Dr X’s report of that examination: "He was bristling with anger and hostility. Although diagnosed as suffering from major depression by Drs A and B, I have reservations about the diagnosis and note he failed to respond satisfactorily to any treatment prescribed....."

That patient subsequently killed himself, which would seem to indicate Drs A and B were right about his major depression. He was one of a series of suicides by patients who had been examined in this manner by Dr X, and while it would not be valid to say without further evidence that Dr X’s examinations helped to cause those deaths, it is self-evident that such abusive behaviour could hardly have helped. 

Characteristics of hired guns

It appears a disproportionate number are male, although this may be an artefact. (One female psychiatrist featured prominently in the recent series of articles in ‘The Australian’.) Regardless of gender, they are authoritarian, and in many cases seem to have a genuine dislike and distrust of people who are in conflict with authority, as if being in such a situation is evidence the patient must ipso facto be mad or bad. Most do forensic work most or all of the time, i.e. they do not have ongoing contact with patients; and they work only for employers and/or insurance companies, never for plaintiffs. Some make a lot of money. Unlike psychiatrists who cause other kinds of problems, they seem not to be prominent in medical politics, but nevertheless are enough a part of the establishment to avoid any action being taken against them by e.g. the College of Psychiatrists despite sometimes numerous complaints from victims and other psychiatrists. 

Tactics of hired guns

The conduct of a typical examination is clearly aimed at avoiding the possibility of developing any rapport or empathy with the patient - the reverse of a normal examination. The hired gun would no doubt deny that this is the intent, but it is hard to find any other explanation. The process usually starts with secret briefings from the employer, usually inaccurate and sometimes wildly misleading, which paint the patient as paranoid or impossible, and which the patient, unaware of their existence, has no chance to refute. The psychiatrist will refuse to accept written information offered by the patient, or to allow a support person into the interview; may arrive late with no explanation or apology; will not introduce himself or otherwise make any attempt at normal politeness or making the patient comfortable; will use distractions such as wandering round the room behind the patient, dropping noisy objects, or sitting with his feet up on the desk, eating his lunch. He will be hostile and adversarial in manner, sometimes yelling at the patient, accusing them of lying, and may be verbally abusive, trying to provoke an angry reaction which can then be used as ‘evidence’ of a personality disorder or malingering, depending what is required.

Other common tactics are to use a standard report that is already on their word-processor, the hired gun simply filling in the gaps. ‘Verballing’ patients is common, e.g. a throw-away, leading question at the end of the interview on the lines of supposing they must have some bitterness about what has happened then becomes the focus of the report. One notorious hired gun regularly uses a urine test for drugs, including prescribed drugs. The patient is asked what they are taking, and the psychiatrist then says in his report that what the patient claimed to be taking or not taking is contradicted by the test - additional ‘evidence’ that the patient is untruthful. Without a witness at the interview, or a tape-recording, there is no independent evidence of what the patient really did say.

There is however one thing that hired guns almost never do - try to check the patient’s information with other, independent, sources. Indeed I think it safe to say that someone who makes such an effort is not a hired gun. 

Compliant courts

The over-riding problems with our courts are the adversarial system, which seems designed to hide rather than search for the truth; and presiding judges and magistrates who might as well not be there, for all the good most do in keeping proceedings and participants on the rails. I will not be making suggestions for overall reform of the court system, since Evan Whitton will no doubt be covering that. I will just outline some of the problems. An enormous problem with the whole legal system is the lack of ethics of most legal practitioners, as shown by countless examples of corruption in the system, and the almost complete absence of lawyers prepared to blow the whistle on it. Other people can and do - police for example, often at enormous personal risk - but lawyers almost never.

Before a plaintiff gets to a court hearing, they have to cope with their own lawyers’ incompetence and procrastination. Few lawyers seem to have even basic competence in this area, a major problem being that their training removes any previous tendencies to be goal-directed, so they become entirely process-directed. (Billing by the hour of course encourages this.) Where they are going to end up, and when, seems not to be their concern. And because so many cases in the end are settled (often very badly) out of court, most can’t get motivated to prepare a case until the day before the hearing if you’re lucky, and often not until the day itself. These problems, and lack of money, have led a number of whistleblowers to do a law degree themselves as the only means of finding an ethical and reliable lawyer, and many more to represent themselves without any qualifications - when they seem to do rather better than most whistleblowers with lawyers. Certainly no worse.

