England and Wales High Court (Queen's Bench Division) Decisions

2.A.1                In the Re-amended Generic Statement of Case the Claimants formulate the general duty of care owed by the MoD to service personnel in the following terms

"C4. The Defendants owed service personnel the duty to take reasonable care for their health and safety in the course of and incidental to their service. Subject to the important qualification below, the duty is similar to that between employer and employee, which covers premises, equipment, personnel, systems of work including supervision and, where appropriate medical supervision, care and support."

2.A.2           The qualification is set out in C5 of the Re-amended Generic Statement of Case –

"C5. Whereas an employer is usually liable in respect of damage caused by ultra-hazardous activity, the above formulation of the duty of care does not apply in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations. Service personnel, the prime resource, are the means by which the battle is won and in battle their personal welfare is subordinate to their combat role."

2.A.3           In its Generic Defence the MoD accepts that –

"C1…in general terms it owed a duty of care to its service personnel to provide a safe system of work so far as was reasonable and practicable in all of the material circumstances",

"C2… in general terms it knew at all times material to these Group Actions that combat was capable of causing psychiatric consequences, including chronic conditions,"

2.A.4           At C4 the MoD "…accepts and adopts the contents of paragraphs C4 and C5" of the Generic Statement of Case.

2.A.5           Accordingly and subject only to the issue of Crown Immunity, there is no issue between the parties as to the existence of a duty of care owed by the MoD to service personnel. Secondly there is agreement in broad terms as to the nature of that duty. Thirdly the parties agree that no duty of care arises "…in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations", a principle that has been variously described as the common law immunity or battle immunity; but which I propose to call the ‘combat immunity’, a term that describes the context in which it arises and is wider than the term battle immunity, a battle being ordinarily understood to be a prolonged fight between large organised armed forces.

2.A.6           The Claimants contend that there was a single unitary duty to take reasonable care, and that it is misleading to break down that duty by posing a number of questions such as whether the MOD was under a duty to provide training or advice as to the possible psychological consequences of exposure to stress in combat. They direct my attention to the following passage from Clerk & Lindsell on Torts, 18^th Ed at 7-160 -

"To express the standard in terms of a duty of care is to confuse two distinct questions. The duty question is concerned with the general nature of the relationship between the parties and asks whether there should be a duty of care in that kind of relationship. The scope of any duty may be described by reference to the circumstance of the relationship. Thus, the relationship between the parties may justify a duty of care to prevent harm being caused by third parties and the restricted nature of that duty of care will tend to suggest that what is reasonably required should not place an onerous burden on the defendant. However, the specific level of care required, e.g. whether a warning should have been given, will depend on the particular circumstances of the case. Both duty and standard turn on reasonableness but in the case of duty, the question is whether the nature of the relationship requires that care be taken; whilst in the case of standard, the question is what conduct is reasonably required in the particular circumstances."

and to the judgment of Stuart-Smith LJ in N. v Agrawal [1999] P.N.L.R. 939 at 943 -

"In my judgment an attempt to formulate a duty of care in this way is wholly misconceived. If a duty of care exists at all it is a duty to take reasonable care to prevent the claimant from suffering injury of the type in question, in this case psychiatric injury. A failure to give evidence could be a breach of such a duty: but it is not the duty itself. Thus a motorist owes a duty to take care not to injure other road users or damage their property. He does not owe a duty to take care to blow his horn; his failure to do so when proper care requires that he should, may amount to a breach of the duty of care".

2.A.7           Mr Irwin QC argues that in a factually simple case, it is possible to speak loosely of a duty to do this or that specific act, when in fact what is meant is that the relevant act or omission would constitute a breach of the duty of care; but that it is important to maintain the conceptual distinction between duty and breach of duty in the analysis of a case of such complexity.

2.A.8           The defendants accept that the duty is to take reasonable care, and that that is what has been described as the threshold question. But they argue that in litigation in which wide ranging allegations are made as to breach of duty it is not only helpful but necessary to consider what the general duty entails, and that that can conveniently be done by posing the question of whether the MOD owed specific duties to service personnel. They rely upon the judgment of Lady Justice Hale in Sutherland v Hatton Neutral Citation Number [2002] EWCA Civ 76, [2002] IRLR 263. At paragraph 23 she said -

"To say that the employer has a duty of care to his employee does not tell us what he has to do (or refrain from doing) in any particular case. The issue in most if not all of these cases is whether the employer should have taken positive steps to safeguard the employee from harm: his sins are those of omission rather than commission. Mr RF Owen QC, for the appellant defendant in the Bishop case, saw this as a question of defining the duty; Mr Ralph Lewis QC, for the appellant defendant in the Jones case, saw it as a question of setting the standard of care in order to decide whether it had been broken. Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of ‘ordinary fortitude’. The employer’s duty is owed to each individual employee, not to some as yet unidentified outsider: see Paris v Stepney Borough Council [1951] AC 367. The employer knows who his employee is. It may be that he knows, as in Paris, or ought to know, of a particular vulnerability; but he may not. Because of the very nature of psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, ‘If you prick us, do we not bleed?’ But it may be easier to foresee in a known individual than it is in the population at large. The principle is the same as in other cases where there is a contractual duty of care, such as solicitors’ negligence: see Cook v Swinfen [1967] 1 WLR 457; McLoughlin v Grovers [2001] EWCA Civ 1743."

2.A.9           The alleged breaches of the MoD’s duty of care to provide service personnel with a safe system of work are essentially omissions. They are conveniently summarised in the Claimants’ Revised Synopsis of Claimants’ Case on System dated 10 June 2002 (Appendix 3) served to particularise their positive case in relation to each of the Generic Issues. My task is to determine which of the steps identified by the Claimant ought reasonably to have been taken by the MoD in the discharge of its general duty of care. Whether expressed as a question of duty or as a question of breach, the key issue is the same; have the Claimants proved on the balance of probabilities that the MoD was in breach of its general duty of care to the Claimants by failing to take each or any of the steps summarised in the Revised Synopsis of Case. Provided that that test is kept clearly in mind, the Defendant’s approach, namely to pose the question of whether it was under a duty to do X or Y, is not misleading.

2.B. CROWN IMMUNITY

2.B.1      The Legislative framework

2.B.2      The Crown’s historic immunity from action in tort was brought to an end by the Crown Proceedings Act 1947 (the 1947 Act). Section 2(1) provided that –

"2. Liability of the Crown in tort

Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-

(a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and

(c) in the respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property;

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.

But section 10 made special provision for the activities of the Armed Forces.

"10(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if—

(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and

(b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:

Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.

(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if—

(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and

(b) the [Secretary of State] certifies as mentioned in the preceding subsection;

nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.

(3) …..a Secretary of State, if satisfied that it is the fact:—

(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or

(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;

may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies."

 

2.B.3      Section 10 of the 1947 Act was repealed by the Crown Proceedings (Armed Forces) Act 1987 (the 1987 Act), which came into effect on 15 May 1987. Section 1 provided that -

"1. Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.

2.B.4      The MoD’s claim to Crown Immunity

The Secretary of State has issued certificates under section 10(1)(b) of the 1947 Act in relation to each of the Claimants, and accordingly seeks to rely upon the immunity afforded by section 10 in relation to all breaches of duty alleged to have occurred before 15 May 1987. The alleged breaches of duty fall into two broad categories; first breaches of the duty owed to service personnel by the MoD as their employer, and secondly specific acts or omissions by its servants or agents whilst on duty for which it is vicariously liable. Section 10(1) provides that "…nothing done or omitted to be done by a member of the armed forces of the Crown whilst on duty shall subject either him or the Crown to liability in tort…". It is submitted on behalf of the MoD that the acts or omissions of service personnel for which it would otherwise be vicariously liable plainly fall within the immunity; and secondly that as the Crown is a constitutional construct that can only act by its servants or agents, the immunity must also extend to employers liability.

2.B.5      The Claimants do not accept that the MoD is immune from action in relation to injuries sustained before the repeal of section 10. They contend first that the statutory immunity does not extend to breaches of the duty owed to service personnel by the MoD as their employer (construction issue 1 – employer's liability), secondly that section 10(1) should be construed as limited to vicarious liability for combat and combat related activities (construction issue 2 – vicarious liability), and thirdly that in any event that the immunity does not arise as the "thing suffered" within the meaning of section 10(1) "was not suffered wholly or exclusively on (or even mainly) on Crown land or while the Claimants were on duty" (per the Claimant’s closing submissions para 21.101) (construction issue 3 – ‘the thing suffered’).

2.B.6      Construction issue 1 - Employer's Liability

The Claimants’ primary submission is that on its proper construction, the immunity provided by section 10(1) is limited to vicarious liability for the acts or omissions of the Crown’s servants or agents, and does not extend to any "direct or primary liability that the Crown may have." There are five strands to the Claimants argument namely –

"(i) the construction of the 1947 Act viewed as a whole and the construction in particular of s10;

(ii) the case law on the liability of public authorities;

(iii) the legislative history of s10;

(iv) the case law on s10;

(v) the common law presumption of access to the courts."

2.B.7      (i) The construction of the 1947 Act viewed as a whole and the construction in particular of s10.

Section 2(1) of the 1947 Act identified the tortious liabilities to which the Crown was henceforth to be subject. Its three subsections specified three types of liability; s. 2(1)(a), torts committed by its servants or agents (ie vicarious liability), s.2(1)(b), employer’s liability, and, s. 2(1)(c), occupier's liability. Mr Irwin QC submits that section 10 provides an immunity only in relation to the first and third, vicarious liability and occupier's liability. He argues that the specific reference in section 10(1) to acts "…done or omitted to be done by a member of the armed forces of the Crown while on duty as such", must relate to vicarious liability, and that section 10(2) unarguably relates to occupier's liability. He submits that if it had been the intention of Parliament to include employer's liability in the section 10 immunity, it would surely have done so in express terms so as to reflect the categorisation in section 2.

2.B.8      Secondly Mr Irwin submits that the contention that 10(1) is limited to vicarious liability as opposed to the direct liability to which an employer or occupier is subject, is borne out by a comparison of the wording of 10(1) and that of 10(2). The 10(1) immunity specifically relates to acts or omissions of members of the armed forces, whereas 10(2) provides that "No proceedings in tort shall lie against the Crown…" in relation to occupier's liability. The different phraseology reinforces the distinction between vicarious liability and direct liability drawn in section 2. In this context he also relies upon the proviso to section 10(1) which denies an exemption from liability "…in any case in which the court is satisfied that the act or omission (of a member of the forces) was not connected with the execution of his duties as a member of those forces." He submits that again the emphasis is on the actions of the servant or agent rather than upon any primary liability.

2.B.9      Thirdly Mr Irwin QC argues that if the MoD’s argument is sound, and section 10(1) applies to employer's liability on the basis that the Crown can only act by its servants or agents, then it is difficult to see why was it necessary to include section 10(2), as the MoD’s analysis would apply equally to occupier's liability.

2.B10 (ii) the case law on the liability of public authorities

The second strand to the Claimants’ argument is that employer’s primary liability was well known to the law in 1947. That is not in issue. In Wilsons & Clyde Coal Company Ltd v English [1938] AC 57 Lord Wright articulated the general principle in the following terms –

"The whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations." p 84

The principle was recognised in the categorisation in section 2 of the Act to which I have already made reference. But the fact that the principle was well established by the date upon which the 1947 Act was passed, does not in my judgment assist in the proper construction of section 10.

2.B.11      (iii) the legislative history of s10

The Claimants invite me to take account of the legislative history of section 10. Mr Jay QC for the MoD submitted that the section was difficult to construe but not ambiguous; and that it was therefore not appropriate to have resort to the parliamentary material. But I am satisfied that the legislation is sufficiently ambiguous and obscure to justify the use of such material as an aid to construction. I am reinforced in that view by the fact that in the judgment of the Court of Appeal in Matthews [2002] EWHC 13, 1 WLR 2621 the Master of the Rolls had regard to Hansard in his analysis of section 10; and on the appeal to the House of Lords, Lord Hope of Craighead made express reference to a detailed account of the history of the legislation in "The Debates behind an Act – Crown Proceedings Reform 1920-1947"by Joseph M Jacob [1992] PL 452.

2.B.12      Two points emerge from consideration of the legislative history. First the form of section 10(1) is to be contrasted with that of the draft Crown Proceedings Bill published in 1927. The material provision was clause 29(1)(g) –

"Except as therein otherwise expressly provided, nothing in this Act shall – (g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid."

Had section 10 been enacted in that form, it would unquestionably have created an immunity both in relation to direct liability, employer's liability and occupier's liability, and to vicarious liability. The explanatory memorandum that accompanied the 1947 Bill specifically contrasted clause 10 with clause 29(1)(g) of the 1927 Bill –

"But in regard to certain matters (e.g. the defence of the realm, the maintenance of the armed forces of the Crown and the postal service) the analogy between the Crown and the subject breaks down, for in these spheres the functions of the Crown involve responsibilities of a kind which no subject undertakes. The Bill, therefore, following the Bill of 1927, treats these matters as exceptions to the ordinary rule… by clause 10 of the Bill the Crown and its officers are in certain circumstances relieved from liability in tort for death or personal injury to members of the armed forces. So far as clause 10 is concerned with the liabilities of the Crown, the exemption from liability for which it provides is of a less general and more clearly defined character than that provided for by clause 29(1(g) of the Bill of 1927."

Mr Irwin QC submits that it demonstrates that Parliament must have intended section 10 to be more limited in its scope than the 1927 draft; and that that provides strong support for the construction of section 10 for which he contends.

2.B.13      Secondly the Claimants seek to place reliance upon statements made by Ministers in Parliament during the passage of the Bill. In the course of the second reading of the Bill in the House of Lords (at HC Debs 4 March 1947 col 68) the Lord Chancellor, Viscount Jowitt, contrasted the relevant clause with clause 29 of the 1927 Bill saying that "In some respects, however it is much less wide". Having then rhetorically posed the question "I have often wondered what is the true legal position as between two persons in the armed forces of the Crown, one of whom is injured by the negligence of the other", he continued -

"Could a trooper who took part in the charge of the light brigade whose leg was shattered by a cannon-ball have brought an action against Lord Raglan?… And consider the case of Passchendaele. Could a soldier who was injured through sticking in the mud at Passchendaele have brought an action against Sir Douglas Haig alleging that he had not properly considered the nature of the terrain or the effect of the bombardment on the drainage system…

Therefore we make it quite plain here that there must be no action in respect of these matters, either against the Crown or against a servant of the Crown, behind whom of course the Crown would have to stand if such an action were allowed in respect of these matters."

2.B.14      Similarly in the course of the second reading in the House of Commons (at HC Debs, 4 July 1947, cols 1675-1753), the Attorney General, Sir Hartley Shawcross, referred to the clause as a "limited exclusion" (col 1682), and said that the government had "not gone nearly so far in this matter as the 1921 Committee (the committee that had assisted in the drafting of the 1927 Bill) recommended" (col 1682), and that -

"I think Members will appreciate the special position which exists. For instance, it is necessary in the course of service training, in order to secure the efficiency of the forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions, with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy, but it is impossible to apply the ordinary law of tort in regard to them, or make the Crown liable for any injury which, unhappily, results." (col. 1681)

2.B.15      The record of the Parliamentary debates, and in particular the passages relied upon by the Claimants, certainly reveals that section 10 was regarded as being more restricted in its ambit than clause 29 in the 1927 draft. But section 10 is more restricted than clause 29 in a number of respects; and the record is silent as to whether it was the intention of Parliament to restrict the immunity to vicarious liability and occupier's liability. Thus although the record does not undermine the construction for which Mr Irwin contends, I do not consider that it assists with regard to the issue that I am required to determine.

2.B.16      (iv) the case law on s10

The Claimants submit that the construction for which they contend is not undermined by authority. The issue did not arise in the first three authorities upon which they sought to rely, Adams v War Office [1955] 1 WLR 1116, Bell v Secretary of State for Defence [1986] QB 322 and Pearce v Secretary of State for Defence [1988] 1 AC 755. Adams and Bell were clear cases of vicarious liability; in Pearce the court was concerned with the proper construction of section 10(2). The highest that the Claimants sought to put the argument was that in both Mulcahy v Ministry of Defence [1996] AB 732 and Matthews v Ministry of Defence [2002] EWHC 13 (QB) [2002] 3 All ER 513, the court proceeded on the assumption that section 10(1) was concerned only with vicarious liability. In Mulcahy they rely upon Neill LJ’s summary of the effect of section 10 at 742 B-C –

"It will be seen the effect of section 10 of the Act of 1947 was to prevent proceedings being brought in respect of the death of or personal injury to a member of the armed forces caused by another member of the armed forces provided that the Secretary of State issued a certificate that the death or injury was attributable to service for the purposes of entitlement to a war pension."

There are two points to be made; first the passage is equally consistent with the construction for which the MoD contends; secondly Neill LJ was not addressing the issue with which I am concerned; and it is not implicit in his judgment that he made the assumption that the section did not apply to breach of the employer’s duty of care as opposed to vicarious liability. Similarly in Matthews the point did not arise for consideration; nor is it implicit in the judgments of the Court of Appeal or the speeches in the House of Lords that on its true construction section 10(1) was limited to vicarious liability.

2.B.17      (v) the common law presumption of access to the courts

Finally it is submitted on behalf of the Claimants that it is a well established principle of statutory interpretation that limitations in statutes should be interpreted restrictively, particularly where the effect of the limitation is to restrict the right of access to the courts. They rely upon the following passage from the speech of Lord Reid in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at 170 C-D –

"It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly – meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court."

2.B.18      Conclusion

There is force in the three principal arguments advanced by Mr Irwin QC; first that had Parliament intended to exclude employer's liability, it would surely have done so, bearing in mind the clear categorisation of the types of liability in section 2 and the specific provision in section 10(2) with regard to occupier's liability; secondly that a comparison of the wording used in section 10(1) and that of section 10(2) demonstrates a clear recognition by the legislature of the different nature of vicarious liability and direct liability; and thirdly that the MoD’s argument that the Crown can only act by its servants or agents, and that accordingly section 10 must embrace employer’s liability, would apply equally to occupier's liability, and if valid would mean that 10(2) would be redundant. I also take account of the common law presumption of access to the courts.

2.B.19      But I have come to the conclusion that the construction for which the MoD contends is to be preferred. I have arrived at that conclusion for two reasons. First, and as has been submitted on behalf the MoD, the Crown is a constitutional construct that can only act by its servant or agent: The phrase "Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such" must embrace the acts or omissions upon which the Claimants rely.

2.B.20      Secondly, and as was made clear in the opinions of the House of Lords in Matthews, the purpose of section 10 of the 1947 Act was to provide a comprehensive no fault compensation scheme for servicemen which precluded a common law claim for damages. It would have been wholly anomalous for employers liability to have been excluded from that scheme. As Lord Bingham of Cornhill said in Matthews –

"(4) There is nothing to suggest that when s 10(1), as it was to become, was uncontentiously amended in the House of Commons, there was any intention to alter the essential thrust of the provision as previously drafted. The inference is, I think, clear that the object of the new certification procedure was to ease the path of those denied any right to a common law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the grant of a pension…."

"(6) Although different judges have used different language, the English courts have consistently regarded s 10(1) as precluding any claim at common law. Thus one finds references such as these –

‘Provided that the other conditions of s 10 are satisfied, the exemption from liability in tort applies…excludes the Secretary of State’s liability in tort…any compensation shall be provided under the service pension scheme contained in the Order in Council and not under the common law…s 10 provides a complete defence at common law.’ (see Bell’s case [1985] 3 All ER 661 at 665,666, [1986] QB 322 at 328, 329, 330 per Donaldson MR)

‘…the effect of s10 of the 1947 Act was to prevent proceedings being brought in respect of the death of, or personal injury to, a member of the armed forces caused by the negligence of another member of the armed forces provided that the Secretary of State issued a certificate that the death or injury was attributable to service for the purposes of entitlement to a war pension’ (see Mulcahy’s case [1996] 2 All ER 758 at 764, [1996] QB 732 at 742 per Neill LJ)

‘Section 10 provides immunity to the Crown…’ (see Quinn v Ministry of Defence [1998] PIQR P387 at 390 per Swinton Thomas LJ)

‘…the defendant is entitled to rely on the defence which [s10(1)] provides…It is easy to see why, in 1947, s 10(1) should have been thought necessary in order to protect the Crown from claims at common law damages…The immunity conferred by section 10…(see Derry v Ministry of Defence (1999) 49 BMLR 62 at 76,77 per Chadwick and Laws LJ respectively)’"

2.B.21      It follows that in my judgment the section 10 immunity extends to employer's liability.

2.B.22      Construction issue 2 - Vicarious Liability

The Claimants invite me to construe section 10(1) so as to restrict the immunity in relation to vicarious liability to combat and combat related activities of members of the armed forces. There are two limbs to the argument. First they rely upon the common law presumption in favour of access to the courts; secondly it is submitted that the construction of section 10(1) for which the MoD contends is a denial of access to the courts that infringes Article 6(1) of the European Convention on Human Rights; but that it is possible to read and give effect to the section in a way which is compatible with convention rights (see section 3(1) of the Human Rights Act 1998).

2.B.23      The first limb of the argument founders on the analysis of section 10 by the Court of Appeal in Matthews. The construction for which the Claimants contend was specifically rejected by the court per Lord Phillips at 531J – 532C -

"73. It is convenient now to refer to the argument of construction, which Mr Gordon, with permission from this Court granted on 10 April of this year, advanced as his primary case. It was not advanced before Keith J. It was founded on this explanation for s.10 of the 1947 Act given to the House of Commons by the Attorney General, Sir Hartley Shawcross (Hansard) for July 1947 p. 1681

"Clause 10 is another clause to which the attention of the House ought to be directed, because it contains a special exemption, or exclusion, in the case of claims between members of the Armed Forces in respect of personal injury which they have sustained while on duty as members of the Forces, or on service premises. Here, again, I think Members will appreciate the special position which exists. For instance, it is necessary in the course of Service training, in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions, with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely dangerous, but it is impossible to apply the ordinary law of tort in regard to them, or make the Crown liable for any injury which, unhappily, results."

74. Mr Gordon submitted that this explanation for section 10 could not justify conferring immunity on servicemen or the Crown in respect of tortious conduct that occurred in circumstances where warlike conditions did not pertain. S. 10 should be given a purposive interpretation in order to make it accord with Parliament’s intention. This should be achieved by implying the following additional sentence at the end of section 10(1)(b):

"Such a certificate shall not, however, be issued in any event unless the Secretary of State is satisfied that the circumstances in which the death or personal injury occurred with those of warlike conditions."

75. Mr Gordon submitted that his proposed interpretation would have the effect that s.10 addressed a legitimate aim in a manner which was proportionate and thus rendered the section compatible with the Convention. It was legitimate and indeed mandatory to give the section this interpretation because of the obligation imposed on the Court by s.3 of the HRA. The decision of the House of Lord’s in R v A (No.2) [2001] 2WLR 1546 showed that the technique of ‘reading down’ a statutory provision so as to restrict its ambit was legitimate.

76. We can deal with these submissions quite shortly. In the first place, we have concluded that neither Article 6 nor the First Protocol is engaged by the facts of this case. It follows that section 3 has no application. In the second place, we consider that to imply the additional clause suggested by Mr Gordon would be to go beyond the bounds of what section 3 of the HRA permits. The fundamental alteration of the scope of section 10 which would result from the addition of the proposed clause, would amount to legislation by this Court. Such a course is not permissible. Keith J. came to the same conclusion."

2.B.24      As to the second limb at the stage at which I heard argument as to the law, the appeal to the House of Lords in Matthews had not been heard, and counsel for the Claimants acknowledged that the decision in the Court of Appeal was binding, but reserved their position pending final resolution of the appeal. The House of Lords affirmed the decision by the Court of Appeal that section 10 (1) is not incompatible with Article 6(1), and accordingly this limb of the argument must also fail.

2.B.25      Construction issue 3 – "the thing suffered"

The Claimants submit that the immunity in respect of acts or omissions of the Defendant’s servants or agents does not arise in this case as "the thing suffered" within the meaning of section 10(1) "was not suffered wholly or exclusively (or even mainly) on Crown land or while the Claimants were on duty" (per the Claimants’ closing submissions para 21.101)

2.B.26      The immunity under section 10(1) will only arise "…in so far as the death or personal injury is due to anything suffered…" whilst the person concerned is a member of the armed forces and "…he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown." Section 10 (2) contains a similar proviso. In order to establish whether the MoD are protected by the immunity, it is necessary to determine what ‘the thing suffered’ is in this context. As was readily acknowledged by both parties the application of the proviso presents very considerable difficulties.

2.B.27      This litigation is concerned essentially with alleged omissions on the part of the MoD. They fall into two broad categories; the failure to take measures that would allegedly have prevented the development of psychiatric illness, and secondly the failure to detect and treat such illnesses.

2.B.28      The rival contentions

It is submitted on behalf of the Claimants that –

"In summary, it follows from this analysis that: (i) the relevant omission in the Claimants’ generic case (the failures to brief/train, debrief, detect problems, properly diagnose, treat etc.) gave rise to a "thing suffered" in the form of the subsequent onset and thereafter the persistence (due to the continuing omission) is of the PTD/PTSD stress disorder; (ii) this suffered thing eventually manifested itself in various disorders, dysfunctions and illnesses (or those proportions of them which would have been avoided by the interventions omitted); (iii) that this thing suffered was not suffered wholly or exclusively (or even mainly) on Crown land or while the Claimants were on duty; and therefore (iv) s 10(1) cannot be relied on the by the Defendant." (Claimants’ closing submissions para 21.101)

2.B.29      The defendants submission is that "the thing suffered" is the avoidable prolongation of any of the Claimants post-traumatic stress disorder or PTD.

2.B.30      The authorities

The parties’ submissions were focussed on the decision of the Court of Appeal in Derry v Ministry of Defence (1999) 11 Admin LR 758 (18 March 1999), [1999] PIQR 204. The authorities that preceded it were succinctly summarised by Kennedy LJ in his dissenting judgement in Derry -

"There are three previous decisions relating to section 10 which we have been invited to consider. In Bell v Ministry of Defence (1986) 1 QB 322 the plaintiff was the administrator of a serviceman who died after a fall in a barracks in Germany. It was alleged that he was sent to a civilian hospital with an inaccurate and misleading case history, and without any reference to the fall. As a result for a critical period of about 45 minutes no diagnosis of his injury was made, and he did not receive the neurosurgical help which he needed and which could have saved his life. A certificate having been issued it was held on appeal that section 10 gave rise to some immunity on the part of the Army Medical Staff, but (per Neill and Balcombe LJJ) the "thing suffered" by the deceased could be regarded as the failure or omission to provide the complete records to the civilian hospital, a failure which continued and took effect when the civilian doctor read the incomplete notes, and so was disabled from making an immediate and accurate diagnosis. At the time when it took effect the deceased was not on duty, nor was he on Crown land, so the claim was not barred by section 10.

In Pearce v. Secretary of State for Defence (1988) 1 A.C. 755 the plaintiff, a serving soldier on Christmas Island, claimed to have been negligently exposed to radiation as a result of not being properly equipped and advised as to the precautions which should have been taken. The defendants sought to rely on section 10(2) but failed to make good that defence on the trial of the preliminary issue at first instance, in this court and the House of Lords. Both in the Court of Appeal and in the House of Lords it was held that the defendant was not entitled to rely on a defence which the Atomic Energy Authority, if sued earlier, could not have invoked. But in the Court of Appeal and in the House of Lords it was said that Bell’s case had been wrongly decided, and that references to "anything suffered" and to a "thing" being "suffered" in section 10(1) were references not to the act or omissions relied upon as giving rise to liability but to the casualty or other event caused by the acts or omissions from which the personal injury or death resulted. So, in the context of Pearce’s case, the thing suffered by the plaintiff was his exposure to radiation.

In the third case, Quinn v. Ministry of Defence (1988) P.I.Q.R. 387, the plaintiff was a seaman who developed mesothelioma, allegedly as a result of exposure to asbestos whilst serving in the Royal Navy. The Crown relied on section 10 successfully, both at first instance and on appeal. In his case the thing said to have been suffered was the inhalation of asbestos fibres. P207-8.

 

2.B.31      In Derry the plaintiff was a soldier serving in Germany who had developed an adenoid cystic carcinoma. It was not diagnosed by doctors at the British military hospital in Munster on various occasions between 1985 and 1987. The appropriate treatment was eventually started after the diagnosis was made at a civilian hospital in the United Kingdom when the plaintiff was on leave. The matter came before the Court of Appeal on appeal from the judgment of Butterfield J. on a preliminary issue. Butterfield J. had held that –

"The injury here suffered by the plaintiff was the exacerbation of his assumed pre-existing carcinoma, with the resultant personal injury and loss of expectation of life pleaded in the statement of claim. The cause of that exacerbation was the alleged negligent failure to diagnose the condition and the consequent failure to prescribe radiotherapy. What caused the plaintiff's personal injury and loss of expectation of life was the failure to treat his condition. That failure, on the facts agreed for the purposes of this preliminary issue, was itself caused by the negligent failure of Dr Pampapathi to diagnose the plaintiff's condition. There are thus two factors here relevant. First, a failure to diagnose by the doctor, which is the negligent omission relied upon by the plaintiff; second, the resultant progression of the untreated carcinoma, causing personal injury and loss of expectation of life. It is the progression of the carcinoma which is the casualty or event which results in the plaintiff having suffered loss and damage, not the omission by itself." P208.

 

2.B.32      The Court of Appeal held, Kennedy LJ dissenting, that the Defendant was entitled to rely upon the defence provided by section 10 (1). The reasoning of the majority is conveniently summarised in the headnote –

"Per Chadwick LJ. Whilst potential difficulty arises where death or personal injury results from disease, the "thing suffered" for the purposes of sub-section 10 (1) of the 1947 Act in the instant case was a misdiagnosis. The point of time at which each alleged tortious omission occurred was the same time at which each alleged misdiagnosis was suffered by the plaintiff. On that basis the "thing suffered" was suffered at a time when that the plaintiff was on Crown land, the British Military Hospital, and accordingly the Defendant was entitled to rely on the defence provided by sub-section 10 (1).

Per Laws LJ. Section 10 of the 1947 Act contemplates three successive eventualities: (a) an act or omission which causes (b) something to be suffered by the plaintiff which in turn causes (c) death or personal injury. In a case of disease, a distinction needs to be drawn between the personal injury suffered by a plaintiff, which comprises subjective effects upon the plaintiff constituted by his pain, suffering and loss of amenity, and the objective condition of the plaintiff's body, the disease affecting the plaintiff. Accordingly, the Defendant's reliance on section 10 could not be said to fail for the reason that no distinction could be drawn between the continuing carcinoma and personal injury suffered by the plaintiff. The "thing suffered" for the purposes of the sub-section was capable of referring to a continuing state of affairs as well as to a specific concrete event. The "thing suffered" in the instant case was the undiagnosed continuing disease. Where the "thing suffered" by the plaintiff was a continuing state of affairs, sub-section 10 (1) is satisfied where, the continuance of the state of affairs having commenced as a consequence of an act or omission, the plaintiff is on duty, or on Crown land, at the commencement of that continuance of the plaintiff's condition persists during periods when the plaintiff is on duty or on Crown land and its continuance through those periods is a substantial cause, that is more than a de minimis cause, of the pain suffering and loss of amenity of which the plaintiff complains in the proceedings. Where the state of affairs also continues after the act or omission complained of at times when the plaintiff is not on duty, or on Crown land, that does not prevent the Crown from relying on the sub-section as the "thing suffered" relevant for the purposes of sub-section 10 (1) is the continuance of the plaintiff's condition in periods when, and only when, he is on duty, or on Crown land. The plaintiff was on Crown land on each occasion when he visited the military hospital and he was then and there left with an undiagnosed and untreated carcinoma. The Court was entitled to infer that the plaintiff had remained on Crown land, and was on duty, during very substantial parts of the period between 1985 and 1987 when he was serving in Germany. In truth and in substance the plaintiff's pain and suffering was attributable to his being left with a continuing cancer after every occasion it should have been diagnosed. Its continuation then produced its continuation thereafter."

2.B.33      As Mr Irwin QC for the Claimants submitted, it is not easy to discern a common rationale in the judgments of Chadwick LJ and Laws LJ. For his part Mr Jay QC for the MoD submitted that the Lord Justice Chadwick’s analysis comes perilously close to the "nothing done or omitted to be done" in the opening words of the section and therefore to falling foul of Bell v Ministry of Defence, and that Lord Justice Laws’ analysis comes equally perilously close to re-stating what the personal injury was in the third line of section 10(1). But both acknowledge that I am bound by the decision unless it can be distinguished on the facts.

2.B.34      There are two secure foundations upon which to build in the construction and application of the proviso. First it was held by the House of Lords in Pearce v Secretary of State for Defence [1988] AC 755 that –

"The Court of Appeal in the present case were firmly of the opinion that all references to "anything suffered" or to a "thing" being " suffered" in both subsection (1) and subsection (2) of section 10, were references, not to the act or omission is relied on as giving rise to liability, but to the casualty or other event caused by the act or omissions from which personal injury or death resulted. They did not regard Bell's case as an obstacle to their view because they considered that it had been decided per incuriam; alternatively that, even if they were bound by Bell's case with regard to the meaning of the relevant expressions in subsection (1) of section 10, they were not so bound with regard to the meaning of the same expressions in subsection (2). Applying their interpretation of the expression "anything suffered" to the facts of the present case, the Court of Appeal held that the thing suffered by the plaintiff was his exposure to radiation; that that exposure was suffered by him in consequence of the nature or condition of the land, premises, etc., used by the armed forces of the Crown; and that the defendants therefore, if they had been entitled to rely on section 10 at all, would have been able to bring themselves within the protection from liability given by subsection (2) of that section.

Ralph Gibson LJ… analysed the decision in Bell's case fully and thoroughly in his judgment, and no useful purpose would be served by my doing so again. It is sufficient to say that I agree entirely with his analysis and with his conclusion, concurred in by O’Connor and Neill LJJ, that, in relation to the meaning of the expressions "anything suffered" or a "thing" being "suffered" in section 10(1) of the Act of 1947, Bell’s case was wrongly decided." per Lord Brandon 804J – 805 D.

2.B.35      Secondly it is clear from wording of section 10(1) that "the thing suffered" is not the death or personal injury. As Lord Justice Chadwick put it in Derry –

"First, the death or personal injury is not, itself, the "thing suffered" for the purposes of section 10(1) and (2). This must follow from the requirement that the death or personal injury is due to the thing suffered. The requirement is that the thing suffered must be the cause of the death or personal injury; and the two cannot be the same." p210

2.B.36      Accordingly "the thing suffered" is neither the negligent act or omission nor the death or personal injury, but is causally related to both. Thus in relation to breaches of the alleged failure to take preventive action (eg briefing), "the thing suffered" is the exposure to traumatic events without the protection of the relevant preventative measures. In relation to failures post-exposure to the traumatic events (eg detection) "the thing suffered" is the state of greater vulnerability to the onset of psychiatric injury than would have been the case had there been the specified intervention or interventions. It is a continuing state, but it begins at the point at which the requisite intervention should have taken place. In relation to the alleged failure to detect and/or treat, "the thing suffered" is being in an untreated state. Again it is a continuing state, but begins at the point at which there should have been detection and/or treatment. That analysis is consistent with the decision in Derry.

2.B.37      What is the consequence of the application of that analysis? First as to the alleged failure to take preventive action pre-exposure to traumatic events, the MoD is entitled to the protection of the immunity as the exposure will have occurred whilst the individual claimant was on duty as a member of the armed forces.

2.B.38      Secondly where "the thing suffered" is a continuing state, ie the state that arose either upon the failure to intervene following exposure to the traumatic event or events and before the onset of psychiatric illness, or the untreated state caused by the failure to detect and/or treat the psychiatric illness, it will have arisen at the point at which the omission or omissions occurred. The overwhelming probability is that at that time the individual Claimant will either have been on duty or on Crown property. There is the remote possibility that that will not have been the case, as it is conceivable that a Claimant may have had a consultation with a doctor employed by the MoD when he, the Claimant, was not on duty and the consultation may not have taken place on Crown property. But that is a theoretical possibility that has not arisen in relation to any of the lead actions. On the premise that when the state amounting to "the thing suffered" arose, the claimant was either on duty or on Crown property, is the MoD’s entitlement to the protection of the immunity affected by the fact that it continues when the claimant is neither on duty nor on Crown property? That question was expressly addressed by Laws LJ in Derry at p217

"What then of the case where that state of affairs does continue at times when the plaintiff is not on duty or on Crown land? I think it must be accepted that the state of affairs relevant for the purposes of section 10 (1)(a) – the "thing suffered", or (b) as I have put it - is the continuance of the plaintiff's condition in periods when, and only when, he is on duty or on Crown land. In my judgment, section 10 (1)(a) will be satisfied if the plaintiff's condition so persists during those periods that the court is able to conclude that its continuance through those periods was a substantial cause of the pain, suffering and loss of amenity of which he complains in the proceedings. By "substantial" I mean only that the causal link must not be de minimis; this is a familiar distinction in the law’s treatment of problems of causation. The fact that the state of affairs persisted also during other periods will not then take the case out of section 10 (1)(a). As I have said, it is a premise of this whole argument that the negligent act or omission – (a) must have caused (b); otherwise there is no potential liability in any event. Where (b) is a continuing state of affairs whose continuation commences as any consequence of (a) and that the plaintiff is then on duty or on Crown land, its continuation thereafter when the plaintiff may sometimes be off duty or elsewhere (a) will generally itself have been caused by its having been allowed to continue in the first place.

…. In truth and in substance, on the agreed facts the plaintiff's pain and suffering is attributable, as the law understands the concept of causation, to his being left with a continuing cancer after every occasion when the doctor should have diagnosed it. Its continuation then produced its continuation thereafter."

2.B.39      The question did not arise on Lord Justice Chadwick’s analysis of the sub-section, but I find Lord Justice Laws’ reasoning compelling. Moreover the facts of Derry are indistinguishable from the alleged failures to detect and treat psychiatric illness; and it would be illogical for the purposes of section 10(1) to treat the failure to intervene following exposure to traumatic events before the onset of psychiatric illness in a different manner to subsequent failures to detect and treat.

2.B.40      I therefore reject the Claimants submission that on the proper construction and application of section 10(1), the "thing suffered" was "…not suffered wholly or exclusively (or even mainly) on Crown land or while the Claimants were on duty".

2.B.41      Accordingly the MoD is in my judgment immune from action in relation to acts or omissions unless a Claimant is able to demonstrate that when the ‘thing suffered’ arose he was neither on duty nor "on land, premises, ship, aircraft or vehicle…used for the purposes of the armed forces of the Crown."

2.C. COMBAT IMMUNITY

2.C.1      As indicated above it is common ground that at common law no duty of care arises "in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situation", the combat immunity. But there is an issue as to its ambit.

It is first necessary to consider the historical context, an exercise that was undertaken by Neill LJ in giving the principal judgment of the Court of Appeal in Mulcahy v Ministry of Defence [1996] QB 732. Mr Mulcahy was a serving soldier in an artillery regiment deployed in Saudi Arabia during the Gulf War. He was part of a team manning a howitzer, and brought a claim against the defendants alleging that he had suffered personal injury as a result of the negligence of the gun commander whilst the gun was firing live rounds into Iraq. The MoD applied to strike out the claim on the ground that it disclosed no reasonable cause of action. The application was dismissed on the ground there should be a trial to determine the facts before the court considered the nature and extent of any duty of care. The defendants appealed; and the appeal was allowed, the Court of Appeal holding -

"…that the pleaded facts clearly established that the plaintiff was in a war zone taking part in warlike operations and were sufficient for decision of the question whether the claim should be struck out; that a soldier did not owe his fellow soldier a duty of care in tort when engaging the enemy in battle conditions in the course of hostilities, nor was there any duty on the defendants in such a situation to maintain a safe system of work; that, therefore, the plaintiff did not have a cause of action in negligence against the defendants; and that, accordingly, his statement of claim should be struck out and the action dismissed." 732H – 733A.

2.C.2      In the course of his judgment Neill LJ considered the historical position of the Crown with regard to liability in tort. He summarised the position in a passage beginning at page 740D -

"Until 1947 actions against the Crown were inhibited by two principles of ancient though doubtful origin. The first was that the King could not be impleaded in his own courts. The effect of the application of this principle was that until the 19^th century proceedings against the Crown, so far as they were available at all, had to be brought by various complicated procedures including a petition of right. These procedures were simplified by the Petitions of Right Act 1860 (23 & 24 Vict. C.34) and it was held in Thomas v The Queen (1874) L.R. 10 QB. 31 that proceedings by way of petition of right were available to recover unliquidated damages against the Crown for breach of contract. But proceedings for damages for tort were inhibited or rather prevented by the application of the second ancient principle, the principle that the King could do no wrong. It may be that at one time the maxim "the King can do no wrong" meant that the King was not privileged to commit illegal acts, but it came to be understood to be a rule barring actions in tort against the Crown…

The consequences of the immunity of the Crown against proceeding in tort were mitigated by the practice whereby, for example, if a claim were brought for damages for negligent driving against a Crown servant acting in the course of his employment, the Crown, in what were considered to be appropriate cases, would pay the damages on an ex gratia basis. But the system attracted widespread criticism and both Lord Haldane and Lord Birkenhead made proposals for reform. Furthermore in Australia and New Zealand the matter was largely rectified by statute by the beginning of this century.

The pre-1947 law, however, throws little light on the rights of servicemen rather than civilians to make claims. It seems probable that, irrespective of the rule as to Crown immunity, if one serviceman had made a claim for damages for personal injuries against another serviceman the Crown could have resisted liability under the doctrine of common employment. The researches of counsel brought to our attention the decision in Weaver v Ward (1616) Hob. 134 where it was held on demurrer that an action of trespass would lie if in the course of military exercises a soldier were injured by another unless the latter could prove that the injury had been "utterly without his fault." But it is clear that the military exercise was being undertaken in peacetime conditions."

2.C.3      Neill LJ then turned to the Crown Proceedings Act 1947 (the ‘1947 Act’) and recited the material parts of sections 2 and 10. At 742 B he continued –

It will be seen that the effect of section 10 of the Act of 1947 was to prevent proceedings being brought in respect of the death of or personal injury to a member of the armed forces caused by the negligence of another member of the armed forces provided that the Secretary of State issued a certificate that the death or injury was attributable to service for the purposes of entitlement to a war pension.

The Crown Proceedings (Armed Forces) Act 1987

Few cases involving the operation of section 10 of the Act of 1947 came before the courts. As time passed, however there was growing dissatisfaction that section 10 acted as a bar to claims in tort even in peacetime conditions. A wide disparity was perceived between the level of pensions awarded and the sums that would have been obtained had an action for damages been available. A further cause for concern was the restricted rights of dependent parents to make a claim for a war pension.

