10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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THE PSYCHIATRIC TRAUMA OF PEOPLE IN COURTS

Professor Graham D. Burrows, AO KCSJ

One of the problems I have as a psychiatrist is that it is very difficult to understand us and how we talk. Some of us are working very hard to try and present ourselves as normal to you, but that is very difficult.

When I was given the above title, I could not help thinking of my first time in court. In the late 1960s, I was asked to give evidence for a woman whose husband had shot and killed himself while doing military training. She went into court to claim compensation against the government. It has now, in fact, been proved that in our court, there is a condition “psychogenic psychosis”. This man actually had a bipolar illness; in those days it was called manic-depressive psychosis. He went high and emulated the commanding officer and tried to take over the camp. Then he got depressed, and during this depressive phase, he shot and killed himself. He left a wife and two young children. I was trying to support because she was referred to me – he had not been my patient. I saw her when she subsequently became depressed. I was in court, as a young doctor who didn’t really have much experience: it was my first time, I was getting what I felt was a rough time from the crown prosecutor. He was rubbishing me. He was trying to prove that I was not credible, I had my day in court, and it is probably the only day I have “really had” in court. He had a heated discussion with me; he said “…and now tell me, tell me doctor, what was going through this man’s mind when he shot himself”, and I replied “a bullet your honour”. The answer came out spontaneously.

So we do have problems with communication in court. The issue of psychiatric trauma, of course, is stress – it is stressful to everybody. It is particularly stressful to the psychiatrist. The trouble we have as psychiatrists is that we don’t initially really understand the court experience. All my court experience has been by trial and error and I would like to invite lawyers to teach psychiatrists and other expert witnesses about the court process. It does not occur, so we pick it up “by the seat of our trousers”.

We must demystify the court experience. I hope you will all come to this afternoon’s session, because most of us do not know what is the role of the judge, jury, solicitors, barristers, clerks, plaintiff, stenographer, police, accused, and defendants.

The psychiatrist in court has to have some knowledge about the settings, the assumptions, personal, the issues and the techniques and he/she often does not. They also have to have a great deal of preparation, planning, practice, the pre-trial conference, the pitfalls and the presentations trial before the trial. So often, I have been invited to give evidence in court and I meet the barrister 5 minutes before I go into the court. We have a quick hurried discussion outside the door. It is pathetic. I have been to many courts where I don’t even find out the result because the solicitors, or those who have engaged me, have not done me the courtesy of letting me know the final result. My personal experience is little or no preparation from the legal point of view – no warning. I have been subpoenaed on a number of occasions to appear with my notes, or to appear in court, at a few days/hours notice and they do not really give a damn about my patients or the cancellations.

I have been subjected, as many have, to being called a “hired gun”. “You are only here because you are a hired gun”, and I have said “I would be hired by you, if you would like”. I have given evidence from both sides at various times appearing on behalf of the defendant or crown. “You don’t really believe that – you are only doing this for money”. It has been said to me, for example, “you are not credible”.

Of course, we know in the advocacy system they want to destroy the evidence and sometimes they try and destroy the expert witness, and that can be quite stressful. I actually think that most of the time so much of court work is really theatre, and the way it is played out is very much so. Many a flaw in court procedure results from the solicitor and/or barrister’s lack of preparation. We have heard about that – the young and/or experiencedbarrister inherits something the day before the trial. A problem is blamed on the witness (including the expert witnesses). We are often blamed, the parties, and even the judge gets blamed for it, but never the invisible lawyer. That is not my comment; it is something I took out of a well-written article.

WHO ARE SOME OF THE PEOPLE IN COURT?

Jurors

A number of years ago, our chief justice at the time, Hon. John Harber Phillips, wanted my department to do some studies on jurors. We put a lot of preparation into this study and of course, it did not get funded, as you would expect. Not by John, he was very keen for us to do it, but by the government of the day.