Plaintiffs then have to cope with the tactics of large organisations with money, who can and do use the legal processes to exhaust the plaintiffs’ emotional and financial resources, until they are forced to give up and go away, or to settle, usually badly, just before a definitive hearing that could have set a precedent for other victims. The Westpac letters, and the Justice Callinan issue, are examples of what is widespread and accepted practice. I have yet to hear of a judge taking any action - or even saying anything - about these blatant delaying and other tactics. They seem quite happy to preside over an abusive process that also, most conveniently, keeps matters of great public interest ‘sub-judice’ and safe from public scrutiny until they are no longer news.

Plaintiffs also have to cope with their lawyers’ tendency to play for the other side - throwing cases, withdrawing from them the day before they go to court, making deals, persuading bewildered victims to accept ruinously disadvantageous settlements, losing documents, leaking information to the other side etc etc etc. Reasons for this behaviour range from corrupt collusion to simply needing to clear a space in their diary; and of course collecting brownie points for their career.

Plaintiffs also have to cope with the vagaries of the system, and its tendency to compliance with the political and other needs of the day. Name and detail suppression vary with the climate. A whole case in NSW involving a worker in a Minister’s office was suppressed until after the last state election. One wonders how this could possibly be legally necessary, however convenient politically. In the ‘Marsden case’, where Channel 7 is being sued over allegations on the ‘Witness’ program of underage sex the judge refused to suppress the (male) witnesses’ names. Had the witnesses been female I feel that would have been what ‘Yes, Minister’ calls a courageous decision. There is also great reluctance to deal with or even acknowledge some very odd occurrences in and around the system - crucial dates in court records obviously and clumsily altered with white-out; blatant interference with witnesses; disappearing documents; and mysteriously reappearing fire-arms. Judges don’t seem to want to know about such matters. No doubt some are in on the deals, whatever they may be, but I suspect that most are simply reluctant to rock the boat. The needs of justice, and the community, take second place to the desire for a quiet life.

Once in court, plaintiffs face major problems with bullying - an integral part of the adversarial system. Compliant judges make no attempt to see fair play, as vulnerable plaintiffs are bullied by opposing counsel, cross-examined for days on end, about anything at all, no matter how repetitive or irrelevant, regardless of their state of health - often until they collapse and have to give up the case. Whether the plaintiff has suffered a brain injury that is the subject of the case, or is intellectually disabled, psychiatrically or physically ill, or a child, seems to make no difference - judges still sit there and allow this to happen. In one serious instance in NSW, a heavily-pregnant ex-police officer who had blown the whistle on a number of corrupt colleagues testified before the Police Royal Commission. Her evidence lasted one day, justifying, one would think, half a day of cross-examination on what she had said. She was then repetitively cross-examined as to ‘her credit’ (i.e. her entire life history) by a series of lawyers representing each of the police she had named. This had been going on for four days, with no end in sight, when she collapsed in the court, and went into premature labour, having developed pneumonia and septicaemia. The baby, also suffering from septicaemia, was grossly premature, and is seriously and permanently disabled as a result.

The legal system, albeit somewhat reluctantly, does recognise the existence of psychiatric injury, and that it may be legitimate grounds for the award of damages. Many lawyers make profitable careers in this area. Yet psychiatric injuries are inflicted by our court system every day - negligently, and sometimes wilfully as a deliberate strategy - and no-one is ever held accountable. Battered plaintiffs can’t get an AVO against bullying barristers; and can’t sue a judge for neglect of his duty of care to a vulnerable person with a disability. I hesitate to suggest more grist for the dysfunctional legal mill, but perhaps such actions should become a reality?

Suggestions for reform

Psychiatric examinations of workers can be justified in some circumstances. Workers, like anyone else, can really become mentally ill, and if this is affecting their work performance, or colleagues are genuinely concerned about them, it is useful to all concerned - especially the patient - if there is a mechanism for dealing with it. An effective and ethical mechanism will also avoid the problem of hired guns. The essentials are:

Psychiatric examinations of plaintiffs can also be justified in some circumstances, notably where the claim is one of psychiatric injury. Where the claim is physical, and malingering is suspected, my own view is that covert surveillance etc is far more appropriate than psychiatry. For psychiatric claims, the essentials can be divided into the immediately and easily possible, and the ultimately desirable but more difficult:

The above measures would prevent most of the abuses. However, the ultimate aim must be to avoid ‘cash for comment’ pressures by making the court, rather than either or both sides, responsible for obtaining the necessary report. Again there should be a panel of doctors, with the plaintiff able to choose. The advantages and savings of time, money and trauma are so obvious, it is equally obvious that only a very powerful set of vested interests could keep the system going as it is.