In 1987 the Crown Proceedings (Armed Forces) Act 1987 was passed to remove the blanket protection of section 10 of the Act of 1947."

2.C.4      Section 2 of the 1987 Act gave the Secretary of State power to revive the effect of section 10 of the 1947 Act. Section 2(2) provided that –

"The Secretary of State shall not make an order reviving the effect of the said section 10 for any purpose unless it appears to him necessary or expedient to do so –

(a) by reason of any imminent national danger or of any great emergency that has arisen; or

(b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are likely to be carried out in connection with the warlike activity of any persons in any such part of the world."

2.C.5      The Secretary of State has not exercised his powers under section 2 in relation to the operations the subject of the Group Actions and it is therefore necessary to necessary to consider the position at common law.

2.C.6      Until the decision in Mulcahy there was no direct English authority to support the existence of combat immunity at common law, notwithstanding the observation by Lord Walker of Gestingthorpe in his opinion in Matthews v Ministry of Defence [2003] UKHL 4 that –

"…it (the 1947 Act) left untouched the principle that in battlefield conditions (and because of the exigencies of battle) the common law does not impose on any soldier a duty of care towards his fellow soldiers (see Mulcahy v Ministry of Defence)."

2.C.7      But the absence of authority is readily explicable. As Sir Iain Glidewell said in his judgment in Mulcahy –

" An action in negligence by one member of the armed forces of the Crown against another would have been barred by the doctrine of common employment until that doctrine was abolished by the Law Reform (Personal Injuries) Act 1948. When that happened the Crown Proceedings Act 1947 was already in force. Neill LJ has set out in his judgment the terms of section 10 of that Act. The terms of that section clearly required the question posed by Mr Havers (Does one soldier owe to another a duty of care when engaging the enemy in the course of hostilities?) to be answered "No". Thus it was not until section 10 of the Act of 1947 was itself suspended by section 1 of the Crown Proceedings Act 1987 that the answer to the question depended for the first time, on the general common law principles of the law of negligence."

2.C.8      In Mulcahy the MoD sought to establish the principle by reference to three strands of authority, the decisions of the High Court of Australia in Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 C.L.R. 344 and Groves v Commonwealth of Australia (1982) 150 C.L.R. 113; secondly the dicta in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75; and thirdly cases involving injuries to police officers while engaged on operational duty. Neill LJ examined each strand in some detail in a passage beginning at 743G –

"I should refer first to the Shaw Savill case, 66 C.L.R. 344. In that case the plaintiff company sued the Commonwealth of Australia for damages in consequence of a collision which occurred between HMAS Adelaide and a motor vessel owned by the plaintiffs. In the defence the Commonwealth pleaded that at the time of the collision and at all material times there existed a state of war in which the Commonwealth of Australia was engaged. Paragraph 23 of the defence was in these terms, at page 348.

"The plaintiff’s supposed cause of action consisted solely in acts matters and things done or occurring in the course of active naval operations against the King’s enemies by the armed forces of the Commonwealth".

The Commonwealth sought to set the service of the writ aside or, in the alternative, an order that the action should be stayed. The High Court refused to dismiss or stay the action and held that the question whether at the time of the collision the warship was engaged in active operations against the enemy was an issue which the court could decide for itself. In the course of the judgments, however, consideration was given to whether a duty of care was owed if the warship had been engaged on active operations. Dixon J said at pp.361-362:

"Outside a theatre of war, a want of care for the safety of merchant ships exposes a naval officer navigating a King’s ship to the same civil liability as if he were in the merchant service. But, although for acts or omissions amounting to civil wrongs an officer of the Crown can derive no protection from the fact that he was acting in the King's service or even under express command, it is recognised that, where what is alleged against him is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care…It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King’s ship of war was under a common law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer’s conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning then to be mindful of the person and property of civilians. It would mean that the courts would be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy had been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of the question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war. For instance, a warship proceeding to her anchorage or manoeuvring among other ships in harbour, or acting as a patrol or even as a convoy must be navigated with due regard to the safety of other shipping and no reason is apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances. Thus the commander of His Majesty’s torpedo-boat destroyer Hydra was held liable for a collision of his ship with a merchant ship in the English Channel on the night of 11 February 1917, because he failed to perceive that the other ship, which showed him a light, was approaching on a crossing course… obviously the Hydra was on active service and war conditions obtained H.M.S. Hydra [1918] P.78). It may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls. But, when, in an action of negligence against the Crown or a member of the armed forces of the Crown, it is made to appear to the court that the matters complained of formed part of, or an incident in, active naval or military operations against the enemy, then in my opinion the action must fail on the ground that, while in the course of actually operating against the enemy, the forces of the Crown are under no duty of care to avoid causing loss or damage to private individuals."

Rich A.C.J. and McTiernan J. agreed with the judgment of Dixon J. Starke J. and Williams J. concurred in the result. Starke J. said, at pp355-356:

"there is no doubt that the executive government and its officers must conduct operations of war, whether naval, military, or in the air, without the control or interference of the courts of law. Acts done in the course of such operations are not justiciable and the courts of law cannot take congizance of them. In my judgment, the case of Ex parte D.F. Marais [1902] AC 109 so decided."

Williams J. reached a similar conclusion. He too referred to Ex parte D.F. Marais [1902] AC 109 and said, at p. 336, that if it were proved that actual hostilities were in progress at the time "the alleged cause of action would not be justiciable."

It is apparent from the later decision of the High Court of Australia in the Groves case, 150 C.L.R. 113 that when the claim by Shaw Savill came to trial the action succeeded on the ground that the captain of the Adelaide had steered a wrong course: see 150 C.L.R. 113, 123. Presumably the trial judge found that at the material time the warship was not engaged in actual operations against the enemy. But Gibbs C.J. , at p. 117, affirmed as correct what had been said by Dixon J. in the Shaw Savill case, 66 C.L.R. 344. Gibbs J. added: "To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy."

The plaintiff in the Groves case, 150 C.L.R. 113, was an airman in the R.A.A.F. who was injured when leaving a stationary aircraft being used to transport civilians in a time of peace. The accident occurred when a folding ladder collapsed beneath him as a result of the absence of locking pins. The High Court held that as the case arose out of routine duties in time of peace the plaintiff was entitled to the same protection of the common law as would protect other members of the community, and that the Commonwealth were vicariously liable for the negligence of other members of the crew. In a joint judgment of four members of the court led by Stephen J. references were made to the Shaw Savill decision, 66 C.L.R. 344. As I read the judgment, however, the support given to Shaw Savill was less emphatic than in the judgment of Gibbs C.J. It was said, at p.134:

"Nor do we have occasion to consider the position of servicemen engaged in combatant activities in time of war or in training for such activities. It would not be wise, in the abstract, to attempt to mark out whatever line may be thought to exist between one act of military duty and another. Public policy may require that, at some point in the continuum from civilian-like activities performed by servicemen in peacetime to active service in wartime, what would otherwise involve actionable negligence should not give rise to a cause of action. If so, the definition of liability would seem to be pre-eminently a case for legislation, preceded by evaluation and report by law reform agencies."

On the other hand in other passages in the judgment, at p. 12, and in the judgment of Murphy J., at p.136, there seems to have been a recognition of the fact that warlike activities fell into a special category. Looking at the case as a whole I do not consider that it throws any doubt on the proposition affirmed in the Shaw Savill case, 66 C.L.R. 344 that no duty exist where a serviceman is engaged in actual operations against the enemy.

Counsel for the defendants also referred us to the decision in Burmah Oil Co. Ltd v Lord Advocate [1965] A.C.75. In that case installations belonging to the appellant companies near Rangoon had been destroyed by the army in order to prevent them falling into the hands of the enemy. It was held that as the demolitions had taken place otherwise than in the course of actual military operations compensation was payable. The speech of Lord Reid contains an interesting account of the general rule that where property was taken or destroyed in the exercise of the Royal prerogative compensation was payable. But Lord Reid recognised the exception of what had been called "battle damage". He said, at p.110

"Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed."

In the House of Lords the decision of the First Division of the Court of Session was reversed by a majority on the basis that the destruction of the installations was not so intimately tied up with the actual fighting as to be regarded as battle damage. It seems quite plain, however, that Lord Reid would have upheld the decision if he had reached the same conclusion as the Court of Session on the facts.

Lord Pearce adopted a similar approach to that of Lord Reid. He said, at p.162

"In respect of a house that has the misfortune to be in the centre of a battlefield and is inevitably demolished by the Crown’s artillery, it is clear, on the principles which have been almost unanimously set out, that the subject can have no claim. In respect of a house that is demolished by the Crown with wise forethought, long before any battle, to provide a fort or a clear field of fire in case of threatened invasion I think that is equally clear that the subject should obtain compensation. Cases which lie close to that line, wherever it be drawn, must depend on fact and degree… I would define the line as excluding damage done in the battle or for the necessities of the battle. If an evacuating army destroys as it goes, I would exclude from compensation any damage which it does for the purposes of its survival, for example, by destruction of ammunition which will be turned against it by the enemy, or petrol which would be sued by the enemy to pursue it, or food which will sustain the enemy during their attacks upon it."

It is to be noted that, at p. 169B. Lord Upjohn too recognised the distinction between the taking of property to prevent it being of use to the enemy and the destruction of property caused by artillery in, for example, retaking a town from the enemy. The House accepted that the relevant law was the law of Burma but the case was decided on the basis that the law of Burma in 1941 had to be assumed to be the same as the law of England.

It was therefore submitted in this court that the decision in the Burmah Oil case, though it was concerned with compensation for loss of property, was some support for the proposition that a claim could not be based on damage sustained in the course of military operation against the enemy.

The third strand of authority relied upon by the defendants related to actions against the police. In particular, our attention was directed to the decision of May J. in Hughes v National Union of Mineworkers [1991] I.C.R. 669. In that case the plaintiff, who was a police officer, was injured during disturbances at a colliery in North Yorkshire in 1984. The plaintiff brought an action against the union and also against the Chief Constable or the North Yorkshire Police. He alleged that there had been a failure to provide him with adequate protection, that there had been inadequate co-ordination of the police forces available and that he had been exposed to the risk of injury. On the application by the Chief Constable to strike the action out the judge referred to a number of cases involving the police including Hill v Chief Constable of West Yorkshire [1989] AC 53. Having considered these authorities the judge expressed his conclusion, at p. 680:

"In my judgment … as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters that would, in my judgment, be significantly detrimental to the control of public order. It will no doubt often happen that in such circumstances critical decisions have to made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very tasks which the decisions are intended to advance."

It was said that the Hughes case was another illustration of the rule that in what may be called "battle conditions" those who take part in an attempt to control events should not be made liable for damages in civil proceedings."

2.C.9      Neill L.J. set out his conclusions at 748 G –

"In my judgment the circumstances in which the plaintiff was injured clearly constituted "battle conditions" in the sense contemplated by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case [1965] AC 75. Furthermore, I consider that an English court should approach this claim in the same way as the High Court of Australia in the Shaw Savill case, 66 C.L.R. 344.…As I said earlier, I do not find it necessary to explore the territorial limits of this immunity. It is sufficient to say that in my view it covers the present situation where in the course of hostilities against an enemy a howitzer of the plaintiff’s battalion was engaging the enemy and the plaintiff was a member of the gun team.

In addition it may be helpful if I state what my conclusion would be even in the absence of the Australian decisions and the Burmah Oil case [1965] AC 75. It is true that the Secretary of State, by exercising his powers under section 2 of the Act of 1987 could have reintroduced the immunity conferred by section 10 of the Act of 1947. But, in the absence of this statutory protection one still has to consider the position at common law. It is therefore necessary to consider whether at the relevant time Sergeant Warren owed a duty of care to the plaintiff at common law.

In Marc Rich and Co. A.G. v Bishop Rock Marine Co. Ltd [1996] 1 AC 211, 235, Lord Steyn drew attention to the fact that since the decision in Dorset Yacht Co. Ltd v Home Office [1970] AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases of alleged negligence whatever the nature of the harm sustained by the plaintiff.

In the present case it is accepted on behalf of the defendants that two of these components of a duty of care - proximity and foreseeability of damage – are present. The issue to be determined is whether it is fair, just and reasonable that a duty of care should be imposed on one soldier in his conduct towards another when engaging the enemy during hostilities. In the light of recent amendment to the plaintiff’s pleading the same question has to be asked in relation the alleged duty to maintain a safe system of work.

It is plain from the decision of the House of Lords in the Marc Rich case [1996] 1 AC 211 that in order to decide whether it is fair, just and reasonable to impose a duty of care one must consider all the circumstances including the position and role of the alleged tortfeasor and any relevant policy considerations. In this context one should bear in mind the dictum of Lord Pearce in Hedley Byrne and Co. Ltd v Heller and Partners Ltd [1964] A.C.465, 536: "How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others." This dictum was cited by Lord Diplock in the Dorset Yacht case [1970] AC 1004, 1058. In the absence of legislative guidance the question of policy has to be resolved by the courts.

I am satisfied that in a hypothetical case a court would require proof that the injury was sustained in battle conditions. But here, as it seems to me, the plaintiff’s pleaded case makes the position clear. The question then becomes: "Is a duty of care to be imposed in such conditions so as to make one serviceman liable for his negligent act towards another?" In my opinion, despite the careful arguments addressed to us on behalf of the plaintiff, there is no basis for extending the scope of the duty of care so far. I would echo the words of Gibbs C.J. in the Groves case, 150 C.L.R. 113,117: "To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy." …In my opinion there was no duty on the defendants in these battle conditions to maintain a safe system of work."

2.C.10      Sir Iain Glidewell gave a concurring judgment in which he said at 750G – 751 B –

"Like Neill L.J. it is in my judgment clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another. Indeed it could by highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. My reasons are thus in essence those expressed by Dixon J. in the passage from his judgment in Shaw Savill and Albion Co. Ltd v The Commonwealth, 66 C.L.R. 344 which Neill L.J. has quoted. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces. This conclusion is wholly consistent with, and supported by, the decision of the House of Lords in Burmah Oil co Ltd. v Lord Advocate [1965] AC 75, and depends upon similar reasoning to that adopted by May J. in relation to police officers in Hughes v National Union of Mineworkers [1991] 1 C.R. 669. In my judgment, therefore, at common law, one soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities."

2.C.11      It is to be noted that neither Neill LJ nor Sir Iain Glidewell sought to define the parameters of the immunity. It was not necessary for them to do so as at the material time Mr Mulcahy was part of a gun crew firing live rounds at the Iraqi enemy. The circumstances in which he was injured unquestionably constituted "battle conditions" in the sense contemplated by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case. But the extent or ambit of the immunity is of central importance in this litigation as is readily apparent from a cursory consideration of some of the issues that arise in relation to the Falklands War. Three illustrations will suffice. The MoD are criticised for failing to make provision for forward psychiatry in the Falklands campaign. The Claimants contend that Field Psychiatric Units (FPUs) ought to have been deployed. The decision not to deploy such units, or, if it be the case, the failure to address the question of whether to deploy such units, were acts or omissions on the part of those responsible for assembling the task force. It is submitted on behalf of the MoD that the relevant decisions were made or at least influenced by the operational and logistical considerations inherent in mounting an amphibious invasion of heavily defended territory approximately 8000 miles from the United Kingdom. Does combat immunity apply to such decisions? Secondly criticism is made of the failure to brief troops adequately en route to the Falkland Islands. Do such alleged breaches of duty fall within the ambit of combat immunity? If it did not apply throughout the voyage, did there come a time when it did, eg when the troop ships came within range of the Argentine air force? Thirdly it is the Claimants’ case that the MoD was in breach of duty in failing to carry out operational debriefing "at the earliest reasonable opportunity whether in a lull during battle, following battle, campaign, attack or patrol"; and that combat immunity does not apply to such periods, a contention with which the MoD takes issue.

2.C.12      The basis of combat immunity emerges clearly from the judgments in Mulcahy and from the authorities cited with approval by Neill LJ, in particular the decision of the High Court of Australia in Shaw Savill. In the course of hostilities service personnel will be exposed to the risk of death and of injury, both physical and psychological. That is the nature of warfare. But the welfare of the soldier, sailor or airman must be subordinated to their combat role. The military objective must override the interests of the individual. As Dixon J said in Shaw Savill –

"To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy." Per Dixon J in Shaw Savill.

"…there is no doubt that the executive government and its officers must conduct operations of war, whether naval, military or in the air, without the control or interference of the courts of law." Per Starke J in Shaw Savill

2.C.13      What then is the scope of combat immunity? It should of course be no wider than is necessary. It plainly applies when service personnel are engaged with the enemy in the course of hostilities. Given the nature of modern warfare, which may be conducted at a considerable distance from the enemy, Dixon J was in my judgment correct in holding in Shaw Savill that –

"The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement."

2.C.14      Does the immunity extend to acts or omissions in the course of planning and preparation for operations in which service personnel may engage in hostilities? Where is the line to be drawn? Some assistance is to be derived from the decision of the House of Lords in Burmah Oil to which Neill LJ made extensive reference in Mulcahy, and in particular to the passage from the speech of Lord Pearce at p162. The decision in Burmah Oil was concerned with damage to property, the destruction of installations near Rangoon to prevent them falling into enemy hands in the course of the Second World War. The House of Lords held that the destruction of the installations was not so intimately tied up with the actual fighting as to be regarded as battle damage. Lord Pearce posed the question of where the line was to be drawn –

"Cases which lie close to that line, wherever it be drawn, must depend on fact and degree…..I would define the line as excluding damage done in battle or for the necessities of battle."

2.C.15      As Dixon J said in Shaw Savill in the passage cited by Neill LJ in Mulcahy –

"… a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war."

2.C.16      In aggressive operations the objective will be defeat of the enemy; in defensive operations the successful repulse of the enemy. In the planning of and preparation for such operations the interests of service personnel must be subordinate to the attainment of the military objective. In my judgment the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution. The planning of and preparation for military operations will include decisions as to the deployment of resources.

2.C.17      Does the immunity apply to anti-terrorist, policing and peace keeping operations of the kind in which British forces were engaged in Northern Ireland and in Bosnia? In my judgment it will apply to operations in which service personnel come under attack or the threat of attack. I derive support for that proposition from the judgment of May J in Hughes v National Union of Mineworkers [1991] I.C.R. 669, cited with approval by Neill LJ in Mulcahy. Mr Hughes was a police officer who was posted to a support unit whose role was to assist in the maintenance of public order at a colliery where mineworkers on strike were picketing working miners. He formed part of the front line of police officers outside the colliery entrance, and was injured when a large number of pickets surged forward knocking him to the ground. He brought an action inter alia against the Chief Constable of North Yorkshire for negligence in "causing, permitting or requiring the plaintiff to take up an unsupported and unprotected position; failing to implement proper riot control and exercise proper co-ordination and in all the circumstances failing to operate a safe system of work". The Chief Constable applied to have the proceedings struck out as disclosing no reasonable cause of action. The district registrar dismissed the application. May J upheld an appeal by the Chief Constable. At the conclusion of his judgment he said –

"In my judgment, having considered Hill v Chief Constable of West Yorkshire [1989] AC 53 on the one hand and Knightly v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 on the other, as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters that would, in my judgment, be significantly detrimental to the control of public order.

It will no doubt often happened that in such circumstances critical decisions have to be made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of a very task which the decisions are intended to advance. Accordingly, in my judgment, public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders."

2.C.18      In this context there is a further important issue between the parties. It is submitted on behalf of the MoD that –

"Claims for personal injuries sustained in combat are not justiciable and so compensation for damage suffered during combat is not recoverable."

It is implicit in that submission that no cause of action can arise in relation to injury sustained in combat irrespective of whether the acts or omissions to which such injury is attributable fall within the combat immunity. In my judgment that submission is misconceived, and confuses the issue of the existence of the duty of care with the causation of injury. The issue is whether the MoD is under a duty of care in a particular set of circumstances. If the restriction to the duty of care does not arise on the facts, and a Claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat. The question with regard to the injury is then simply one of causation; is it attributable to the breach of duty? The point can be illustrated by reference to the Claimants’ contention that the MoD was under a duty to devise and implement a system for screening recruits so as, and I paraphrase, to eliminate those vulnerable to stress, and that as a result of breach of that duty recruits who should have been rejected were enlisted, and subsequently sustained psychiatric injury when exposed to the trauma of battle. If that contention is well founded, it will obviously not be open to the MoD to argue that the combat immunity applies to the relevant acts or omissions. The injury will have been sustained in combat; but the exposure to stress in combat is simply the mechanism by which the breach causes injury.

2.C.19      I therefore see no basis for holding that as a matter of principle all claims for personal injuries sustained in combat are not justiciable. Nor do I find support for the proposition in the authorities upon which the MoD sought to place reliance. D.F.Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony ex p. Marais [1902] AC 109 is simply authority for the proposition that "Where actual war is raging, acts done by the military authorities are not justiciable by the ordinary tribunals." In Burmah Oil Co v Lord Advocate [1965] AC 75 the House of Lords was concerned with the issue of compensation for the destruction of oil installations. It was held that (per the headnote at p 76) –

The taking or the destruction of property in the course of actually fighting the enemy does not give rise to any claim for compensation, but these demolitions did not fall under the head of battle damage, because, although the enemy was approaching, they did not arise out of the military operations."

The distinction drawn by the majority in the House between battle damage and damage that did not arise out of military operations, does not bear on the issue of the recoverability of damages at common law for injury sustained in the course of combat, but attributable to breach of duty not occurring in combat.

2.C.20      Accordingly in my judgment the application of the immunity can be resolved by reference to the following propositions.

1. A soldier does not owe a fellow soldier a duty of care in tort when either (one or other or both) are engaged with an enemy in the course of combat.

2. The MoD is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.

3. In relation to both (1) and (2) the term combat has an extended meaning in that-

a. the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement.

b. the immunity extends to the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance.

c. the immunity will apply to peace-keeping/policing operations in which service personnel are exposed to attack or the threat of attack.

2.D. STANDARD OF CARE

2.D.1      In considering the standard of care a distinction has to be drawn between the duty owed by the MoD to service personnel as their employer, and the duty owed by the MoD as the provider of general and specialist medical services. As to the former it is common ground that the defendants owed a duty of care to their service personnel to provide a safe system of work so far as was reasonable and practicable in all the material circumstances. It is not asserted on behalf of the MoD that it did not have the resources to take any of the steps for which the Claimants contend. Accordingly the complex issues as to the allocation of limited resources addressed by the Court of Appeal in R v Cambridge Health Authority ex parte B [1995] 1 WLR 898 do not arise.

2.D.2      With regard to the duty owed by the MoD to service personnel as the provider of general and specialist medical services, it is common ground that where there is an issue as to the care provided for an individual serviceman or woman by a doctor or nurse in a clinical or therapeutic setting, then the test propounded in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority [1998] AC 232, will apply. In Bolam McNair J formulated the test in the following terms –

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art…Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. p 587

2.D.3      In Bolitho Lord Browne-Wilkinson made it clear that in applying the Bolam test –

"The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter." 241H – 242B.

2.D.4      The practice of medicine in a military environment is similar but not identical to civilian practice. It follows that although the acceptable standard of civilian psychiatric or primary health care may be relevant to the question of whether a military medical officer (MO), psychiatrist or nurse was negligent, it is not determinative. For the purposes of the Bolam test, the appropriate comparison is with the standard accepted by a reasonable and responsible body of military MOs, psychiatrists or nurses. That formulation takes account of any additional training or instruction given to doctors or nurses practising in the military environment.

2.D.5      Where an issue arises as to specialist psychiatric advice given by a psychiatrist to the MoD, for example by Brigadier Abraham as Director of Army Psychiatry to the Director General of Army Medical Services (DGAMS), the test is whether such advice fell below the standard accepted by a reasonable and responsible body of military psychiatric opinion. The application of that test will involve consideration of a number of factors, in particular whether the advice had a logical basis, whether it showed a proper weighing of risks against benefits, and the strength of the evidential basis both for the advice given and for the advice that it is submitted ought to have been given.

2.D.6      It is submitted on behalf of the Claimants that "in the context of service personnel and their families a reasonable standard of care necessarily imports a high practical standard of care as an obligation – higher than might be the case in other situations" (C8 of the re-amended generic statement of case.) A number of reasons are advanced as to why the reasonable standard of care necessarily imports a high practical standard. –

"C8 (a) The defendants have a uniquely high degree of control over service personnel, both as to their daily life and as to their health care.

(i) Queens Regulations state at 3.001 [909]:

"Common to all levels of command from independent sub-units upwards is the responsibility of the commander for

a) The command, training, security, discipline, education, health, welfare, moral and general efficiency of the troops under their command"

(ii) Regulations for the Army Medical Services, published by the defendant in May 1975 [5726] state that the Senior Consultant in Psychiatry (or Area of Divisional Psychiatrist) should inter alia:

"…Liaise with Army preventative medicine specialist to assist in the maintenance of optimum physical and mental health within the area.

…Be available to give advice to staff officers and commanding officers on the psychological problems of discipline, morale and welfare

…Visit units within the area…to ascertain that all unit officers and NCO’s have some instruction in emergency first aid for psychiatric battle casualties"

(b) Service personnel are often young and inexperienced.

(c) There are special pressures in service life, even short of battle itself. The turbulence, the need to make new friends quickly on short tours, the periods of confinement in hostile surroundings, the alternation between periods of danger with periods of inactivity and boredom, language and cultural barriers overseas, and the periods of separation from families all create the requirement for high levels of supervision, support and psychiatric/psychological care.

(d) In battle unimagined stress is a certainty. Battle generates death and physical injury. The more noise, stench, blast, terror, death and destruction that are crammed into narrow confines of space and time, the higher will be the psychiatric casualty rate. The risk of psychiatric injury in battle is not merely a foreseeable one but of the highest order.

(e) Gross impoverishment of life in the various forms of chronic and sometime life-long Post Traumatic Disorder, with depression, substance abuse, loss of family relationships and the ability to work, is consequence of stress in combat or conflict if left unaddressed. The risk is one of serious psychiatric illness/disorder by any criteria.

(f) In battle it is in the overwhelming interest of the Armed Forces and the comrades of any individual serviceman or woman that he or she is prevented, where possible, from breaking down and, if not, treated and returned to active duty as quickly as possible. Service personnel are the prime resource. Unit morale and cohesion are paramount.

(g) In time of peace, unit morale and cohesion remain paramount considerations as the best conditioning and preparation for battle. Again it is in the overwhelming interest of everyone that experienced and expensively trained personnel are not lost to service life through Post Traumatic Disorder.

(h) It is in the overwhelming interest of the Armed Forces and comrades that any individual is temperamentally stable and able to withstand the stresses of battle and service life. Soldiers, sailors and aircrew disordered through stress represent particular risks to themselves, to comrades and to others generally. They are often armed, trained to fight and to be aggressive. They represent a potential danger to comrades – and sometimes to the public – in combat, in an active peacekeeping role, when acting in support of the civil power in Northern Ireland or elsewhere, or during the necessarily risky exercise of training.

(i) Service personnel discharged while suffering from undiagnosed or untreated Post Traumatic Disorder represent potentially a danger, to themselves and to others, a drain on the public purse and a liability to society.

(j) The cost of taking precautions is negligible when compared with the cost of going to war, the sacrifice of the personnel and the legacy of the stress of combat if left unaddressed."

3.D.7      It is submitted on behalf of the Defendant that the submission that a reasonable standard of care necessarily imports a higher standard than would normally be the case is misconceived. I agree. The concept of a higher standard of care has no basis in authority, and is potentially misleading. The law was succinctly summarised by Swanwick J in Stokes v Guest Keen & Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776 at 1783, cited with approval in Joseph v MoD (1980) Times 4 March CA, White v Holbrook Precision (Castings) Ltd [1985] IRLR 215 CA and in Sutherland v Hatton Neutral Citation Number [2002] EWCA Civ 76, [2002] IRLR 263 –

"The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of commonsense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

2.D.8      Furthermore the Claimants’ reliance upon the existence and content of the Queen’s Regulations in support of their argument is misplaced. As Beldam LJ made clear in Barrett v Ministry of Defence [1955] 1 WLR 1217 –

"In my view the judge was wrong to equate Queen's Regulations and standing orders with guidance given in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen's Regulations and standing orders is to preserve good order and discipline in the service and to ensure that personnel remain fit for duty and while on duty obey commands and off duty do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars".

2.D.9      The matters relied upon by the Claimants do not import a higher standard of care, but are material circumstances to be taken into account and given the weight properly to be attached to them in setting the standard of care reasonably to be expected of the MoD.

2.E. PSYCHIATRIC INJURY

2.E.1      The decision of the House of Lords in McLoughlin v O'Brien [1983] 1 AC 410 clearly established that there may be liability for psychiatric injury, or ‘nervous shock’ as it was then called.

"Although we continue to use the hallowed expression ‘nervous shock’, English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts in situations where claims for negligence are made. Although in the only case which has reached this House (Hay (or Bourhill) v Young [1942] 2 All ER 396, [1943] AC 92) a claim for damages in respect of ‘nervous shock’ was rejected on its facts, the House gave clear recognition to the legitimacy, in principle, of claims of that character."
Lord Wilberforce at 418A/C

It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma resulting from the death or injury of third parties, or indeed the threat of such death or injury, ex hypothesi attributable to the defendant’s negligence, was a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff’s psychiatric or psychosomatic illness. But the word I would emphasise in the foregoing sentence is ‘informed’. For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility. Now, I venture to hope, that attitude has quite disappeared. No judge who has spent any length of time trying personal injury claims in recent years would doubt that physical injuries can give rise not only to organic but also to psychiatric disorders. The sufferings of the patient from the latter are no less real and frequently no less painful and disabling than from the former. Likewise, I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants.
Lord Bridge at 432G/433C

2.E.2      The Defendants accept that "…in general terms they knew at all times material to these group actions that combat (as defined in the Re-amended Statement of Case namely "…to include all military deployments involving risk of exposure to trauma such as supporting the civil authorities in Northern Ireland and ‘peace-keeping’ duties in the former territories of Yugoslavia") was capable of causing psychiatric/psychological consequences including chronic conditions" (Amended Generic Defence para C2).

2.E.3      The issue of liability for psychiatric injury caused by stress at work was considered by the Court of Appeal in Sutherland v Hatton Neutral Citation No [2002] EWCA Civ 76, [2002] IRLR 263. The judgment of the Court was given by Hale LJ. She first addressed a number of relevant background considerations, then considered the legal principles to be applied in this case of class. Her analysis is relevant to the issues to which this litigation gives rise.

"2. BACKGROUND CONSIDERATIONS

[3] This type of case has been described as the ‘next growth area’ in claims for psychiatric illness: see NJ Mullany, "Fear for the Future: Liability for Infliction of Psychiatric Disorder" in NJ Mullany (ed), Torts in the Nineties (1997), p 107. This growth is due to developing understanding in two distinct but inter-related areas of knowledge.

Psychiatric ill-health

[4] The first is of psychiatric illness generally. The Law Commission, in their Consultation Paper on Liability for Psychiatric Illness (LCCP No 137, 1995), commented at para 1.9:

"We are aware from our preliminary consultations that there are strongly held views on this topic. On the one hand, there are those who are sceptical about the award of damages for psychiatric illness. They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to ‘pull themselves together’; and that, even if they cannot do so, there is no good reason why defendants and, through them, those who pay insurance premiums should pay for their inability to do so. . . . On the other hand, medical and legal experts working in the field, who are the people who most commonly encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries."

[5] The latter we entirely accept. But although there have been great advances in understanding of the nature and causes of psychiatric ill-health, there are still important differences between physical and mental disorders.

(1) The dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness or disorder is not easy to draw. Psychiatric textbooks tell us that with a physical disease or disability, the doctor can presuppose a perfect or ‘normal’ state of bodily health and then point to the ways in which his patient’s condition falls short of this. There is probably no such thing as a state of perfect mental health. The doctor has instead to presuppose some average standard of functioning and then assess whether his patient’s condition falls far enough short of that to be considered a disorder. However, there is now a considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria, the two most commonly used tools being the most recent American Diagnostic and Statistical Manual of Mental Disorder, the DSM-IV (1994) and the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders (1992).

(2) While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient’s personality and a number of factors in the patient’s life. It is not easy to predict who will fall victim, how, why or when.

(3) For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions may respond comparatively quickly and easily to appropriate medication others may only respond, if at all, to prolonged and complicated ‘talking treatments’ or behavioural therapy. There are strong divergences of views amongst psychiatrists on these issues.

[6] In their report on Liability for Psychiatric Illness (Law Com No 249, 1998) at para 1.2, the Law Commission referred to the divergence of academic views on the approach the law should take:

"At one end of the scale are those who argue that the same principles that apply to liability for physical injury should be applied to liability for psychiatric illness, and there is no legitimate reason to impose special restrictions in respect of claims for the latter [most forcefully by NJ Mullany and PR Handford in Tort Liability for Psychiatric Damage, 1993]. At the other extreme are those who argue that liability for psychiatric illness should be abandoned altogether. They say that the arbitrary rules which are required to control potential liability are so artificial that they bring the law into disrepute [cogently expressed by Dr J Stapleton, ‘In Restraint of Tort’, in P Birks (ed), The Frontiers of Liability, 1994]."

Both the law and the Law Commission have followed a middle course, in some cases treating a recognised psychiatric illness as no different in principle from a physical injury or illness, while in others imposing additional ‘control mechanisms’ so that liability does not extend too far"

2.E.4      Lady Justice Hale went on to consider the second area of developing understanding, namely of the nature and extent of occupational stress. Then at paragraphs 32 – 34 she addressed the issue of breach of duty.

"[32] Breach of duty

What then is it reasonable to expect the employer to do? His duty is to take reasonable care. What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk: see the oft quoted summary of Swanwick J in Stokes v Guest Keen and Nettlefold (Nuts and Bolts) [1968] 1 WLR 1776 at 1783 D-E.

[33] It is essential, therefore, once the risk of harm to health from stress is in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what is the employer of any good about should have done. We are not here are concerned with such comparatively simple things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect to the employer to do this, either in general or in particular: the size and the scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear.

[34] Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some, let alone enough, good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer's own good. As Devlin LJ put it in Withers v Perry Chain Co Ltd [1961] 1WLR 1314 at 1340,

‘The relationship between the employer and employee is not that of schoolmaster and pupil… the employee is free to decide for herself what risks she will run…if the common law were otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him.

Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decided whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.

2.E.5      At paragraphs 43 under the heading summary, she set out a number of practical propositions.

"[43]. From the above discussion, the following practical propositions emerge:

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer’s liability apply (para 20).

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25).

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29).

(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24).

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (para 29).

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31).

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32).

(9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (para 33).

(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34).

(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33).

(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (para 34).

(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33).

(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35).

(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39).

(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42)."

2.E.6      Nothwithstanding that in Sutherland the court was concerned with claims for damages for psychiatric injury caused by cumulative stress in the workplace rather than illness caused by exposure to trauma, the above propositions apply without qualification, save for propositions 3, 4, and 9. With regard to proposition 9, the qualification is simply that the issue of resources does not arise, as the MoD does not contend that it did not have the resources to take the steps summarised in the Claimants’ Amended Synopsis of System.

2.E.7      As to proposition 3, the uncontested evidence before me is that it has long been recognised that combat will result in psychiatric as well as physical casualties. Accordingly it is not in issue that combat gives rise to a foreseeable risk of psychiatric injury. The same point arises in relation to proposition 4.

2.F. CAUSATION

2.F.1      The general principles applicable to the issues of causation to which this litigation gives rise are well established. To establish liability a Claimant must prove on the balance of probabilities that breach of duty by the MoD caused his psychiatric illness. He does not have to show that the breach of duty was the whole cause of the illness. It is enough to show that it made a material contribution. In principle the MoD’s liability will be limited to the extent to which its tortious conduct contributed to the Claimant’s illness. Where there are other contributing causes, an attempt must be made on the available evidence to determine the proportion of the injury attributable to the tortious conduct on the part of the MoD. Where the MoD’s breach of duty exacerbated a pre-existing disorder or accelerated the effect of pre-existing vulnerability, the award of damages will reflect only that exacerbation or acceleration. (see inter alia Hatton v Sutherland supra)

2.F.2      The claims embraced by this group litigation are advanced upon the basis that the Claimants sustained psychiatric injury as a result of exposure to combat or to situations analogous to combat. In this context the breaches of duty upon which they rely fall into two categories: measures that if implemented would have prevented exposure to combat or analogous situations, and secondly measures that, following exposure to combat or analogous situations, would have prevented the development of psychiatric illness or resulted in its cure or the amelioration of its symptoms or effects.

2.F.3      The application of the general principles to the first category is straightforward. The Claimants contend that the MoD were in breach of duty in failing to apply a more rigorous system of screening of prospective recruits, a measure that if implemented would have prevented exposure to combat. If the Claimants succeed on that generic issue, an individual claimant will establish liability if he proves either that he would not have been recruited or that if recruited he would have been restricted to a role in which he would not have been exposed to combat or analogous situations, and that he suffered psychiatric injury as a consequence of such exposure. That is a simple application of the ‘but for’ rule.

2.F.4      As to the second category, the Claimants must prove on the balance of probabilities that the interventions or treatments for which they contend would, either singly or in combination, have prevented the development of psychiatric illness, or resulted in its cure or amelioration, ie a reduction in the severity of symptoms and/or an improvement in function. The structure of the group litigation has the consequence that this issue will be addressed in two stages. First in the trial of the generic issues it is necessary to determine whether the interventions and treatments in question would have had a beneficial effect. Secondly if it is proved that an intervention/treatment would have had a beneficial effect, the issue in relation to an individual claimant will be whether it would have done so in his case bearing in mind any factors specific to him. Thus for example it is acknowledged by the experts that co-morbidity, the association of PTSD with other conditions such as drug or alcohol dependency or depression, makes it more difficult to treat PTSD. Accordingly in theory the evidence in relation to an individual claimant could lead to the conclusion that he had failed to establish that a particular treatment would have had a beneficial effect in his case, notwithstanding a generic finding that the treatment in question would have had such an effect.

2.F.5      The decision of the House of Lord in Hotson v East Berkshire Area Health Authority [1987] 750 is of direct application to the issue of causation in relation to the second category of breach of duty. In Hotson the plaintiff, then aged 13, fell while climbing a tree and fractured his left femoral epiphysis. He was taken to hospital, but the injury was not correctly diagnosed or treated for five days. He subsequently developed avascular necrosis of the epiphysis involving disability of the hip joint with the virtual certainty that he would later develop osteoarthritis in the joint. It was held by the House of Lords, allowing the appeal, that it had been for the plaintiff to establish on a balance of probabilities that the delay in treatment had at least materially contributed to the development of the avascular necrosis and for the judge to resolve on a balance of probabilities that the conflict of medical evidence as to what had caused the avascular necrosis; that the judge’s findings were unmistakably to the effect that on a balance of probabilities the plaintiff’s fall had left insufficient blood vessels intact to keep the epiphysis alive, which amounted to a finding of fact that the fall had been the sole cause of the avascular necrosis; and that, accordingly, the plaintiff had failed on the issue of causation…" (see headnote at p 750). The facts are indistinguishable from those that arise in relation to the second category of breach of duty; a non-tortious cause of injury, followed by an alleged breach of duty, namely the failure to take steps to prevent or alleviate the consequences of the original injury. Lord Bridge analysed the position in the following terms –

"The plaintiffs claim was for damages for physical injury and consequential loss alleged to have been caused by the authority’s breach of their duty of care. In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances. But that was not so here. On the evidence there was a clear conflict as to what had caused the avascular necrosis. The authority’s evidence was that the sole cause was the original traumatic injury to the hip. The plaintiff's evidence, at its highest, was that the delay in treatment was a material contributory cause. This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities. Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise. But the judge's findings of fact….are unmistakably to the effect that on a balance of probabilities the injury caused by the plaintiff's fall left insufficient blood vessels intact to keep the epiphysis alive. This amounts to a finding of fact that the fall was the sole cause of the avascular necrosis." 782 B-E

"As I have said, there was in this case an inescapable issue of causation first to be resolved. But if the plaintiff had proved on a balance of probabilities that the authority's negligent failure to diagnose and treat his injury promptly had materially contributed to the development of avascular necrosis, I know of no principle of English law which would have entitled of the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed. The decisions of this House in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1 give no support to such a view". 783 A-B

2.F.6      The review of the Bonnington/McGhee line of authority by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 WLR 89 does not affect Lord Bridge’s analysis. In Fairchild the House was concerned with resolution of the problem that arises where an employee has been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust in breach of each defendant’s duty to protect him from the risk of contracting mesothelioma, and where that risk had eventuated, but in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative exposure. The House of Lords held that in such a case a modified approach to proof of causation was justified, namely that proof that each defendant’s wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. It has no application to this litigation.

2.F.7      I should also add that the point expressly left open by the House of Lords in Hotson, namely whether a claimant can recover damages for loss of a chance from a negligent defendant, does not arise in this litigation, counsel for the Claimants having expressly stated that no such claim is advanced.

2.G. THE EVIDENCE AS TO THE USA AND THE STATE OF ISRAEL

2.G.1      It was agreed between the parties that the scope of any comparative enquiry should be limited to the practices and policies of the armed forces of the USA and of the State of Israel. There were a number of reasons for that agreement. Both countries are democracies maintaining standing armies with comparable levels of technical development to the UK. Both nations have been involved in a number of armed conflicts during the relevant period in a variety of circumstances. There has been a considerable exchange of material relevant to the issues to which this litigation gives rise between all three nations. But it was accepted by both parties that there are also important cultural, political, historical and socio-economic differences between the armed forces of the USA and Israel and those of the UK. The differences were highlighted in the cross-examination of General Sir Peter Beale KBE, Director General of Army Medical Services ("DGAMS") between 1990 and 1993, and Surgeon General between 1991 and 1994. As a result it is common ground that the practices and policies adopted by either cannot be determinative of whether the MoD was negligent in relation to any of the generic issues. As the MoD put it in the Amended Generic Defence C8(g) "… the practices and policies of the fighting forces of the US and Israel constitute but one piece in the evidential jigsaw and could not be determinative of any one issue which may arise." But whilst acknowledging that it is not determinative, both parties place considerable reliance upon such evidence. The Claimants contend that there were lessons that could and should have been learnt from the US and Israeli experience. The MoD submit that where it is demonstrated that allegations of breach relied upon by the Claimants would equally hold true against the armed forces of the USA or Israel (if such matters were justiciable in those countries), that would be compelling evidence against the proposition relied upon. The weight to attach to such evidence will plainly depend upon its content, the context within which the parties seek to rely upon it, and the degree to which its application is affected by the differences between the armed forces of the comparators and those of the UK.