If you investigate jurors stress and debriefing, there is little research in Australia. There is more in the United States but what is the true relevance of that to Australia? Most of our Australian community learn about courts by watching movies of the American courts. We know that is quite different in many ways. We know that jurors are supposed to reflect the community views and that some funny things occur. I do not know if it still works, but if we took the New South Wales Jury Act as an example, “it is mandatory for jurors that live within 56km radius of the court house to do jury duty, as they live a reasonable distance a horse could travel and return in a day”. I know that the courts are trying to change that now, but does it truly represent and reflect the community. I suspect that, in many cases, it doesn’t and that is a problem. I have never been a juror and how many of you have been? Rural communities have problems because some jurors have known either the accused or the victim, or their families. Jurors have reported, “No matter what verdict they arrived at, they felt some party would be offended”, and they have to live in that community.

We did some work on jurors and the stress, which leads to anxiety and depression, particularly after leaving the court. I have seen many patients in my clinical consulting rooms who have been jurors and have been traumatised by the whole event. They worry about the verdict, the impact of the verdict, and the anxiety for the victim, the accused and family.

I was thinking at this morning’s session as I sat in the front row, about Lindy Chamberlain and what a great stress that must have been for her, and what really went on, whether her divorce resulted from it, and what is the damage to the individual.

There is anxiety about the jury room dynamics most of the time. If you have been in court as a non-lawyer; you have trouble understanding some of those dynamics. Concern regarding the jury’s decision, frustration with the legal process and concern regarding sentencing and appeal. Now having said this, I don’t believe there is a better system. I have looked at the French and the Mexican and others, and out of all those systems, I believe we have the best system, but I do believe we have to put more into studying and researching jury stress. Jurors express frustration with the process, with time delays, lack of information, not allowed out at request, etc. The frustrations may even include the conditions of accommodation, food, smoking breaks and so on.

If we look at jury stress, the more difficult trials lead to more stress and more anxiety. From highly visible trials in the media, we have seen people who have increased depression compared with jurors in the non-traumatic trials. Following lengthy trials, some jurors develop systems of neurosis. I have seen a number of people over the years who have developed quite major psychiatric problems following jury service.

The stress on jurors increases when they are presented with gruesome or graphic evidence. Even in the selection process, when they are shown the material, they then walk out. No attention is being given to how traumatic the event may have been for the juror. There is the media attention and the fear of retribution by the defendant – I have seen people who have met with retribution. There is sequestration, the length of the trial, the community response, the lack of anonymity, as mentioned in the rural district.

There are the personalities and group dynamics of the jury itself because this is “group psychotherapy”, and those of us who do a lot of group psychotherapy recognise the trauma in certain groups. It depends on the leader, the sense of the community responsibility, and the physical environment – the size of the room, no natural light, access to outside areas, and time away from each other. Also the management by the court staff, as some court staff can be like “little Mussolinis” in some ways; smoke breaks, etc.

We did a study on a couple of hundred jurors, and found that 49% were satisfied – 38% of those felt very good, in fact – and 51% recorded stress. There is a need to consider this. Those more likely to report feeling good or satisfied are older people, men, people from English speaking backgrounds, and first-time jurors. Those more likely to report upset or concern about the jury dynamics, or about the decisions, are the jurors who are discharged before the verdict; juries that did not agree; jurors passing a guilty verdict – women. Supreme court jurors and jurors on murder trials are more stressed than jurors in other courts.

I believe that if I were able to conduct a study properly, I would start off with jurors involved in murder trials. The jurors and witnesses often have poor/ little or no preparation. Murder trials report high levels of stress during and post the verdict; half of them have disturbing memories for weeks or even months after the trial and some felt that “being a juror is almost a sick process”. I do not believe we have done enough in that area.

Which jurors or witnesses are more vulnerable.

Those who – before they even get onto the jury - have had recent stress, those who have lost a spouse, those who have physical health problems or mental health problems and those with work related problems. I have seen people who have been witnesses in court who have become depressed, and I mean significantly depressed, requiring inpatient hospitalisation, including pharmacotherapy, supportive psychotherapy and cognitive behavioural therapy. Then there are those who have been abused, either directly or indirectly. I had a patient who was being called a murderer at her son’s school. The son was victimised and had a lot of problems. Others have had abusive telephone calls, etc. Others go on to develop Post Traumatic Stress Disorder because they have been shown disturbing photographs or graphics, and have never really been counselled after the event. This can happen even weeks or months later. Most jurors feel pent-up anxiety and energy when the trial ends. We know of that phenomenon in any examination process, and then the subsequent ‘letdown’, and subsequent depression that follows.

The highest stress levels occur when there is a criminal case involving murder or brutal crime, cases involving children, civil cases where there has been a wrongful death, or a major personal injury, or gross negligence, or when there has been visually disturbing evidence - particularly when there is trial by media, intense media, and community scrutiny.

What about the legal professionals?

The legal professionals – what about the lawyers themselves? Since becoming involved with this group, 20 years ago, I have seen more and more lawyers professionally. Friends and colleagues discretely refer them to me. Lawyers, solicitors, barristers and judges often work under high stress. They feel weak about what is going on, or cowardly, or they have a low personal view of their abilities, or they have not had much opportunity to talk about things. As I said, there is still very limited research and much needs to be done. Dr Jack Warhart is responsible for looking after sick doctors with a team, and I am one of them with many others. We have recently been invited by the Law Institute to become involved and help them look after sick solicitors. So, we have set up a group to learn from us, but I have seen a number of lawyers with long-term alcohol or drug dependence. In the legal and medical professions, there is often poor preparation for law or medicine. We are not prepared for what may happen as an expert witness. Excessive workloads and most work under excessive workloads, show many lawyers and doctors have serious problems with time management, and the lack of personal care. Very often, doctors and lawyers are good at looking after others, but they do not necessarily look after themselves.

Law is an occupation characterised by dealing with situations which involve conflict. Lawyers often go on to suffer ‘burnout’, working long hours, under pressure, including weekends where they are doing their briefs on Sunday, working a full day, and so on.

Threatened violence in the Family Law Court – it is interesting that they have higher rates of mortality, including deaths and suicide and stress-related disease.

Lawyers, who have a problem with physical health or a mental disorder and have work dissatisfaction, are more susceptible to the adverse impact of the stress of the court situation. Stress is commonly cited by lawyers as the primary reason for choosing to leave the profession, which is a shame when we could have done much more about it.

What about judges?

missing image file

The Age, Monday 23rd May 2005, Front Page

Well, they are in court too and are often under a great deal of stress. They often will not tell you about it, but if you refer to the article below, front-page news – Girl tried suicide after judge’s grilling.

Judge Leo Hart was asking questions and when I read these questions, I thought they were all fair and reasonable.

In a murder trial, it happened to me that the person reading out a transcript of my study said similar things – WHAT DO YOU THINK? In fact, all I said was “what do you think?” - the emphasis. I thought Leo Hart, as the judge, asked fair and reasonable questions, but he was under attack, and that will occur to judges with the media itself.

The judge’s stress, of course, includes the “sting of humiliation when [the judge’s] sentences are overturned by the Court of Appeal”. Many judges will make comment, about the relative isolation that occurs. When they move from being a successful barrister, for example, there is not only the stress of the decrease in their income, but also the stress of the relative isolation, as they cannot necessarily talk as freely and clearly as before.

So what am I about?

I am here for work-life balance and that is really the issue we are here for. Where are you going? Why? What of and for the future? Who really counts, and do you take responsibility for number one? As the President of the Mental Health Foundation, I can tell you that “mental health is the ability to feel comfortable about yourself, about other people, and to cope with the demands of life”.

How do you cope with stress in your profession?

A definition of stress is “a condition in which there is a marked discrepancy between the demands made on the person and the person’s perceived capacity to respond” (Caplan 1981, pg: 414). Of course, the most stressful thing in our lives is “between our ears”. How we respond to stress differs between individuals and we know of the genetic, developmental influences, and experiences. Figure 1 highlights the amount of stress that can occur – the most important being perception and the environmental factors and central nervous system arousal. You get a psychological response, which leads to a behaviour or a habit disorder. You might excel, cope, struggle or avoid without growth, or you may go on to psychosomatic physical symptoms and end up terminating your stress with a myocardial infarction, i.e. you have a heart attack and die: if you stress too long, you can have a stroke or a heart attack. It is not a model we talk about. There are many causes of stress, but of course in families of doctors and lawyers, the personal factors such as a mid-life crisis, or family or relationship problems. I teach my doctors, medical students and registrars, that if they want to be successful, there are three components to success: -

  1. Hard work
  2. Perseverance pays
  3. You must have a good team around you, and that includes your family team, not just your research team or people in the office.