3. THE STRUCTURE OF ARMY MEDICAL SERVICES

3.1      Under Queens Regulations a commanding officer is responsible for the health and welfare of his men. Regulation 3:001 provides that -

"Common to all levels of command from independent sub-units upwards is the responsibility of the commander for:

(a) the command, training, security, discipline, education, health, welfare, morale and general efficiency of the troops under their command.

3.2      The commanding officer is assisted in the discharge of his responsibility for the health and welfare of his men by the Army Medical Services. This section contains an outline of the structure of the Army Medical Services with particular emphasis on the provision of psychiatric services.

3.3      During the Relevant Period the Army Medical Services were organised in accordance with the Regulations for the Army Medical Services issued by the MoD in May 1975. The Army Medical Services are maintained (per regulation 0201) –

"a. For the promotion and maintenance of health and for the prevention of disease.

b. For the care and treatment of those disabled by sickness or injury.

c. To provide the necessary organisation for training the Army Medical Services for war."

3.4      The Director General Army Medical Services (DGAMS) was at the head of the Army Medical Services. Under regulation 0103 the DGAMS –

"…is the technical adviser to the Army Board on all matters of health affecting the Army. He will issue orders on such matters on behalf of the Army Board to GOCs and other commanders, and will decide all technical questions pertaining to the Army Medical Services submitted to the Ministry of Defence. He is charged with the distribution and postings to the various commands of the officer personnel of the medical services.

3.5      In 1986 the structure was altered by the creation of the tri-service post of Surgeon General. Since 1986 the DGAMS and his equivalents in the Royal Navy, the Medical Director General, and in the RAF, the Director General Medical Services, have reported to the Surgeon General, who has ultimate responsible for medical services. On the command or personnel side such responsibility rests with the Principal Personnel Officers (PPOs), namely the Adjutant General (AG), the Second Sea Lord and the Air Marshall (Personnel). The AG received advice from both DGAMS and the Surgeon General.

3.6      DGAMS administers Army Medical Services through the Army Medical Directorate (AMD) which has a number of branches. AMD1 is concerned inter alia with medical field force planning. AMD5 is concerned with army preventative medicine, medical standards and clinical research. DGAMS has a number of specialist advisers, one of whom is the Director Army Psychiatry (DAPsych). The role of DAPsych is central to the issues to which this litigation gives rise. His responsibilities are set out in regulation 0110 –

"a. This officer is borne on the strength of the RAM College and is a member of the College Council. He is the adviser to the Director General Army Medical Services on all matters connected with psychiatry, mental health and allied subjects.

b. He makes periodic visits to military hospitals at home to supervise the professional work of Army psychiatrists, psychiatric nurses, mental health technicians and other personnel working in the field of mental health…

c. Under arrangements made by the DGAMS he visits overseas commands to inspect and advise on the arrangements for psychiatry and allied subjects and to keep professional contact with those concerned.

d. He supervises the training of psychiatry at the RAM College and the training in psychiatry at military hospitals at home. He is to keep in close contact with civilian consultants and with advances in technique and equipment.

e. He is available to give advice to staff officers at the Ministry of Defence as required.

3.7      The second post of central importance is that of the Professor of Military Psychiatry who was based at the Royal Army Medical College (RAM College) The RAM College served as a medical school for the training of Medical Officers (MOs) and specialists. All MOs entering the army underwent basic military training followed by the post-graduate course for Medical Officers (PGMO’s course), at the RAMC. The training of MOs in military psychiatry and of military psychiatrists was the responsibility of the Professor of Military Psychiatry (later Defence Psychiatry). He was also responsible for the acquisition and dissemination of information on the military aspects of psychiatry for the Army Medical Services and for the Army as a whole.

3.8      A schedule setting out the successive DA Psychs and Professors of Military Psychiatry/Defence Psychiatry is at Appendix 4.

3.9      In 1996 the Defence Medical Services were again reorganised; and psychiatry became a tri-service resource. Colonel Anderson, who had succeeded Brigadier Abraham in the post of DA Psych at the end of 1991, was appointed its head and given the title of Director of Defence Psychiatry. A tri-service specialist psychiatric centre was set up at DKMH Catterick in January 1996.

3.10      Control of the Army Medical Services on technical subjects is directed from the AMD through Senior Administrative Medical Officers at formation headquarters to medical units (regulation 0202). A Senior Administrative Medical Officer is responsible inter alia for ensuring "that adequate training of all medical personnel...in his command/district is carried out to fit them for duty in peace and war" (regulation 0221). He is assisted in his duties (but not relieved of his responsibilities) by inter alia a Senior Consultant in Psychiatry (regulations 0204 and 0208). The role of a Senior Consultant in Psychiatry (or area or divisional psychiatrist) is set out in para 15 of Annex A to Chapter 2 of the regulations –

a. This officer is responsible to the senior administrative medical officer for all matters relating to psychiatry in the area and is to act as technical adviser is such matters, making such recommendation to him as may be necessary.

b. He is to maintain a close liaison with the senior administrative medical officer and the Director of Army Psychiatry.

c. He is to exercise a general supervision over the professional work of Army psychiatrists, psychiatric nurses and mental health technicians within the area.

d. He is to visit hospitals within the area and co-operate with the psychiatrist responsible for clinical cases….

e. He is to liase with the Army preventative medicine specialists to assist in the maintenance of optimum physical and mental health within the area.

f. He is to be available to give advice to staff officers and commanding officers on the psychological problems of discipline, moral and welfare and will liase with chaplains, regimental officers and family or welfare officers concerned with such problems.

g. He is to visit units within the area to keep them intimately acquainted with the current psychological problems of the area and the background against which psychiatric casualties are reaching out-patient clinics and hospitals are occurring….

h. On visits to units he is to advise medical officers on any cases referred to him and …to instruct medical officers in the diagnosis and management of psychiatric problems. He is to ascertain that all unit officers and NCOs have some instruction in emergency first aid for psychiatric battle casualties."

3.11      The officer in medical charge of troops, the MO, is responsible for providing general medical services to the unit to which he is attached. "Specialist advisers in Army preventive medicine and psychiatry are available to assist him with professional advice and assistance in those fields" (regulation 0256). He is also "the adviser to the commanding officer on all matters pertaining to the health of the unit."

3.12      A comprehensive medical record is maintained for all Army personnel by means of a standardised system of forms set out in "Medical Documentation in the Army Medical Services". A number of such forms are relevant to the issues to which this litigation gives rise, F Med 1 – ‘Medical Examination Report Entry’, F Med 2 – ‘Medical Examination Record’, F Med 4 – ‘Personal medical folder, F Med 5 ‘Attendance and treatment card’, F Med 8/8A – ‘Report on a case referred for psychiatric examination’, F Med 133 – ‘Notification to civilian doctor of Service medical history’, and F Med 136 ‘Request by civilian doctor for Service medical history’.

3.13      F Med 8/8A encapsulates the procedure to be used in all referrals for psychological or psychiatric examination. The procedure was ordinarily initiated by the MO. Although in theory it could be initiated by the commanding officer, the evidence suggests that that rarely occurred. But the form included a section that had to be completed by the commanding officer. Major General Short (rtd), who held the post of DGAMS from March 1996 until his retirement from the Army in June 1999, explained the philosophy behind the F Med 8 procedure, namely that it would be used if an MO had "…concerns about a soldier’s behaviour, general performance or drinking"; and that it involved consultation between the MO and the commanding officer so as to present the full picture to the examining psychiatrist. To that end the form provided for an assessment of the soldier’s work, performance, circumstances, off-duty habits and activities. He also explained that it was for the commanding officer to decide whether the soldier would be allowed to continue soldiering pending receipt of a full psychiatric opinion.

3.14      Throughout the Relevant Period the armed forces used a system of medical classification, the PULHHEEMS system, which was first introduced in 1951. Its purpose was described in the introductory paragraph to the 1972 edition "PULHEEMS ADMINISTRATION PAMPHLET" in the following terms –

"0102 The PULHEEMS system of medical classification is designed to -

a. Provide a functional assessment of the individual’s capacity for work.

b. Assist in expressing the physical and mental attributes appropriate to individual employment with the Army.

c. Assist in posting men to the employment for which they are most suited in the light of their physical, intellectual and emotional make-up, and thus to economise in manpower.

d. Provide a system which is administratively simple to apply.

3.15      The acronym PULHHEEMS (originally PULHEEMS but amended in the 1992 edition to PULHHEEMS) stands for –

P = Physical capacity

U = upper limbs

L = locomotion

HH = hearing (hearing acuity)

EE = eyesight (visual acuity)

M = mental capacity

S = stability (emotional)

3.16      All members of the armed forces undergo a PULHHEEMS assessment within six days of enlistment, and again at the end of their basic training when the decision is made as to the unit to which they are to be deployed. Thereafter they undergo a PULHHEEMS assessment at regular intervals, the frequency of which depends inter alia on age, rank, and individual circumstances. Thus for example a fit young soldier will be assessed every four years, but a soldier who is not fully fit will be reviewed annually.

3.17      The "PULHEEMS ADMINISTRATIVE PAMPHLET 1972 contains a reference to the pamphlet setting out instructions for medical officers on the method of carrying out a medical classification under the PULHEEMS system, "PULHEEMS – A Joint Services System of Medical Classification 1951"; but neither it not its successor published in 1976 have survived. The current edition of the instructions to medical officers, "JSP 346 PULHHEEMS A JOINT SERVICE SYSTEM OF MEDICAL CLASSIFICATION", issued in 1992 contains detailed guidance as to the assessment of M and S, see paragraphs 0221-3. 0222 and 0223 are of particular relevance.

"0222. In the course of the examination the medical officer must always have in mind two aspects of psychiatric fitness; mental capacity (that is, intelligence or ability to learn) and emotional stability. M or mental capacity is most easily assessed in the course of medical examination by careful history-taking with special reference to schools and work records. Clinical impression in most cases is confirmed by the results of group intelligence test. S or emotional stability requires more care. No adequate group test of temperament or personality is available and reliance must be placed on careful history-taking. A history of mental disorder in the candidate or his family, any disturbed behaviour, substance abuse or signs of intellectual, emotional or character disorder, or any symptoms of psychosomatic disorder should prompt close investigation and possible referral to a psychiatrist.

0223. The importance of careful psychiatric assessment will be obvious to all medical officers. They must recognise that, although opportunities do present in the services for rehabilitating personnel, the Services are not rehabilitation centres for the chronically disabled, nor are they corrective institutions for those with significant and persistent behavioural disturbances. It is possible to rehabilitate Service personnel such as those usually of normal personality but who have developed stress-precipitated emotional disorders, or those whose previous behavioural record has been acceptable but who have temporarily adopted maladaptive patterns of behaviour in a misguided attempt to deal with a stressful situation. The framework now exists in which such people can be properly assessed with adequate account being taken of input from the line managers, Service welfare agencies, and the patient's personal physician. However, it must be remembered that, although such assessments can be used as a basis for a co-ordinated programme of management of the patient’s difficulties including medical, occupational, domestic and social components, such evaluations can also provide a logical basis for a decision to terminate an individual’s service where the response to treatment or management is unsatisfactory and the long-term prognosis is poor. The situation must be avoided where those with psychiatric disorders constitute a large proportion of those whose fitness for service is chronically impaired. It is not in the interests of the Services nor of the individual to accept such a situation"

3.18      A soldier who satisfies the examining medical officer at entry will be graded ‘M2’ and ‘S2’. Thereafter his ‘M’ and ‘S’ gradings can only be altered by a medical board on specialist psychiatric advice. They cannot be changed by an MO.

3.19      During the Relevant Period the Army Medical Services maintained four principal psychiatric centres in the UK, at the Cambridge Military Hospital Aldershot, the QEMH at Woolwich, the DKMH at Catterick, and the Department of Psychiatry, Tidworth Garrison. The Navy maintained a psychiatric unit at RMH Haslar, and the RAF three such units in the RAF hospitals at Brize Norton, Wroughton and Ely.

3.20      Community Psychiatric Nursing

Accordingly to Brigadier Wickenden the Army CPN service was introduced in about 1983. He addressed the reasons for its introduction in a paper written in 1984, "The Community Psychiatrist in a Military Setting" saying inter alia -

"Goldberg and Huxley, in their publication 'Mental Illness in the Community', show that the prevalence of psychiatric disorder in the general population is as high as 250 per 1,000, yet of these only 17 per 1,000 are referred to psychiatric outpatients and 6 per 1,000 admitted to psychiatric hospitals. In other words, the bulk of psychiatric illness remains within the community neither identified nor treated by psychiatric services.

The peculiarities of the military community therefore make it more important to obviate admission to a psychiatric unit as far as possible with obvious clear exceptions such as acute psychotic or neurotic illnesses and where violent or dangerous behaviour is the problem. These latter cases are a minority. The reasons for avoiding institutionalisation are to minimise stigmatisation of the individual and to engender better coping mechanisms within the military community for dealing with common emotional difficulties.

The community psychiatrist can use a sliding scale of action from psychotherapy to brief crisis intervention, or individual or family counselling, or can make a single assessment and arrange secondary follow up and support by other community workers who can deal with the social problems and report on progress over time.

The aim of the above-mentioned preventive work is the long-term education of the entire military psychiatry society to encourage community care and containment of minor psychiatric morbidity."

3.21      According to Lt Colonel Pocock (rtd), who between 1988 and 1994 served as the Psychiatric Nurse Superintendent at the QEMH Woolwich Psychiatric Division and Head of Career Employment Group for the Provision of Mental Nurses in the British Army, most of the CPN posts were created during the period 1991-4. CPNs work under the direction of a Community Psychiatrist, and in broad terms their role is the management of an individual’s mental health care in the community. Although army CPNs cannot make formal psychiatric diagnoses, they are trained to assess and treat individuals suffering from mental health problems; and in consequence patients are routinely referred to them by MOs.

3.22      Field Psychiatric Teams

The concept of field psychiatric teams (FPTs) was developed by Brigadiers Wickenden and Abraham in the early 1980s as a means of implementing the principles of forward psychiatry and to give substance to the War Office pamphlet "Psychological First Aid in War" published in 1963. The development and use of FPTs will be examined in detail in the context of the generic issue of forward psychiatry, and of the Falklands War and the Gulf War.

4. TERMINOLOGY

4.1      The claims are advanced on the basis that the Claimants have sustained injuries that are "psychiatric/psychological in nature and originate in the stress or trauma of combat or conflict" (see para A3 of the Re-Amended Generic Statement of Case). A distinction is drawn between acute conditions "acute stress reactions" and chronic conditions "post traumatic disorder", terms that are defined in paragraph B2 –

"(a) ‘Acute Stress Reaction’ (ASR) is taken to mean psychological/psychiatric disturbance arising during, or immediately following, exposure to combat. It includes, but is not limited to, the reactions otherwise described as ‘Combat Stress Reaction’ (CSR) and ‘Battleshock’. Typically, ASRs are severe and of short duration.

(b) ‘Post Traumatic Disorder’ is taken to mean psychological/psychiatric disturbance arising or persisting at an interval following exposure to combat. It includes, but is not limited to, Post Traumatic Stress Disorder (PTSD) and co-morbid conditions."

4.2      The MoD take issue with (b), submitting that "post traumatic illness" would be a more appropriate label than "post traumatic disorder"; but it is not an issue of substance given that the Claimants acknowledge that each must prove the existence of a recognised psychiatric disorder, ie a disorder recognised in the current editions of either the American Diagnostic and Statistical Manual of Mental Disorder DSM – IV (1994) or the World Health Organisation’s Classification of Mental and Behavioural Disorders ICD-10 (1992). As Dr Davidson, one of the experts called on behalf of the Claimants has pointed out, the use of the word ‘disorder’ in both classification systems "does not imply that the subjects were not suffering from a psychiatric illness or injury".

4.3      It is appropriate at this point not only to set out the current diagnostic criteria for trauma related conditions in both DSM-IV and ICD-10, but also to trace the historical development of the criteria, a development which is relevant to the central issue of the state of knowledge of such disorders within the Army Medical Services.

4.4      DSM

PTSD first appeared in DSM-III published in 1980; and its definition has changed in subsequent editions of the DSM, DSM-III R published in 1987, and DSM-IV published in 1994. There was no change to the diagnostic criteria in DSM-IV-TR published in 2000, but the relevant section contained a more extensive explanation of the nature of the disorder. It is not necessary for present purposes to recite the earlier versions, save to note that DSM-III identified 3 categories, acute PTSD where the duration of symptoms was less than 6 months following the traumatic event, chronic in which the duration of symptoms was 6 months or more, and delayed onset, where the onset was more than 6 months after the traumatic event. The evolving versions are conveniently set out in tabular form in an appendix to the expert report by Dr Robert E Hales dated 16 January 2002. The effect of the changes has been to tighten the stressor criterion; and DSM-IV introduced a new sub-criterion which focussed on the victim’s subjective reaction to the stressor. Secondly DSM-IV introduced a new criterion F setting out the need for the presence of clinically significant distress or dysfunction. Thirdly DSM-IV introduced the concept of Acute Stress Disorder to address the problem of diagnosis of PTSD in the early post traumatic period.

4.5      The relevant parts of the diagnostic criteria for PTSD in DSM-IV para 309.81 are –

"A. The person has been exposed to a traumatic event in which both of the following were present

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person’s response involved intense fear, helplessness, or horror

B. The traumatic event is persistently reexperienced in one (or more) of the following ways –

(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions

(2) recurrent distressing dreams of the event

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience), illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated

(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma

(3) inability to recall an important aspect of the trauma

(4) markedly diminished interest or participation in significant activities

(5) feeling of detachment or estrangement from others

(6) restricted range of affect (eg unable to have loving feelings)

(7) sense of a foreshortened future (eg does not expect to have a normal career, marriage, children, or a normal life span)

D. Persistent symptoms of increased arousal (not present before the trauma) as indicated by two (or more) of the following

(1) difficulty falling or staying asleep

(2) irritability or outbursts of anger

(3) difficulty concentrating

(4) hypervigilance

(5) exaggerated startle response

E. Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning."

4.6      The condition is defined as acute if the symptoms last less than 3 months, and chronic if the duration of symptoms is 3 months or more. Delayed onset is defined as the onset of symptoms at least 6 months after the stressor.

4.7      Section 309.81 of DSM-IV also identifies the disorders that may be found in association with PTSD, in particular major depressive disorder, but states that "…it is not known to what extent those disorders precede or follow the onset of Posttraumatic stress disorder".

4.8      As to ASD, its essential feature "…is the development of characteristic anxiety, dissociative, and other symptoms that occurs within 1 month after exposure to an extreme stressor event" (308.3). It is distinguished from PTSD because the symptom pattern in ASD must occur within 4 weeks of the traumatic event and resolve within that period. Save for criterion B, dissociative symptoms, the ASD criteria are similar to those for PTSD. Thus 308.3 goes on to say –

"As a response to the traumatic event, the individual develops dissociative symptoms. Individuals with Acute Stress Disorder have a decrease in emotional responsiveness, often finding it difficult or impossible to experience pleasure in previously enjoyable activities, and frequently feel guilty about pursuing usual life tasks. They may experience difficulty concentrating, feel detached from their bodies, experience the world as unreal or dreamlike, or have increasing difficulty recalling specific details of the traumatic event (dissociative amnesia). In addition at least one symptom from each of the symptoms required for Post Traumatic Stress Disorder is present. First the traumatic event is persistently reexperienced (eg recurrent recollections, images, thought, dreams, illusions, flashback episodes, a sense of reliving the event, or distress on exposure to reminders of the event). Second, reminders of the trauma (eg places, people, activities) are avoided. Finally, hyperarousal in response to stimuli, poor concentration, hypervigilance, an exaggerated startle response, and motor restlessness."

4.9      ICD

ASR was first defined in ICD-9 published in 1977 in the following terms –

"308. Acute reaction to stress

Very transient disorders of any severity and nature which occur in individuals without any apparent mental disorder in response to exceptional physical or mental stress, such as natural catastrophe or battle, and which usually subside within hours or days."

4.10      The definition was refined in ICD-10 –

"F43.0 Acute stress reaction

A transient disorder that develops in an individual without any other apparent mental disorder in response to exceptional physical or mental stress and that usually subsides within hours or days. Individual vulnerability and coping capacity play a role in the occurrence and severity of acute stress reactions. The symptoms show a typically mixed and changing picture and include an initial state of "daze" with some constriction of the field of consciousness and narrowing of attention, inability to comprehend stimuli, and disorientation. This state may be followed either by further withdrawal from the surrounding situation (to the extent of dissociative stupor…) or by agitation and over-activity. Automatic signs of panic anxiety (tachycardia, sweating, flushing) are commonly present. The symptoms usually appear within minutes of the impact of the stressful stimulus or event, and disappear within two or three days (often within hours). Partial or complete amnesia … for the episode may be present. If the symptoms persist, a change in diagnosis should be considered."

‘Combat fatigue’ is then given as one of the examples of an acute stress reaction.

4.11      PTSD first appeared in the ICD classification in ICD-10 published in 1992 –

"F43-1 Post traumatic stress disorder

Arises as a delayed or protracted response to a stressful event or situation (of either brief or long duration) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone. Predisposing factors, such as personality traits (eg compulsive, asthenic) or previous history of neurotic illness may lower the threshold for the development of the syndrome or aggravate its course, but they are neither necessary nor sufficient to explain its occurrence. Typically features include episodes of repeated reliving of the trauma in intrusive memories (flashbacks), dreams or nightmares, occurring against the persisting background of a sense of ‘numbness’ and emotional blunting, detachment from other people, unresponsiveness to surroundings, anhedonia, and avoidance of activities and situations reminiscent of the trauma. There is usually a state of automatic hyperarousal with hypervigilance, an enhanced startle reaction, and insomnia. Anxiety and depression are commonly associated with the above symptoms and signs, and suicidal ideation is not infrequent. The onset follows the trauma with a latency period that may range from a few weeks to months. The course is fluctuating but recovery can be expected in the majority of cases. In a small proportion of cases the condition may follow a chronic course over many years, with eventual transition to an enduring personality change…"

4.12      The term ‘Post Traumatic Disorder’ as defined by the Claimants is a convenient shorthand embracing both PTSD and co-morbid psychiatric disorders. In addressing the issue of diagnosis of PTSD in relation to the lead Claimants, I propose to follow the lead of the experts and to rely upon DSM-IV. I should add that there is no recognition of ‘sub-syndromal’ or ‘sub-clinical’ PTSD in either classification system.

4.13      The term ‘Acute Stress Reaction’ (ASR) as used by the Claimants in their Amended Generic Statement of Case, is not synonymous with its use in ICD-10. I shall use the term as defined in ICD-10. Secondly the term is not synonymous with the term ‘Acute Stress Disorder’ (ASD) in DSM-IV; and although conceptually very close is not interchangeable with it. In using the term ‘ASD’ I shall be referring to the DSM-IV definition.

4.14      There are two further terms that it is necessary to consider, ‘Battleshock’ and ‘Combat Stress Reaction’ (CSR). The term "Battleshock" was introduced by Brigadier Wickenden and Brigadier Abraham in about 1979/80 and was widely used within the British Army during the 1980s. According to Brigadier Wickenden it replaced the term "Combat stress", and was introduced to help commanders to understand the condition. He says that it covered "part of what would now be labelled acute stress reactions."

4.15      The term ‘CSR’ was originally used by Mullins and Glass in 1973, confirmed by Kormos in 1978 and widely used in the 1980s and 1990s. It was used in the Quadripartite Standardisation Agreement (US, UK, Canada and Australia) QSTAG909 ratified by the UK in April 1990 in the following sense –

"Combat Stress Reaction (CSR) is a term which encompasses an array of reversible effects caused by the stressors of combat and refers to the temporary psychological upset causing an inability to function normally (normal function includes ability to engage the enemy and survive). CSR encompasses the terms Battle fatigue, Battle Shock, and Critical Incident Stress as well as older terms such as Shell Shock, War Neurosis, Neuropsychiatric (NP) Not Yet Diagnosed (NYD) (Nervous), and Combat Exhaustion. The incidence of CSR is related to many factors including the length, type and intensity of battle."

"Combat stress reaction is a normal reaction to a very abnormal situation and does not constitute a psychiatric illness although incorrectly managed it may become one. It should also be noted that CSR may present as depression, neurosis or psychosis. The practical definition of a psychiatric patient is, therefore, considered to be a casualty who has exceeded the arbitrary 7 day limit for treatment."

4.16      Most importantly the term was used by the IDF and by the Israeli researchers, notably by Professor Zahava Solomon and her colleagues to whose work I shall return in Section 6. In 1993 she published a text entitled ‘Combat Stress Reaction - The enduring Toll of War’, and in chapter 3 addressed the definition of the term saying at the outset that it "…is one of the most elusive of psychiatric disorders". She went on to say at page 29 that –

"Our term, combat stress reaction, which is taken from Mullins and Glass (1973), expresses the conviction that the breakdown is the result of the massive stress to which the soldier is exposed; the imminent threat of death and injury first and foremost, but also the sight of death and injury in others; the loss of commanders and buddies, the physical deprivations of food, water, and sleep; the discomfort of the burning sun and cold nights without adequate shelter; and the lack of privacy, on the one hand, and of support of family and friends, on the other."

Because of the difficulties of defining CSR clinically, however, the diagnostic criteria that are used in practice are functional. They are based on Kormos’s (1978) definition "Combat reaction consists of behaviour by a soldier under conditions of combat, invariably interpreted by those around him as signalling that the soldier, although expected to be a combatant, has ceased to function as such". The two criteria are that the soldier ceases to function as a combatant and that others – in our case authorized mental health personnel – recognize that he has."

4.17      Professor Solomon went on to attempt to construct a taxonomy for CSR, and identified a number of features recurring in the cohorts the subject of her studies. Not surprisingly there is a very substantial overlap with ASD as defined in DSM-IV and ASR as defined in ICD-10. But it is not synonymous with either; and where it is necessary to use the term, in particular in the context of the generic issue of Forward Psychiatry, I shall employ it in the sense in which it is used by Professor Solomon.

5. STATE OF KNOWLEDGE

5.1      There are two issues that are central to the Claimants’ case namely –

(a) what the Defendant knew about the acute and chronic reactions to combat stress at all material times and

(b) what the Defendant ought to have known about such conditions at all material times.

5.2      The Claimants’ case in essence is that it has long been known that combat causes psychiatric casualties, both acute and chronic. That is not in issue. Both the First and Second World Wars generated high rates of such casualties. Secondly the Claimants contend that it was known before the start of the Relevant Period that there were robust predictors of both the acute and chronic conditions, in particular the duration and intensity of combat. Thirdly it is submitted that it was known before the start of the Relevant Period that the onset of the psychiatric consequences of combat might be delayed. It is therefore submitted on behalf of the Claimants that the MoD had available to it the knowledge that provided the means of preventing or ameliorating the psychological consequences of combat.

5.3      It is the Defendant’s case that the ‘lessons from the past’ were not clear for a number of reasons; first because the patterns of presentation of both the acute and chronic conditions have altered over time, not least because their aetiology, in particular that of the chronic condition, is multi-factorial; secondly because the nature of war has changed, and as it has changed so too have the nature and mode of presentation of such conditions. It is submitted that the Claimant’s analysis of the historical evidence is selective and simplistic.

5.4      Before addressing the evidence there are two preliminary points to be made. First there are three evidential strands to be traced, the state of knowledge as to the acute reaction to combat stress, secondly as to the chronic condition and thirdly as to the delayed onset of the chronic condition. It is also necessary to address the state of knowledge as to the relationship between the acute and chronic conditions.

5.5      Secondly it is necessary to identify those within the military hierarchy who had or ought to have had the relevant knowledge. The ultimate responsibility for manning and personnel within the Army was that of the Adjutant General. He was advised on medical issues by the Director General of the Army Medical Services (DGAMS), who in turn was reliant upon his technical adviser on psychiatric issues, the Director of Army Psychiatry (DA Psych). The Professor of Military Psychiatry has responsibility for the training of Army psychiatrists and is also responsible (per Brigadier Abraham) for "the acquisition, storage and dissemination of information on the military aspects of psychiatry for the Army Medical Services and the Army as a whole." Thus when addressing the question of the knowledge that the MoD had or ought to have had, the principal focus is upon what was or ought reasonably to have been known to DA Psych and to the Professor of Military Psychiatry.

5.6      Brigadier (then Colonel) Peter Abraham became Professor of Military Psychiatry in 1978, having served as an army doctor since 1961. I shall refer to him throughout in his final rank of Brigadier. He completed his basic medical qualification in 1957; he achieved his fellowship of the Royal College of Psychology in 1979. He served as Professor of Military Psychiatry from 1978 to 1984 when he became DA Psych. In 1986 was again appointed to the post of Professor of Military Psychiatry holding both positions until his retirement in 1991. Brigadier Douglas Wickenden became Professor of Military Psychiatry in 1976, holding the post until 1978. He was DA Psych from 1980 until 1984, when he and Abraham switched positions, Brigadier Wickenden reverting to the post of Professor of Military Psychiatry and Brigadier Abraham taking up the post of DA Psych. Brigadier Wickenden retired in 1986, although he is described as holding the position of Emeritus professor of military psychiatry until 1988.

5.7      The test to be applied when considering what ought to have been known to the DA Psych and the Professor of Military Psychiatry is what was reasonable in the light of their responsibilities, and of their qualifications and clinical and military experience.

5.8      A major part of the Claimants’ written closing submissions is directed to an analysis of the evidence as to the development of the state of knowledge of the psychological consequences of exposure to combat during the 20^th Century. A number of the experts whose reports are before me undertook a similar exercise, an undertaking that involved a review of the very extensive literature on the subject. As is submitted on behalf of the MoD it is a vast subject that would require a book to do it justice. An attempt to summarise the evidence necessarily involves the risk of oversimplification and of omission. That is a risk that must be run; but I have sought to take account of all the material to which reference has been made in the parties’ submissions and in the expert evidence. It has been necessary to be highly selective in referring to published work on the subject and to the disclosed documents; and it is not to be inferred from the absence of a specific reference to a paper, text or document that it has not been taken into account. Furthermore it is more appropriate to address some aspects of the state of knowledge in later sections of this judgment, in particular Section 8 in which I address the generic issue of treatment.

5.9      The psychological damage that war may cause has long been recognised by whatever name it has been called. It is as old as the history of war, which is as old as the history of mankind. Indeed the infliction of shock and extreme stress upon the enemy has been a consistent military objective. But it is arguable that the development of military technology has served to increase the intensity of warfare, and in consequence to increase the risk of psychological damage to combatants. The 20^th Century saw two world wars involving millions of combatants from many nations, and death and destruction on an hitherto unimagined scale. It saw the development of weapons of mass destruction, the use of chemical and nuclear weapons, and the threat of the use of biological weapons. It saw the development of guerrilla warfare and of terrorism in all parts of the globe. It was a century of war.

5.10      The First World War

5.10      The First World War represented a sea-change in the nature of warfare and in the impact that it had upon the minds of combatants. Psychiatric casualties were on a vast scale. In his text "Psychiatry in the British Army in the Second World War" R H Ahrenfeldt analysed the evidence as to discharges from the British Army in WWI. He found that psychiatric discharges represented 30.5% of all discharges on medical grounds. Dr Freeman gave evidence that by June 1918 there were 19 special military hospitals in England and Wales for the treatment of ‘war neurosis’. By February 1921 65000 ex-soldiers were drawing disability pensions on account of neurasthesia and other related conditions arising out of WWI. 14771 were still being treated in hospital three years after the end of the war. By March 1939, 21 years after the Armistice, some 120,000 were still in receipt of war pensions granted for psychiatric disability, 100,000 under the diagnostic label of "neurasthenia". The reasons for such a high level of psychiatric casualties were succinctly summarised by Counsel for the Claimants in the following terms –

"Firstly, many younger, inexperienced men were exposed to the psychological effects of war. Secondly, the attrition rate – particularly amongst junior officers in the infantry, those who were closest to the men, was such that commanders and other ranks were frequently lost, and unit cohesion was a big problem. Thirdly the combination of a state of technology which rendered defence much more effective than attack and its effect, a static war, put strain on the British Army, whose general staff followed a consistently offensive strategy. Repeated costly offensives which either failed or gained tiny reaches of blasted ground were very draining to morale. Fourthly, the use of chemical weapons was particularly frightening."

To that can be added the duration both of the war and of the exposure of individuals to combat.

5.11      At the beginning of the war there was hostility towards ‘nervous disorders’ and to psychiatrists. The fate of those whose psychological reaction to combat resulted in court martial for desertion is well known. Speaking of the period after the first battle of the Somme in 1916 Ahrenfeldt said –

"… Several thousand soldiers were, in the first few weeks, rapidly withdrawn from the battle zone on account of 'nervous disorders’, and many of them were evacuated to England. This experience rendered obvious the very considerable wastage of fighting man-power which could result from this single cause, in the absence of any specific medical organization to deal with the problem. Yet the military authorities in the fighting zone still adopted the attitude that it was not possible to differentiate psychoneurosis from 'malingering', and that the establishment of special treatment centres would merely provide a means of evasion and invalidism, and would inevitably result in an unending and uncontrollable wastage of man-power. It was, indeed, largely because of such prevalent fears that this whole subject was constantly regarded with some degree of hostility and suspicion by the authorities."

5.12      That hostility and suspicion lies behind the label ‘shellshock’. The use of the term was based upon the erroneous belief that the mechanical effect of a close exploding shell produced brain damage which dazed and incapacitated the soldier. The label proved to be an obstruction to clarity of thought as to the true causes of the condition. Following the war a committee, the War Office Committee of Inquiry into Shellshock commonly known as the Southborough Committee, was appointed to investigate and report on the condition. It reported in 1922 and addressed the use of the term ‘shellshock’ in the following terms –

"Use and Abuse of the Term

We were charged with the duty of collating the expert knowledge derived by the Service medical authorities and the medical profession from the experience of the war, with a view to recording for future use the ascertained facts as to the origin, nature, and remedial treatment of "shell-shock". For this purpose we had to decide what "shell-shock" is and what it is not. Without going too deeply into the history of the origin of the term, we conclude that it was born of the necessity for finding at the moment some designation thought to be suitable for the number of cases of functional nervous incapacity which were continually occurring among the fighting units. Undoubtedly "shell-shock" signified in the popular mind that the patient had been exposed to, and had suffered from, the physical effects of explosion of projectiles. Had this explanation of the various conditions held good, no fundamental fault could have been found with the term. But with the extension of voluntary enlistment, and afterwards the introduction of conscription, it was discovered that nervous disorders, neurosis and hysteria, which had appeared to a small degree in the Regular Army, were becoming astoundingly numerous from causes other than shock caused by the bursting of high explosives. It was observed in fact that these conditions were perpetually occurring although the patient had not suffered from commotional disturbance of the nervous system caused by bursting shells. It even became apparent that numerous cases of "shell-shock" were coming under the notice of the medical authorities where the evidence indicated that the patients had not even been within hearing of a shell-burst. On the other hand, it became abundantly plain to the medical profession that in very many cases the change from civil life brought about by enlistment and physical training was sufficient to cause neurasthenic and hysterical symptoms, and that the wear and tear of a prolonged campaign of trench warfare with its terrible hardships and anxieties, and of attack and perhaps repulse, produced a condition of mind and body properly falling under the term "war neurosis", practically indistinguishable from the forms of neurosis known to every doctor under ordinary conditions of civil life.

The Committee recognised, therefore, from the outset of the inquiry that the term "shell-shock" was wholly misleading, but unfortunately its use had been established and the harm was already done. The alliteration and dramatic significance of the term had caught the public imagination, and thenceforward there was no escape from its use.

A combination of factors had led to a loose and indiscriminate use of the term "shell-shock", and a reconsideration of all the factors became imperative. From the technical point of view, as our colleague Sir Frederick Mott states in his valuable work on the subject of war neuroses, the conditions of functional nervous incapacity were in reality no new developments. Once their nature had been determined it was possible for the medical man who was previously familiar with the handling of cases of nervous and mental diseases to place each case under its proper caption. But, as Sir Frederick pointed out, only a comparatively few medical men prior to the war had had an opportunity of becoming thoroughly familiar with this very distinct branch of medicine, and it frequently occurred that a medical officer who was not so happily placed found himself in the position of having to deal with large numbers of such cases. Under the circumstances, therefore, with the official adoption of "shell-shock" as a technical term, with the feeling of not being justified in making a more definite diagnosis, with the desire to avoid the stigma to the patient of describing his condition as a mental disorder, the medical officer preferred, or was driven, to include any particular case under the more general but less implicating heading of "shell-shock".

Further, cases could be cited from experience of serious organic disease of the nervous system with mental symptoms, passing through medical establishments and emerging still labelled as "shell-shock". Again it was not an uncommon event in work connected with the Ministry of Pensions to meet with cases of marked insanity which had been diagnosed from the time of their invaliding as "shell-shock", but in which there was no room for any question that the real nature of the trouble had been one of a developing insanity from the commencement.

Bearing in mind the difficulties of the medical profession in dealing with these matters, it is no surprise to find that the general lay conception of the term was so very loose and ill-informed, and in this connection other important considerations had also to be weighed. The general sentiment of the public during the war found its expression in the statement that every man apparently physically capable should be sent to the Front, but at the same time there was much anxious solicitude as to the incapacitated, and such was the appeal of the term "shell-shock" that this class of case excited more general interest, attention, and sympathy than any other, so much so that it became a most desirable complaint from which to suffer. Moreover, to the relatives of a soldier who had broken down mentally, or who by reason of an inherently timorous disposition could not face the military life, or whose natural tendencies had led to his getting into trouble, the use of the term "shell-shock" came as a great relief. It may be said that to the public mind any condition which arose during the war and which gave rise to the assumption of irresponsibility of conduct by the individual concerned was to be ascribed to "shell-shock".

As regards the officially recorded cases of "shell-shock", there could be little doubt that included under this heading there were cases of many and various conditions. For instance disorders such as hysteria, anxiety neurosis, and mental troubles of many kinds; and, the Committee are in agreement with the bulk of opinion in saying that all these conditions can be regarded as reactions of the individual under stress of environmental circumstances, that they are bound together by their dependence upon fundamental psychological laws, and that any one case may be found to exhibit the characteristics of two or more types of reaction. Thus a hysteric may show signs of anxiety neurosis and may also exhibit evidence of congenital mental defect, while his irresponsibility in any specific conduct may be due more to his degree of mental defect than to his hysteria.’

5.14      Professor Wessely gave a succinct summary of the conclusions reached by the Southborough Committee –

"The Southborough Committee was giving voice to the conventional wisdom – psychiatric disorders were largely preventable – better men, better selection – better training – better leadership."

5.15      It is appropriate in this context to refer to Lord Moran’s text "The Anatomy of Courage". Lord Moran served in WWI, and is perhaps best known for the role that he subsequently discharged as Winston Churchill’s physician. Although published in 1945 the book was based on his experiences in the trenches in WWI and was highly influential. His key insight was that the stress of war could cause a breakdown in anyone. As he put it in the preface –

"How is courage spent in war? Courage is will-power, whereof no man has an unlimited stock; and when in war it is used up, he is finished. A man’s courage is his capital and he is always spending. The call on the bank may be only the daily drain of the front line or it may be a sudden draft which threatens to close the account. His will is perhaps almost destroyed by intensive shelling, by heavy bombing, or by a bloody battle, or it is gradually used up by monotony, by exposure, by the loss of the support of stauncher spirits on whom he has come to depend, by physical exhaustion, by a wrong attitude to danger, to casualties, to war, to death itself."

 

5.16      Before the USA entered WWI its National Committee for Mental Hygiene sent an observer, Dr Thomas Salmon, to see how the British Army was handling shellshock. He subsequently served as a Colonel in the office of the Director General of Psychiatry Overseas. His account of front line treatment became the accepted prescription for effective front line treatment. It was initially published in October 1917 in ‘The Care and Treatment of Mental Diseases and War neurosis (Shell-Shock) in the British Army’ Mental Hygiene Vol. I October 1917, and re-stated in ‘The Medical Department of the United States’ Army in the World War,’ Vol .X: Neuropsychiatry (1929) pages 507/9. His views on treatment are summarised in a short report of a lecture given by him published in June 1919 in The New York State Journal of Medicine. Given the influence that his views were to have, it is appropriate to set out a number of passages from that summary -

"The theory of the neuroses most commonly held was that they constituted a means of escape from or a solution of intolerable circumstances. If the subject had no means of escape at his disposal, the neuroses provided him a solution. Of course the intolerable situation was not a condition due to the situation itself; much may have been due to the person’s own incapacity for making adjustments. This related to the theory of the development of neuroses in general."

"With this explanation of the mechanism of the war neuroses, Colonel Salmon believed it could justifiably be said that essentially they do not seem to differ from the neuroses of civil life. People in civil life who had great personal difficulties retreated to the neuroses as a means of solution. All these soldiers, who had been civilians, had carried over into the army the mechanisms and with the new material produced these disorders. The enormous number of men incapable of adaptation made this an important military problem."

"In inaugurating the neurological service this country had the great advantage of the English and French experience. They met the problem in the first few weeks of war, and for at least a year the prevailing impression was that some minute damage had been done to the central nervous system and that the more quickly the men were sent home, the better. That opinion still prevailed but only among a few, because after a short time the real nature of these disorders became apparent. By the time the United States entered the war opinion in Europe had changed. The real nature of war neuroses was recognized and every effort was made to cure the patients and send them back into the army as an example to others and a help in maintaining the man force. The French established army neurological centres a short distance behind the lines and treated the men with great success. We had this demonstration to help us when we came into the war"

"Another point to be mentioned was carelessness in recruiting. It was found in England that many men broke down in the camps long before meeting the enemy through constitutional nervous disorders which could have been easily recognized. We profited also by that experience. A neuropsychiatric service was organized in this country and during the first six months those nervously unstable were weeded out".

"Nothing could be more striking than the comparison between the cases treated near the front and those treated far behind the lines. As soon as treatment near the front became possible, symptoms disappeared with the slightest amount of treatment. During the Argonne offensive American doctors were given permission to do what they had wanted to do at Chateau Thierry – establish a neurological hospital on the same level as the army hospitals. That hospital showed what could be done in the period of a week. No man went to the rear until he had been examined there, with the result that sixty-five percent of the 7,500 men with a diagnosis of confusion or psychoneuroses were returned to duty from the field hospital"

"It would be of interest and might throw a little light on the nature of war neuroses to consider for a moment just what sort of cases came to the field hospitals. Some of the men suffered only from exhaustion, with no psychiatric symptoms whatever. Their cure was not a medical matter. They were encouraged, given hot food and ample opportunity to rest, and were returned in a short time. In the beginning of the war almost every one of these would have found their way to the base and ultimately to the United States. Others suffered from psychoneurotic symptoms alone – mutism, loss of speech, hysterical twitching, and uncontrollable jerkings of arms and legs. A high degree of skill was developed in treating these and they also contributed to the sixty-five per cent returned. The cases were observed by disinterested and impartial men who were highly trained experts, and a great service had been performed both for the army and for the soldiers themselves. Had the offensive continued the neurological hospital would have become mobile and followed the troops."