Good or pleasant stresses include:

  • Getting that desired promotion
  • Basking in a job well done
  • Winning a raffle or prize
  • Getting married, although it is of interest that only a third stay married
  • Moving into a new house

What I am interested in is how you obtain support for yourself. Whether you have good role models; effective leadership; regular assessment of goals; time management; exercise and relax regularly. So, I am into those sorts of issues – how doctors and lawyers use diet, outside activities, limited working hours, insight into their own behaviour and reactions, humour which is extremely important. The dilemma with humour is that I know, as a psychiatrist, people laugh at me all the time. I try very hard to be normal, but I sometimes do not succeed very often. There are all sorts of things said about psychiatrists which are not true. The moment I tell somebody I am a psychiatrist, they either back off or they tell me “about a friend who has a problem”. When they know that I have an interest in hypnosis, they stop avoiding my eyes. There are all sorts of gross generalisations about psychiatrists – and even about red heads. The number of times I have been told that I am quick tempered AND I BLOODY AM NOT you know. It is most unfair. Humour is extremely important especially if you can laugh at yourself. The caring of YOURSELF. It is very interesting that often doctors and lawyers; are not always good at sharing or caring for themselves.

What legal employers, individuals and organisations can do:

  • They can apply the control cycle of risk assessment and management through the identification, analysis and management of risks and protection for that profession.
  • They can ensure workloads correspond to the individual’s capabilities and resources, and clearly define their responsibilities.
  • They can design duties so that lawyers can make decisions, take responsibility, and feel empowered.
  • They can seek out and value improvement ideas from employees.

What can you as an individual do?

  • Healthy living: get enough sleep, eat a balanced diet, and exercise regularly.
  • Self-awareness: recognise the signs of stress within yourself. Identify what thoughts, feelings, and behaviours you exhibit when under stress.
  • Coping strategies: learn effective relaxation techniques, think positively, prioritise, set limits, and develop a sense of humour.
  • Support: share your concerns with empathetic family members, co-workers and friends, and if necessary, seek professional counselling. Lawyers and doctors are not very good at doing that.
  • Job satisfaction: know what type of work and environment you enjoy and seek it out.
  • Limit smoking and drugs: decrease consumption of alcohol and smoking.

The Australian Medical Association has released a book, which I was involved with, called Stress1.

Depression

Depression is the final thing that happens to people who are stressed. We ran a National Depression Awareness Programme for the Mental Health Foundation to help all Australians understand that depression is a serious, common, and treatable condition. In fact there is a high prevalence rate and episodes can be of long duration. If you get depressed once, there is a 50% chance that you will become depressed again. The morbidity is comparable to angina and advanced coronary artery disease, and suicide is high, as you know. The trouble with depression is that there are 22 different classifications in the world literature. It is the bio-psychosocial theory that we look at, and we are interested in “clinical depression”. It presents in different ways: in mood, in sleep, in cognition, in suicide or homicide, or in physical aches and pains. In the Year 2020, unipolar major depression will be the second biggest problem we have in the community. If you are old and become depressed and demented, you really have a problem. At the moment females live to be 84, males to 79. A baby born today will live to be 100. If you take the epidemic of dementia, 3% of you who are 70 will have dementia; 7% who are 75 will have dementia; 15% who are 80 will have dementia, and at 85, 40% will have dementia. We have a real problem in our community to prepare for.

I will like to end with ‘FAR-OUT-SAD’. What does that mean? Years ago our adolescent children used to say “far-out dad, far-out mum” and we converted it into a program which means ‘far-out of stress, anxiety and depression’.

F is for fun.

A is for activity and that means physical activity where you are puffed for at least 20 minutes per day.

R is for relaxation.

When you ask people what do you do for fun or how do you relax, it is very interesting the amount of people who do not know.

So please relax.

Reference:

1. The Australian Medical Association, Stress – Home Medical Guide, Consultant Editor: Burrows, G.D., 2000.

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Copyright 2005. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au