5.17      The principles derived from Salmon have been highly influential, and are still the basis of the approach to the management of the acute conditions in the field. They have received frequent acknowledgement and re-statement in learned articles and books. In 1963 Artiss re-phrased the Salmon stipulations emphasising the following three principles and thereby bestowing the acronym ‘PIE’, by which they became widely known –

"1. Proximity: Treatment must be administered close to the incident and, insofar as possible, the victim must not be sent out of the war zone for hospitalisation.

2. Immediacy: Treatment must be administered as close as possible to the time of the onset of the symptoms.

3. Expectancy: The victim must understand that he is to return to duty following short intervention."

5.18      The Second World War

WWII produced a substantial literature on the psychological impact of combat. Counsel for the Claimants focussed on three principal sources, Ahrenfeldt’s history of Psychiatry in the British Army in the Second World War, the American text, ‘Men under Stress’ by Grinker and Spiegel and "Fighting Spirit" by Major-General Richardson.

5.19      Ahrenfeldt’s book is a "revised and much abridged version of a most detailed ‘departmental history’ which was compiled by the author in large part in 1948, originally at the request of the then Director of Army Psychiatry, Brigadier A Torrie" (per the preface). What is clear from his text is that he believed that the lessons learnt in Army psychiatry during and following the First World War, essentially the need for careful selection and the application of the Salmon principles, were largely ignored or forgotten, and had to be re-learnt or rediscovered in the early part of WWII, but that having been re-learnt or rediscovered, such principles were applied successfully.

5.20      His reference to the Report of the Expert Committee appointed in 1942 to report to the War Cabinet on the work of psychologists and psychiatrists in the Services is illuminating. He quotes inter alia the following passages –

"Service psychology has the positive aim of making the most effective use of human resources. Service psychiatry is more concerned in preventing human waste; hence, it gives first place to preventative measures. In both spheres of activity, the starting point is the fact of individual differences, for those considerable variation in all human traits. The object of psychology and psychiatry alike is to ascertain these individual differences so the unfit can be detected and the fit placed where they can function in a way most useful to the Service and satisfactory to themselves. Hence, the quality of men and women is as important as their quantity; in modern warfare it is no longer a question of "measuring guardsmen by the yard". …The services are not only anxious to recruit mentally and physically sound personnel, but also to maintain health and moral and to prevent breakdown. While they cannot afford in wartime to devote effort to the treatment of individuals likely to be physically or mentally disabled for a prolonged period, they are very much concerned to use all available measures at their disposal to reduce the incidence of mental breakdown. This is the essence of the psychiatrist’s contribution. Whilst the psychologist estimates the degree of technical aptitude demanded of Service personnel by the complexity of modern weapons and equipment, the psychiatrist assesses their stability in the face of stress produced by the peculiar hazards of modern warfare."

Criticisms and opposition are reactions which cannot, in all truth, be said to constitute an unfamiliar or novel experience in psychiatric practise, whether civilian or military. Indeed it may be said that the criticism was to be expected by Army psychiatrists, and that it was encountered, and expressed in various quarters in no uncertain terms. There has been placed on record a personal minute addressed by Mr Winston Churchill to Lord President, in December 1942, in which the Prime Minister referred to the use made of psychologists in the Fighting Services, in the following terms –

"I am sure it would be sensible to restrict as much as possible the work of these gentlemen, who are capable of doing an immense amount of harm with what may easily degenerate into charlatanry. The tightest hand should be kept over them and they should not be allowed to quarter themselves in large numbers upon the Fighting Services at the public expense. There are, no doubt, easily recognisable cases which may benefit from treatment of this kind, but it is very wrong to disturb large numbers of healthy, normal men and women by asking the kind of odd questions in which the psychiatrists specialise. There are quite enough hangers on and camp-followers already."

The position of the psychiatrists in relation to the Army in the Second World War has been well described. Thus in 1944, Dr Ernest Jones stated –

"One did it is true hear stories of how various authorities were determined to purge the army of the psychological nonsense that had crept in during the last world war and to put all psychiatric illnesses on a proper basis of organic neurology as they had been in the good old days of the Boer War. However this may be, there is little doubt…that progress in psychiatry had considerable opposition and prejudice to overcome, a trouble I understand American military psychiatry has also not been entirely spared … we know that this proceeds from the general dread of mental depths, from aversion to psychological insight, and that the strongest among those whose mental integrity, often of a very successful order, has been built on defences against those depths. It is therefore to be expected especially in the apparently stable personalities of those who have achieved prominence, political or otherwise in life…"

Actually the liaison work between the psychiatrists and the army: and both the staff and regimental medical officers is on the whole very satisfactory, … the medical officers cannot escape seeing the visible results of psychiatric "common sense" on the all-important matters of man-power and morale, and are therefore co-operating with psychiatrists to a very gratifying extent."

5.21      Ahrenfeldt’s book was not published until 1958; and he was by then concerned that attitudes to Army psychiatry had begun to revert to their pre-WWII state. As he says in the last chapter –

"And if it be asked whether Army psychiatry after the Second World War, has at least succeeded in maintaining the position which it reached, after great labours and after overcoming many obstacles, some of which should never have been encountered, others inevitable, the answer is that the position has been safeguarded in part only. The urgency of the situation during the war compelled many, grudgingly or anxiously, to turn to Army psychiatry as a means of solving difficulties or obviating disasters. As had been anticipated – and through their psychological insight, no more clearly than by the psychiatrists themselves – when the urgency of the stress of active warfare, and of acute problems of morale and manpower, had subsided into the ‘cold war’ and the unsettled post-war period, the pendulum to some extent swung back, under the renewed momentum of an ambivalence which could once again receive more overt expression now the immediate danger had, it was felt, been overcome."

5.22      He concluded the book with what the Claimants submit is a prophetic quotation from Dr Alan Gregg, Director of Medical Services at the Rockefeller Foundation –

"The lessons of the war are clear enough. They are so nearly trite that it will take special effort if they are not to be neglected, ignored and forgotten. Many of the lessons are humiliating – a powerful reason for repressing them. Many call for unremitting work if the mistakes are not to be continued and repeated. Circumstances make a schizoid reaction all too easy for us – a flight from reality and the escape from responsibility. The greatest unpleasant surprise of the war for medical men was the importance of psychiatry and psychology. And yet so inconstant, evasive or preoccupied are the majority of men that this greatest lesson can be disputed, evaded and soon forgotten."

5.23      It is convenient at this point to refer to three documents dating from the war, the first two of which illustrate Ahrenfeldt’s view that the lessons of the first war had to be re-learnt, but were then applied. On 14 July 1940, Brigadier (then Colonel) Rees, who has been described as the ‘father of military psychiatry’, signed a report entitled ‘Psychoneurosis in the Army – September 1939 – June 1940’ which said inter alia –

"The more obvious symptoms of these true war neuroses have mostly been cleared quite quickly. Whether they have been treated in army hospitals … or in EMS units (Emergency Medical Service) most of them have been seen …many of these men can safely be returned to duty in a short time in the same way that they could from the advanced units behind the Line in the last war. There is a danger that some of them will be discharged as soon as their symptoms have cleared but without an adequate degree of psychological treatment and unless this can be provided we must expect that they will break down again and possibly land up eventually as pensioners. The diagnosis of these different types and the provision of adequate treatment where necessary is a problem of suitable and adequate staff and this is at the moment causing me some concern."

"In the immediate future we have to prepare for (a) better and quicker sorting out of unfit and impossible people from the intake; (b) dealing with hopeful cases of neurosis by rehabilitation or by simply psychotherapy; (c) dealing with cases of true war neurosis sufficiently quickly to get them back to duty and sufficiently adequately to avoid any possibility of invalidism and pension claims in the future."

5.24      Secondly in April 1943 guidance was issued to army doctors in the field, "Early Recognition and Treatment of Psychiatric Battle Casualties", which emphasised the "extreme importance of the early recognition and treatment of psychiatric casualties".

5.25      The third document is entitled "An Experimental Forward Psychiatric Unit" by Brigadier Barbour. It dealt with the arrangements for psychiatric support for the army in the Western Desert from 1941 – 1943. Brigadier Barbour says that with the ebb and flow of battle in the Western Desert during the period 1941-2, it was not possible to establish psychiatric units west of Alexandria; but that when the battle zone stabilised at El Alamein, it became possible to establish a unit which, as he put it "may be said to have been the beginning of Forward Psychiatry".

5.26      "Men under Stress", published in 1945, was written by two US Army psychiatrists, Dr Roy Grinker and Dr John Spiegel. Both were experienced clinicians with experience in the field; and, reflecting the time at which it was written, their diagnostic and analytical terminology is Freudian. The book contains a comprehensive analysis of the psychological impact of combat. The central argument is that fighting men have to be selected, briefed, trained, managed, observed, supported and if necessary treated in order to minimise the incidence of psychiatric disorder following exposure to the stress of combat. It is noteworthy that in chapter 9 which is entitled "the Syndrome of ‘Operational Fatigue (War Neuroses) in Returnees" the authors list "the most frequent symptoms with which our patients enter the hospital in the order of frequency" –

"Restlessness

Irritability and aggressive behavior

Fatigue on arising and lethargy

Difficulty in falling asleep

Subjective anxiety

Easy fatigue

Startle reaction

Feeling of tension

Depression

Personality changes and memory disturbances

Tremor and evidences of sympathetic overactivity

Difficulty in concentrating and mental confusion

Increased alcoholism

Preoccupation with combat exercise

Decreased appetite

Nightmares and battle dreams

Psychosomatic symptoms

Irrational fears (phobias)

Suspiciousness"

 

5.27      Their patients were clearly a cohort in which, post 1980, many would have been diagnosed as suffering from PTSD. The analysis of presenting symptoms underlines the point, upon which there is general agreement, that the chronic syndrome was well known and well described long before the introduction of the formal diagnostic term PTSD in DSM III.

5.28      "Fighting Spirit" by Major General Richardson was published in 1978. Major General Richardson was not a psychiatrist, but was keenly interested in the psychological effects of war, effects with which he had had to grapple in various theatres in the course of WW2. He rose to be Director of Medical Services for BAOR, and lectured for many years on morale and related topics at the Staff College at Camberley. He was plainly a charismatic speaker, who wrote from a practical standpoint and was concerned with the avoidance of breakdown in combat, which he regarded as the end result of a failure of morale. His central thesis was that war neurosis, or battle stress, is in fact ‘fear neurosis’ and is best addressed by preparing and training the soldier to face and overcome his fear. His book contained an appendix setting out succinct guidelines for officers on the management of psychological factors in war. It includes the following under the heading "Prevention in a sentence" –

"Discipline, leadership and man management, including the wise use of rest, together with knowledge about the true nature of these conditions, a competitive spirit in their prevention, and above all a sane attitude towards fear."

5.29      It is not necessary to embark upon a further analysis of the material generated by the Second World War, as there is broad agreement that the emphasis, both in the UK forces and those of the USA, was on selection and on the application of the Salmon principles for the management of the acute condition.

5.30      The Period from the end of the Second World War until the publication of DSM III in 1980

There were a number of follow up studies in the US in which attempts were made to assess the impact of combat stress and the effectiveness of treatment. The most notable was that conducted by Archibald and Tuddenham in 1965, "Persistent Stress Reaction after Combat – A 20-year Follow-Up". The authors pointed out that during WW II the problem of ‘combat stress fatigue’ or ‘gross stress reaction’ was studied intensively with almost all investigators viewing it as a transient state. They said in their concluding summary that –

"The impact of the great war (meaning WW II) has not been fully realised two decades after its termination. The combat fatigue syndrome, which was expected to vanish with the passage of time, has proved to be chronic, if not irreversible in certain of its victims.

5.31      The paper has been cited as proving the existence of a substantial number of delayed onset PTSD cases. But Professor Wessely has demonstrated that it did not and could not do so, as it was not possible to make the critical distinction between late reporting and late onset in the data derived from the clinical records upon which the study was based.

5.32      It is to be noted that in contrast to the US, there were no follow up studies of UK veterans.

5.33      The Vietnam War

The history of PTSD is inextricably bound up with the Vietnam War. In the view of many leading authorities the introduction of PTSD in DSM-III in 1980 owed more to political and social influences in the aftermath of the Vietnam War, than to scientific inquiry. Professor Foa, who was co-chair of the relevant DSM-III committee, said in evidence –

"I think PTSD is a political entity. I think that it was introduced in the DSM-III as a result of pressures from the soldiers that came from Vietnam and the realisation that they have chronic problems.

5.34      Evidence as to the provision of psychiatric care for US troops serving in Vietnam and for veterans in the aftermath of the war was given by Professor Arthur Blank, Professor of Psychiatry at George Washington University School of Medicine, Washington DC who was called on behalf of the Claimants. Professor Blank qualified as a doctor in 1961 and then trained as a psychiatrist at Yale University completing his training in 1965. Following his training he was drafted to the US army under the Berry Plan that permitted draftees to complete their specialist medical training before undertaking military service. He then underwent an induction course for military doctors which lasted for approximately four weeks. His recollection is that 2-3 days of the course were devoted to a module on combat stress reaction. He was taught the principles of Forward Treatment; but there was no instruction in the possible longer term effects of exposure to combat. Professor Blank served in the US army from 1965 to 1967 during which he spent a year in Vietnam. After leaving the army Professor Blank was a full time director of the Yale Psychiatric Institute from 1967 to 1972; and for the following ten years was also a teacher and a supervisor at the West Haven CT Department of Veteran Affairs Hospital, which is affiliated to Yale University. During that period he supervised the treatment of at least 100 Vietnam veterans suffering from what came to be recognised as PTSD. From 1982 to 1994 he was the National Director Vet Centres (Readjustment Counselling Centres for Veterans of Vietnam, Lebanon, Granada, Panama, The Persian Gulf and Somalia) Department of the Veteran Affairs HQ, Washington DC, and in that role directed the nation wide system for treatment at over 200 centres.

5.35      In Vietnam Professor Blank was posted to 93^rd Evacuation Hospital at Long Binh for six months and then to the 3^rd Field Hospital Saigon for the remaining six months of his term of service. On his return to the US he served for nine months at Fort Dicks, New Jersey, a reception centre for psychiatric casualties from overseas. Professor Blank described the nature of the war and the organisation of psychiatric services in theatre in the following terms -

"Large scale pitched battles were not by and large a major feature of the conflict which was essentially a guerrilla war. American fighting troops were deployed in forward locations known as fire bases. These were relative isolated positions, sometimes deep in territory that was otherwise controlled by the Vietcong. There would be between perhaps 100 and 200 personnel at any given fire base. Patrols would be sent out from the fire bases for reconnaissance purposes, to set up ambushes, or to seek and destroy enemy personnel operating in the vicinity. Contact with the enemy would be intermittent and for the most part short lived, from a few hours to sometimes three to four days. In between such contacts troops might have uneventful patrols or indeed be at their fire base for quite long periods of inactivity. Longer battles occurred occasionally.

Each fire base might have a battalion aid station manned by one, or in the larger bases, perhaps two doctors. No psychiatrist or other mental health personnel were deployed that far forward usually. The doctors at a battalion aid station would deal with relatively minor injuries and attempt to stabilise more victims of more major trauma before onward transportation. Personnel who sustained significant wounds were evacuated by helicopter either from the fire base or from out in the field. They would be taken to a mobile army surgical hospital or MASH Unit. These were tented or prefabricated hut facilities and in theory mobile, although most tended to stay at the location in which they were first erected.

Psychiatric casualties in general bypassed the MASH Unit. They would be identified in the field by their line officers or medical personnel. By and large, only cases of obvious and frank breakdown were identified as a consequence of bizarre behaviour, unresponsiveness to orders and the like. Essentially only those who were obviously incapable of continuing the fight and/or were a danger to their comrades would be evacuated from the field. Such individuals would be taken not to a Mash Unit but to the nearest Field or Evacuation Hospital. These were much larger facilities than the MASH Units and usually had space for 300 to 400 patients. Each Field or Evacuation Hospital would have a psychiatric team consisting of a psychiatrist, a psychiatric nurse or nurses and a psychiatric social worker."

 

There was also a division psychiatrist, social worker and in some cases a psychologist attached to each divisional headquarters. Their role was to provide an advisory service to divisional command and to medical clearing companies and battalion aid station physicians about combat stress reaction and other issues affecting morale. The members of the divisional team were not involved in the treatment of individual psychiatric casualties.

5.36      Professor Blank estimates that -

"Some 225 psychiatrists served in Vietnam and of those only 75 were regular army or navy. The remainder, like myself would have undertaken only relatively short tours of duty."

The treatment of psychiatric casualties at field hospitals or evacuation hospitals was essentially supportive psychotherapy. The approach was to emphasise the normalcy of the reaction, not to label or stigmatise the patient, and to that end the term ‘combat fatigue’ was applied, and to emphasise that the casualty would return to duty. They would be told that they could remain at the hospital for three to five days and at the end of that period they would be returning to their unit.

5.37      During his time in Vietnam Professor Blank personally saw 483 casualties, most of whom were suffering from some form of psychiatric condition unrelated to combat experience. Only 31 were diagnosed as suffering from a combat stress reaction. Almost all of the 483 were returned to duty with their fighting unit, only about 25 being evacuated to the US.

5.38      Professor Blank’s experience in theatre matched that of others. Throughout the conflict the rate of identified psychiatric casualties in theatre was extremely low. That was attributed largely to the widespread use of forward psychiatry. According to a paper by Bey in the American Journal of Psychiatry 1970, psychiatric casualties were ten times lower than in the second world war, three times lower than in Korea and lower than had been recorded in any previous conflicts. Bourne, also writing in the American Journal of Psychiatry in 1970, asserted that "psychiatric casualties need never again become a major cause of attrition in the United States military in a combat zone." Writing in 1978 he said –

"The GI knew that if he could merely survive for 12 months his removal from combat was assured. There was not the same sense of hopelessness that prevailed in previous conflicts where death, injury, or peace became the only possible ways in which the soldier could find himself extricated from the battlefront. At the same time the sophistication of our leadership in preventing combat psychiatric casualties was immeasurably greater than it had been in previous wars. Adequate training, equipment, leadership and medical evacuation all helped to keep morale high, particularly during the early years of the war, and reduced susceptibility to combat stress. In addition an effort was made to provide immediate withdrawal to secure areas for rest and physical recuperation for those engaged in episodes of unusually prolonged and intensive combat". Bourne PG - ‘Military Psychiatry and the Vietnam War in perspective’ in ‘The Psychology – Physiology of Stress’ 1978.

5.39      But in the aftermath of the war a different picture began to emerge. There was growing evidence of a high incidence of stress disorders in veterans related to their service in Vietnam. Bourne in the text cited in the last paragraph said –

"What was not immediately apparent was that this relatively low rate of psychiatric casualties in the combat zone was more than offset by an exceptionally high degree of adjustment problems once the veteran returned to the States. The one year tour proved to be a double edged sword. It allowed the soldier with problems to hold out for the duration of his year in Vietnam with the hope that if he could survive and get back to the States, those problems would resolve. Too often they not only were not resolved, but were exacerbated back in this country, and the psychological breakdown that might have occurred in Vietnam, had there not been a one year tour was, instead, deferred to become a post-Vietnam casualty."

5.40      Similarly in 1982 Professor Blank contributed a chapter, "Stresses of War: The Example of Vietnam" to a text entitled "Handbook on Stress, Theoretical and Clinical Aspects". The preface to the chapter set out the reasons why he wrote it –

"…first I was a participant, second the psychological difficulties of Viet Nam veterans are currently undergoing intensive examination throughout the nation via a federally sponsored system of readjustment counselling centers established following recognition of hundreds of thousands of cases of lingering stress disorder in veterans since the end of the war in 1975; and, third, as a holocaust experience for both Indochinese and Americans, the impact of the Viet Nam War constitutes a rich source for research into and understanding of stress reactions and disorder generally."

5.41      The chapter contains a summary of the stresses typical of all wars; but goes on to set out an exhaustive analysis of the "unusual stresses found in the Viet Nam War". In his evidence he identified a number of factors that might explain the low level of psychiatric casualties in theatre: first the US military policy of finite tours of duty, which meant that the individual soldier knew his DEROS (date expected return from overseas); secondly the widespread availability of drugs, alcohol, marijuana, opiates and amphetamines which were widely used as self medication by those experiencing reactions to the stress of combat; thirdly an increasing acceptance by junior officers and NCOs of the futility of the conflict, leading them, whether consciously or unconsciously, to adopt a conservative approach to their missions and a reluctance to risk either themselves or those under their command. He explained that such attitudes had a positive effect on morale in that soldiers felt they were fighting together to stay alive rather than to achieve some elusive victory. He added that officers who took a more aggressive approach might find themselves at risk from their own men and that there were -

"…a relatively small but well documented number of assassinations of officers by their own men in what became known as "fragging" incidents".

5.42      Professor Blank also gave evidence that in the aftermath of the war there was considerable hostility within the Veterans Administration to the treatment of traumatised Vietnam veterans. He says that the recognition that, contrary to the earlier belief, the Vietnam War was producing traumatic stress reactions in substantial numbers was a slow process, and that the nature and scale of the problem was not firmly established until the large epidemiological studies carried out in the mid to late 1980’s.

5.43      But a number of authors remain sceptical that the Vietnam War yielded high numbers of PTSD. As Professor Marlowe said in evidence –

"There is another reason to be concerned about the sources of the wider range of psychological and somatic symptoms presented by individuals reporting themselves as suffering from PTSD, and this lies in the portion of returnees who have exhibited symptoms of this syndrome. Approximately 2,900,000 Americans served in Vietnam over the entire period of the conflict, and the majority of these were support personnel, not combat troops. Presumably one third of the total force had suffered PTSD symptoms since the war. This might make sense if Vietnam had been, for almost all personnel there, as traumatic as described by Lifton and Shatan’s Winter Soldier Testimony. Pointing out this discrepancy is not to say that a large number of Vietnam veterans did not experience very real stress related features post combat; rather it seems to point to an uncertainty or lack of a clear understanding of what were the true antecedents to post combat or post traumatic stress. The large numbers challenged prior thinking and called for further investigation."

 

5.44      Professor Wessely has demonstrated by his analysis of the epidemiological evidence that its interpretation remains problematical. The point is illustrated by a comparison of two major studies, the CDCVE Study "Health Status of Vietnam Veterans 1. Psychosocial Characteristics", Journal of American Medical Association 1986, and Kulka et al "Trauma and the Vietnam War Generation – Report of Findings from the National Vietnam Veterans Readjustment Study" 1990.

5.45      The first, described by Professor Wessely as a well conducted study on representative samples of veterans, was reassuring. It found that "Vietnam Veterans seem to be functioning socially and economically in a manner similar to veterans who did not serve in Vietnam." 15% had at some time met the then current diagnostic criteria for PTSD, but only 2% currently fulfilled them. The second, which Professor Wessely describes as "perhaps the most influential study…comparable in scale and expense to the CDC study" revealed a different picture. It showed that 30.6% of all combat soldiers who fought in Vietnam had developed PTSD and that 15.2 were still suffering from PTSD, 20 years after the events. Professor Wessely comments –

"This was a landmark study, of immense political importance, and played a major role in the rehabilitation of the Vietnam veterans in the eyes of society, but one not immune from criticism – not least because of the ‘remarkable’ prevalence of psychiatric disorder reported. Perhaps the most important methodological drawback comes from the way in which combat exposure was assessed. First of all it is based on ‘retrospective self reports of events and circumstances that occurred approximately 10 to 20 years prior to data collection’. Military records were available to the researchers, but were not used to validate reports of combat experience. This is a pity, since the finding that nearly one-third of Vietnam veterans had ever suffered from PTSD is well above the best estimates of numbers exposed to combat. It is a theme of this paper that retrospective reports of war experience are coloured by current circumstances and the political and social climate that followed the war. Never was this more true than after Vietnam, and for those reasons it is highly likely that there has been a gradual inflation of traumatic memories to fit with the changing views of the Vietnam War. Some perceptive commentators now see the results of this study as ‘startling…raising many questions about the question of causality’, arguing that this and other similar studies ‘lead us to wonder how much we are dealing with the sequelae of post combat belief, expectation, explanation and attribution rather than the sequelae of combat itself ‘(Marlowe D – Psychological and Psychosocial Consequences of Combat and Deployment – Rand Corporation 2000)"

5.46      Professor Wessely concludes with a quote from a recent paper summarising the difficulties facing those attempting to learn the lessons of Vietnam -

"Vietnam however was easily America's most controversial war, and like the war itself, many claims and counter claims have been made regarding the soldiers who fought there. Perhaps paradoxically, the sheer amount of data collected may have helped sustain the controversies. So much has been written about this group of soldiers that it is possible to find the data to support almost any position. Consequently, different researchers have come to opposite conclusions regarding the contemporary status of Vietnam veterans". Kaylor et al ‘Psychological effects of military service in Vietnam: a meta analysis’. Psychological Bulletin 1987

 

5.47      I am satisfied that the interpretation of the data emanating from the Vietnam War remains controversial. It is clear from the literature that, as Professor Wessely puts it, "there is no single or correct interpretation."

5.48      Equally importantly the Vietnam War was seen to be heterodox, both in the US and the UK. The apparently high levels of PTSD were attributed to a number of factors such as the nature of the war, its unpopularity, the fact that it was fought by a conscript army, the DEROS system which reduced unit cohesion, the prevalence of substance abuse in theatre, the hostility shown to veterans on their return and the fact that the war lost.

5.49      The introduction of the formal diagnosis of PTSD in DSM III in 1980, as a direct result of the US experience with the Vietnam veterans, provoked an explosion of interest and learning in the subject. Many hundreds of papers relating to the subject have since been published. A number of extracts illustrate how knowledge has developed since the early 1980’s –

"A vast literature has emerged over the past century on the psychological responses to war, and the condition has been included in standard texts of psychiatry since WW1. The emergence of the clinical picture of PTSD, as we now speak of it, derived largely with the need to care for those with acute symptoms of this condition. Interest in and sensitivity to the war-induced condition subsided after each major conflict. With the establishment of our VA, definition of and study of the chronic and delayed forms of the disorder took place.

Data on severity of stress, as judged by numbers of battle casualties (killed or wounded), tend to confirm the impression that overwhelming threat is the major aetiologic factor in inducing the condition. American data from WW2 and Korea, and that of Levav…from the Yom Kippur war disclose a direct relationship between numbers of soldiers wounded in action and those succumbing to neuropsychiatric disorders…even beyond the issue of frontline psychiatric casualties, emerges the belated recognition of large numbers of chronic and delayed cases of PTSD in survivors of the SE Asia conflict. Here is where the epidemiological data break down. We fail to have from earlier combat experiences conversion tables defining in experience rates indicating recovery, from the acute and transition forms, into chronic and delayed forms. We only have estimates of the numbers of Vietnam veterans suffering war-related psychosocial distress which effect psychosocial adaptation…it continues to impress me, as a medical psychiatrist veteran of WW2 who has seen very few chronic cases from war during my many years of clinical practice, to discover so many among our latest combat veterans. If, indeed, future epidemiological research validates this impression of greater numbers of combat veterans of Vietnam with PTSD, much more attention must be paid to those factors pointed up as possibly contributory …My personal experience with the chronic and delayed forms of the PTSDs is derived directly from work within a VA medical center over the past 5 years…my recent therapeutic experience with the chronic and delayed forms of PTSD has convinced me that interventions such as group and individual psychotherapy, all the standard psychopharmaceutics, hypnosis, biofeedback, and relaxation, do not alleviate the constant symptoms of PTSD. Some reduction may occur, but the disordered process persists and may be aggravated in the face of any new social or physical stress." [the author then poses a number of key questions as to the relationship between the acute and the chronic and longitudinal course, the answers to which were not known in 1984] "The PTSDs of Combat; A Subgroup with a conditioned Emotional Response". - Lawrence Kolb - Military Medicine 1984

"[following 1980] a large and rapidly expanding combat-related PTSD literature has ensued. The majority of this literature remains descriptive and impressionistic, however. Although an empirical literature has begun to emerge, most studies are compromised by limitations in the samples of veterans selected for study…" "Aetiology of PTSD in Vietnam Veterans: Analysis of Pre-Military, Military and Combat Exposure Influences" - Foy et al - The Journal of Consulting and Clinical Psychology 1984

""Less than a decade ago we were not aware of the diagnosis of PTSD. Our understanding of the syndrome developed slowly, considering that ancient writings describe the symptoms…one of the greatest problems in dealing with PTSD is the difficulty in making the diagnosis. Most veterans are reluctant to admit to symptoms related to their war experience and often deny a symptom when asked a direct question. They are sensitive to now living up to the John Wayne ideals of manhood." "PTSD in the Older Veteran" - Lipton and Schaffer - Military Medicine 1984

"One of the legacies of the Vietnam War is that clinicians worldwide have a fuller and more refined appreciation of the short-, medium-, and long-term consequences of physically surviving the extraordinary threats of war. As a result of investigations carried out by the APA Task Force [1977]…PTSD was first introduced in [1980]. Representing a major conceptual shift compared to previous notions of 'gross stress reactions' and 'transient situational disturbance' featured in DSM I and II, the 1980 manual specified 12 symptoms that comprise the syndrome, describing its acute, chronic and delayed manifestations…

For the greater part of this century problems of war veterans were perceived to result from the physical hardships endured such as disease, exhaustion and malnutrition. Although anxiety symptoms, depression and apathy were frequently reported, there was no generally accepted category of war stress until the APA introduced PTSD in its 1980 diagnostic manual. The prevailing view during the 1940s and 1950s was that war veterans who resumed civilian status or were not hospitalised would either adjust without difficulty or recover physically and mentally during the immediate post-war years (Op den Velde, 1988). The early failure to reach nosological consensus about psychological reactions to war reflects the divergent views that prevailed not only about the aetiology and the nature of observed reactions to war experiences but also how treatment should be provided." "PTSD and European War Veterans" - Orner - British Journal of Psychiatry 1992.

"At this stage of the research, in 1982, the relevant available literature was largely American. I had behind me the general literature on stress, which I had read for my doctoral work on the nuclear accident at Three Mile Island, and literature on combat reactions in WW2. The literature on Vietnam, which was only just starting to appear at that time, was not available here…in my naiveté I was surprised to learn that the treatment approach adopted by the IDF was based on a great many clinical impressions, few of them original, mostly stemming from the experience of American military psychiatrists in two world wars. What mainly concerned me at that time were questions such as these: what are the typical clinical pictures of CSR? What are the relative prevalences of various syndromes? Do the various manifestations of combat stress represent the same disorder? Are our treatment methods effective? Which soldiers are at highest risk for stress reactions? What are the factors which foster and retard recovery from CSRs?" "Combat Stress Reaction" - Professor Zahava Solomon 1993.

5.50      Israeli experience

The State of Israel has been involved in armed conflict for most of its existence. During the period with which I am concerned the IDF has fought the Six-Day War in 1967, the War of Attrition along the Suez Canal from 1968 to 1970, the Yom Kippur War in 1973 and the Lebanon War in 1982. Between 1987 and 1990 its armed forces were involved in meeting the threat of terrorist activities in the first intifada.

5.51      In consequence the State of Israel has maintained a conscript army throughout its existence. All, both male and female, and save only for those disqualified from active service, are conscripted on reaching the age of eighteen. Since 1967 conscripts have served for a period of three years. Following their military service they become reservists who serve for a periods of one to two months a year depending on their rank and on the prevailing military situation until they reach the age of 45. It is open to officers to volunteer to serve after the age of 45. The active and reservist elements of the IDF together represent approximately 10% of the population of Israel.

5.52      In the course of the trial I heard evidence from seven Israeli witnesses. Two psychologists and two psychiatrists were called by the Claimants to give factual evidence relating to the generic issues. The remaining three, a psychiatric epidemiologist called by the Claimants and two psychiatrists called by the Defendant, gave expert evidence. Together they comprised a group of considerable distinction. I had the benefit of hearing from virtually all of those who played leading roles in the development of psychiatric and psychological services within the IDF from 1967.

5.53      The first of the factual witnesses, Dr Levy, is a psychologist. He joined the IDF in 1959 as a paratrooper and saw active combat in the Six-Day War and the Yom Kippur War. From 1970 to 1974 he was Head of the Psychology Section of the Intelligence Division of the IDF. From 1974 to 1977 he was Chief of Military Psychology in the Behavioural Sciences Department of the IDF. After spending three years in the USA he returned to Israel in 1980 to become Director of Mental Health in the IDF, a post that he held until 1985. He is currently Mental Heath Consultant to the Israel Ministry of Defence Psychiatric Department.

5.54      The second psychologist to give factual evidence was Dr Noy. Dr Noy also served in the IDF as a paratrooper, in full time service from 1956 to 1959 and as a reservist until 1970. From 1962 to 1968 he studied psychology in the USA. He was recalled as a reservist in the Yom Kippur War, and between November 1973 and May 1974 served in Military Treatment Centres for Combat Stress Reactions. He rejoined the IDF on a full time basis in 1975 and in that year founded the Research and Evaluation Branch of the Mental Health Department of the IDF. He led the branch until 1987.

5.55      The first of the two psychiatrists called by the Claimants to give factual evidence was Professor Bleich. Between 1967 and 1970 he did military service as a medic. Following his qualification as a doctor he served from 1975 to 1978 as a military physician and a flight surgeon. Between 1984 and 1986 he was Commander and Director of the Central Psychiatric Outpatients Clinic and Post Trauma Unit of the IDF. In 1986-7 he was a research fellow at Albert Einstein College of Medicine, New York. Upon his return to Israel he became Chief Psychiatrist, Department of Mental Health of the IDF, and from 1989 to 1992 was its Director. From 1992 to the present day he has served as a member of the Advisory Committee for Evaluation and Reorganisation of Psychiatric Services in Emergency and Wars. He is also currently Chairman of the Department of Psychiatry in the Sackler School of Medicine, Tel Aviv University.

5.56      The second psychiatrist called to give factual evidence was Dr Enoch who did his military service as an infantryman between 1962 and 1964. In the Six-Day War he served as an infantry sergeant. Between 1968 and 1973 he continued his medical studies on long term army contracts. In the Yom Kippur War he was a battalion medical officer. He then served as a regimental medical officer (1974-5), commander of a medical company (1975-6), and divisional medical officer (1979-80). From 1982 to 1984 he was head of the IDF Clinical Branch of Psychiatry.

5.57      It is notable that three of the four witnesses whose careers I have summarised saw active service as combatants before qualifying as psychologists or psychiatrists, and secondly that three of the four studied for substantial periods in the USA.

5.58      The first of the Israeli expert witnesses, Professor Zahava Solomon, a psychiatric epidemiologist, whose research has earned her an international reputation, was called by the Claimants. Professor Solomon was educated in part in the USA at the University of Pittsburgh. She was awarded her PhD in 1980, and subsequently joined the Department of Mental Health of the IDF shortly before the Lebanon War as head of its research unit. She is now Director of the Adler Centre in Tel Aviv University.

5.59      The MoD called two Israeli experts, Professor Zohar and Professor Shalev. Professor Zohar is the Director of the Psychiatric Department at the Chaim Sheba Medical Center, Ramat Gan Israel, and an Associate Professor of Psychiatry at Tel Aviv University. He is a Lt Colonel in the Reserve of the IDF having served as a Brigade and Divisional Medical Commander in the period 1977–1981. Professor Shalev served in the IDF as a Field Surgeon in 1974-5, and as Commander of the Central Psychiatric Clinic, Medical Corps IDF in 1979-80. He is currently Chairman of the Department of Psychiatry, Hadassah University Hospital, Jerusalem, and since 1997 has also been Clinical Professor of Psychiatry, Uniformed Services, University of Health Sciences, Betheseda MD USA.

5.60      Throughout the period with which I am concerned there were two units within the IDF for the provision of psychological services, the mental health unit and the behavioural sciences unit. The mental health unit was a part of the medical corps. By 1973 it was staffed by psychiatrists, psychologists and mental health officers placed with combatant units. Mental health officers were concerned with the health of individual soldiers.

5.61      The behavioural sciences unit fulfilled a different function. It belonged to the Manpower Corps and was concerned with screening at recruitment, sociometry in relation to selection for promotion and generally with the maintenance of morale with combatant units. Field psychologists from the behavioural sciences unit were also attached to each regiment of the IDF and to the reservist divisions. The field psychologists dealt with stress and anxiety at the battalion or company level whereas mental health officers within the mental health department of the medical division dealt with the effects of stress and anxiety on individuals.

5.62      It was clear from the evidence of the Israeli witnesses that the Yom Kippur War in 1973 was an important turning point with regard to attitudes within the IDF as to the treatment of psychiatric casualties. Prior to 1973 there was awareness of the problems presented by acute stress reactions in combat and to some degree of the problem of the delayed reactions to traumatic events. As Dr Noy put it –

"By 1973, I and my other colleagues at the Casualty Treatment Centres were familiar with the key texts on traumatic stress, which were published during and after the Second World War. Most of these texts were of either British or American origins."

"We were, by 1973, aware of the fact that the best way to prevent chronicity was by the use and implementation of front line psychiatric teams and a whole system of psychiatric care based on the Salmon principles adopted already in the First World War and implemented in the Second World War."

"By 1973/4 the IDF were fully aware of individuals, apparently first showing signs of traumatic stress reaction sometime after the traumatic event and, many cases, sometime after the actual war."

But at that stage the IDF did not then have systems in place by which to apply the principles of forward psychiatry.

5.63      It was the scale of psychiatric casualties in the Yom Kippur War that provided the stimulus for change. The reaction to the war was succinctly summarised by Professor Bleich in his witness statement.

"6. The IDF became aware of the psychiatric and psychological impact of war in 1973 during the Yom Kippur War. At that time the IDF knew that, in any war, between 15% to 30% of all casualties will be of a psychiatric or psychological origin. Before 1973, however, both within Israel generally and the IDF in particular, little attention was paid to the inevitable psychological and psychiatric consequences of war. This was probably because of the predominant culture both within the IDF and Israeli society as a whole. Israel had great difficulty recognising and accepting that their young soldiers could psychologically "crack" under the pressure of war.

7. The Yom Kippur War forced a change in this cultural attitude, because of the numerous casualties that resulted from that conflict. From 1973 onwards, and particularly and during the Lebanon War in 1982, the medical core of the IDF was reorganised. The whole approach to individuals suffering from acute stress reactions and post traumatic disorders as a result of their combat experiences was re-evaluated and revised. At the same time, we started on a systematic program of research into the psychological and psychiatric effects of our wars on both our service personnel and the civilian population."

Not surprisingly, as Professor Bleich put it -

"…it was not a simple process to incorporate within the culture and systems of the Army a comprehensive mental health service that would be able to deal effectively with the psychological impact of war."

5.64      Following the Yom Kippur War the focus was on developing systems for the treatment of acute stress reactions. In 1975 Dr Noy formulated a three echelon model of treatment which he described in his witness statement in the following terms-

"The first stage of treatment was to take place in forward Field Psychiatric Unit who would deploy with the forward Medical Unit of the divisional medical battalion, right behind the fighting Battalion. The second stage, if needed, took place in the rear echelons of the forward army, at the base of the divisional medical battalion, which would contain a larger psychiatric Unit. Finally if it was necessary to evacuate an individual, if the first and second stage treatment failed, then that soldier would be sent back to the Treatment Centres in the centre of Israel."

 

5.65      Dr Noy also wrote the IDF treatment doctrine setting out details of what should be done at each echelon. In short the aim of treatment at the first echelon was to attempt to ensure that the soldier returned to his fighting unit by application of the PIE techniques. The maximum period for which a soldier would be treated at the first echelon was two days. At the second echelon similar principles of treatment would be applied save that greater time would be available for the treatment. At the third echelon a range of therapeutic techniques would be deployed with the aim of preventing the onset of chronicity.

5.66      In 1980 Dr Levy was approached upon his return from study in the USA by the Chief of Medical Services for the IDF who told him that the Medical Corps had been trying to implement an all-encompassing front line system of psychiatric care but that the plans had met with resistance from higher ranking commanders. Dr Levy, who had seen active combat as a paratrooper, was asked by the Chief of Medical Services to head up the Medical Division, Mental Health Department. Dr Levy described the task that faced him in the following terms-

"The problem within the IDF in 1980 was not that the organisation did not acknowledge the wide variety and spectrum of possible traumatic stress reactions arising out of combat. The real problem lay in putting the theory into practice and creating an adequate system of front line psychological education, provision, care and treatment which would both work and be accepted within the general structure of the army."

5.67      Dr Levy then drew up what became a five year plan with the intention of retraining all mental health personnel already serving within the army, to train up psychiatric social workers and to obtain properly trained additional psychologists and psychiatrists. In 1982 he gave a presentation to IDF Chiefs of Staff, a presentation that in retrospect he regards as "……..one of the defining points in the development of psychiatric and psychological systems that are now in place within the IDF" in the sense that thereafter there was a recognition at the highest levels within the IDF of the importance of the issue.

5.68      But whilst Dr Levy had received approval for his five year plan before the onset of the Lebanon war, he did not at that stage have available to him all the personnel that he required if the system was to be fully manned. Similarly Dr Noy gave evidence that at the start of the Lebanon war he had not completed his objective of communicating all the necessary knowledge about combat stress reactions to all medical officers in the field.

5.69      The Lebanon War

The Lebanon War started on 6 June 1982, eight days before the end of the Falklands War. Accordingly there is a direct temporal comparison to be drawn between the provision of psychiatric and psychological services provided within the British armed forces and the IDF.

5.70      It is convenient at this point to refer to the paper co-authored by Colonel Belenky of the US Army and published in 1983. Colonel Belenky, who was called to give factual evidence by the MoD, is currently Director of Neuropsychiatry in the Department of Psychiatry and Behavioural Sciences at the Walter Reed Institute of Research, Washington DC. His evidence is important in a number of respects. First it illustrates the degree of contact between military psychiatrists in USA, Israel and UK. Secondly his paper illustrates the state of knowledge of combat stress in 1983; and thirdly it contains a succinct summary of the manner in which the IDF psychiatric and psychological services functioned in the Lebanon War.

5.71      As to the first and second Colonel Belenky explained in his evidence that after the Yom Kippur War the Israelis read the key American literature and "by 1982 ‘forward psychiatry’ was the centrepiece of their system". He continued –

"The Israelis having learnt about all of this from the Americans, the Americans then wanted to discover or rediscover, how it was being applied in practice. I went to Israel on four occasions between 1978 and 1983 and in April 1983 co-authored a report for the US Army Medical Research and Development Command entitled ‘Israeli Battleshock Casualties, 1973 and 1982’. This report must have been sent to my friend and colleague, Brigadier Peter Abraham…"

"The Israelis, in line with the Americans, were aware of the possibility of so called ‘delayed reactions’ to combat stress. However in the late 1970s and early 1980s they, again like the Americans, thought that these were relatively uncommon. The bulk of chronic cases were thought to be an extension of the acute. That this was my thinking at the time is demonstrated by a paper which I co-authored with Franklin D Jones and three eminent French colleagues and delivered to the Seventh World Psychiatric Association Conference in July 1983 called ‘Low Intensity Combat Psychiatric Casualties’. In that paper we identified three types of psychiatric syndrome directly related to combat – (1) the immediate combat reactions, (2) the delayed combat reactions (which we described as acute neurotic reactions) and (3) the (delayed) war neuroses. The latter we characterised as ‘of uncommon incidence…long lasting and socially incapacitating."

5.72      In August 1983 Belenky, Tyner and Sodetz who were working at the Walter Reed Army Institute of Research Washington published their paper "Israeli Battleshock Casualties 1973 and 1982." It contained the following passages with regard to the delayed onset of psychiatric reaction to battle -

‘Delayed battleshock. In the 1973 War, the Israelis observed a new form of battle psychiatric casualty: delayed battleshock (Baruch Personal Communication). Some soldiers who had done well during intense fighting broke down upon receiving their first telephone call from home, or broke down when home on their first leave’. (page 3)

[Of the Lebanon War in 1982] ‘In addition to the psychiatric casualties at the front, psychiatric breakdown occurred in men who had been demobilised or who were home on leave (Noy, Personal Communication) … their symptoms and signs were repetitive thoughts and images of the war, and crying, loss of appetite, and sleeplessness. The soldiers were unable to account for these except, in a general way, to relate them to the war. … The soldiers’ descriptions of their experiences in Lebanon invariably revealed traumatic events or sequences of traumatic events preceding the emotional turmoil. In the opinion of IDF Psychiatrists and Psychologists, these soldiers emotional reactions would have been less severe had they remained in their units in the Lebanon (Noy, Personal Communication). … There were many such cases of delayed psychiatric breakdown seen at the IDF Central Mental Health Clinic’. (Page 12)

 

5.73      It is important to note that in the first paragraph recited above the authors talked in terms of the Israelis having identified a new form of battle psychiatric casualty, delayed battleshock. In the course of his oral evidence Dr Belenky confirmed that in 1983 his view was that this was a new phenomenon that had not be observed before. He also confirmed that up until that point his focus had been on management of the acute condition. It will be remembered that between 1975 and 1995 he was Chief of the Department of Military Psychiatry, Walter Reed Institute of Research.

5.74      As to the manner in which psychiatric support was provided in the Lebanon War, Dr Belenky gave the following summary which was based on discussions with psychologists and psychiatrists of the IDF, a summary borne out by the evidence from the Israeli witnesses.

"Treatment plans. Following the 1973 war, the IDF adopted the U. S. principles of forward treatment for psychiatric casualties. Prior to the war in Lebanon, the IDF Mental Health Department planned to treat psychiatric casualties forward at the level of the Advanced Medical Battalion (AMB). Each AMB supports a division and is located from 2 to 20 km to the rear of the fighting. The IDF had conducted education and training, including field exercises, for the forward mental health teams. Each five-member team consisted of one psychiatrist, one psychologist, and three other mental health officers, either psychologist or social workers. According to IDF plans, psychiatric casualties were to be seen first at the battalion aid station, and, if they required more than an hour or two of rest, then they were to be evacuated by ground ambulance to the AMB. There, the forward mental health treatment team would hold casualties 48 to 72 hours before either returning them to their units or, if they were unimproved, evacuating them further rearward. The treatment was to consist of physical replenishment (water, food, and sleep) and supportive individual and group psychotherapy. The psychiatric casualties were to be treated as soldiers, made responsible for their own maintenance, and required to keep their personal weapons.

Realisation. Many cases of battleshock were sufficiently mild to be treated with an hour or two of rest at the battalion aid station and then to be returned to their units. No records were kept of these cases, and so they are not included in the statistics in this paper. The remaining cases were evacuated beyond the battalion aid station, entered into the statistical records, and treated either forward at the AMB or rearward in Israel, as will be described below.

Despite plans for forward treatment, not all psychiatric casualties were treated close to the front. Some were treated in central and northern Israel. This was due to a lack of awareness on the part of battalion surgeons of the importance of forward treatment and to the general pressure exerted for rapid rearward evacuation, and to the tactical situation in Lebanon where the military traffic moving forward along narrow roads through steep-walled valleys made local ground evacuation difficult. Evacuation from the battalion aid station for both the wounded and the psychiatric casualties was therefore frequently by helicopter. Once on board a helicopter, casualties were flown directly back to civilian hospitals in Israel, bypassing the AMB. Psychiatric casualties were evacuated with the wounded, by ground or by air – if by ground then direct to the AMB, if by air then to Israel. Approximately half of the psychiatric casualties reached the AMB, while half reached civilian hospitals in Israel. This assignment to air or ground evacuation was random. The IDF quickly realised that psychiatric casualties were arriving at civilian hospitals and a second echelon treatment facility was put into operation in northern Israel. Treatment teams there were organised to provide brief treatment similar to that used forward. Thus the treatment of psychiatric casualties offered a comparison of the effectiveness of forward and rearward treatments (Noy, Solomon, and Benbenishty 1983; Table 5)."

 

5.75      The seminal Israeli research was carried out by Professor Solomon and her colleagues on psychiatric casualties in the Lebanon War, and began to be published in the mid-1980s. It is summarised in her book "Combat Stress Reaction" published in 1993 and in her chapter in "International Handbook of Traumatic Stress Syndromes" published in 1993. But for present purposes a succinct but comprehensive summary and analysis of the papers published between 1987 and 1991 is to be found in Professor Wessely’s report to the court of 29 November 2001, "The Outcome of War-Related Psychiatric Injury".

"12.1 One year after the 1982 Lebanon War, Solomon and colleagues attempted to assess the prevalence and severity of PTSD in a sample of veterans who had been treated for combat stress reactions (Solomon et al Post-traumatic disorder among frontline soldiers with combat stress reactions. Am J Psychiatry 1987). 470 front-line combat troops were asked to complete a self-report questionnaire and 382 (81%) took part. Of these one third received front-line treatment, two thirds were referred to base hospitals. Controls were 334 combat soldiers (response rate 71%), who had fought in the same actions but not treated for combat stress. When the prevalence of questionnaire diagnosed PTSD in the two samples was compared a dramatic difference emerged: 59% in the treated group and 16% in the untreated cohort. Clearly CSR was significantly associated with PTSD, but it was perhaps a surprise that as many as 16% of the controls also developed symptoms of PTSD – although one should note that the controls were not treated for CSR which is not the same as saying they did not have CSR.

12.2 Subsequently, Zahava Solomon and colleagues were responsible for a series of follow-up studies of Israeli troops who had fought in the Lebanon War in an attempt to discover the prevalence of PTSD. The first of what would prove to be a long series compared 352 front-line combat soldiers (80% of the original sample), who had been treated for acute stress disorder, with 236 controls (60% of the original sample), who had fought in the same actions but not exhibited the symptoms of acute combat stress (Solomon. Combat-related post traumatic stress disorder among Israeli soldiers; a two year follow up. Bulletin of the Menninger Clinic 1987). Results elicited about two years after the end of the war indicated a significantly higher prevalence of PTSD in the follow-up group (56%) than in the controls (18%).

12.3 Two further two-year follow-up studies were published in 1988. The first reviewed 104 Lebanon War veterans, who had suffered from acute combat stress reaction, one year after the ceasefire (Solomon and Benbishty. A follow up of Israeli casualties of combat stress reaction in the 1982 Lebanon War. British Journal of Psychiatry 1988). A strong association was found between the severity of PTSD and the severity of the acute combat stress reaction, which in turn was probably related to intensity of combat experience. By contrast, post-war functioning was predicted mainly by pre-war factors. One caveat has to be given: although the authors said that this was a random sample, it had in fact been drawn from a larger follow-up group that does not appear to have been randomly selected.

12.4 The second follow-up study of 285 combat stress veterans and 198 controls was conducted at one and two years after the end of the Lebanon War (Solomon and Mikulincer, Psychological Consequences of War; a 2 year follow up study of Israeli combat stress reaction casualties. J. Nerv. Ment. Dis. 1988). The study sought to identify the prevalence of two key symptoms of PTSD: intrusion and avoidance. Results showed that higher rates of intrusion and avoidance were reported by combat stress veterans and those that had subsequently developed PTSD at both points in time. In addition, the distress associated with intrusion declined between year one and year two, though not for avoidance. The reservations advanced above about the representative nature of these samples also appear to apply to this study.

12.5 Solomon attempted to trace the long-term psychiatric sequelae of combat in a sample of Israeli veterans who had been treated for acute combat stress during the Lebanon War (A three year prospective study of PTSD in Israeli combat veterans. Journal of Traumatic Stress 1989). Using DSM-III criteria for PTSD, a sample of 382 servicemen were assessed one year after the ceasefire of August 1982, and of these 285 were assessed at two years, while 213 were investigated at three years. A control population of soldiers, who had served in the war but not suffered from acute combat stress, was provided. The number and percentage of subjects with PTSD diminished steadily over the three years: 63% in year one, 57% in year two and 43% in year three. The reduction in the number of symptoms may have been the result of the healing effect of time as stress evaporation hypotheses suggest. In addition, some of the veterans may have benefited from social support and positive social interactions. Interestingly, PTSD was also found in the controls (14%, 17.% and 10% respectively) who were not in the combat stress reaction group. None of these had received treatment.

12.6 The cohort of those whose records did not show evidence of CSR is clearly exceptionally important when it comes to determining the natural history of post combat psychiatric disorder, and is rightly taken as showing that PTSD is not inevitably preceded by CSR. However, one note of caution – the absence of CSR was determined retrospectively from records, and one cannot be certain that no records means no CSR. Nevertheless, Solomon’s studies have established beyond doubt one important principle. This is that the presence of CSR is a major risk factor for longer term disorder. Clearly those who have exhibited CSRs are at increased risk of later problems, and conversely those who have not shown such reactions are at considerably less risk.

12.7 Nevertheless, those who did not develop CSRs are not necessarily completely free of longer term symptoms, as we have already seen from studies of the veterans of other conflicts. Solomon and her colleagues used her control sample – veterans whose records did not include any indication of CSR, to look at the phenomenon of delayed PTSD (Solomon et al. Delayed onset PTSD among Israeli veterans of the 1982 Lebanon War. Psychiatry Interpersonal and Biological Processes 1989). The medical files of 150 randomly-selected Israeli veterans who sought help between six months and five years after the Lebanon War were surveyed. In fact nearly all of these did not fulfil criteria for true delayed onset. In most cases it was the request for help that had been put off until either the distress became unbearable or when an external trigger exacerbated their symptoms – this was delayed help seeking rather than delayed PTSD. Only 10% fulfilled criteria for delayed PTSD, leading Solomon to conclude this was a rare phenomenon. Even then we must note the retrospective nature of the ascertainment of delay.

12.8 In a further study Solomon and Mikulincer (Life events and combat-related post-traumatic stress disorder – the intervening role of locus of control and social support. Military psychiatry 1990) followed-up a sample of 225 Israeli veterans who had been treated for acute combat stress reaction during the Lebanon War at one and two year intervals. Earlier studies of civilians had shown that psychiatric patients experienced more stressful life events than normal controls and it was hypothesised these can serve as triggers to activate or unmask latent psychopathology. At one-year and two-year follow up no significant correlation was found between locus of control and severity of PTSD. The level of social support was significantly associated with severity of symptoms. They concluded that poor social resources increase the pressure on veterans, while positive social support tends to promote psychological well-being. These findings have to be treated with caution as no control group was included in the study and it appears that the sample was not randomly selected. However, the view that social support is important in mitigating the experience of symptoms is plausible and consistent with research from the civilian sector.

12.10 The issue of delayed PTSD was also addressed by Solomon and colleagues, who attempted to show that there were significant differences between this form of the disorder and that which arose immediately after the trauma of combat (Solomon et al. Delayed and immediate onset post-traumatic stress disorder I. Differential clinical characteristics II. The role of battle experiences and personal resources. Soc Psychiatry Psychiatr Epidemiol 1991). Using the psychiatric register of the Israeli Defence Forces, they compared 71 veterans who sought help at least six months after their exposure to combat, 73 subjects who sought psychiatric help during the Lebanon War and 73 controls who fought in the conflict but who did not suffer from acute combat stress or PTSD. Subjects with delayed PTSD showed more severe and widespread psychiatric symptomatology than controls, while subjects with immediate onset PTSD exhibited more severe and widespread psychiatric symptomatology than delayed PTSD casualties. As regards social functioning, the immediate and delayed onset PTSD veterans reported similar levels of marital and work problems, while the immediate onset PTSD subjects reported more social problems than their delayed counterparts. These results need to be treated with caution. First the samples do not appear to have been randomly selected. Secondly, it is not certain that those veterans who applied for treatment six months after combat had not in fact been suffering from symptoms from combat onwards. They may simply have been milder cases who hoped or assumed their condition would naturally resolve itself. When their symptoms endured, they then sought help.

12.11 Solomon and colleagues also sought to compare delayed and immediate onset PTSD with battle experiences and personal responses (coping styles) (Solomon et al. Delayed and immediate onset post-traumatic stress disorder; the role of life events and social resources. Journal of Community Psychology 1991). The same three samples were compared as in the above study. Both delayed and immediate onset PTSD groups reported having experienced more threatening situations and less officer support during battle than control subjects. Taken as a whole, delayed PTSD subjects used more emotion-focussed and distancing coping than the controls, but not more problem-focussed coping. On the other hand, the delayed PTSD subjects used less emotion-focussed coping and distancing coping and more problem-focussed strategies than immediate PTSD subjects. Solomon et al hypothesised that these different coping strategies had an impact on the development of PTSD: the adaptive manner seen in the delayed cases allowed them to continue to function throughout the war and afterwards, while the maladaptive approach of the immediate cases did not. The criticisms that apply to the above study also apply to this investigation.

 

5.76      The research by Solomon and her colleagues advanced the state of knowledge as to the effects of combat stress in a number of important respects. The data showed significantly higher rates of PTSD among the CSR groups than the control groups, demonstrating that in so far as PTSD can be predicted, antecedent CSR is a clear marker. It is important to bear in mind the sense in which Professor Solomon uses the term CSR. In her 1993 text "Combat Stress Reaction – The enduring Toll of War" she identified the criteria as "…that the soldier ceases to function as a combatant and that others – in our case authorized mental health personnel recognize that he has".

5.77      Secondly the rate of PTSD amongst the control group in the 1987 study was surprisingly high. As Solomon put it in her chapter in the International Handbook published in 1993 -

"These figures point to the detrimental impact of war on men who weathered the immediate stress of combat without an immediate breakdown and resumed their lives without ever applying to a mental health agency. Undoubtedly, many were not aware that they had a definable disorder, or believed that their symptoms were a natural and inevitable outcome of their harrowing experiences on the front. Others were reluctant to seek help. They were aware of their distressing symptoms, yet they perceived them not as a psychiatric disorder, but as a natural and inevitable reaction to the stress of war. In other cases, the reluctance to seek help may be related to the social and emotional price that psychiatric care entails. In Israel, masculine identity is very strongly linked with military service. Identifying oneself as a PTSD casualty may well cost some men a heavy price in both self-esteem and social acceptance. Similar reluctance to seek treatment has been found among psychiatric casualties of the Vietnam War. It is all too likely that these silent PTSD veterans signify a much larger number of psychiatric war casualties whose distress is similarly unidentified and untreated." p323.

5.78      The work confirmed the conclusions reached in the National Vietnam Veteran Study (Kulka et al 1988) that measures of combat exposure, intensity, severity, duration and frequency, correlated strongly with PTSD, a conclusion that, with a number of other studies, formed the basis for the consensus of the DSM-IV task force on PTSD that "The severity, duration and proximity of an individual’s exposure to the traumatic event are the most important factors affecting the likelihood of developing this disorder"

5.79      The work by Solomon and her colleagues also demonstrated that those who have survived combat emotionally unscarred, are less likely to suffer a CSR in subsequent combat; but that those who have broken down in the past are at higher risk of subsequent breakdown. Thus combat appears to have a stress inoculation effect, but only for those who have come through it successfully. As Professor Solomon says in her report to the Court, "The findings clearly suggest that prior exposure to combat may be either detrimental or beneficial for dealing with future combat-related stress depending on the earlier psychological outcome".

5.80      It is with regard to the complex issue of delayed PTSD that the work is of particular relevance. The paper on delayed onset published in 1989 (para 12.7 of the quotation at 5.75 above) showed that delayed onset PTSD was a rare phenomenon; but that delayed help seeking was relatively common. Solomon and her colleagues identified four main categories –

"Delayed Onset PTSD which constitutes 10% of the sample, consists of soldiers who came through the Lebanon War with no apparent psychiatric disturbance, functioned well during and for some time after the war, and were asymptomatic for a period after their return home. This latency period lasted for several weeks to several years…

Delayed Help-Seeking for Chronic PTSD [40% of the sample]…unlike the subjects in the next group, who had mild sub-clinical symptoms throughout the so-called latency period, these subjects suffered from the full-blown syndrome from around the time they fought in the Lebanon. They sought help not so much when some external trigger exacerbated their symptoms but when they could no longer bear their distress…not infrequently, treatment was initiated by a family member who could no longer endure the pressure that the casualty's symptoms created…

Exacerbation of Sub-clinical PTSD [33% of the sample]. These individuals were traumatised on the front in the 1982 war and suffered uninterruptedly from mild residual PTSD symptoms until accumulated tensions or exposure to a subsequent adversity, either military or civilian, resulting in their developing a full-blown PT syndrome…

Reactivation [13% of the sample] Reactivation of an earlier combat stress episode, most dating back to the 1973 YK War and some to even earlier combat, characterised 13% of the sample. These veterans were also asymptomatic for some time following their participation in the Lebanon War. Most of them experienced a reawakening of their earlier trauma in connection with a threatening military stimuli…"

5.81      Professor Solomon considered the reasons for the high incidence of delayed help seeking in her chapter in the International Handbook -

"This pattern of avoiding treatment and postponing help-seeking, until the point of severe crisis, is in our estimation related to socio-cultural factors. Israeli society gives less legitimacy to seeking treatment for emotional problems than does American society for example and this is especially true in regard to combat-related emotional disorders. In Israel, where masculinity is strongly tied to military service, psychiatric injury in the Army is perceived as a painful and shameful failure. The issue of untreated PTSD has only received limited attention in the scientific literature. Future research, therefore, should follow up untreated populations and document their coping in the community and its clinical outcome." p350

5.82      The Current State of Knowledge as to PTSD

The work undertaken by Solomon and her colleagues in the 1980s and 1990s leads naturally to a consideration of the current thinking as to PTSD and its aetiology. In a paper "Debriefing with service personnel in war and peace roles: experience and outcome." published in Psychological Debriefing 2000 Professor Solomon and her colleagues observe that –

"The obstacle at this point is that we still have a very limited understanding of the aetiology of PTSD, which makes it difficult to know where and how to intervene in its progression. We do, however, have some potentially useful knowledge: although PTSD can develop without any prior signs (Ingraham & Manning 1986, Kulka et al 1990), the existence of an acute stress reaction (ASD or CSR) is a good predictor (Bleich et al 1992; Solomon 1993); and the likelihood that CSR will develop into long-term PTSD seems to be tempered by the application of what is termed front-line treatment. Although what determines whether or not an ASD or CSR will abate and become a passing event, or alternatively, develop into long-term psychopathology is little understood, the link between PTSD and severe symptomatology at the time of the traumatic event and the apparent ability of front-line treatment to affect this link can serve as a starting point for an experimental treatment and research programme."

 

5.83      In a further paper published in the Journal of Clinical Psychiatry 2001 entitled "The Impact of Post Traumatic Stress Disorder in Military Situations", Professor Solomon provides a convenient summary of the state of current knowledge as to the relationship between the acute and chronic conditions. She says that "Numerous factors and complex interactions are implicated in the perpetuation of PTSD in CSR casualties" and concludes the paper with the following summary -

"This overview covers the most salient, but clearly not all of the pretraumatic, peritraumatic and posttraumatic factors that are implicated in the perpetuation of PTSD among traumatized combatants. In epidemiological terms, we are faced with a web of causation, consisting of complex synergistic and antagonistic interactions among these variables. Systematic investigations of CSR casualties explain only around 30% of the variance. This leaves us with a great challenge for future research.

CSR, often followed by lifetime PTSD, is the psychological price that some soldiers pay for the proclivity of the human race for war. The price is too high for many. It seems that there is no way that men can kill and maim, see their friends killed or maimed, and fear being killed or maimed themselves without at least some of them breaking down. The best way to prevent combat-induced psychopathology is to prevent war. Although mental health professionals can not stop the violence, we can fall back on our other distinction, our minds, and our ability to learn and understand. With newly gained knowledge we may be able to mitigate, to some extent, the trauma-related psychological toll and in a small way to improve the quality of life of those injured by it.

To date, no single treatment has proved effective in alleviating the suffering of the large numbers of combat and other PTSD victims who are unable to lead normal, fulfilling lives. The need for more effective pharmalogic interventions is made ever more pressing as each war or natural disaster leaves behind a growing population who have succumbed in the psychological pressures of their traumatic experiences."

5.84      Those papers reflect the current thinking to be found in such seminal papers as "Conflict between Current Knowledge about PTSD and its Original Conceptual Basis" Yehuda and McFarlane Am J Psych December 1995, to the effect that the aetiology of PTSD is complex and multifactorial, and remains uncertain. Chapter 9 of the RAND report written by Dr Marlowe, who between 1975 and 1995 was Chief of the Department of Military Psychiatry, Walter Reed Army Institute of Research, Washington DC, contains an illuminating analysis of the changing conceptualisation of PTSD as scientists have grappled with the problems presented by the condition.

"In a number of senses, work in PTSD demonstrates some of the great strengths of scientific inquiry and method contending with the possible flaws in initial formulations and approaches to a medical problem. The history of the development of conceptualization, experiment, and analytic rethinking is an extremely complex one. This chapter can be indicative only and not comprehensive. Of the nearly 3,000 separate journal articles that have dealt with aspects of PTSD, the neurobiological work, in particular, bears most strongly on present and involving perspectives on PTSD."

"As we can see, the scientific process, based upon querying assumptions with data, began an evolutionary process in terms of etiological assertions and the definition of PTSD. This evolution has continued as investigators have moved from focusing on so-called soft signs (like behaviour) to the neurobiology of PTSD. Investigator’s findings regarding the neurobiology of PTSD have, for at least a number of the investigators in this field, led to a reconceptualisation of the etiology and nature of the disorder. The need for a new conceptualisation was laid out by Yehuda and McFarlane (1995). In their article, they pointed out that new findings support the idea of PTSD as a distinct diagnostic entity but that the findings are different from those that arose from psychosocial theory and stress research. Yehuda’s work has exemplified the movement away from central focus on the traumatic event in an attempt to scientifically defined PTSD, distinguish it from other post-traumatic responses to events, and approach the differences between pathological and nonpathological responses to trauma. In a sense, it moves back to Ransom’s (1949) distinction between ‘normal combat reaction’ in World War II as opposed to pathological ones. Most men who suffered normal combat reactions went on to live lives not much different from those of their neighbours who had never gone to war. Those in the minority who suffered pathological reactions such as ‘old sergeant's syndrome’ (see Sobell, 1949) often required extensive treatment and exhibited a pattern of slow recovery. To Yehuda the challenge is to explain the difference between those who develop PTSD and those who do not. Her work strongly indicates that differences in neurobiology appear to be those that best delineate one group from the other. In simple terms, their autonomic nervous systems respond differently. PTSD victims continue to re-experience the neurochemical responses to stressful and fearful stimuli long after the fact."

"The issues surrounding PTSD as a diagnostic entity remain contentious on many levels. Predisposing factors, preventive techniques, modes of treatment, and the etiological conceptions all have partisans of various approaches."

"These few exemplars of the evolution of PTSD, as in so many of the historical examples reviewed, demonstrate that on the one hand science ultimately is an evolutionary process, and on the other, they demonstrate our continuing capacity to make judgments based on assumptions and beliefs rather than knowledge. The issue of PTSD has served a great function in helping to further our understanding that body/ brain-mind/environment are all part of a single open system. It has played a great role in furthering our understanding of the effect of trauma on homeostasis and mental and physical disability as well. It has also demonstrated that we often, as before and will in future, know too little and therefore come to assumption-based conclusions, cleaving to them tenaciously."

5.85      The neurobiological processes that may be at play were explored in evidence with Professor Pitman and Professor Shalev. Professor Pitman explained that there are multiple memory systems in the brain. He focussed on two; memories with intense emotional significance, especially fear, with which the amygdala appears to be critically involved, and the declarative memory which appears to be based in the hippocampus. He described their postulated role in the aetiology of PTSD in the following terms in the course of his evidence–

"The declarative memories in which the hippocampus is involved also tend to have context with time and space and also to have coherent narrative. Emotional memories, on the other hand, tend to have a timeless quality, they tend to involve more primary sensory activation. They may be divorced from a sense of reality in that the person may have difficulty distinguishing, when such memories are evoked, that it is something that happened in the past rather than the present.

…I believe that the kinds of memories involved in post-traumatic stress disorder are these more timeless emotional memories in which the amygdala has been critical and that there is a failure of more declarative memory, the kind of memory that puts things in perspective, that gives them context, that tells past from present"

One of the people who wrote about this described the amygdala as the hot memory system and the hippocampus as the cool memory system…and that there is an excess of hot memory system over cool memory system."

5.86      Professor Pitman explained that there is "a long way to go in elaborating and supporting this theoretical viewpoint and testing it"; but that laboratory experiments have shown that the amygdala is overactive in PTSD and that a small number of studies have shown that the hippocampus is smaller in people with PTSD.

5.87      The problems presented by consideration of the aetiology of PTSD were put into context by Dr Marlowe in his first report to the court dated 27 December 2001 -

"This leads to a further problem, that is, our lack of hard data on the presence or absence of those factors that protect the individual from experiencing more than the normal painful symptoms that often follow upon exposure to significant traumatic events without them becoming dysfunctional or disabling. Many soldiers who went through some of the greatest traumatic Hells humans could devise (one might consider as examples Verdun, The Somme, Iwo Jima, Peleliu, Bastogne, Market Garden, Japanese POW camps etc.) went on to live highly functional and productive lives. This is also true of many survivors of the Holocaust. This is not to say that their lives do not or did not include many painful memories, pain evoking stimuli, and unhealed emotional wounds. In my perspective the question is whether these make life dysfunctional. If so, we may have a significant psychiatric problem, if not, I would offer the thought that we have as the "human condition" one that throughout almost all of our history as a species has never been a particularly pain free, trauma free, or consistently happy one."

5.88      Similarly Professor Foa said in the course of her evidence –

"…when a person experiences a traumatic event, there are several things that can happen to them. They can recover, and we know that the majority do recover, and recovery does not mean that they do not have symptoms. Recovery means that they are not dysfunctional and are not unduly distressed."

5.89      Summary

The state of knowledge revealed by the evidence to which I have been referred and relevant to the issues to which this litigation gives rise can be summarised as follows -

As to the acute reaction to combat stress –

From WW I the application of the Salmon principles was believed to increase the rate of recovery from acute reactions to combat stress.

It was known from WW II that there was a linear relationship between acute psychiatric casualties and the number of physical casualties, although the ratio varied widely; 50% in the first few days of Yom Kippur, 20% in the Normandy campaign in WW II, 23 % in the Lebanon War and 5.6% in Vietnam. (In the Falklands War the official figure based upon the identification of cases of battleshock by the naval psychiatrists aboard the Canberra and the Uganda was 2%, although Brigadier Abraham subsequently arrived at a figure of 7-8%.) The range no doubt reflects the different nature of stress to which combatants were subjected in different wars.

It was known from WW II that there was a linear relationship between the acute reactions to combat stress and the duration and intensity of combat.

As to the chronic condition –

The orthodox view held until publication of the research relating to the Vietnam War and to the Lebanon War in the mid to late 1980s was that the chronic condition was an extension of the acute. It was perceived to be the response of normal people to an extremely traumatic event. Thus it was believed at the time of the Vietnam War that the relatively low number of CSR casualties would lead to a relatively low number of chronic conditions.

The research relating to the Vietnam War and to the Lebanon War demonstrated that the chronic condition could arise without an antecedent acute reaction.

Subsequent research has demonstrated that the aetiology of the chronic condition (PTSD) is complex and multifactorial, the aetiological agents being pre-traumatic, peri-traumatic and post-traumatic, see in particular the work of Yehuda and Shalev. The meta-analysis by Brewin et al, "Meta-analysis of Risk Factors for Posttraumatic Stress Disorder in Trauma-Exposed Adults" Journal of Consulting and Clinical Psychology 2000, demonstrated that the factors contributing most to the overall variance were the post traumatic. Traumatic factors such as exposure to combat contributed only 23% to the variance, 26% in the military studies. The relationship between the identified aetiological agents remains unclear.

Only a minority of those exposed to trauma develop PTSD, and in those the condition remits naturally in the majority.

The incidence and prevalence of PTSD remain unclear.

As to the delayed onset of the chronic condition –

(a) The phenomenon of delayed reaction to combat stress was known prior to 1980 (see inter alia Grinker & Speigel "Men under Stress"), but neither its scale nor nature were known.

(b) In so far as the Vietnam studies appeared to demonstrate a high incidence of delayed onset/delayed reporting, it was widely regarded as attributable to factors unique to the Vietnam War. Secondly the interpretation of the Vietnam data remains controversial.

(c) Delayed onset of PTSD was recognised in DSM-III, and defined as onset more than 6 months after the traumatic event.

(d) Solomon and Shalev demonstrated in their 1989 paper "Delayed onset PTSD among Israeli veterans of the 1982 Lebanon War" that true delayed onset was uncommon. 10% of the cases reviewed were true delayed onset, 40% were delayed help seeking and 33% were subacute/sub-syndromal conditions in which the onset had been triggered or reactivated by subsequent stimuli.

5.90      The State of Knowledge of the MoD

In 1951 the Army published the "Handbook on Psychiatric Casualties in Battle for Medical Officers". It contained clear and succinct guidelines for the identification and treatment of psychiatric casualties in battle, the guidance as to treatment being based upon the principles of forward psychiatry. It also contained a chapter on prevention which said inter alia –

"Adequate selection and screening out of those most heavily predisposed to breakdown will pay good dividends. Such men can be picked out with certainty during the psychiatric interview. Selection by elimination is not however the solution to the problem of prevention. It is impossible to eliminate in advance all men who are likely to breakdown in battle, no matter how thorough the process of screening. The way in which men are treated and the manner in which they are led are also factors of vital importance. If motivation, morale and leadership are good, certain men with a predisposition to breakdown will endure severe battlestress.

It is important also for all men to realize that fear is a natural reaction to the circumstances of combat and is felt by all normal men – a simple fact which is overlooked by some. To feel fear is not something to be ashamed of, and is quite different from cowardice. The man who is ashamed of feeling fear is a man who is more likely to mishandle his own emotional difficulties in battle and so more prone to breakdown. It is a normal battle risk and ought to be understood, faced and overcome."

5.91      It was superseded in 1963 by "Psychological First Aid in War". The content was similar although in a more condensed form. In 1973 Lieutenant Colonel Belas published a paper entitled "Combat Psychiatry and Preventive Aspects of Mental Health" in the Royal Army Medical Journal. He argued that in WWII the emphasis had been on prevention by selection and screening rather than cure, and sought to demonstrate by reference to the figures given by Ahrenfeldt for the percentage of medical discharges on psychiatric grounds, that such screening had been much less effective than that undertaken by the US army. He went on to analyse the presentation of battlefield casualties, to set out principles for their reduction, essentially rehearsing the guidance set out in the 1951 and 1963 guidelines, and to address the issue of treatment.

5.92      Both Brigadier Abraham and Brigadier Wickenden gave evidence that in the late 1970s, independently one of the other, they began to study battleshock in some depth. In Brigadier Abraham’s case it was triggered by the realisation that the perception within the military was that battleshock would not occur if there was effective selection to weed out the vulnerable, and good leadership and morale. There was a concern that if the rank and file were to be aware of the condition, it would become infectious. He was aware from contacts with Israeli military psychiatrists that similar views had prevailed within the IDF until the Yom Kippur War which produced substantial numbers of psychiatric casualties. The alternative view, to which he subscribed, was that all were potentially vulnerable to battleshock depending upon the circumstances (the Moran thesis), and that the application of the PIE principles could reduce the incidence of such casualties. His aim was to reconcile the military and medical approaches, which he recognised would require a shift in perception and practice in the British Army. He accepted in cross-examination that he was aware of the possibility of ‘delayed casualties’ as a result of his studies in 1978-80.

5.93      Brigadier Wickenden’s study of battleshock was triggered by the DGAMS annual conference in 1977 which addressed the ability of the RAMC to deal with a major European war. He realised that the arrangements for psychiatric support in such an eventuality were inadequate; and therefore decided to deepen his knowledge of combat psychiatry by reading papers on the two World Wars, the Korean War, the Vietnam War and the Yom Kippur War. His concern was how to address the problem of the psychiatric casualties in the event of an invasion of Northern Europe by articles of the Warsaw Pact.

5.94      The results of their researches can be seen in the papers that they delivered at the Military Psychiatry Conference held at Woolwich in 1979. Brigadier Abraham gave a paper entitled "Psychiatric Battle Casualties in BAOR. Can we learn from the Yom Kippur War?". He began by observing that "Medical lessons painfully learnt in one war have, sadly, to be relearned in subsequent conflicts" and went on to develop three themes: first that the number of battleshock casualties have a close relationship to the number of physical casualties, secondly that the proportion of battleshock casualties to physical casualties was likely to be in the region of 20 – 30%, and thirdly that the best known protection against battleshock was soldier selection policies, unit cohesion and morale, realistic and rigorous training and application of the principles of forward psychiatry, PIE.

5.95      In his paper, "Psychiatric Battle Casualties BFG (British Forces Germany)" Brigadier Wickenden also addressed the problem of psychiatric casualties in a possible future war in North West Europe. Brigadier Wickenden said that there was only one war in modern times that could serve as a model, namely Yom Kippur; and by reference to that model predicted that there would be 25 psychiatric casualties for every 100 casualties dead or wounded. He set out outline proposals for the management of such casualties, proposing the creation of Combat Stress Rest Units (CSRUs) to be attached to each division. The paper appears to be the genesis of the concept of Field Psychiatric Units eventually to be deployed in the Gulf War.

5.96      1980 proved to be something of a watershed. It was of course the year in which PTSD made its first appearance in DSM-III, although somewhat surprisingly Brigadier Abraham was not aware of the concept until about 1982. But he says that from the 15^th Anglo-American Symposium on Military Psychiatry held at the RAMC at its headquarters at Millbank on the theme of "Battle Casualties" in October 1980, "…the education and training programme of both medical and military personnel accelerated. Over the next decade the validity and utility of ‘military psychiatry’ as a discipline gained acceptance.".

5.97      The 15^th Anglo-American Symposium was preceded by a conference at the staff college at Camberley attended inter alia by Brigadier Abraham. Major Leach presented a paper "Battleproofing – Preparing the Soldier for the Mental and Physical Stresses for General War in the Future", which contained the following passage on preparation for combat –

"HOW MUCH SHOULD A SOLDIER KNOW?

Authorities on the subject of combat stress agree on one point, the single most important factor that destroys a soldier’s courage and causes his mental breakdown, is fear. In particular, fear of the unknown or unexpected. Throughout history, military teachers have emphasised the necessity of telling a soldier what will happen when he goes to war and what is happening during battle.

What is not made clear is how much a soldier should know before his fear of the unknown becomes fear of the known. Can fear of the known be more destructive than fear of the unknown? Is a soldier who knows the effects of napalm and the APDS round likely to be more or less efficient a fighter than the one who is ignorant? This argument has never been adequately researched and yet it forms the basis of military training. There is an urgent need for research into which "terrors" the soldier should know about beforehand and which, if any, he should not."

5.98      The papers presented to the 15^th Anglo-American conference were subsequently published in the Journal of the Royal Army Medical Corps. In his introduction to the papers in the RAMC Journal, Brigadier Abraham pointed out that they were fortunate to have been able to open the conference with successive contributions from Egypt and Israel saying –

"It was their recent experience of staggering numbers of psychiatric battle casualties, or as we prefer to call them, battleshock cases, that had prompted us to re-examine our comfortable assumptions derived from the quite different circumstances of Korea, Vietnam and other counter-insurgency operations….The principal new and unequivocal lesson of the Middle East Wars is that in a high intensity conflict battleshock will occur, in numbers of the same order as the number of surgical cases at the very outset. A more tentative one is that battle-shocked soldiers are unlikely to make a satisfactory recovery unless they get back to duty within a week, as most of them can and should. It is thus clear that psychiatry is concerned with large scale reinforcement with fit men rather than merely attempting to mitigate the physical and mental suffering of those who have no further contribution to make to the battle.

It was clear from subsequent papers that the existing provision for coping with battleshock once it has occurred was ramshackle or non-existent in most Services of most nations. Some scope for prevention was indicated by speakers like Professor Rachman, who underlined the role of training for British bomb disposal men, and others who emphasized group cohesion.

In informal discussion we learned that forward combat units in one army contain regimental medical officer assistants (RMOAs) specifically trained in the prevention and management of battleshock with some apparent success.

Since training seems to play such an important part in the prevention and management of battleshock we were fortunate to have the Director General of Army Training (Designate) to sum up on the first day."

The multi-national contributions to the conference included a paper by Dr Shabtai Noy entitled "Division based Psychiatry in Intensive War Situations – Suggestions for Improvement". It is also to be noted that the Egyptian military psychiatrist, Brigadier El Rayes mentioned delayed onset in his discussion of "War Neurosis".

5.99      Brigadier Abraham says that following the conference both he and Brigadier Wickenden were of the view that systems and structures would have to be re-organised to deal with the predicted incidence of psychiatric casualties in a major war in the North European theatre. That is reflected in the documentary evidence dating from late 1980 that illustrates the development of proposals for the delivery of forward psychiatry. In early December 1980 Brigadier Worthington, who was then Commandant of the RAMC Training Centre, produced a paper "The Management of Battleshock", following a ‘mini-conference’ held at the RAMC on 27 November. It contained outline proposals for the management of psychiatric battle casualties in the context of a battle between NATO forces and those of the Warsaw Pact. It is not necessary to summarise the proposals which reflected the Salmon principles of forward psychiatry; but Brigadier Worthington postulated a large number of battleshock casualties requiring specialist diagnosis, treatment and rehabilitation in the fourth line of casualty evacuation, which would require a large number of psychiatric teams in the Rear Combat Zone. He also pointed out that –

"The overriding purpose of the psychiatric service in war is the conservation of manpower, particularly in the combat zone."

5.100      There was then discussion between Brigadier Abraham and Brigadier Wickenden as to the formulation of specific recommendations. They introduced the label ‘Battle Shock Recovery Unit’ (BSRU) for psychiatric units operating in the Rear Combat Zone, and debated the number that should be attached to each division. Brigadier Wickenden thought that the BSRUs should be able to carry out a range of treatments "including narcotherapy, group therapy, abreactive therapy and ECT".

5.101      In 1981 Brigadier Abraham composed a talk entitled ‘Training for Battleshock’ which he delivered to "nearly all the major medical units and hundreds of combatant officers and senior NCOs". In September 1981 Dr Labuc, who was posted to the Army Personnel Research Establishment (APRE), prepared a paper on Psychological Stress Combat Efficiency- a Review of the Literature. The contents are conveniently summarised in the abstract –

"This report presents the findings of a review of selected literature on psychological stress and military effectiveness. The review shows that psychological stress experienced prior to, during and after combat will prevent troops performing their duties efficiently, but the extent to which this will happen cannot be inferred from the literature. Psychological stress is also experienced by troops performing hazardous duties. It is suggested that hazardous duties are analogous to combat situations in important respects. Studies of men carrying out such duties should therefore provide information which would permit quantification of effects and lead to selection and training methods. This would in turn reduce the likelihood of performance breakdown under psychological stress."

The paper was based on a very extensive bibliography, contained a comprehensive analysis of the topic, and had an extensive distribution at a very senior level including DGAMS and DA Psych and the Professor of Army Psychiatry.

5.102      The author divided the material under review into four categories, battlefield studies, war related studies, studies of situations analogous to combat and laboratory studies. She went on to consider the psychological effect of weapons and selection and training methods. She also addressed the question of delayed reaction which had been studied by Horowitz and Solomon (1975) in the context of Vietnam veterans. She said –

"…that these stress syndromes occurred in the soldier sometime after repatriation from Vietnam rather than as was seen in world war two, during combat, was explained by Horowitz and Solomon as being due to the fact that in Vietnam the American soldiers only had a twelve month tour of duty. This may have resulted in the soldiers coping with combat stress by hiding it, knowing that a rest and recuperation period was imminent. Months or years after repatriation, unresolved stress led to severe emotional upsets and conflicts."

5.103      In February 1981 the Royal Army Medical Services Department of Psychiatry produced a publication called "The Eclecticos". Although published as Volume 1, No. 1, it appears to have been the only edition. Brigadier Wickenden contributed an article containing the following passages –

"Previous experience has also shown that the proportion of psychiatric casualties to the total can vary from 4% to 40% depending upon a number of factors which will not be adumbrated in this article. However, one of the most important variables is the presence of psychiatrists well forward in the combat zone. An effective psychiatric presence not only reduces the incidence of apparent mental breakdown but also reduces very significantly the numbers evacuated to the rear ( who will never return ), and increases likewise the numbers of casualties who recover quickly to resume their places in the fight. In the conduct of any future war in Europe there will be no time to train recruits. It will be vital to treat and recycle trained soldiers who have been temporarily overwhelmed by their experiences.

A process of conceptual development culminated in early December 1980 with the holding of a mini-conference between DA Psych, the Professor of Military Psychiatry, Brig Worthington, Maj Lillywhite and Col McPhie. Progress was good and agreement was reached that it was necessary to evolve new terminology, new classification and new therapeutic units. ( see YBs 80/10/22-1/1 to 80/12/18-1/1 for the relevant documents on this )

…To describe this we need a term which is not only academically acceptable but is also persuasively descriptive for the layman and the non-psychiatrist. The term we propose to adopt, and which has already commended itself to our non-psychiatric colleagues, is battleshock. It describes anything from the temporary paralysis of co-ordinated activity occurring in someone subjected to a stun-grenade, to the more prolonged impairment of performance resulting from a brush with death in the close vicinity of an explosion of a bombardment…

The new units which we hope to develop in each divisional area in the FCZ and at each hospital in the rear will be called the battleshock recovery units. Each BSRU will require psychiatric staff as well as some regimental personnel. The psychiatric element will consist of teams, to be designated the field psychiatric teams (FPTs). Each should consist of one psychiatrist and four nurses, RMN and SEN(M).

Our concept is of three tiers of management. The first is at the RAP and depends upon the RMO who will cope with all the usual symptoms of fear and fatigue short of actual collapse. He will examine, reassure, medicate if thought essential, and offer soldiers brief periods of rest and less dangerous duties, if necessary. The second will be at the Divisional "B" Echelon Area where it is expected that the forward BSRU will be sited as an annex to a section of the field ambulance. The third will be at the rear BSRU sited as a wing to a General Hospital in the Rear Combat Zone ( RCZ ). In addition, however, we visualise an FPT being placed in each field hospital and General Hospital in the FCZ to deal with the incidence of BS in those who are wounded ( 30% ) and those who struggle into the hospital"

5.104      In January 1983 Brigadier Abraham gave a paper entitled "Stress Casualties in the Falklands Land Forces" at the Third International Conference on Psychological Stress and Adjustment in Time of War and Peace at Tel Aviv. It was the conference at which Professor Solomon presented her preliminary findings on the data from the Lebanon War that provided the basis for her seminal paper published in the Am J Psychiatry in 1987.

5.105      In May 1983 Captain Price, an American military psychiatrist, sent Brigadier Abraham a draft of his paper "The Falklands: Rate of British Psychiatric Casualties Compared to Recent American War". The paper was published in the RAMC Journal in 1984. It served to reinforce Brigadier Abraham in his view that the Vietnam War was a special case.

5.106      In October 1983 Brigadier Abraham produced a paper "Battleshock for Commanding Officers" in which he summarised "Facts about Battleshock" and "Management of Battleshock: Seven Principles". The seven principles, or 7 R’s, "recognition, respite, rest, recall, rehabilitation, reassurance and return" reflected the PIE principles. The facts about battleshock included the following passages –

"…the condition, if managed correctly, is usually transient however crippling it may seem at first..."

"Conversly, if incorrectly handled, a majority are liable to develop a persistent psychiatric disorder."

It is clear from the paper that he was aware of the preliminary findings into the research on the Lebanon War. He explained in his first witness statement that the paper was part of his attempt to educate commanding officers saying that -

"The biggest obstacle to be overcome was the natural reluctance of professional fighting men to acknowledge that reactions to stress in battle were a natural consequence of war and did not imply frailty or pusillanimity."

5.107      In early October 1985 Brigadier Abraham chaired the inaugural meeting of the Euromed Working Group on Military Psychiatry, a meeting held at the RAMC. Brigadier Abraham’s note of the decisions taken at the meeting include the following passage –

"2. It was evident that while no nation yet had a fully developed and comprehensive programe for the management of battleshock (acute combat stress reactions) most nations had begun to respond to the problem in some way, perhaps by initiating a training scheme, producing a first aid reminder card or devising an organisation and testing it.

The minutes of the meeting record that "a paper outlining the history, terminology, definition, etiology, presentation, and recognition of combat stress reactions was presented by the United Kingdom delegate" (presumably Brigadier Abraham).

5.108      In May 1986 Captain Vincenti attended the annual meeting of the American Psychiatric Association in Washington DC. Captain Vincenti was an army psychiatrist based at the QEMH at Woolwich, and on his return he prepared a report on the meeting which contained the following passage –

‘I finished the Conference by sitting in on a very long symposium discussing the post traumatic stress disorders and its military implications. This American diagnosis is of a disorder previously known generally as Traumatic (War) Neurosis. Much of the material simply restated what is presently known about this problem, but there was a Paper given by a Major Zahava Solomon PhD of the Israeli Defence Force, Psychology Department that broke new ground. Major Solomon has been undertaking research since 1983 on the large numbers of Israeli combat soldiers presenting with post traumatic stress disorder following the Israeli operation (Peace for Galilee 1982). She was given this task because in spite of applying the best principles of "Forward Combat Psychiatry" during the war, and in spite of there being very few cases of hospitalisation of psychiatric cases during the conflict, disturbingly high numbers of delayed chronic post traumatic stress disordered soldiers were appearing. [He continued summarising some of the findings]. What this may mean is that even if the principles of forward psychiatry are correctly applied at the time of war, a considerable psychiatric workload will still be waiting for the Military Psychiatrist after the ceasefire. An equally disturbing thought is that there may be many Falklands Veterans either still serving or perhaps in civilian life who might even now be suffering mental torment from unrecognised PTSD. Major Solomon hopes to publish her paper shortly in the American Journal of Psychiatry, and I feel sure it will occupy a prominent place in the literature of Military Psychiatry for some time to come’. (Pages 8 and 9)

5.109      In a paper entitled "The Management of Combat Stress Reactions and its Possible Application to Civilian Disaster Situations", which is undated but annotated "not later than 1986", Brigadier Wickenden said when describing the psychological reaction to disasters –

"Sometimes the morbid process presents as a delayed reaction weeks or months after the event. Not infrequently the condition hardens into a chronic post-traumatic neurotic state."

and gave evidence that by the late 1980s –

"…we still thought that delayed onset (or what I would prefer to call delayed emergence or manifestation of PTSD) was uncommon, although it would probably be fair to say that we believed it to be less rare than we had previously considered."

5.110      He summarised his recollection of the manner in which there was a growing awareness of PTSD during 1980s in his witness statement in the following terms –

"We were always aware that persistent reactions occurred. I think it would be fair to say that the introduction of the label ‘PTSD’ achieved three things. First, it spawned a plethora of research, debate and concern during the course of the 1980s. PTSD originally appeared following a political, as well as medical, debate in the USA as the result of the publication of DSM-II in 1968 (during the Vietnam war) omitting specific reference to any psychiatric disorder produced by combat which had previously been covered in DSM-I. It then became a concept attracting universal interest. Secondly, I think that we appreciated that the scale of the problem was larger than we previously thought: in other words, the issue of delayed emergence/chronicity increased in significance. However I would wish to emphasise that the differences were principally of degree and not of kind, and that our awareness or perception of this developed over the decade post DSM-III. Thirdly, I think what also happened is that we became more aware that sufferers would not necessarily come forward complaining of illness. I would go further; one problem with PTSD is that many sufferers refuse help even when they are approached directly by a psychiatrist or other informed individual, because they do not want to accept that they have a psychiatric problem or be seen to have one which they cannot manage themselves."

 

5.111      Brigadier Wickenden gave his best recollection of his state of knowledge as to delayed onset in the following terms –

"I can certainly say that by the mid-1980s I had accepted the hypothesis that onset of a stress disorder could be delayed by a few weeks, perhaps up to 3 months, and could run an evanescent course for a considerable period of time. The reading and research carried out by Brigadier Abraham and me in the late 1970s introduced us to this concept, but speaking for myself I was on a 'learning curve' and it took several years for ideas which started out as being embryonic in my mind to adopt clear shape. This is reflected in my papers: reading them again now, there is no mention of delayed onset PTSD until the mid 1980s although the possibility that battle shock might not resolve and therefore become chronic certainly featured in my 1979 paper. So what I am seeking to convey is a learning process rather than a Damascene conversion."

5.112      On 30 April 1990 the UK ratified the Quadripartite Standardisation Agreement (US, UK, Canada, and Australia) QSTAG909. It represented the agreed doctrine of the four countries in relation to the prevention and management of acute combat stress casualties based on the PIE principles of forward psychiatry.

5.113      On 15 May 1990 Brigadier Abraham delivered a lecture in Stockholm "Post traumatic stress - a lesson from the Falklands" covering the historical appreciation of chronic and delayed disorders in the British army. In the introductory historical review he said –

"So 75 years ago in the British Army acute combat stress reactions were recognised to be sufficiently frequent to justify special arrangements for them in the field, while 50 years ago the reality of both prolonged and delayed combat stress reactions and the crippling disabilities associated with them were acknowledged by hard cash distributed by the Nation's treasury. And so it was taught ten years ago, although the message was not infrequently greeted with scepticism."

5.114      He concluded the lecture by saying –

"Our experience of a number of disasters both civil and military has led us to ponder both the manner and extent of medical approaches to disaster victims. Medical men must respond to those who seek help. They have a role in facilitating help seeking and in educating those who are to provide it. Education must based on careful research, not suppositions or enthusiasms. The Falklands Veterans have taught us to think harder about the difference between distress and disease and the distinction between the post traumatic stress syndrome and the disorders which may accompany it."

5.115      In early 1993 the Surgeon General, Sir Peter Beale, produced a paper PPO 9/93 "A Strategy for the Management of Post Traumatic Stress Disorder in the UK Armed Forces", a paper that will be considered in detail in Section 15. But it contains a succinct summary of the state of knowledge of CSR and PTSD within the Army Medical Service as at 30 March 1993. The conditions were defined in the following terms –

"6. PTSD. This is defined as the development of characteristic symptoms following a psychologically traumatic event which falls outside the range of usual human experience, the principal characteristics being latency in onset and the presence of three major groups of persistent symptoms; memories, avoidance and hyperarousal. It was first identified in the USA in the late 1970s, when psychiatrists working with military veterans from the Viet Nam War observed that many developed chronic psychological problems after a long period of latency. The diagnostic criteria now include "all those who demonstrate a dysfunctional response to death….when events impeded the expression of grief associated with the traumatic event". This has enabled the term to be applied to psychiatric disorders resulting not only from war, but the entire range of peacetime man made and natural disasters. PTSD is now officially recognised disease with its own ICD number. The term has unfortunately become seriously over-used and inaccurately applied to many stress reactions, including the normal.

7. Combat Stress Reaction Acute Combat Stress Reaction (CSR) is defined as a temporary psychological upset causing an inability to function effectively in combat (function in the context includes the ability to engage the enemy and survive). It encompasses an array of reversible effects caused by the stresses of combat and is synonymous with older terms such as Battleshock and Battlestress. It is an exaggeration of the normal reaction of any individual to the many stresses of combat, which are not only psychological but also physical, eg noise, heat and cold, fatigue, sleep loss and hunger. A small minority of victims go on to suffer persistent psychological problems".

He then went on to summarise the "CAUSES AND EFFECTS" –

"8. Gven the contemporary recognition of PTSD as a distinct condition, research into cause is still in its infancy. As with any form of stress reaction, there are wide variations in vulnerability. The factors which determine individual vulnerabilities are complex and largely unstudied, hence there is at present no method of identifying let alone screening for those who by nature may be more susceptible than most…Unfortunately CSR can not be used as a marker for the subsequent development of PTSD since no clear correlation has been shown. There is however broad agreement that PTSD may occur as an abnormal sequel to the stress of combat in susceptible individuals. It therefore follows that PTSD cannot be examined in isolation from CSR and that there will be aspects of management common to the two conditions.

9. The well-known effects of CSR, essentially an acute degradation of normal functioning, are temporary and reversible if appropriately handled; it has already been described as an exaggeration of the normal response to the horrors of war and as such does not constitute a psychiatric disorder. In contrast PTSD manifests in 3 major groups of persistent symptoms, the relative dominance of each varying with time and between individuals. An awareness of these is essential to the management of PTSD:

a. Memories. Memory symptoms include nightmares, which are vivid replays of the traumatic event, sometimes with different endings, and daytime flashbacks, which are typified by re-living of the event, with intense emotions such as anger and guilt.

b. Avoidance. In order to prevent unpleasant emotions, the individual will try to avoid situations which recall memories of the past trauma. Phobic avoidance may manifest itself, for instance, in a soldier being terrified of his combat uniform. Those in positions of responsibility at the time of the incident may avoid all thought of the trauma, a considerable handicap to those responsible for future disaster planning. The ultimate form of avoidance is withdrawal from life itself. This reveals itself in depressive symptoms, including blunted emotions, impaired relationships with others, feelings of hopelessness and even suicidal tendencies.

c. Hyperarousal. This final group of symptoms includes insomnia, excessive vigilance and increased startle reaction such that everyday noises excite feelings of terror."

 

At paragraph 14 he addressed the question of intervention –

"14. Intervention. Whilst acute CSR and PTSD require a common approach to prevention through education and preparation, active intervention differs in the case of the established conditions.

a. Acute CSR. The historic precepts for acute intervention and management are PROXIMITY, IMMEDIACY and EXPECTANCY (PIE). In essence the individual should be managed in the combat zone, as close as is feasible to his or her unit, as rapidly as possible and in the anticipation of returning to full combat duties at the earliest opportunity. Intervention is essentially rest in an environment which the sufferer believes to be safe from immediate danger. Underlying the concept is the fundamental tenet that CSR is not a medical condition and should be managed outside the casualty evactuation (CASEVAC) system. Effective management therefore depends again on sound preparation of the compete unit. Field Psychiatric Teams have a role in facilitating management but can not be expected to deal with each case individually.

b. PTSD. In contrast, the management of PTSD, as an established psychiatric disorder, requires a specialist approach. Each of the Services currently has at least one psychiatrist with a special interest in the disorder, although treatment programmes differ significantly, having no agreed protocol."

5.116      Conclusions

The final question is whether the state of knowledge of the MoD, and specifically that of Brigadier Abraham and Brigadier Wickenden, as to the acute and chronic reactions to combat stress was deficient. Was there a negligent failure to keep abreast of the developing state of knowledge? In submitting that there was the Claimants made a number of specific criticisms.

5.117      First the MoD are criticised for allowing the knowledge of how to detect and manage psychiatric disorders caused by exposure to stress in combat to be lost. Brigadier Abraham was himself alive to the problem as can be seen from the opening passage in his 1979 paper (see paragraph 6.94 above). But there are a number of points to be made. First it is clear that knowledge of the PIE principles, the principles that remain central to the management of combat stress in the battlefield, had not been lost. The concern of Brigadier Abraham and Brigadier Wickenden in the late 1970s and early 1980s was to set up systems for the application of those principles. Secondly it is not surprising that combat psychiatry was not in the forefront of the minds of British military psychiatrists until the late 1970s when both Brigadier Abraham and Brigadier Wickenden set about informing themselves on the subject, given that British forces had not been involved in a major war since 1945. Similar evidence was given in relation to the US forces by Dr Marlowe. Thirdly I find the submission made on behalf of the MoD that the past knowledge, such as it was, did not provide a blue print for the future persuasive. I am satisfied that in advancing their case as to ‘lost knowledge’ the Claimants have failed to pay due regard to the degree to which knowledge evolved, and secondly to the degree to which the nature of war and in consequence the presentation of psychiatric reactions to combat stress have changed. Brigadier Wickenden underlined the point in the course of his evidence when he observed that having reviewed the subject he came to the conclusion that there was only one war in modern times that could serve as a model for the management of battlestress, namely the Yom Kippur war.

5.118      Secondly the MoD are criticised for failing to pay any or sufficient regard to the Vietnam data. It is clear that although aware of the apparently high level of PTSD in Vietnam veterans, the military psychiatrists in the UK did not see Vietnam as particularly relevant to Northern Ireland, the Falklands and the Gulf. As Sir Alan Reay, who was DGAMS from 1981 to 1985, put it in the course of his evidence –

"I do not think that we would have regarded that as highly relevant. It was a very different army in a very different kind of operation."

5.119      The dissonance between the apparently low acute psychiatric casualties and the apparently high number of chronic casualties was not thought to undermine the orthodox view that chronic conditions were an extension of the acute, and that the number of psychiatric casualties correlated closely with the number of wounded in action. In my judgment the view that the aftermath of the Vietnam War in terms of psychiatric casualties was due to factors specific to that war, and that there were no conclusions of general application to be drawn from the Vietnam data, was justified.

5.120      The Claimants also make the related but wider point that Brigadier Abraham and Brigadier Wickenden were unaware, or not fully aware of the developing state of knowledge as the possibility of a delayed onset of the chronic condition. The evidence shows that they were aware of the phenomenon, but thought it to be rare. Brigadier Abraham became better informed during the 1980s; and also became more aware of the problem of delayed reporting. In so far as the Vietnam data demonstrated delayed onset, they did not think it relevant for what I regard as justifiable reasons. In my judgment it has not been proved that either knew less about the phenomenon than they ought reasonably to have done.

5.121      Thirdly the MoD is criticised for focussing on the acute reaction. ‘battleshock’ as they called it, and failing to pay sufficient attention to the developing state of knowledge as to the chronic conditions. I do not consider that the criticism is borne out by the evidence as can be seen from a comparison of the state of knowledge summarised in paragraph 5.89 above and the evidence as to the state of knowledge of Brigadier Abraham and Brigadier Wickenden at paragraphs 5.92 – 5.115. I am reinforced in that conclusion by the fact that in concentrating on ‘battleshock’, Brigadier Abraham and Brigadier Wickenden were broadly in step with their counterparts in the US military and in the IDF, see the evidence of Professor Hales and Dr Belenky with regard to the US, and of Professor Bleich and Dr Enoch with regard to the IDF.

5.122      Brigadier Abraham and Brigadier Wickenden are also criticised for taking a blinkered approach in focussing their attention in the 1980s on the arrangements for the management of battleshock casualties in a major war in the North European Theatre. During the Cold War, the perceived threat to NATO was an attack by the Warsaw Pact in the plains of North Europe; and I consider that Brigadier Abraham and Brigadier Wickenden were fully justified in focussing their attention on that scenario.

5.123      In short I am satisfied that Brigadier Abraham and Brigadier Wickenden kept abreast of developments in the field and that they were reasonably well informed both as to the acute reactions to combat stress, and as to the chronic condition. There is no doubt that, like others, they were on a steep learning curve during the 1980s, the decade that saw an explosion of interest in PTSD; but in my judgment the evidence does not reveal that their state of knowledge was deficient by reference to the test set out in paragraph 6.7 above.

5.124      It follows that the Claimants fail in their contention that the MoD’s state of knowledge as to the psychiatric consequences of exposure to combat during the Relevant Period was deficient.

6. CULTURE

6.1      The Claimants' case in relation to many of the complex and interrelated issues to which this litigation gives rise is that the prevailing culture within the armed forces, and in particular the Army, was antipathetic to psychiatric/psychological problems; and that throughout the Relevant Period there was an institutional culture that militated against the prevention, detection and treatment of psychiatric disorder. Although not formally pleaded, their case as to culture is set out in the Synopsis of Claimants Case on System, revised on 10 June 2002, under the heading "Duty of Care"

"2. The Claimants’ case is that the Defendants had, or should have had, two converging motives for seeking to carry out their duty of care to the high standards set out in the Statement of Case [1] The welfare of their personnel and [2] The maximisation of manpower and operational efficiency. In almost all circumstances, a system maximising the welfare of personnel would also have operated to maximise manpower and operational efficiency.

3. Intrinsic to the operation and maintenance of a good system was the understanding and acceptance of that convergence of interests by the Director and Professor of Army Psychiatry of the day, and by their superiors. The Services, and particularly the Army, operate ‘from the top down’ in the sense that attitudes held in the higher levels of command necessarily governed the attitudes of those below. That understanding and acceptance will at all times be crucially dependant on the prevalent culture. If the culture is inimical to acknowledgement and attention to the inevitable and sizable problems arising from trauma and stress, then the system will be relatively absolutely unresponsive to that aspect of the men’s welfare. The convergence between operational requirements and the mental and psychological welfare of personnel will not be perceived sufficiently or at all. The services had the obligation to address the problems arising from trauma and stress with intelligence, not prejudice. A safe system required the creation and maintenance of a culture, which took these problems seriously and moved vigorously to address them."

6.2      It is first necessary to attempt to define the manner in which the term ‘culture’ is used in this context. The problem of definition of the term was explored in the cross examination of Dr Marlowe, a social anthropologist who from 1975 to 1995 was Chief of the Department of Military Psychiatry at the Walter Reed Institute of Army Research, Washington DC. Dr Marlowe explained that "one of the problems ….is that there is not even an anthropologically consensual definition". He illustrated the point by reference to a monograph by Cluckhern and Crowber based on the contents of the Harvard library which identified "close to 500 different definitions of "culture" within this perspective." But in the course of his oral evidence he advanced a succinct and helpful definition –

"Culture, after all, is what the people involved do, believe, value, and the way in which they behave; culture is really the toolkit we have for how we are to behave, for how we are to respond."

6.3      I am concerned with one particular aspect of the military culture, namely attitudes to psychiatric/psychological disorder; but it cannot be viewed in isolation. I propose to address the issues to which the Claimants’ case as to the culture prevailing within the military gives rise under the following heads -

1. The evidence as to the nature of the military culture during the Relevant Period.

2. The changes within the military culture during the Relevant Period.

3. The essential nature of the military culture.

4. The relationship between the military culture and that of society at large with regard to psychiatric/psychological disorder.

5. A comparison with the armed forces of the US and Israel.

6.4      1. The evidence as to the nature of the culture within the army during the Relevant Period.

The Army is a large and complex organisation; and the evidence demonstrates very clearly that there is no single and all pervasive culture. As can be seen from the evidence adduced both in relation to the generic issues and in relation to the lead cases (as to which see the conclusions at Part II para 17.2), the prevailing culture within the army or within a unit is a diverse and complex concept manifesting itself in different forms in different units, and at different levels within the military hierarchy. As Colonel Von Bertele, who served as an RMO with 3 Para in the Falklands said in evidence –

"… there is a dominant culture in something like the parachute regiment which is one of the most – certainly in their opinion – elite units in the British army and so the sense of belonging to it and remaining in it is quite strong. But the army is, and even units like that, are made up of individual groups of men and the prevailing culture within each group, whether it is a section or a platoon, depends on the NCOs, and the officers, and officers and soldiers are all individuals and so they each put their own leadership stamp onto the group that they lead.

So, a battalion commanded by one lieutenant colonel will be very different to one commanded by another. Although they still belong to the parachute regiment the two battalions are very different, and the COs’ personalities communicate down through the unit, in the same way that at company or platoon level the officer commanding communicates his own personality down through it.

So, as an outsider, you would see a very different ethos in each group, but linked by a common sense of belonging to the regiment."

6.5      Similar evidence was given by Colonel Watters and Major General Short. Professor Shalev made the same point in his third report to the court based on his considerable experience in the IDF -

"…a "culture" does not consist of homogeneous set of accepted routines and conducts. Cultures include heterogeneous and often contradicting propositions."

"Additionally there isn’t one military culture but rather several parallel cultures – e.g., a high culture (that of officers) a low culture (that of enlisted soldiers) and sometimes also an intermediate culture (that of non-commissioned officers). These levels may or may not be communicating. Indeed, they are often hermetic and tangential."

6.6      There are nevertheless a number of general conclusions that can be drawn from the evidence as to the prevailing attitudes to psychiatric/psychological disorder. First and foremost there can be no doubt that that amongst serving soldiers and many NCOs and officers there was a stigma attached to psychiatric/psychological disorder. It was seen to be a sign of weakness which, if revealed, would expose an individual to ridicule, and would be the ‘kiss of death’ to a military career. I accept that the stigma may to some extent have been based upon a false perception of the consequences of a referral for psychiatric treatment given the evidence from Brigadier Wickenden that "The majority of soldiers referred for psychiatric opinion are not discharged from the Army on medical grounds." But such views were widely held.

6.7      Secondly the evidence demonstrates that for officers and NCOs, the welfare of their men was their prime concern. The Army is a highly paternalistic organisation; and I am satisfied that in general commanders were alive to and concerned for the psychological welfare of their men, not least because the performance of their men as a fighting unit could be adversely affected by an individual suffering from a psychiatric/psychological disorder. In this regard the evidence given by Brigadier Ross, who joined the Army in 1968 and served for over thirty years, was typical of that given by many others –

"I am aware therefore that the Claimants have made criticisms that the pervasive culture of the Army was antithetical to psychiatry. In essence that there was a macho culture which refused to acknowledge the psychological problems engendered by combat. I do not recognise from my own experience in the Army the picture painted by the Claimants. In my experience, there would have been no disgrace in a soldier saying to his platoon or company commander "I’m feeling down; I’ve been hit pretty hard by so-and-so getting injured". Someone in this situation would be dealt with sympathetically and would probably have been sent to the MO"."

6.8      Similarly Lt Col Davis of the Welsh Guards said -

"It is not for me to say what Clive Davies felt about the culture of the Regiment. However for my part I would not have thought any the less of a man that had psychiatric problems as a consequence of his time in the Falklands. Life in the Army is tough but it is also supportive of people when they have done their best and suffered – physically or mentally – as a consequence. Certainly when I was RSM I felt that the ethos of the Regiment was very close-knit."

6.9      But I have no doubt that as a result of the stigma that attached to psychiatric/psychological disorder, there was a marked reluctance on the part of both NCOs and junior officers to take the steps necessary to invoke the F Med 8 procedure by which a serviceman could be referred for a psychiatric opinion.

6.10      Thirdly the evidence shows that there was a change in attitudes to psychiatric/psychological disorder during the Relevant Period, the subject of the next head.

6.11      2. The changes within the military culture during the Relevant Period.

The evidence of Brigadier Abraham summarised in Section 6.92 provides an appropriate starting point for an examination of the evidence as to the change in the military culture during the Relevant Period. He says that in the late 1970s he realised that the perception within the military was that breakdown in battle would not occur if there was effective selection to weed out the vulnerable, and secondly good leadership and morale. But he took the view, reflecting that of Lord Moran (see Section 5.15) that all were vulnerable to breakdown depending upon the stresses to which they were exposed, and that it was necessary for there to be a shift in the perception of battleshock, as he called it, within the British Army. He gave evidence to the effect that much of his work both as DA Psych and as Professor of Military Psychiatry was directed to bringing about such a change.

6.12      The principal steps that he took towards achieving that objective were summarised in his first witness statement under the heading "Training of commanders and troops".

"32. …in 1981 I put together the talk on Battleshock called ‘Training for Battleshock’ and toured widely, briefing nearly all the major medical units and hundreds of combatant officers and senior NCOs. I remember one tour in Germany during which 600 of them heard this presentation…in February 1982 the talk was published in the RAMC journal…it (the article based on the talk)…later became recommended reading at the Staff College at Camberley where it was reprinted in one of the handbooks for the Junior Command and Staff Course every year from 1986 to the present day…The talk was also reprinted as a stand-alone document through the Department of Medical Illustration at the RAMC and distributed to Medical Officers and other interested personnel. (Brigadier Wickenden also gave evidence that "…from late 1980 onwards lectures were given to Commanders (ie Lt Cols down to Corporals) by Brigadier Abraham and me on the theme of battleshock)

In October 1983 I wrote a Brief for Commanding Officers…one of many documents of battleshock and related issues which I wrote or contributed to over the years, some of which became incorporated in such publications as training pamphlets and battlefield aide memoires."

Since 1980 or thereabouts combatant officers were explicitly taught about battleshock at the Royal Military Academy at Sandhurst, the Platoon Commanders’ Battle Course and the Junior Command and Staff Course at Camberley…Since 1985 all officers, NCOs down the rank of Corporal and medical personnel (including unit first-aiders) have been required to be trained and tested annually on combat stress reactions as part of the Annual Training Directives…The first drafts of the battleshock component of the ATD go back to 1982…Every unit was issued with a First Aid Training Pack which included a film, a set of Vu-foils and instructional literature. In 1990 the Director of Army Training agreed to extend first aid training for battleshock to all ranks in the British Army…Although over the previous decade a cultural change in the approach of the Army to the subject of battle stress had been brought about, even in 1990 there was a small lobby which held that teaching it to soldiers was liable to undermine their courage and determination. Ironically this view was represented in the Directorate of Army Training by a veteran of the Falklands campaign.

I had always been interested in the promotion of any material relating to battle stress. The film in the training pack just referred to ‘Introduction to Battleshock’ scripted in April 1986, was in fact the second one which I had generated. The first one ‘Recognising Battleshock’ (developed in the early 1980s), aimed principally at medical audiences, though widely used in instruction for non-medical audiences, was the first training film on these topics we had had since 1944. It was subsequently widely used by our European allies…"

So far as he was concerned bringing about a change in attitudes was a gradual evolutionary process, but he pointed out that such change had the support of the General Staff otherwise it would not have occurred.

6.13      The evidence shows that there was indeed such a shift. Colonel Verge, who joined the Army in 1968, commanded the 27^th Regiment of the Royal Corps of Transport during Operation Granby, and who is currently Commandant of the School of Logistics, gave evidence as to the change in the attitude of commanders to combat stress over the last three decades. In his witness statement he said –

"First, I believe that the attitudes of commanders generally have changed over the last thirty years or so. At the start of my career I have to say that we were not encouraged to express our feelings openly, and there was little apparent empathy or sympathy from above. This has changed over time. There is a far greater awareness generally as to what may happen to people in stressful situations, and soldiers themselves are much more aware. Although I cannot point to any specific document, the chain of command receives information on these issues and concerns from the Army Board and from below. These issues and concerns simply would not have been ventilated to the same extent, if at all, at the start of my career. Secondly, it is not easy to get men to speak freely and openly about their feelings, however a desirable a process that might be thought to be. … that being said, I would say that soldiers in general have been able to express themselves more freely in recent years more than a generation ago."

6.14      He went on to say that the issue of combat stress received greater prominence in the early to mid 1980’s following Operation Corporate. In the course of his evidence he was questioned as to what in his view had brought about such change.

"I think society is better aware of people’s reactions to stressful situations such as disasters, Hillsborough, train crashes, that sort of thing.

So, there has been in my experience a better awareness within society that people have stressful reactions to these things.

Within the forces it is to do with the general awareness, in particular the way in which people respond to stressful situations, and the way it is viewed generally within the army, I would say that it is – in the past, perhaps, when I was commissioned – and that is a long time ago now – it was perhaps viewed as a failing of the individual. Now it is viewed as an individual's reaction to a very stressful situation; people will react in different ways and our responsibility is to help people cope with that and to make the best of their lives."

6.15      An interesting insight into the change in attitudes during the Relevant Period was provided by a research paper written by Captain Hanscomb in June 1995 "An Examination of the Problems Facing the Army in Formulating a Policy for PTSD". The paper was prepared for the Commandant of the Army Staff College and was based upon a survey of the attitudes of 108 officers (in the rank of Captain or Major) attending the Junior Command and Staff Course. The group was asked to respond to the statement "PTSD is a recognisable medical phenomina (sic) and not just an excuse for wimps". 86% either agreed wholeheartedly or were inclined to agree. 52 % believed they could recognise the symptoms of PTSD. 42% had received some instruction in the symptoms or treatment of PTSD compared with 81 % who had received instruction in battleshock. The survey has obvious limitations. But as the author says "Although the results of the survey are merely a snapshot of current opinion, they do illustrate that there is a relatively high acceptance of PTSD in the Army but this is not matched by the levels of knowledge or education."

6.16      Evidence from the perspective of the Army Medical Services was given by Sir Peter Beale, who was DGAMS from 1990 to 1993, and Surgeon General from 1991 to 1994, and who provided a helpful overview of the change in attitudes to psychiatric/psychological disorder from the 1960s to the 1990s –

"21 A. From the commanding officer's point of view, I think

22 there was a gradual and very definite enlightenment on

23 psychiatric issues. Commanders were trained to

24 appreciate that psychiatric issues could occur, that

25 there was stress in battle which had to be looked after.

page 20

1 Later on, of course, they received lectures on how to

2 combat the combat stress themselves, with the acronym

3 that you have been using, I am sure, the PIE,

4 the proximity, immediacy and expectancy; in other words,

5 keeping casualties close at hand so that they could

6 actually be returned to battle with as little trauma as

7 possible.

8 I think that commanders, by the time that I was

9 dealing with them and dealing with their superior

10 officers, were incredibly well informed and knew that

11 the responsibility for looking after casualties was

12 theirs and their unit's. There were tremendous advances

13 over the course of 30 to 40 years.

14 Q. As for medical personnel and their attitudes, are you

15 able to assist as to that?

16 A. I thought we were always at the forefront of looking at

17 post-traumatic stress disorder. I was always aware that

18 we always considered this in planning for operations and

19 that our experience was in advance of that in civilian

20 life."

6.17      Perhaps the clearest example of the change in attitudes at the top of the military hierarchy was in the evidence given by Brigadier Lillywhite to the effect that there was no resistance to the paper that was presented to the General Staff by the Standing Committee on Army Organisation (SCAO) in September 1983 setting out proposals for the establishment of battlefield recovery units and forward psychiatric teams (see Section 11.8). In particular he says there was acceptance of the prediction of the level of psychiatric casualties in a conventional war with the armies of the Warsaw Pact in North West Europe, the context within which the proposals were made.

6.19      But there are two important points to be made. First such change was a slow process and there were pockets of resistance. General Ramsbotham gave evidence that in 1992 when, as Adjutant General, he had insisted that psychiatric provision be made for the forces engaged in peacekeeping operations in the former Yugoslavia (see Section 6D.7) "A number of "Old Guard" continued to think that sending psychiatrists was wimpish". He continued –

"But fortunately many more people learned the lessons of the Falklands, and the Gulf War, as well as Northern Ireland, in a more coherent way and accepted the need to change with the times."

6.19      In the following year Sir Peter Beale submitted the paper "A Strategy for Management of Post Traumatic Stress Disorder in the UK Armed Forces" (PPO 9/93) to the Principal Personnel Officers Committee (PPOC) a tri-service committee comprising the heads of personnel of the three services, the Adjutant General (Army), the Second Sea Lord (Navy) and the Air Member for Personnel (RAF), a important paper to which I shall return in Section 15. It contained the following paragraph –

""23. Improved detection amongst serving personnel can only be achieved by influencing fundamental attitudes towards combat stress disorders, to create an environment in which the self-aware need not deny their problems and the unaware will be identified and given assistance. This demands widespread education to enable management to recognise signs of disorder and develop a more open approach, and so that those needing help can seek it without fear or prejudice."

6.20      The paper was accepted without significant modification. But it is important to note that two senior staff officers took exception to its content. The Assistant Chief of Defence Staff, Operations and Strategy, commented -

"I think we are standing into danger if we continue along this course which attacks the social mechanisms we have developed over the centuries to control and manage fear in our fighting groups. The further down the line we go that breakdown and failure is inevitable and something requiring sensitive treatment "without fear or prejudice" the more it shall be acceptable to fail, the more we shall suffer these failures… Of course some will fail and need to be treated. As I understand the definition in the paper such an individual will be suffering from CSD. His need for treatment will be evident by his actions as judged in the circumstances at the time… The group where everyone is telling each other that they are "windy" is not being led to achieve its purpose – the destruction of the opponent’s will to win… What is normal on the battlefield is different to normality in other circumstances… to require that the normal human reaction to battle, labelled CSR, should be reported on a mandatory basis is an absurd burden to place on commanders in battle….In summary, I think that if we adopt the draft doctrine in your paper we would be implementing a cancer… that would attack the cohesion and morale of the group’s will to triumph in battle…"

6.21      Secondly the Assistant Chief of Defence Staff said -

"I agree… that education and awareness form an important part in preventing the dangers of CSR and PTSD…. However I regret to say the paper is not based on what I believe to be a sure foundation because it ignores the ethos and responsibilities of command and military training that are fundamental to our fighting doctrine…If we adopt the paper’s approach, in which commanders are continually worrying about over-commitment of troops, and all are encouraged to be open about their worries, we risk undermining the cohesion and robustness that our training is designed to give us. That will make us more vulnerable to CSD and to the very tactics that an enemy will use to undermine our fighting integrity and operational effectiveness, not less.

Our fighting doctrine is founded on a physical component which includes manpower and training; and a moral component which is made up of motivation, management and leadership. It is the commander who is responsible for all those components and who has to establish cohesion and team spirit, instil motivation, and train soldiers under his command to defeat the physical and moral obstacles that an enemy will put in their way. Military leadership is after all the art of getting soldiers to do willingly what they may not necessarily wish to do at all. Just as breaking the enemy’s will is the surest way to success, so having our will broken is the surest path to defeat."

Their comments are also relevant to the next head to be considered, the essential nature of the military culture.

6.22      The second point to be made is that there is little evidence to suggest that such change percolated down to the ranks. In early 1992 Dr O'Brien produced a paper "Meeting the Challenge" based on a presentation that he had given to Sir David Ramsbotham at QEMH Woolwich on 28 January 1992. It addressed the problem of stigmatisation of those suffering from psychiatric/psychological disorder within the military, and contained the following passage under the heading "SIZE OF THE PROBLEM".

"For various reasons service personnel are unwilling, unable, or ignorant of how to request help. A feature of the illness is that the sufferer often does not even recognise the presence of the condition, while those around him are only too aware. There is a major stigmatisation problem associated with this condition, and a fear of F Med8s and "downgrading"".

That is entirely consistent with the evidence that I heard from the ‘culture’ witnesses called by the Claimants in the trial of the generic issues and with the statements adduced in support of the lead claims.

3. The essential nature of the military culture

6.23      The function of the military is ultimately to fight and to win in battle. It is of necessity an organisation that values physical and mental strength, and controlled aggression. Training is directed at inculcating and developing such qualities. There will always be a culture of toughness. As Brigadier Wickenden says in his witness statement –

"… the so-called ‘macho’ culture in the army does, after all, go a considerable way to explaining its conspicuous success in the battlefield. I suspect that such a culture is endemic to any military organisation. It is naive and unrealistic to imagine that time-honoured attitudes and mind sets could be swept away in a short period of time, even were that thought to be desirable, given the nature and history of the military system, and human nature."

Professor Shalev made the point in characteristically forceful terms in his second report to the court –

"I submit that a culture of suppression or ‘stiff upper lip’ is inherent to combat units, and is necessary for their functioning. Combat soldiers suffer before combat (eg during training), on their way to combat (when some would even vomit from fear) during combat (although excitement might cover such suffering) and after combat, as they grieve their losses. Soldiers must be trained not to moan when they suffer – but rather curse, spit, fight or hate (particularly their commanders and the military in general). They are trained to convert suffering and fear to aggression and action – that’s their job. They must be experts in suppressing fear – else they may become dysfunctional.

The stress literature suggests that the same bodily responses to stressors (ie similar raise in stress hormones) lead either to fight or flight responses. Military training is about suppressing flight and enhancing fight responses."

He also made the point that –

"Finally, some embedded propositions (e.g. of a military culture) may be beneficial in one situation and problematic in another. For example the "stiff upper lip" style may strengthen endurance and even protect soldiers from breaking down or otherwise engaging in a "flight reaction". It may make it difficult to accept and process eventual failure to cope. Providing the exact right mixture of endurance and openness, for each and every situation, is an exceeding demand – even if one assumes that, in a "culture" there are deliberate providers and amenable recipients (which is false)".

6.24      Secondly the military culture is a culture of mutual dependence. Hugh McManners who served as a captain with the Special Boat Squadron during the Falklands War and who wrote "Scars of War" a book in which he explored the psychological impact of combat, put it succinctly –

"In all three armed services you are talking about people that when it really comes down to it, you have to be able to rely on them, as anyone who has any sort of question mark over them is not going to be looked at with the same confidence…."

It is that interdependence which explains the emphasis on creating and sustaining close-knit units with a strong sense of community. The regimental system is designed to create and maintain cohesive and tightly bonded units in which men ‘look out for’ each other and commanders ‘look out’ for their men.

6.25      Thirdly it is a culture in which the interests of the individual are subordinated to those of the organisation. As Professor Wessely says -

"Chris Dandeker (the Professor of Military Sociology at Kings College London) and I have concluded that it is this that finally makes the military different to the rest of us. The concepts that drive the military – that of fighting wars - depend on subordinating the needs of the individual to the group. Successful fighting units are those in which its members see themselves as more than a collection of individuals, (they are) a ‘Band of Brothers’… in which concepts of sacrifice for the group are not far flown ideals, but become internalised realities. Armies are defeated when the reverse happens, when people begin to think of themselves as individuals again."

6.26      Professor Palmer, who was involved in providing psychiatric services in Bosnia and who since 1999 has been Tri-Service Professor of Psychiatry, developed the point in his witness statement –

"[4.1] Armies exist to fight not go to hospital. Service, especially combat, requires endurance, self-sacrifice and beyond all else mutual inter-dependence within groups. The majority of soldiers exposed to unpleasant experiences do not break down…

[4.2] If an individual breaks down, especially if the event which caused it does not seem to warrant such a reaction (in the group members’ opinion), then the question will surely arise as to whether or not that individual can ever be trusted again, especially under stressful conditions. Thus the rights of other group members (individuals) must be addressed when the concept of psychological breakdown in armed forces personnel is examined; as their morale, safety and efficiency must be of equal importance as the individual who has broken down. If a unit (group) is to complete its Mission the rights of the group may [be] put before those of an individual. It is understandable and hardly surprising therefore that the stigma of mental illness is heightened within military culture. This stigma may explain, in part, why soldiers are slow to come forward and ‘complain’".

6.27      Professor Solomon makes a related point in her book "Combat Stress Reaction – The Enduring Toll of War"(1993) –

"The negative reactions of the military establishment derived from highly practical considerations. Battlefield psychiatric injuries, if not treated in an organised and effective manner when they occur, can be contagious. CSR can spread to epidemic proportions, and even when it does not, an entire unit can be demoralised by the emotional breakdown of just a few soldiers. Senior commanders are understandably loath to give any kind of legitimacy to a phenomenon that has the potential to undermine the fighting power of the whole army."

6.28      Thus it can be seen that there are certain characteristics of the military culture that are the product of the role that a society calls upon its military to perform. The value attached to physical and mental strength and endurance inevitably militates against the expression of psychiatric/psychological problems to some degree.

4. The relationship between the military culture and that of society at large with regard to Psychiatric/psychological disorder.

6.29      There can be no doubt that there is stigma attached to psychiatric/psychological disorder within society at large. In this context the MoD referred me to the report for the charity ‘Mind’ of the inquiry chaired by Lincoln Crawford "Creating accepting communities; report of the Mind Inquiry into Social Exclusion 1998", and to the latest annual report of the Mental Health Foundation which stated "Despite the growing awareness of mental health, people are still experiencing stigma and discrimination". The Foundation’s report "Pull Yourself Together" (2000) reported on a survey into the public perceptions of mental health issues concluded –

"Evidence suggests that people experiencing mental distress are heavily discriminated against in society and often feel excluded. The survey asked if the fear of stigma and discrimination had prevented them from telling others about their own or someone else’s mental distress. Of those who responded about their own mental distress, 66% said that they could not tell some people for fear of discrimination and stigma... The main sources of discrimination in response to people’s own mental distress were from within the family (56%), and from friends (52%)."

6.30      Dr Daly, who gave expert evidence for the Claimants, referred to the anti-stigma campaign launched by the Irish division of the Royal College of Psychiatrists in 1999. He served on its Public Education Committee which was responsible for the launch of the campaign. The book that accompanied the campaign contained a foreward by the president of the Royal College of Psychiatrists in which he said –

"Dr Daly referred to the recent anti-stigma campaign launched by the Irish Division of the Royal College of Psychiatrists in 1999 (a year later than that launched in England). The President of the Royal College of Psychiatrists made some telling observations in his foreword to the book that accompanied the campaign "Anyone who has suffered from a mental illness is liable to be discriminated against even if they make a full recovery. Once the label has been pinned to them, it is harder for them to obtain employment commensurate with their skills, to marry anyone who is not similarly afflicted themselves, to obtain a mortgage, to emigrate or even to obtain holiday insurance. As a result their self-esteem and self-assurance are undermined. …Stigma also contributes to the persisting underfunding of services for the mentally ill. When there is an intense competition for resources as there frequently is, any new funds tend to go to services for the kinds of patients the public regard as most deserving: children with life-threatening diseases, or perhaps people with cancer or heart disease, but not the mentally ill. When there is a financial crisis, an oft-occurring situation in the NHS, ministers and managers quickly learn that the easiest budget to cut, because it is the least likely to provoke public outcry, is the mental health budget. The causes of the stigmatisation are complex and largely derived from deeply-rooted cultural attitudes to madness and assumptions of the nature of mental illness…. Even so, the stigma is certainly reducing, but decade by decade, rather than year by year.""

6.31      As Dr Marlowe says in his supplementary report –

"Military organizations represent sub-cultural segments of the wider society. While they have shared values and patterns of behavior that may not be shared with the wider culture of which they are a part they invariably share in the predominant patterns of behavior and values of that society. Armies are neither unique nor sui generis but are extensions of the social and cultural groups in which they are embedded. Soldiers share the predominant values and patterns of behavior and response of their societies."

6.32      Dr Baggaley gave evidence in his supplementary statement as to the comparison to be drawn between his experiences as a military psychiatrist and in civilian practice –

"From my perspective there was some stigma associated with a soldier seeing a psychiatrist. However it was no more than the stigma that exists in society at large and I see it to a similar extent now that I am in civilian practice. It’s difficult for people to disclose the fact that they have mental health problems because it might impact on their job or their ability to obtain insurance."

He was cross examined on the point -

Day 42 - Baggaley

page 43

5 Q. I would like to ask you next about paragraph 11 in your

6 6 second statement, please. This is the issue of stigma,

7 which has been touched upon very briefly in your

8 evidence-in-chief.

9 The thrust of this paragraph, as I understand it, is

10 that you accept that there is some stigma associated

11 with seeing a psychiatrist in the Army but in your

12 experience this is no more than is the case in

13 contemporary society. Is that a --

14 A. I think it is difficult to tell. My experience is, for

15 example, if you suggest to a solicitor that they go to

16 see a psychiatrist, they are not terribly enthusiastic.

17 I think there is a lot of stigma in general.

18 I think, to be honest with you, it is very difficult

19 to know whether there is greater stigma in the services

20 than outside, and my experience is that it is a fairly

21 generalised problem and in all walks of life there will

22 be people who are not enthusiastic about seeing

23 psychiatrists, particularly not in British society.

24 I have not got any firm data. I suppose if you

25 pushed me, I would probably say that the stigma within

26 43

page 44

1 the services is as great, if not more, than in any other

2 organisation but I certainly would not accept

3 the argument that it is vastly greater than generalised

4 society.

Thus it is clear that the stigma attached to psychiatric/psychological disorder that persists within the armed forces, reflects attitudes widely held in society at large.

5. A comparison with the armed forces of the US and Israel

6.33      As to the US Professor Pitman said in his first report –

"Much lip service is paid to the seemingly obvious desirability of overcoming psychiatric stigma. In fact, however, the issue is not so simple, especially in the military setting. …the traditional primary role of military psychiatry, as with the rest of military medicine, is to "conserve the fighting strength." As with much of military psychiatry, this role is mission-focussed rather than patient-focussed. One means of fulfilling this mission is to weed out from active service those whose capacity to fight is diminished. When I served as a psychiatrist on active duty in the U.S. Navy, the policy was that sailors and marines who could not be medically restored to full duty capacity in a relatively short period of time were to be separated. Because, other things being equal, mental disorder reduces an individual’s ability to fight, as well as to serve, and because most mental disorders are not curable, it is reasonably in accord with the military medical mission to separate persons with mental disorders. With regard to PTSD, separation from the military, and thereby from the possibility of further traumatic exposure, may also be in the mental health interest of the serviceperson, although it may not be in his career or financial interest. Because it is a reasonable, and probably unavoidable, expectation that psychiatric referral of a serviceperson will endanger his career, it is understandable that those sympathetic to him might be loathe to initiate this. No doubt a well-timed psychiatric referral of a suicidal patient can sometimes save a life. However, in most circumstances, including that of a serviceperson suffering from PTSD, it is naïve to think it is likely to save a career."

6.34      The issue was also addressed at some length by Dr Marlowe. His supplemental report contains two important passages –

"A more or less pervasive part of the U.S. Army’s ethos remains a certain level of stigmatization of any disorder that might be classified as mental illness. Despite years of trying there has been only modest success in dealing with this issue. While the reality of stress and the problems it creates for the soldier are widely accepted the concept of requiring professional help for these consequences is still not widely accepted. In part this may be due to the pervasive sub-cultural belief that problems must be dealt with on the level at which they emerged. Expressions of problems could lead to intervention from the outside and that might make both the individual and the group "look bad". These internal percepts are only one part of the issue however. Soldiers’ behaviors also embody and express general societal sentiments about issues of mental illness. That this behavior is not uniquely shaped by the military environment is clear in the most recent report on Mental Health by the Surgeon General of the U.S. (Mental Health: A Report of the Surgeon General). In the U.S. civilian attitudes towards mental illness have been assessed since the 1950s and there have been a number of programs designed to educate the public. To quote the report, however: " By 1996, a modern survey revealed that Americans had achieved greater scientific understanding of mental illness. But the increases in knowledge did not defuse social stigma." The report goes on to note that, "Nearly two-thirds of all people with diagnosable mental disorders do not seek treatment. Stigma surrounding the receipt of mental health treatment is among the many barriers that discourage people from seeking treatment."

In addition to the general problem of stigmatization professional soldiers face the additional problem of the perception of damage or even termination of their careers by entering psychiatric treatment. For years, for example, treatment in a mental health service could mean loss of a valuable security clearance and significant career damage. (In the U.S. Army medical records are not confidential and are available to investigative authorities). The potential damage from such labeling along with the damage to the soldier’s self image and the sense of diminishment at not being able to cope by oneself are no different than the problems cited above in the Surgeon Generals Report in Civil society.

The issues involved here are complex issues in culture change. On the institutional level, if I take the U.S. Army as a model, the cultural beliefs and values in respect to potential psychological consequence of combat have changed radically since the beginning of World War II. It would probably be impossible today to find a General Officer like George Patton who would strike a man presumably suffering from combat fatigue and call him a coward. The Army medical system has produced Field Manuals on stress and combat stress; published soldier aids (the cards produced by Colonel Stokes) and included lectures in most courses for officer and NCOs. This does not appear to have significantly altered the wariness of psychiatric resources that most soldiers feel. …

One of the issues that comes up in a number of the other reports is that of the engineering of culture change in the military. Changing cultures from above or the outside has proven in most cases to be extremely difficult when information and belief clash belief usually triumphs for many. A change in knowledge about mental illness, stress, and causality does not, as we have seen, necessarily change behavior. The perception that one has the internal resources to cope and carry through in the military as in civil society continues to vitiate the probability of recourse to professional help. Significant changes in these patterns of choice will, I believe, depend upon an awareness that there is an effective canonical treatment for post-traumatic disorders combined with a non-pejorative view of such treatment by the institution and above all by the group. Culture change has taken place in respect to the perception of those forms of combat stress breakdown that incapacitate the individual. The overwhelming majority of soldiers and leaders accept these symptoms as legitimate consequences of participation in the horrors of ground warfare. Such legitimacy to the best of my knowledge has not been extended to non-incapacitating concerns and thought that may or may not be prodromal to later severe illness."

6.35      As to the IDF Professor Zohar observes in his report –

"The IDF is part of a wider society and there are a lot mutual influences between that society and the IDF and vice versa. Stigma is associated with psychiatric disorder and therefore people are reluctant to disclose or openly talk about it."

Similarly in her text "Combat Stress Reaction" Professor Solomon says –

"In a society like Israel, which of necessity values military service and in which the masculine self-image is closely associated with military prowess, help-seeking for a combat induced disorder can have a very high price. Going to therapy implies, for many people, a confession of weakness, of an inability to do it alone. For the Israeli veteran, the confession is double: it not only tells him that he cannot solve his problems on his own, it forces him to admit that he could not cope ‘like a man’ with the task of defending home and country. …The threat to self-esteem is compounded by the threat, real or imagined, of social rejection…. Israeli men are not encouraged to be introspective or open about their weaknesses. In many circles, and particularly among men, psychological treatment still carries a stigma". (page 242)

It is also relevant to note that according to Doctor Levy the change in attitudes to combat stress within the IDF were precipitated by the Yom Kippur War in 1973 which, as he says, "… shook Israeli society from top to bottom to its core.", but nevertheless the resultant change took place over a period of 20-30 years.

6. Conclusions

6.36      The final question is therefore whether the MoD were in breach of duty in failing to take adequate steps to change the prevailing attitudes to psychiatric/psychological disorder. The Claimants’ criticisms are directed to both the extent and the speed of the changes that took place during the Relevant Period. It is submitted on behalf of the MoD that to bring about such change in such an organisation is an inherently difficult task for a number of reasons.

6.37      First the armed forces are an innately conservative organisation. As Sir David Rambotham said in evidence –

"Any army is an intrinsically conservative organisation for perfectly good reason; you set out to foster tradition, you set out to create a continuity of tradition between people who have gone before quite consciously and to quite a high degree."

6.38      Secondly it is difficult to bring about change in such a large and complex organisation. As Brigadier Wickenden put it, the bureaucratic wheels turned slowly. Furthermore the degree to which such cultural change can be brought about it is open to question. There is force in the point made by Professor Shalev that –

"… one is embedded in culture rather than deliberate creator of culture. Thus a demand to intentionally change a culture – be it a military culture - is essentially idealistic and not pragmatic.

"Because "culture" is such a vast proposition, because the sources of cultural effects are virtually uncontrollable, and because there is no possible or effective way to deliberately change a culture or isolate a military culture and that of the larger society, an image of the Israeli culture, as perceived by us, psychiatrists, may not be particularly relevant or instructive – if at all accurate."

6.39      Thirdly the persisting stigma attached to psychiatric/psychological disorder is a reflection of views held widely in society at large. The Claimants sought to answer the point by arguing that given the hierarchical nature of the organisation and the degree to which the Army had a ‘captive population’, change could have been driven more rapidly and more effectively from top down than in the wider community (see in particular the evidence of Dr Daly). But I am persuaded by the Defence argument that that is an unduly simplistic approach. The point was explored with Professor Solomon who was asked about a passage in her paper published in the Israel Journal of Psychiatry and Related Sciences in 1996 "Lessons Relearned: when denial becomes impossible: therapeutic response to combat stress reaction during the Yom Kippur War (1973) and the Lebanon War (1982)" in which she said "Society changed and along with it, Military Psychiatry". The passage continued -

15 Q. In a sense, what a psychiatrist can say as to what makes

16 culture change may be outside his or her expertise but

17 then you are coming to this from a rather special

18 perspective. You are not a clinical psychiatrist but

19 you are a researcher and psychiatric epidemiologist from

20 a professional school of social work so you understand

21 things like culture more than others. Indeed, you and

22 Professor Marlowe are the two best experts in the case

23 to assist on this issue but you are making it clear that

24 what made military psychiatry in Israel change, and

25 I would suggest to you that it changed quite slowly over

page 71

1 a long period, were changes in the society. That was

2 the direction of causation; is that right?

3 A. Yes.

6.40      The fourth point made on behalf of the MoD is that, to put it in neutral terms, there is a tension between the change for which the Claimants contend, and the characteristic and necessary features of the military culture. As Brigadier Abraham put it in his witness statement –

"The biggest obstacle to be overcome was the natural reluctance of professional fighting men to acknowledge that reactions to battle were a natural consequence of war and did not imply frailty or pusillanimity."

6.41      The point was explored in greater depth by Professor Pitman in his first report to the court –

"Much lip service is paid to the seemingly obvious desirability of overcoming psychiatric stigma. In fact, however, the issue is not so simple, especially in the military setting. …the traditional primary role of military psychiatry, as with the rest of military medicine, is to "conserve the fighting strength." As with much of military psychiatry, this role is mission-focussed rather than patient-focussed. One means of fulfilling this mission is to weed out from active service those whose capacity to fight is diminished. When I served as a psychiatrist on active duty in the U.S. Navy, the policy was that sailors and marines who could not be medically restored to full duty capacity in a relatively short period of time were to be separated. Because, other things being equal, mental disorder reduces an individual’s ability to fight, as well as to serve, and because most mental disorders are not curable, it is reasonably in accord with the military medical mission to separate persons with mental disorders. With regard to PTSD, separation from the military, and thereby from the possibility of further traumatic exposure, may also be in the mental health interest of the serviceperson, although it may not be in his career or financial interest. Because it is a reasonable, and probably unavoidable, expectation that psychiatric referral of a serviceperson will endanger his career, it is understandable that those sympathetic to him might be loathe to initiate this. No doubt a well-timed psychiatric referral of a suicidal patient can sometimes save a life. However, in most circumstances, including that of a serviceperson suffering from PTSD, it is naïve to think it is likely to save a career."

6.42      Fifthly it is submitted that the context in which such changes were taking place must be borne in mind, ie the development of the state of knowledge as to the long term effects of exposure to combat stress during the Relevant Period.

6.43      Finally the MoD invite comparison with the US Army and the IDF. It is not submitted that such comparisons are conclusive; but the fact that the British Army was broadly in step with its counterparts provides support for the contention that it was not in breach of its duty of care.

6.44      In my judgment the submissions made on behalf of the MoD are well founded. No doubt there could have been more rapid change. No doubt more could have been done to address the persistent stigma attaching to psychiatric/psychological disorder, particularly in the ranks. But I am satisfied that the steps taken, in particular by Brigadier Abraham, were a reasonable response to the problem that he identified. I am not persuaded that the MoD was in breach of its duty of care in this regard.

7. THE THEATRES OF COMBAT

A. Northern Ireland

B. The Falklands War – Operation Corporate

C. The Gulf War – Operation Granby

D. Bosnia – Operation Grapple

7.A. Northern Ireland

7.A.1           The British Army became involved in peace-keeping operations in Northern Ireland in 1969 in response to escalating violence between the Catholic and Protestant communities and the loss of control by the civil authorities. Over the following 25 years large numbers of troops were deployed to the Province. From 1969 to the Provisional IRA’s ceasefire in August 1994, 944 members of the security forces were killed, of whom 445 were from the regular army. The decade from 1971 to 1980 saw the worst of the violence. It was a period during which 330 regular soldiers and 107 members of the Ulster Defence Regiment were killed. Many more were injured.

7.A.2           A leading historian of the Irish Republican Movement, Dr M L R Smith, a senior lecturer at the Royal Nautical College, Greenwich has described the strategy of the Provisional IRA in the following terms –

"The Provisionals’ strategy was premised on the assumption that individual military engagements could generate a degree of coercive psychological pressure out of proportion to their destructive consequences. A sustained rate of small-scale military operations would help engender a high level of duress, which would lead the British to pull out of Northern Ireland as a result of the inordinately high economic and political price incurred in trying to retain control".

As counsel for the Claimants has observed, the campaign of psychological attrition was directed at government; but it was the British Army and the Ulster Defence Regiment (UDR) that bore the brunt of the terrorist operations.

7.A.3           The nature of guerrilla warfare and the stresses to which an army is exposed in countering terrorism were analysed by Brigadier Kitson in his text "Low Intensity Operations" published in June 1974. He emphasises that such operations require different qualities from those needed in more conventional forms of combat –

"At the root of the problem lies the fact that the qualities required for fighting conventional war are different from those required for dealing with subversion or insurgency; or for taking part in peace keeping operations for that matter. Traditionally a soldier is trained and conditioned to be strong, courageous, direct and aggressive, but when men endowed with these qualities become involved in fighting subversion they often find that their good points are exploited by the enemy. For example, firm reaction in the face of provocation may be twisted by clever propaganda in such a way that soldiers find the civilian population regarding their strength as brutality, and their direct and honest efforts at helping to restore order as the ridiculous blunderings of a herd of elephants. Gradually the more intelligent officers find themselves developing a new set of characteristics such as deviousness, patience, and a determination to outwit their opponents by all means compatible with the achievement of the aim. Those who are not capable of developing these characteristics are inclined to retreat into their military shells and try not to notice what is going on. They adopt the "fit soldier with a rifle" theory and long for the day when they can get back to "proper soldiering" by which they mean preparing for the next – or the last – war, as opposed to fighting in the current one." Low Intensity Operations page 200.

7.A.4           The nature of such terrorist operations and in particular the role played by stress was also described by Col James Stokes of the US Army who was called by the Defence. Writing in 1988 he said –

"At the other end of the spectrum of combat intensity, the terrorist or guerrilla enemy also counts on stress as his principal weapon and objective. By attacking the defending military forces and civilian population only at times and places of his choosing, he denies the defender any safe areas and flaunts the inability of the authorities to protect themselves or their people. By hiding among the populace and using women and children as combatants, the guerrilla/terrorist provokes the defending forces to perceive the people as unworthy of protection, to adopt harsh repressive measures, and to commit atrocities which turn the people against them. Although the stressors of terrorism and guerrilla tactics are less overwhelming than those of high-intensity battle, they are deliberately designed to cause breakdown of professionalism and discipline … Civil and military leaders who rely only on technology and fire-power to defeat a guerrilla force without also recognising and defusing the psychological stress threat, may win the battles in the field but still lose the war ….. Put bluntly, combat stress is the deciding factor – the difference between victory and defeat – at all intensities of war. Stressors are the currency of combat, and soldiers must pay the bill."

7.A.5           The history of the provision of psychiatric support for troops serving in Northern Ireland for most of the period with which I am concerned is to a large degree encapsulated in the career of Dr Ranald Mackinnon. He was an impressive witness who gave his evidence with care and moderation. He qualified as a doctor in 1957. In 1967 he obtained the diploma in psychological medicine. In 1972 he became a member of the Royal College of Psychiatrists, and in 1992 was elected to fellowship of the RCP on the nomination of Brigadier Abraham. Between March 1965 and October 1978 Dr Mackinnon served in the Royal Navy initially as a trainee in psychiatry in the rank of Surgeon Lieutenant Commander. In June 1971 he was promoted to Surgeon Commander, and in November 1972 became a consultant in psychiatry. Upon leaving the Royal Navy in October 1978, Dr Mackinnon was retained by the army as a civilian consultant psychiatrist at the Queen Elizabeth Military Hospital, Woolwich. Between November 1985 and April 1987 he worked in Canada; but upon his return took up a further appointment as a consultant psychiatrist at the Cambridge Military Hospital, Aldershot. Between July 1990 and March 1994 he was the consultant psychiatrist and advisor in psychiatry to Army Headquarters in Northern Ireland. After ceasing to be employed by the MoD in 1994, he was engaged by the Ex-Services Mental Welfare Society, an organisation based in Northern Ireland and also known as ‘Combat Stress’. His work for the society involved examining and reporting on its clients. That engagement came to an end in September 2000.

7.A.6           Dr. Mackinnon’s involvement in the field of psychiatry in Northern Ireland began in about 1970. As a result of an increase in psychiatric referrals from troops serving in Northern Ireland, it was decided to increase the psychiatric service from a monthly outpatients clinic served from Catterick to a weekly clinic run on a rota by three psychiatrists based at the Royal Victoria Hospital, Netley of whom Dr Mackinnon was one. Another was Major Wawman, Command Psychiatrist, Army Strategic Command. In May 1970 Major Wawman prepared a report in which he summarised the situation in Northern Ireland at that time. The following passages are of particular relevance –

"The incidence of psychiatric illness amongst troops in Northern Ireland remains low and it is noticeable that as tension heightened and operational activity increased in 1971, so the rate of psychiatric referral fell."

"No great surprises emerged from an examination of the factors leading to psychiatric illness in Northern Ireland or the ways in which they presented. Various combinations of domestic or other personal anxiety, operational tension and fatigue, usually on a basis of personality weakness are apparent as the precipitants of most stress disorders."

"Episodes of withdrawal and/or excitement, sometimes with violent behaviour are encountered by unit medical officers. These, together with acute anxiety and hysterical conversion syndromes, often respond well to rest and sedation at unit level and many of these men eventually return to full or limited duty in Northern Ireland."

"Morale of military personnel in Northern Ireland is high. Psychiatric morbidity is low and the current facilities available to deal with casualties adequate. Men work long hours in tasks which are often tedious and negative. Their accommodation is sometimes less than ideal and there is little or no opportunity to leave many locations. Men may work intensely for virtually the whole of an emergency tour and in this situation fatigue, tension and personal worries can all be potential stresses. Frequently all three together lead to stress disorders usually on a basis of personality weakness. Good man management should help to exclude the unstable, keep fatigue to a minimum, attempt to reduce tension and assist with personal problems as they arise."

7.A.7           Dr Mackinnon agrees with the substance of Major Wawman’s report, and in particular the suggestion that medical officers were alive to the possibility of trauma being a stressor giving rise to psychiatric disorder. But he points out that Major Wawman did not address the issue of fear, which he came to view as central to a proper understanding of the psychological implications of service in the province; although it is important to note that Dr Mackinnon accepted in cross-examination that his analysis of the importance of fear was arrived at a much later date and with the benefit of hindsight.

7.A.8           In December 1971 the Deputy Assistant Director of Army Health, Major Woolhead, wrote a health report on Northern Ireland in which he recommended a system of screening for service in the Province –

‘MEDICAL FITNESS FOR SERVICE IN NORTHERN IRELAND

Although the situation is Northern Ireland is not officially termed "war" it is urban guerrilla warfare and the level of mental stress is high. Medical officers whose units are due to proceed to Northern Ireland must ensure that the medical records of every man are thoroughly checked. Those with a past psychiatric history or a history of illnesses with a stress situation overlay (peptic ulcers, alcoholic episodes, asthmatic type illnesses, etc) are brought to the notice of the commanding officer and strong recommendations made that if possible these persons should not be sent to Northern Ireland’

7.A.9           On 24 May 1972 Major Wawman gave a paper at the Anglo-American Symposium in Military Psychiatry held at RNH Haslar entitled "An Army Psychiatrist in Northern Ireland". Under the heading "Psychiatric Morbidity" he wrote –

"The incidence of psychiatric illness amongst troops in Northern Ireland remained very low and it was noticeable that as tension heightened and operational activity increased during 1971, so the rate of referral for psychiatric opinion decreased. The rate of admission to hospital with acute psychiatric referral fell. The rate of admission to hospital with acute psychiatric syndromes has also fallen as the rate of admission with injuries has risen. In fact the number of men evacuated to Great Britain on psychiatric grounds was less in 1971 than in 1970 despite a considerable increase in troop concentration."

7.A.10           But the risk of an increase in psychiatric casualties was acknowledged in a note written by a Col. McElligott on 17 October 1972 and copied to Major General McGhie who was then DA Psych. He said –

"At present, there is no evidence of greatly increased mental or physical ill-health in Northern Ireland, but it is considered the situation is potentially critical and that the risk of breakdown in health is high. The longer the situation in Northern Ireland continues then the greater will be the danger of increased psychiatric casualties".

7.A.11           On 27 February 1973 Col. McElligott wrote again saying –

"1.There is no evidence of an increase in psychiatric problems since last we wrote.

2.As troops return to NI on successive tours, so they are more vulnerable to stress and therefore more likely to develop psychiatric or psychosomatic illness.

3 The only saving grace in the situation is that the troops are kept fully occupied. Should a situation develop where boredom is added to stress, then we would expect a rise in the incidence of psychiatric and psychosomatic illness.

4 I still believe that R&R should be introduced as a preventative measure in maintaining the health of the troops and improving the morale of their families, which will, in turn, enhance the morale of the troops themselves."

7.A.12           In March 1973 Lt Colonel Wawman, as he had by then become, made a further liaison visit to Northern Ireland in which he visited a large number of units. He reported inter alia that –

"On the whole unit and medical officers took care to exclude less stable individuals from service in Northern Ireland, but occasionally grossly immature and poorly integrated men did arrive in theatre and predictably broke down.

Fatigue did not appear to be a serious problem but combinations of emotional immaturity, domestic or other personal anxiety, operational tensions and fatigue were usually apparent as precipitants of stress disorders.

The low level of psychiatric morbidity appeared to stem, at least in part, from good man management, which gives careful regard to families and compassionate problems; provides reasonable accommodation and leisure facilities; recognizes the dangers of boredom and fatigue; is sensitive to the early signs of stress, and moves men where necessary to less stressful situations; and tries to exclude unstable men from service in Northern Ireland.

Lt Colonel Wawman also records that at the end of the tour he was given the opportunity to report directly to the General Officer Commanding Land Forces, Lieutenant General Sir Frank King, and other senior officers on psychiatric issues within the province.

7.A.13           In June 1973 Dr Mackinnon was posted to the British Military Hospital in Hong Kong where he remained until July 1974. But before taking up that post he had formed the view that a psychiatrist should be nominated to be responsible for troops serving in Northern Ireland. When he raised the matter with the DA Psych, Major General J. McGhie, it was agreed that he would take on that role on his return from Hong Kong.

7.A.14           Soon after Dr Mackinnon began to hold clinics in Northern Ireland it became apparent to him that the majority of the patients that he was asked to see differed from his previous experience of his army psychiatric clinics. Although satisfied that most were suffering genuine psychological disturbance, they did not appear to fit any pattern of recognised psychiatric illness. It is to be noted that he had not received any specific training or instruction in combat psychiatry in the course of his psychiatric training. It was shortly after his return to Northern Ireland in September 1974 that he began to realise that the problems that he was seeing were predominantly stress related. As he put it in his evidence –

"This realisation was almost revolutionary for me and at that time stress and its consequences were simply not recognised or discussed within the military. There did not appear to be any awareness of the concept of stress and to admit to suffering from it would have been viewed as evidence of weakness."

7.A.15           Following this realisation Dr Mackinnon began to request familiarisation visits to units serving in Northern Ireland. He found such visits extremely useful as they gave him an insight into the stresses to which serving personnel were exposed. He also began to feel that there was a role for a psychiatrist in his position to play in the management of operational stress. What he had in mind was to attempt to develop a closer relationship with units serving in the Province so as to build up a relationship of trust in which he could give advice on the prevention and management of stress. But he found that a more proactive role was not encouraged by Commanding Officers, who appeared to him to regard such visits as solely for his benefit rather than for that of the unit. In that context he drew attention to an exchange of correspondence that he felt reflected the resistance that he experienced. On 13 May 1975 he wrote to Colonel Quinn, Assistant Director Medical Services, Headquarters Northern Ireland, asking for his comments on the regular visits that he was at present making to units in Northern Ireland. He explained that he found them interesting and enjoyable but continued -

"…bearing in mind my other commitments I cannot help feeling there should be more valid reasons for continuing them. At the present time I have had no indication one way or the other but if it is felt that the visits are of value to the units then I would obviously be very happy to continue making them. If this is not the case then I would suggest they are suspended and resumed if and when required."

7.A.16           The letter was couched in characteristically diffident terms; but the response dated 30 May 1975 was more forthright. Its first paragraph simply said –

"Units previously visited appeared to think that usefulness was more for you than for them and I suggest that we do not arrange any more for the present."

Dr Mackinnon said in evidence that he felt that "…that was rather like having a large door politely but firmly closed in your face."

7.A.17           Dr Mackinnon returned to the point in a paper presented by him to the Anglo- American symposium in military psychiatry held in October 1978. He exhibited to his first witness statement a letter dated 12 July 1978 sent by him to the Medical Branch Headquarters, Northern Ireland, together with a summary of the paper that he presented and a copy of the paper itself. The documents reveal his thoughts on his role as the nominated psychiatrist for troops serving in Northern Ireland during the period 1974 to 1978. His views were summarised in the following passages from his letter –

"Since September 1974 I have provided psychiatric cover for Northern Ireland on the basis of a once weekly visit to conduct an outpatient clinic at the military wing of Musgrave Park Hospital, Belfast. As I am now approaching the end of this commitment it seems appropriate to express some thoughts arising from my experience during this period. Such thoughts are concerned mainly with what the role of a services psychiatrist ought to be in a setting such as Northern Ireland. If all that is required is to diagnose and treat mental illness, then perhaps this requirement has been satisfied. However I think the question that has to be asked is whether or not the psychiatrist can provide any other useful service to the Army in Northern Ireland.

My experience over the last four years or so has not suggested that there is any increased risk of mental illness amongst soldiers serving in Northern Ireland. What has become clear is that soldiers in the Province are exposed to stresses that they would not be exposed to elsewhere, including the obvious one of the threat of sudden death or injury, and that these stresses not infrequently lead to disturbed behaviour. The latter may take various forms including at times the misuse of weapons and may lead to a referral for a psychiatric opinion.

It will, I hope, be clear that as far as mental illness is concerned I see no particular problems in Northern Ireland. What I am concerned about is the possibility that there are other areas in which the psychiatrist could perhaps be usefully employed, i.e. in a largely preventative or advisory role. From my experience in Northern Ireland it would seem that the existence and availability of a psychiatrist has to be more widely known, from perhaps HQNI outwards and also that the psychiatrist should be able to spend time with units in the Province whenever it is felt appropriate. Considering the number of troops serving in Northern Ireland during the course of the year the Province is still a combat area it seems a pity that the provision of a psychiatric service has had to be limited to a once-weekly out patient clinic in Belfast. Experience seems to suggest that the possibility of increasing the service should be made known, and specifically to Commanding Officers of units in the Province. "

7.A.18           Dr Mackinnon's efforts came to nothing. As he said in his first witness statement –

"Despite all the attempts by me to develop my role as a psychiatrist in Northern Ireland…I failed to do so effectively. My efforts to integrate my role as a psychiatrist within individual units were generally ignored or refused. "

The only request for assistance that Dr. Mackinnon received during the period 1972 to 1980 was from Lieutenant Colonel Crosby, the Chief Ammunition Technical Officer (CATO) of HQNI, who was in charge of Army Bomb Disposal Teams in the Province. He had become concerned about the high rate of deaths and injuries amongst his battalion and wanted to know what could be done to reduce or prevent such losses. Dr Mackinnon approached the Army’s principal clinical psychologist, who referred him to his deputy Miss Barbara Davis. After investigating the problem she produced a screening system which Dr Mackinnon believes still to be in use by the Ordinance Corps to the present day, a system which brought about a rapid reduction in death rates.

7.A.19           But it has to be said that at this stage Dr Mackinnon did not himself have a clear idea as to what service he could provide. As he said in evidence -

"I think I was putting down my thoughts in the hope that somebody would pick them up. They were perhaps not well formulated."

In cross-examination he agreed that he had not offered any reason why visits to units should continue –

"…apart from the rather ill defined hope that they might turn out to be useful. It was something that could have perhaps been explored, discussed, but I do not think that there was any interest in even doing that."

7.A.20           On 14 August 1978 Dr Mackinnon submitted his final report as a serving naval psychiatrist. The report was addressed to Colonel Mummery, Commander Med HQ Northern Ireland. It contained the following passages –

"If all that is required is to diagnose and treat mental illness then perhaps this requirement has been satisfied. However I think the question that has to be asked is whether or not the psychiatrist can provide any other useful service to the Army in Northern Ireland.

My experience over the last 4 years or so has not suggested that there is any increased risk of mental illness amongst soldiers serving in Northern Ireland. What has become clear is that soldiers in the Province are exposed to stresses that they would not be exposed to elsewhere, including the obvious one of threat of sudden death or injury, and that these stresses not infrequently lead to disturbed behaviour……it is also important to identify individuals who are perhaps more likely to react in such ways and the stresses that precipitate such behaviour in predisposed individuals. It is easy to say retrospectively that a particular patient was likely to be predisposed, but very difficult to identify the relevant stresses operating on him at the time.

It will, I hope, be clear that as far as mental illness is concerned I see no particular problems in Northern Ireland. What I am concerned about is the possibility that there are other areas in which a psychiatrist could perhaps be usefully employed, ie in a largely preventative or advisory role…On a recent exercise in Northern Ireland involving a political terrorism/hostage situation a psychiatrist was wanted and initially certain important Departments in HQNI were quite unaware that a service psychiatrist visited the Province weekly."

7.A.21           Following his discharge from the Navy in 1978 Dr Mackinnon took up a consultant psychiatrist’s post at QEMH, Woolwich, and continued to conduct clinics in Northern Ireland until the end of 1980.

7.A.22           Dr McKinnon’s suggestion that the role of the psychiatrist serving the troops stationed in Northern Ireland could be expanded does not appear to have been taken up. In early 1980 Brigadier Abraham, then Professor of Military Psychiatry, addressed the situation in Northern Ireland in his lecture to the DDANS Annual Conference 1980. He opened the lecture by stating –

"Each week the consultant psychiatrist visiting the military wing of Musgrave [sic] Park Hospital sees a couple of new cases out of the 13,000 soldiers stationed in the Province. For the most part they present the same problems encountered in Aldershot or Munster – an alcoholic crisis, an overdose of aspirin, anxiety with chest pain developing after a relative’s death from a coronary thrombosis. It is as if real and ever-present threat of bullet or bomb has little destructive impact on the stability of well-selected well-trained soldiers carrying out a challenging task in concert with their fellows, especially if they are supported by an efficient medical service which will return a soldier to duty if he is able, or take care of him if he is not."

7.A.23           No documents relating to psychiatry in Northern Ireland in 1980 or 1981 have been disclosed, but the Annual Report by Dr Powers for 1982 has survived. It showed that about 30 soldiers from Northern Ireland were discharged ‘services no longer required’ [SNLR]; that he believed the figure of 68 referrals in the year was an underestimate; and that there were medevacs at an increased rate (6 more), given that there were no facilities for secure nursing within the Province.

7.A.24           The annual return from Musgrove Park Hospital for 1983 presented a similar picture to 1982. The return for 1984 reported ‘an overall increase of significant value in the number of in- and out-patients seen in the past year’, with more UDR men being seen and more servicemen being casevaced to in-patient treatment elsewhere. The returns for 1985 are incomplete and difficult to read, but recorded another increase in referrals and re-referrals, and significant numbers of referrals to different hospitals. The 1986 report showed that the number of referrals and re-referrals were lower than in 1985, mainly because of a drop in referrals from the UDR. The number of reviews continued to increase, again mostly for UDR personnel, reflecting –

"the increasing commitment of army psychiatric service to treat this group. The majority of new cases seen were suffering from neuroses and [illegible] reactions".

7.A.25           Following his return to the United Kingdom in April 1987 Dr Mackinnon again became involved in the provision of psychiatric care to troops stationed in Northern Ireland. But when working as a consultant psychiatrist in Canada between November 1985 and April 1987 he had became aware of the concept of PTSD, and realised that in retrospect he would have made such a diagnosis in the case of a substantial number of individuals who had presented to him in the period 1972 to 1980 with symptoms that he had attributed to stress.

7.A.26           From May 1987 to June 1990 Dr Mackinnon conducted the weekly psychiatric clinic at fortnightly intervals, alternating with a military psychiatrist Major Mary Piper. It was shortly after beginning to work again in Northern Ireland that he first made a diagnosis of PTSD in a military context, but says at that time –

"…no one in Northern Ireland seemed to know anything about PTSD or indeed traumatic stress generally. "

It was also at this stage that he formed the view that there should be a resident fulltime psychiatrist for the troops serving in Northern Ireland.

7.A.27           Dr Mackinnon exhibited to his first witness statement a memorandum that he wrote to Colonel Mummery, DA Psych and Commander Medical HQ Northern Ireland. The memorandum is undated; but he says that it must have been written shortly after his return to the Province in May 1987. It is more likely to have been dated 12 July 1987 for reasons that will become apparent. It contained the following passages

"Military Personnel and Stress in Northern Ireland

As a result of Falklands conflict the reaction known as battle-shock or Post Traumatic Stress Disorder was somehow re-discovered. Prevention and treatment are now at least provided for the Army Psychiatric Service. What is still not provided for is the recognition and treatment of service personnel who are unable to cope with more chronic stress which can of course also become acute stress. In the context of military psychiatry or more specifically in the context of Northern Ireland - about which I have written in the past – I suspect that the incidence of battle-shock is low. What I believe is high is the incidence of decreased performance at work as a result of inability to cope with more chronic stresses. This decrease in performance may be manifested in various ways, including inefficiency, absence from work, abuse of alcohol, financial problems and even mental breakdowns. The ultimate cost of such decreased performance to the service and to the individual must be extremely high and in many cases must be considered avoidable. Again in the context of Northern Ireland the Ulster Defence Regiment appear to be particularly at risk.

For some considerable time now the Army Psychiatric Service has provided a Registered Mental Nurse based permanently in the military wing at Musgrave Park Hospital in Belfast, and a weekly out-patient clinic by visiting psychiatrist. In my opinion this has never been an adequate service for that portion of the British Army that is effectively engaged in hostilities. It has long been my own view that the importance of stress in the production of behavioural as well as emotional and thinking disorders has been neglected. It has taken it seems, a sharp escalation in the stress to which the UDR for example are exposed to bring about a recognition that stress can lead to problems such as absence, alcoholism, suicide and even treachery.

Rather than providing a purely psychiatric service in Northern Ireland – which in effect is picking up the problem too late – I believe that what is needed is basically –

(1) An extensive education Programme for officers/SNCOs to assist them to more adequately monitor those under their command and to detect whenever an individual is becoming unable to cope with his own stresses.

(2) Provision of adequately trained counsellors to serve units in the province.

(3) Psychiatric involvement with (1) and (2) in a preventive role and of course in a diagnostic/treatment role when necessary and appropriate."

7.A.28           On 30 November 1987 Dr Mackinnon wrote a further memorandum containing the following passage -

"With regard to the figures themselves, and without attempting any detailed analysis, there is an obviously increased general referral rate which includes a marked rise in UDR figures again. The figures also do not include the 150+ patients that were seen by the psychiatric nurse over the year. A significant percentage of course is alcohol related problems but no drug abuse cases figure in the return. I doubt whether this should be any cause for complacency as far as the actual drug abuse is concerned. Of diagnostic categories, it is worth noting in conclusion that the largest percentage of the total is acute stress and neurotic adjustment reactions.

Additionally, in conclusion, this seems an appropriate place to record that a working party is due to meet shortly at HQNI to review the suicide figures of the Province, and to consider their possible relationship to stress. This psychiatrist will be a member of that working party which will be expected to produce opinions and recommendations on the role of stress and its management".

7.A.29           On 7 January 1988 Brigadier Abraham responded to both memoranda in a Minute copied to Comd Med HQ Northern Ireland and to Dr Mackinnon. It was concerned principally with the particular problem of the UDR noting that Brigadier Abraham had "been for some time concerned about the stress related problems of the UDR". Paragraph 3 said –

"References A & B (Dr McKinnon’s reports) underline the fruitful role of the army psychiatrist/psychiatric nurse in providing a service directly to the customer, be he Commanding Officer, Staff or patient, in his own environment. It is fair to say that this role has not always been fulfilled in Northern Ireland. When DA Psych visited HQ NI, they wondered quite why he was there"

Brig. Abraham went on to recommend –

"Recognition of Dr Mackinnon as at least for the time being de facto Consultant Adviser in Northern Ireland with access to units"

7.A.30           In his first annual psychiatric report after his return to the Province, a report covering the period 31 March 1987 to 31 March 1988, Dr Mackinnon summarised the views that he had expressed in the above memoranda –

"Returning to Northern Ireland after a number of years I have not observed any increase in the incidence of psychiatric illnesses as such. My original impression, as conveyed in my report of 1978 was that the majority of referrals resulted from failure to identify and cope effectively with stress. This impression has been reinforced particularly as a result of the considerable increase in referrals from the Ulster Defence Regiment. It has also strengthened my own view that the psychiatric service provided for Northern Ireland needs to be reviewed and modified. In essence I believe that a Unit should be created along the line of the RUC Occupational Health Unit, initially for the Ulster Defence Regiment but which could also be available to regular army units in the Province. Given the therapeutic and educative roles of such a Unit it would require substantial provision in terms of staff and resources, in addition to whatever psychiatric input was available.

7.A.31           In due course the recommendations made by Dr Mackinnon in 1987/8 bore fruit. On 6 January 1989, Brig. Abraham wrote to Comd. Med. HQ UK Land Forces in the following terms -

‘STRESS IN NI

As part of the drive to cope with increased stress in NI, the psychiatrists supporting NI identified the need to give instruction supplementary to that required by ATD5 to Officers and NCOs undertaking normal duties in the command, as is already provided in the field of physical health and preventive medicine.

It is requested that a serial during NITAT training be allocated for this purpose. It is envisaged that the instruction will be given by psychiatric personnel serving NI.’

7.A.32           NITAT was the specialist training undergone by all troops posted to Northern Ireland. It involved simulation of the situations and stresses to which soldiers could be exposed in urban operations in the Province. A large number of witnesses gave evidence as to the nature and effectiveness of NITAT; and I had the opportunity in the course of the trial to view a video film of such training submitted in evidence. There can be no doubt that it was highly effective.

7.A.33           Later in January 1989 the Commander Medical UK Land Forces, a position then held by Sir Peter Beale, one of the Defendant’s witnesses, approved the formation of an occupational health unit to deal with stress in Northern Ireland.

7.A.34           On 10 April 1989 draft operating procedures (SOPs) for psychiatric services in Northern Ireland were circulated. They included guidelines for critical incident stress debriefing (CISD), developed by Dr Mackinnon and reflecting his experience in Canada and his own research. In essence it involved attending at critical incidents, assessing the likely impact on those involved, reassuring them individually about the normality of a stress reaction arising in response to such abnormal experiences and trying to ensure that he saw everyone involved in the incidents as a group. Dr Mackinnon would also undertake a follow-up visit within a week of the incident again emphasising the normality of initial reactions to the traumatic event.

7.A.35           Justification for the insertion of a module for stress training in NITAT was produced by Major Mary Piper, a consultant psychiatrist on 15 April 1989; and on 2 May 1989 Brigadier Abraham wrote a minute addressed to Comd Med HKLF headed "NITAT STRESS MANAGEMENT TRAINING MODULE" seeking authority for the module to be "inserted into NITAT programme and begin as soon as possible."

7.A.36           On 8 May 1989, Dr Mackinnon sent a memorandum with wide distribution reminding the army that stress was an occupational health problem; that the army was ‘an employer of a large number of people liable to experience psychological suffering in the course of their duties’; that there was a potential legal liability; and that –

"As an employer of a large number of people liable to experience ‘psychological suffering’ in the course of their duties, the Ministry of Defence would seem to have a clear liability to provide facilities for the prevention, regulation and treatment of post traumatic stress disorders, whilst diagnosis and treatment are clearly medical responsibilities, prevention and recognition are not necessarily so, in the first instance at least. The disorder may well present in ways that do not immediately lead to referral for a medical opinion. It is therefore important for there to be a general awareness of those personnel at risk and the ways in which the disorder may be prevented or recognised. Such education would be the responsibility of the new stress management facility now being established in Northern Ireland".

7.A.37           Brigadier Abraham visited the Province on two occasions in September 1989, and wrote a report on his visits in a document dated October 1989. In contains a number of paragraphs of particular relevance –

"1. After the Ballygawley bombing on 20 August 1988 it seemed that there was a need for some coordination of the medical response to incidents in the Province. There had also been indication of psychological wear and tear as a result of chronic and cumulative stress, and tightened security impinging notably on the UDR and the resident battalions with their families.

4. Preventive Education. There are now two community psychiatric nursing personnel in post and they have begun to function in the community. A health education and stress management package of presentations has now been prepared, to be delivered ideally by environmental health and psychiatric personnel in tandem. The principal target group for these presentations are the UDR and resident battalions.

5. There remain two other groups who need a higher level of stress management instruction than is provided in accordance with ATD5 by the Aid to Save package. These are

a. Formed units on roulement tours. These can be reached via a brief module in NITAT training without detracting from the rest of the instruction they require on that occasion…

b. Individuals posted in who can be reached by input to NITAT collective training in the Province. The balance between the contributions of permanent instructional staff and the visiting preventive education team in this training has yet to be worked out.

Since in practice there is no possibility of roulement battalions receiving the relevant instruction in the Province in time to be useful, if at all, the question of input to NITAT training is to be re-examined."

The report went on to address the special problems relating to medical, and in particular psychiatric support for the UDR, and concluded with a record of agreement that the consultant psychiatrists should visit units, and that the DAPsych would visit regularly.

7.A.38           Dr Mackinnon was a member of the committee, described by him in evidence as made up of "high-ranking and influential members of both the Army and the UDR", set up in response to the report prepared by the Senior Chaplain, Northern Ireland on the high incidence of suicide amongst service personnel in the Province. He also gave evidence that in the course of its discussions the question of an adequate and proper psychiatric medical service within Northern Ireland was raised on various occasions, and that –

"Stress, and in particular traumatic stress and its effects on personnel deployed to the province, was discussed at length by the committee."

He now regards the work of the committee as the turning point with regard to the recognition of the problem of traumatic stress in the Province. As he said in evidence –

"I think in the course of the meetings of that working party there was a gradual realisation that stress was a major factor. There was a lot of discussion around the difference between stress and mental illness and I always had the impression that their soldiers were not mentally ill, were not liable to become mentally ill, and I think realising that stress was not actually a mental illness was almost, you know, something key for them."

7.A.39           The committee recommended the introduction of a resident psychiatrist. The decision to make such an appointment was ratified by Brigadier Abraham (DA Psych) in his memorandum dated 14 March 1990 in which he said -

"1. The present need for full-time consultant psychiatric cover in Northern Ireland is acknowledged (Reference A).

2. The provision of manpower cover must await the outcome of DAMA [I of E] recommendations (Reference B)

3. Meanwhile it is proposed that with effect from 1^st July 1990 Surg. Cdr. (retired) Ranald Mackinnon, who currently holds the consultant psychiatrist post at CMH Aldershot in lieu of a military psychiatrist and makes brief visits to the Province, should assume the principal responsibility for the Province, travelling out each Monday and returning each Friday. Bearing in mind that he will be on call for the Province from his home near Guildford at the weekends and will be engaged in some evening work during the week in the Province, it is expected that he will travel to and from within duty hours."

Dr Mackinnon took up the post in 1990.

7.A.40           As the command psychiatrist Dr Mackinnon was directly responsible to the Commander Medical and to GOCHQNI. He was also directly answerable to the Director of Army Psychiatry, Brigadier Abraham. He was initially based at Musgrove Park Hospital where he had a team of two resident community psychiatric nurses. Soon after his arrival he decided to move out of Musgrove Hospital because such a setting was too medically orientated. He moved into the Thiepval Barracks in Lisburn where he called his team "The Stress and Trauma Unit". His first objective was to liaise with all appropriate personnel within the UDR and the Army. As he said in evidence "I knew well that if I did not have the support of the commanding officers, then nothing I tried to do would work". He therefore requested visits to all UDR commanding officers. All such requests were granted. He explained to them what he thought was needed to assist in the prevention and recognition of traumatic stress within their command. All but one were receptive to his ideas; and he received their backing for his proposals. He agreed to visit each unit on a monthly basis to commence what he saw as a long-term process of education. He was regularly asked to provide presentations to commanders and others in the UDR. An illustration of the response by commanding officers is provided by an extract from letter to him from a Brigadier Ritchie dated 20 April 1990 –

"…I welcomed the opportunity to hear your proposals. I have now given further thought to the matter and believe that as a first step I should discuss the matter with my commanding officers.

I consider that phase 2 should be a conference chaired by you with all battalion welfare officers and battalion medical officers where we have them to agree procedures and draw up a directive. The resulting action from this meeting will hopefully be a policy letter from you on how to tackle stress related to problems at battalion level. We can do little at the moment if the various medical officers do not know their role in the treatment of stress."

7.A.41           In contrast to the UDR Dr Mackinnon’s attempts to liaise with army units met with little success. He says in his first witness statement that the army showed "…little real interest in his services". But he also makes it clear that he regarded the UDR as having priority.

"Unlike regular soldiers UDR personnel were exposed to attack 24 hours a day as they frequently lived in the areas in which they worked. Their families were also at risk. I felt that the level of stress they experienced must exceed that of soldiers undertaking finite tours of duty and with barracks to return to when not on duty. Accordingly I believed that the UDR had a greater need for my services than did the Army itself."

7.A.42           Contemporaneously with the decision to deploy a full time psychiatrist to the Province a problem arose with regard to the resident community psychiatric nurses. One was to relinquish his post; and Major Piper got wind of a proposal to replace him with a series of personnel on 4 month tours. On 6 April 1990 she wrote to Cmd Med HKLF in trenchant terms setting out her objections to such a proposal . Dr Mackinnon wrote in similar terms on 11 April saying that "it might not be an overstatement to say that someone coming out for 4 months would be more of a liability than an asset." He also sought to reinforce the point in his annual Musgrove Park report dated 11 April 1990, a report also signed by Colonel Daly, Comd Med HQNI.

7.A.43           There were also difficulties over the inclusion of the stress management package in the NITAT training. A memorandum from Colonel Daly dated 11 June 1990 reveals that in May 1989 Com Med HQ NI had agreed, without reference to DA Psych, that such training should not in fact be added to NITAT. It emerged that HQ NI had proposed that the subject be introduced into army training generally and not targeted specifically at Northern Ireland. On 3 July 1990 Brigadier Abraham, DA Psych, wrote a Loose Minute to his deputy directors in which he said –

"…we have to ensure that our vulnerability is not exposed. For example, DA Psych has been trying to insert a stress management module into NITAT training for 18 months. Currently we have no real answer to the jibe that we are not preparing our lads adequately for the operational tours. No doubt DPR (A) will take this one up in the appropriate quarters. Then again we must make sure that we keep our own house in order. We have introduced this year a consultant plus two community psychiatric nurses team [sic] to the Province. To maintain the nurse element we need a positive, determined, sustained and directed effort to recruit RMN’s up to establishment. We do not have this at present and there is a 3% shortfall".

7.A.44           In September 1990 plans were formed for presentations on stress to the Commanders Cadres as part of NITAT training. A timetable of lectures was decided upon through to the autumn of 1991, but the lectures were then cancelled as the proposed lecturer, Major Piper, was sent to the Gulf.

7.A.45           In 1990 a Major McMahon, as staff officer at HQ NI wrote a paper titled "Stress and the Northern Ireland Military Situation". It contains a number of illuminating passages –

"Stress which can cause emotional breakdown strikes at all ranks, within families and nobody is immune. Commanders need to know the pressures their own personnel are enduring."

Under the heading "The Role of Commanders at all levels" she wrote –

"Although we cannot eliminate all the stresses within our environment, we can take measures to improve stress tolerance levels. Stress management is a normal function of command. Commanders at all levels must be trained to be aware of the possibility of stress in their soldiers and alive to the relationship between stress and deteriorating performance and recognition of stressful circumstances is a function of leadership and therefore it is vital that Commanders know their soldiers. They need to ensure that those identified as having serious personal problems and acting out of character are, for example, relieved of security duties involving weapons. Such a measure will reduce the number of attempted suicides. We need to know that pressures there are during the military environment and keep a constant watch on the hours worked.

7.A.46           At paragraph 32 under the heading "Improving Stress Tolerance Levels in Individuals" she observed that "There are stress-related disorders to be investigated", and having referred to the permanent team of a psychiatrist and two CPNs she said –

"The shortage of qualified personnel ensures that only a limited number of soldiers receive assistance and treatment. There is a requirement for a much larger organisation designed to deal confidentially with the psychological problems."

7.A.47           There are three points to be made about the report. First, and somewhat surprisingly, Dr Mackinnon was not consulted by its author. Secondly the covering note that accompanied the paper to the Adjutant General from his Military Assistant was couched in somewhat disparaging terms. Its author said –

"I have only skimmed it. Some good points but not a particularly punchy paper. More of a commentary. Also marginally out of date. Written I suspect, from her experiences as SO G1 HQ NI in 1987 to 1988."

Thirdly Dr Mackinnon says that its recommendations were not put into effect during his time in Northern Ireland.

7.A.48           Extracts from Dr Mackinnon’s annual report for 1992 record how matters progressed.

"It is perhaps appropriate to begin by reiterating what I believe to be the reasons for a military psychiatric presence in Northern Ireland. The command psychiatric unit exits to provide assistance in maintaining and possibly improving the psychological welfare of the military community here. By doing so it also serves to keep the extremely low rate of mental illness in that community at such a level. It needs to be clearly appreciated that the incidence of mental illness amongst military personnel in Northern Ireland has never been at a level that would require a Province-based psychiatric service. Military psychiatry has to some extent taken on its present role here because no other service exists within the Army to deal with the psychological aspects of welfare. Since I first started coming here in 1970, it has always seemed to me that the majority of soldiers referred to me came because of stress-related problems rather than mental illness. However it needs to be remembered that without proper management stress problems can lead to mental illness and to suicide."

"My contacts with the UDR have continued very much along the lines established during the previous 12 months. Amalgamation of battalions in this current period has reduced my visits. It remains to be seen what the effects will be when the regiment becomes the Royal Irish Regiment [RII] in July. I hope that no change to welfare arises. It is still the case that we seem to be much more readily involved by the UDR than by regular units. I suspect this may be partly as a result of a more traditional view of psychiatric services by them."

"Given the extent of traumatic stress and PTSD here I would like to feel that we would at some point be able to establish a specific and on-going treatment programme in the province. Even on the basis of the known sufferers from this disorder, I believe that such a programme would be justified. I suspect that there are many undetected sufferers in the Province. I know of only one such established programme in the United Kingdom (Dr O’Connell’s unit at Haslar). I believe it would be important to visit the USA and Israel to find out."

The report reflects Dr Mackinnon’s view that in contrast to the UDR, the commanders of Army units showed little real interest in the services that he felt he could offer.

7.A.49           Dr Mackinnon’s final report was dated 1 June 1993. Under the heading "General Comments" he said –

" As usual it is probably appropriate to begin by reference to the statistics. Once again there has been a very significant increase overall in the number of referrals, rising from 353 last year to 592 this year…The number of acute stress and neurotic adjustment reactions show by far the greatest increase, from 243 to 328 in the current year. The majority of these were acute stress reactions…..Taking these figures generally, I tend to think that the incidence itself may not have actually increased. I think it likely that there has been an increasing awareness of such problems, together with the presence of an appropriate agency to which they may be referred.

Since the Community Psychiatric Service was established here in 1990, I think it would be true to say that the CPNs have functioned basically within their usual role. Within that there has obviously been a very much greater emphasis on stress and traumatic stress particularly in Northern Ireland. Given the volume of their work, and the rate of increase over the years, the point is probably not far off when consideration will have to be given to the establishment of a 3^rd CPN post in Northern Ireland.

While the CPNs… have functioned basically within their usual role, the same cannot really be said of the Consultant Psychiatrist. There has never been a case based on mental illness for having a psychiatrist in Northern Ireland. Maintaining and, if possible, improving mental health within the military community here has always been the sole reason for having the Psychiatrist."

7.A.50           Dr Mackinnon gave evidence that there were some significant improvements in the Army’s approach during his tenure as resident psychiatrist. By the time that his engagement came to an end in March 1994 much greater emphasis was being placed on the education of units deployed in the province in relation to stress and stress reactions. By then he and his community psychiatric nurses were regularly giving presentations at unit level. Furthermore all units deployed to the province were receiving pre-deployment briefings on traumatic stress and stress reactions. But it is his opinion that notwithstanding such improvements there was never an effective treatment or management package for traumatic stress reactions during the period of his involvement with psychiatric services in Northern Ireland.

7.A.51           Conclusions

The Claimants’ case with regard to Northern Ireland is essentially based on the evidence of Dr Mackinnon. In his supplementary witness statement Dr Mackinnon was highly critical of the services provided for those serving in the province, saying –

"6. The Army’s attitude to psychological matters generally in Northern Ireland during the 1970s and 1980s was diametrically opposed to the role and model of military psychiatry, psychological care and psychological education espoused by Richardson in his book ‘Fighting Spirit’. The reality of the matter was that during the 1970s and for most of the 1980s in Northern Ireland, the Army’s attitude to stress and to psychiatry generally was that there was no ‘stress’ problem within the province."

30. So far as Northern Ireland is concerned my own view is that from the start of the troubles right through to no earlier than 1990, the role of military psychiatry was woefully neglected. Because of this numerous service personnel and in turn, their families, suffered unnecessarily. They did not receive appropriate treatment, help or assistance. Individuals suffering from traumatic stress reactions were not adequately recognised, identified or detected as having genuinely suffered from their experience or experiences. Sadly knowing what I now know, I accept that I, to an extent, was part of the problem and unwittingly contributed to individuals suffering.

37. Up until 1989 the provision of psychiatric personnel and services to Northern Ireland was wholly inadequate. This is clearly shown by a careful analysis of my yearly reports generated from 1990 onwards all of which go to show how much detection and awareness of traumatic stress reactions increased once I was posted to the province full-time."

7.A.52           A distinction has first to be drawn between the arrangements for the treatment of psychiatric illness and the arrangements for the prevention and management of stress. As to the first the evidence given by Dr Mackinnon and borne out by the contemporary documents is that the arrangements were adequate. His criticism is directed to the arrangements for the prevention and management of stress, in particular in the failure to set up a system by which a consultant psychiatrist could carry out an preventative role by providing educational and advisory services to units serving in the province.

7.A.53           Dr Mackinnon first began to be aware of the problem of stress in 1974, see paragraph 7.A.14 above; and he raised the subject in the paper that he presented to the Anglo-American symposium in October 1978. But he acknowledged that at that stage he did not have a clear idea as to the service that he could provide. Thus in his final report before his discharge from the Navy in 1978 he simply raised the question of whether a psychiatrist could perform any other useful service in the province. It was not until his return to Northern Ireland in May 1987 that his ideas crystallised.

7.A.54           In 1987 Dr Mackinnon wrote the two memoranda in which he made concrete proposals as to the educational and preventative role that he by then thought necessary. The response to his recommendations is summarised in paragraphs 34 to 50, and the effect of the steps that were taken in paragraph 51. But there are two questions that must be addressed; first whether the steps recommended by him in the 1987 memoranda should have been taken at an earlier stage, and secondly whether there was undue delay in implementing his recommendations.

7.A.55           As to the first I do not consider that the MoD was at fault in failing to take such steps prior to the 1987 memoranda. By virtue of his lengthy service in Northern Ireland, Dr Mackinnon was unquestionably best placed to gauge the deficiencies in the system; and nothwithstanding the observation by Brigadier Abraham in his response to the memoranda that he had "been for some time concerned about the stress related problem of the UDR", I do not consider that the MoD can be said to have been in breach of duty in failing to identify and take steps to remedy such deficiencies before Dr Mackinnon’s views on the subject had crystallised. Furthermore section 10 of the Crown Proceedings Act 1947 precludes reliance on any acts or omissions occurring before 15 May 1987.

7.A.56           As to the second the post of resident psychiatrist was not established until 1990, but on the recommendation of Brigadier Abraham Dr Mackinnon was to be recognised as de facto consultant adviser with access to units from June 1988. Secondly the recommendations for the establishment of an occupational health unit for Northern Ireland was approved by Sir Peter Beale as Commander Medical UK Land Forces in January 1989, and was being established by May 1989, with the result that by 1990 the arrangements were in place for delivery of the service envisaged by Dr Mackinnon. Thirdly the proposal for training was recognised by the introduction of a module on stress management in NITAT, albeit that its implementation was disrupted by Major Piper’s deployment to the Gulf. No doubt the changes could have been introduced more rapidly; but such changes take time to budget for and implement in an organisation such as the Army; and I am not persuaded that their introduction was so slow as to be negligent.

7.A.57           It follows that I do not consider that the MoD was negligent in the provision of psychiatric/psychological services to troops serving in Northern Ireland during the Relevant Period.

7.B. THE FALKLANDS WAR - OPERATION CORPORATE

7.B.1           On 19 March 1982 a party of Argentine scrap merchants landed at Leith on the island of South Georgia, part of the Falkland Islands Dependency, without having sought permission to land. The landing took place against the background of the longstanding dispute between the United Kingdom and Argentina as to possession of the Falkland Islands; and was the event that triggered the invasion and occupation of the Falklands by Argentina. On 20 March the British Government responded by dispatching the patrol vessel "Endurance" from Port Stanley in the Falklands with a party of Royal Marines from the Port Stanley garrison. When the Endurance arrived at South Georgia, most of the workmen working for the scrap merchants left the island; but on the following day an Argentine naval survey ship, the "Bahia Paraiso" entered Leith Harbour with orders to protect the scrap merchants and their workmen; and a detachment of Argentine marines was put ashore. On 26 March the Argentinian Junta brought forward its existing plans for the invasion of the Falklands; and on 31 March the decision was taken to invade on 2 April.

7.B.2           At 8.15 pm on Friday 2 April Rex Hunt, the Governor of the Falklands Islands, made a radio broadcast to the inhabitants telling them that "there is mounting evidence that the Argentine armed forces are preparing to invade the Falklands." At 4.25 am on the following morning he declared a state of emergency. By that time the marine detachment stationed at Port Stanley was deployed in defensive positions around its outskirts. At 4.30 am Argentine marines landed at Mullett Creek and advanced on the Marine base at Moody Brook. At about 6am they launched an attack on the base. The war had begun. The invading force then marched on Government House which was guarded by marines. There was a fierce sniper battle lasting about two hours. But at 8am the main Argentine landing force began to disembark at Port Stanley harbour; and at 8.30am Governor was obliged to surrender in the face of overwhelming force. On the following day, 3 April, the United Nations passed Resolution 502 demanding Argentine withdrawal.

7.B.3           The immediate response of the Government of the UK to the Argentine invasion was to dispatch a task force to the South Atlantic. It sailed on 5/6 April under the command of Rear Admiral Woodward. South Georgia was recaptured on 25^th April. On 1 May units of the SAS and SBS landed on the Falkland Islands to reconnoitre the strength, condition and deployment of the Argentine forces. On 21^st May 3 Commando Brigade made an amphibious landing at San Carlos on the western side of East Falkland. 24 days later, at 9 pm on Monday 14 June, the Argentine forces surrendered at Port Stanley. The campaign, Operation Corporate, involved a major amphibious operation on a hostile coastline 8000 miles from the UK without air supremacy having been established. It was a remarkable feat of arms attributable to the courage, commitment, and professionalism of the armed forces. A heavy price was paid in human terms. 255 members of the UK armed forces were killed in action, 777 were injured.

7.B.4           The task force consisted of the aircraft carriers Invincible and Hermes, the assault ship Fearless, 9 frigates and destroyers and numerous support ships. There were two components to the land force, 3 Commando Brigade and 5 Infantry Brigade. 3 Commando Brigade ordinarily consisted of 40 Marine Commando, 42 Marine Commando and 45 Marine Commando, but was expanded by the addition of 2 Battalion and 3 Battalion of the Parachute regiment ("2 Para" and "3 Para"). The Brigade was under the command of Brigadier Julian Thompson. The second component of the land force, 5 Infantry Brigade, ordinarily consisted of 2 Para, 3 Para and 1/7 Duke of Edinburgh’s Gurkha rifles. Following the transfer of 2 Para and 3 Para to 3 Commando Brigade, 5 Infantry Brigade was brought up to strength by 1^st Battalion Welsh Guards, and 2^nd Battalion Scots Guards. The 5 Infantry Brigade was under the command of Brigadier Wilson. A number of ships were requisitioned as troop carriers. 40 and 42 Commando and 3 Para were transported to the South Atlantic on the SS Canberra, a 41000 ton cruise ship; 2 Para on the North Sea ferry, MV Norland, and 5 Infantry Brigade on the SS QE2.

7.B.5           On 21 May 3 Commando Brigade made its amphibious landing at San Carlos on the western side of East Falkland Island and dug-in in a defensive ring around San Carlos. The landing was largely unopposed; but shortly after the landing the naval ships in San Carlos Water came under sustained attack by Super Etendards and Sky Hawks of the Argentine airforce. On the following day the bridgehead was consolidated with 5000 troops dug in.

7.B.6           It is not necessary to consider the campaign in any detail; but some of its critical features, the battle for Goose Green fought by 2 Para, the bombing of the Sir Galahad and the Sir Tristram in Fitzroy Bay in which the Welsh Guards suffered heavy casualties, and the fierce fighting in the mountains surrounding Port Stanley in particular at Mount Longdon, Wireless Ridge and Tumbledown involving 2 Para, 3 Para and the Scots Guards, are of particular relevance.

7.B.7           Goose Green

2 Para attacked Port Darwin Settlement and the Goose Green airstrip on 28 May. In the ensuing battle 17 men were killed including the officer commanding 2 Para, Col H Jones, who was posthumously awarded the VC for his part in the action. 67 men were injured. The casualties sustained by 2 Para were remarkably small given the length and ferocity of the battle. It involved an assault on heavily defended positions across ground that afforded minimal cover on an enemy force treble its own strength, and both fore-warned and fore-armed. 250 enemy soldiers were killed. More than 1200 were taken prisoner. Following the death of Lt Col Jones, Brigadier Chaundler was flown to the Falklands to take over command of the battalion. He arrived at Goose Green on 30 May/1 June. Three days later the battalion moved forward to take Fitzroy and Bluff Cove.

7.B.8           Brigadier Chaundler says that whilst at Fitzroy and Bluff Cove, he became aware of men "…suffering from the early stage of battle shock". He toured the battalion with his RMO, Major Hughes, and whilst he spoke to the men, the RMO spoke to the company sergeant-majors to identify soldiers "…who for whatever reason were in difficulties". As a result 20 men were evacuated from their positions on the mountains back to the community centre in Fitzroy where they could be properly looked after by the battalion’s medical staff. Some of the 20 were suffering from what Lt Col Chaundler identified from his training as the type of battle shock "resulting from the slow attrition of constant exposure to a battle situation." 18 of the 20 rejoined their companies when the battalion moved forward for the last phase of the war.

7.B.9           The bombing of the Sir Galahad and the Sir Tristram.

The 1^st Battalion Welsh Guards left Southampton aboard the QE2 on 12 May. Together with the other units making up 5 Infantry Brigade they were transferred to the Canberra off South Georgia, and arrived in San Carlos Water on 2 June. On 7/8 June the battalion was transported by sea to Bluff Cove. Two of its companies, its mortar platoon, its support echelon and 16 Field Ambulance were transported on the landing ship, the Sir Galahad, which anchored in Fitzroy Bay before dawn on 8 June. Early in the afternoon of 8 June two Mirages and two Sky Hawks of the Argentine air force attacked the Sir Galahad and another landing ship, the Sir Tristram, in Fitzroy Bay. The Sir Tristram was in the process of unloading artillery ammunition. 16 Field Ambulance was in the process of disembarking from the Sir Galahad. But the Welsh Guards, whose destination was Bluff Cove, had remained aboard. It is not necessary for present purposes to address the question of why they had not disembarked. When the Sir Galahad was hit the large consignment of petrol that it was carrying ignited immediately. The centre of the ship became a raging inferno. As is well known, many of those aboard suffered the most horrendous injuries. The Sir Tristram was also hit. Fifty one lost their lives at Fitzroy, thirty three Welsh Guardsmen, seven men of the Royal Navy, and eleven other soldiers and sailors. Forty six injured men were landed during the course of the afternoon and evening.

7.B.10           It has been suggested that the Welsh Guards were not battle fit, having just come off ceremonial duties. That is a suggestion that I reject. The battalion had last been on ceremonial duties in the latter part of 1981. It then underwent a concentrated period of training in Kenya before Christmas 1981. The training involved the use of live ammunition on a daily basis. In February and March 1982 the battalion was on Spearhead duty, meaning that it was on 72 hours notice to be posted on active service to any part of the world. The battalion had then undergone training in the Brecon Beacons in preparation for the Falklands campaign. It underwent further training en route to the Falklands. I am satisfied on the evidence before me that the battalion was well prepared for combat; but as Brigadier Rickett put it in evidence, "…nothing could have prepared for the horror of what happened on Sir Galahad".

7.B.11           The battle for Port Stanley

The final battle for Port Stanley took place in the horseshoe of mountains that ringed it to the west. On 11 June 42 Commando RN attacked Mount Harriet, 45 Commando RN attacked Two Sisters and 3 Para attacked Mount Longdon. Denzil Connick, then a lance-corporal in 3 Para, gave a graphic description of the battle for Mount Longdon –

"The battle for Mount Longdon was probably amongst the most fearsome battles encountered by British troops, probably since Korea, I should imagine. It meant that my unit, 3 Para and B Company, which was our lead company went in with bayonet and it was back to basics; it was trench to trench, bunker to bunker, hand to hand, and any soldiers in battle of that nature will not likely ever experience anything worse because that is it in its most raw and violent sense.

Your know, you had just about every imaginable horror surrounding you, just about every imaginable horror confronting you, and you also had to take part and contribute as much as you possibly could to this horror, this hell that you were put into…It was just complete hell"

7.B.12           Having taken Mount Longdon, 3 Para were subjected to the most intense mortar and artillery bombardment. Again the effect was vividly described by Mr Connick –

"3 Para came under artillery fire from the moment that the Argentines realised that they had lost Mt Longdon to us and they had prerecorded Mt Longdon as a target, and their artillery gunners were pretty good and their mortar gunners as well were pretty good. So we came under accurate mortar and artillery fire and sustained it without being allowed to move for some two days, and it was a very, very long two days."

"The first time we came under regular and accurate artillery fire, that was very very frightening. I would say it is probably more frightening than the actual attack itself, I think mainly because you have absolutely no control over what is going on. You are literally just making yourself into as small a person as you can, finding yourself the deepest hole you can find or the strongest-built bunker that you can find, and you hide in there and just pray to God that you do not get a direct hit."

7.B.13           On 13 June 2 Para attacked Wireless Ridge and the 2^nd Battalion Scots Guards attacked Tumbledown Mountain. On the following day the Argentine forces surrendered; and British forces took up positions in Port Stanley, taking a total of 10254 prisoners. On 16 June Land Forces HQ was established at Government House and the operation to clean up Port Stanley began. On the 17 June General Galtieri was replaced as President of Argentina and commander-in-chief of the army, and on 21 June the new Argentine President, General Bignone announced that the ceasefire would be observed by all Argentine armed forces.

7.B.14           On 22 June 2 Para and 3 Para embarked for Ascension Island on the MV Norland. From Ascension Island they were flown to RAF Brize Norton. The Marines travelled back to the UK on the Canberra. The Welsh Guards remained in Port Stanley for two months and were involved in the ‘clean up’ operation. They travelled back to Ascension Island on the MV St Edmond, a North Sea ferry.

7.B.15           Operation Corporate – Medical Support Facilities

Planning

Operation Corporate was a naval task force under the command of the Royal Navy. According to Sir Alan Reay, who was DGAMS at the material time, responsibility for medical matters devolved from the C in C of the Fleet, Admiral Sir John Fieldhouse, to the Principal Medical Officer, Surgeon Rear Admiral Snow. Sir Alan Reay had no input into the size and makeup of the medical team; but in his witness statement he made the following observations –

"First the Task Force was assembled extremely speedily for an expeditionary campaign some 8000 miles away to be fought in a difficult and hostile environment. Secondly, Commanders might well consider that the best way to reduce or mitigate the number of casualties was to seek to win the campaign as speedily as possible: for every additional doctor, RMO or psychiatrist, there would inevitably be one less fighting soldier. Thirdly, although the importance of field psychiatry should not be underestimated, it may well be that the naval planners thought that general surgeons and anaesthetists were a more pressing need."

But there was no direct evidence as to the basis upon which the Royal Navy Commanders assembled the medical support facilities.

7.B.16           On 15 April 1982 Brigadier Abraham, then Professor of Army Psychiatry, but also acting DAPsych in the absence of Brigadier Wickenden, wrote a short memorandum addressed to ADG AMD 1, headed "ARMY MEDICAL SUPPORT PSYCHIATRIC TEAM", and signed "for Director of Army Psychiatry". It set out details of a proposed Army Medical Support Psychiatric team consisting of a psychiatrist and two nurses. He volunteered himself, but to be replaced as soon as practicable by Lt Col Callum, and also provided names for a ‘relief team’ consisting of Major Nevison-Andrews and two nurses. Although he did not use the term ‘FPT’ in the memorandum, he said in evidence that he had in mind two Field Psychiatric Teams, each consisting of a psychiatrist and two psychiatric nurses. In the course of his evidence he explained why he had written the memorandum –

"I thought that the psychiatric support could well need enhancement and bearing in mind that there were a number of Army people going down, I think it seemed appropriate that we should make our contribution."

He also said that "My suggestion was not taken up, presumably for logistical reasons." He was asked when he had learned that his proposal had been turned down, and replied that he had spoken to Major East, the staff officer at AMD 1 who was the recipient of the memorandum, after Major East had been on a liaison visit to the RN. His recollection was that Major East said "I was busy trying to get the surgical support going and this really did not come up, or words to that effect". Major East was not called. There was no evidence before me as to whether or not the proposal was in fact considered by the Navy.

7.B.17           On 10 August 1982 there was a conversation between Brigadier Abraham and Sir Alan Reay. Not surprisingly neither have any clear recollection of it. Brigadier Abraham thinks that Sir Alan Reay asked why there was no army psychiatric representation and that he had replied "Well we did try", and explained the steps that he had taken. Sir Alan Reay has an aide memoire in the form of a yellow sticker attached to a copy of his itinerary for September 1982 and written, he believes, on 10 August. It reads "Suggestion not taken up….could not be slotted in logistically at the expense of soldiers." That note has to be read in the context of his evidence as to the liaison between his department at the MoD and both the Royal Naval Medical Services and the RAF Medical Services. All three departments were housed in the same building. Throughout Operation Corporate the three Deputy Directors General held weekly monitoring meetings, and there were almost daily meeting at Grade 2 Staff Officer level, ie between Major East and his equivalents. Sir Alan Reay says in his witness statement that –

"I understand that Colonel Abraham’s request was turned down on the grounds of operational priorities; these I was not in a position to question."

7.B.18           On 7 March 1983 Major General Ferrie, Principal Medical Officer UK Land Forces, formally reported on the medical services for Operation Corporate. The aim of the report was to identify "…those areas of medical concern which require remedial action to improve the effectiveness of the Army Medical Services." Under the heading "Medical Planning" it contained the following passage –

"Medical planning for this operation was carried out by CINCFLEET. Whilst the operation was mounted by the Royal Navy, Army Medical Units were involved and yet there was a complete blackout and lack of information concerning the overall medical plan. This materially affected the ability of the AMS at all levels of command to give advice as to the most appropriate Army medical support for the land operations."

7.B.19           The Medical Support Facilities

The task force numbered some 28000 men and women. The arrangements for medical personnel were conveniently summarised in a talk given in late 1982 by Major General Pryn, then Director of Army Surgery -

"In all the RN had 90 medical officers, 12 dental officers, 15 nursing officers, 7 medical services officers and 307 other ranks deployed throughout the task force fleet and with the Royal Marines.

The Army had 30 medical officers and 120 other ranks deployed with their regiments, a field ambulance and as surgical teams.

Amongst all of these there were a total of:

14 general surgeons, 2 oral surgeons, 1 plastic surgeon and 1 eye surgeon and 2 psychiatrists.

The plan being to set up a forward field hospital on land and to evacuate to the Hospital Ship Uganda, which was to act as a General Hospital, by hospital tender vessels and or helicopters.

Of the total British casualties of 1033, 256 (24%) were killed and 777 needed hospital treatment."

7.B.20           Dr. Richard Jolly, then an acting Surgeon Commander, was the Officer in Charge of the Medical Squadron of the Commando Logistic Regiment of 3 Commando Brigade RN, and de facto staff medical adviser to the Brigade Commander. Dr. Jolly served in the Royal Navy as a medical officer attached to the Royal Marines between 1972 – 78 and again between 1979 and his retirement at the rank of Surgeon Captain in 1996. Having been informed of the deployment to the Falklands, Surgeon Cdr Jolly gave advice to the Brigade Commander as to the necessary medical support facilities. He advised that there was a requirement for two surgical support teams. One of the surgical support teams was deployed on the Canberra which was designated a Primary Casualty Receiving Ship (PCRS). The second surgical support team was deployed on the aircraft carrier HMS Hermes. 5 Infantry Brigade had in support 16 Field Ambulance, described by Dr Jolly as analagous to an RN medical squadron "…but perhaps more heavily scaled".

7.B.21           The main hospital ship for the Task Force was the SS Uganda, a schools cruise ship requisitioned by the navy for that purpose and designated as such under the terms of the Geneva Convention. The medical personnel on the SS Uganda consisted of a range of consultant and senior specialists in a variety of medical fields supported by a team of at least 10 nursing officers and 50 naval nurses.

7.B.22           Following the initial decision to deploy two surgical support teams, a third group of hospital specialists was formed and deployed on the Canberra. It included Surgeon Cdr Morgan O’Connell, a consultant psychiatrist, who became Surgeon Cdr Jolly’s de facto advisor on psychiatric matters concerning the Brigade. As Surgeon Cdr Jolly understood it the decision to deploy Surgeon Cdr O’Connell was taken by Medical Director General (Navy) (MDG(N)). Another naval psychiatrist, Surgeon Cdr Scott- Brown sailed on the Uganda. On boarding the Canberra, Surgeon Cdr O’Connell discovered that there were two psychiatrically trained nurses aboard as part of the surgical support team, which he thought gave him the basis of a "mini mental health team".

7.B.23           The intended arrangements for the treatment and evacuation of casualties were that the first echelon was to be the individual ships for the Navy, and Regimental Aid Posts for the Army. The ordinary complement of Regimental Medical Officers is one per unit or battalion of 600-650 men; but at Surgeon Commander Jolly’s instigation the RMOs were effectively doubled-up. The Canberra was to provide the second echelon stationed close inshore in San Carlos Water. The Uganda was to be the third echelon.

7.B.24           The Canberra sailed from Southampton on 9 April. The troops that she carried were involved in an intensive training regime as the vessel sailed to the South Atlantic. It included training in first aid, or rather "self aid" the description preferred by Surgeon Cdr Jolly and the Brigade Commander, Brigadier Thompson. Surgeon Cdr O’Connell gave a presentation on the doctrines of military psychiatry encapsulated in the PIE principles to the embarked medical staff, which included medical branch ratings as well as officers, in which he addressed his understanding of the "…emotional problems likely to arise in war", and his role as a military psychiatrist. He also lectured an informal group called the Canberra Medical Society and made up of doctors, nursing officers and officers of the Canberra’s ship’s company on the same subjects.

7.B.25           On the Norland, Major Hughes, RMO of 2 Para, introduced a training programme for all ranks on combat first aid at a basic level and set up a course lasting a week for 20 selected soldiers to whom he taught advanced first aid techniques. He also gave some instruction in the recognition of battleshock, and as to how battleshock casualties should be dealt with. His instructions were based upon the course on military psychiatry given by Brigadier Abraham as part of the PGMO course, which he had undergone in the previous year. Major Hughes said in evidence that-

"71. Soldiers and officers were told that if a soldier was suffering from battle shock, such a soldier should come back to me so that I, as the RMO, could decide what was the best way of dealing with and treating the individual with a view ultimately to returning him to the unit for full duties as quickly as possible.

72. I gave instruction on what signs and symptoms everyone needed to look out for in their comrades which could indicated that an individual was suffering a psychological reaction to battle. When speaking about this subject I cited the main tell tale sign and symptom of a psychological reaction in battle as a change in patterns of behaviour in the individual concerned. At that time I was confident that Officers in the Battalion knew their men well because of the fact that all Officers trained with all of the soldiers under them. I was confident that an individual Officer, a Senior NCO or even an Junior NCO for that matter would be able quickly to pick up on something that wasn’t normal in terms of an individuals performance or behaviour.

73. In such circumstances I made it clear that wherever such a suspicion arose, the person suspected should be sent immediately to me for a chat…"

He also gave evidence that the padre was involved in preparing the men of 2 Para –

"…one of his training processes was to get the groups of men together and get them to talk about their feelings of combat and what they would feel if somebody they knew was killed or maimed. So he had broken into the spiritual domain and it was much more, I felt, the padre’s domain in that respect than mine."

7.B.26           It is relevant to note in this context that as the QE2 approached Ascension Island Brigadier Rickett spoke to his men about his own experience of fear –

"After such a length of time it is difficult to recall exactly what I said; however my recollection is that I talked to the men about what it was like for me being under fire in Aden and how frightened I was. I also remember saying that it was far worse coming under fire in a building due to the echoing sound of the bullets. I went on to say that whilst we might all be scared at different times during the coming days, we were well trained for what was ahead of us."

7.B.27           The plan to moor the Canberra, as the primary casualty receiving ship, close inshore in San Carlos Water could not be put into effect because of the lack of air superiority and consequent vulnerability of ships in San Carlos Water. The decision was therefore taken at very short notice that Surgeon Cdr Jolly would disembark from the Canberra with the landing force and establish a field hospital in the abandoned slaughter house and refrigeration plant at Ajax Bay on the southern shore of the southern arm of San Carlos water. He and his team were unable to land the 17 tonnes of medical stores aboard the Canberra. They were limited to what they could carry. Furthermore large quantities of medical stores were lost when the Atlantic Conveyor, a 13000 ton container ship, was sunk in an Exocet missile attack by the Argentine airforce on 25 May. The loss of the Atlantic Conveyor also resulted in the loss of tentage and of ten Wessex helicopters and three of the four heavy lift Chinook helicopters that it was carrying. The field hospital established at Ajax Bay was a Main Dressing Station (MDS) augmented by specialised surgical teams, and was technically a Main Surgical Complex (MSC). Ajax Bay became the second echelon for the treatment and evacuation of casualties.

7.B.28           Surgeon Cdr Jolly and his surgical support team remained at Ajax Bay throughout the hostilities. They deserve the highest praise for their achievements in the most adverse conditions. Ajax Bay was the only location where 3 Commando Brigade could bring their logistics stores ashore, namely supplies of fuel, food, water and ammunition, all of which were legitimate military targets. In consequence under the rules of the Geneva Convention the buildings used as a hospital could not be marked with a Red Cross to prevent hostile air strikes; and they were the subject of air attacks in which heavy casualties were sustained. Five were killed and 27 injured. Two unexploded bombs became lodged in the hospital buildings. Many of those treated by the surgical support team had sustained horrendous injuries. Yet no British soldier admitted alive died in the unit. That was an achievement of which Surgeon Cdr Jolly and his team are justly proud. It earned the Ajax Bay facility the nickname of "The red and green life machine" which Surgeon Cdr Jolly was later to use as the title of the book in which he described his experiences during the Falklands War.

7.B.29           As there was no holding capacity for post-operative nursing at Ajax Bay casualties were moved as soon as practicable by helicopter to the hospital ship Uganda. Resources and space to treat the more severely physically wounded were limited aboard the Uganda. In consequence, and whenever possible, wounded soldiers were taken by hospital ambulance ship (HM Ships Hydra, Herald and Hecla) from the Uganda to Montevideo in Uruguay and flown to RAF Brize Norton and then transported to the military hospitals at Woolwich (or Haslar Royal Navy). According to Surgeon Cdr Jolly the Uganda was the place where any disturbing psychological behaviour in those who had sustained physical injury first started to manifest itself because of its position in the chain of medical evacuation.

7.B.30           Surgeon Cdr Jolly decided not to deploy Surgeon Cdr O’Connell ashore at Ajax Bay, principally because he considered that psychiatric and psychological casualties within the Royal Marines would be low "…mainly because of the highly cohesive nature of the group and the fact that within this group, morale was very high." He gave evidence that he discussed the question with his senior medical officer aboard the Canberra that they agreed that "…it was probably better that he stayed in Canberra and be available to go ashore if necessary." A similar judgment as to the likelihood of psychiatric and psychological casualties within the parachute regiment had been made by Major Hughes.

7.B.31           Surgeon Commander O’Connell has expressed the view that it would have been desirable for there to have been a psychiatric presence at Ajax Bay. But he acknowledges that "there would undoubtedly have been some practical difficulties in deploying a psychiatric team ashore, not least the lack of shelter due to shortage of viable tentage…". Secondly he acknowledges that he had a valuable function to perform aboard the Canberra. As he said in the course of his evidence:

"I did get ashore to Ajax Bay. I went ashore to visit and to see for myself what was going on but it was made quite clear to me that I was expected back on board Canberra where I had a job of work to do other than the psychiatric … I was actively involved in helping to manage the psychological issues of the wounded, the blinded, the amputees, Argentinean and British."

7.B.32           On 18 June Surgeon Cdr Scott-Brown, the psychiatrist aboard the Uganda, wrote to Brigadier Abraham saying –

"It is clear that the MOs forward are aware of battle stress. It is not clear how much they are dealing with. Very little I feel as it has been apart from the ship sinkings and the Galahad incident a fairly busy brief battle situation. If Stanley had gone on I feel we would have seen more as the sniper activity and shelling was causing some disquiet especially amongst the Welsh Guards.

To answer your question. The cases I have seen have all responded quickly to very limited intervention and usually after a tidy up and food and rest needed little more…

It is pity we could not get Morgan ashore…"

7.B.33           On 24 June Surgeon Cdr O’Connell sent a letter to Brigadier Abraham from Port Stanley. The letter followed a cable sent to the MoD from Canberra which has not survived. It said -

"This letter will hopefully reach you after a signal ex SNO Canberra via MDG. It is my considered opinion that the army need a psychiatrist on the ground Falkland Islands not so much to deal with frank psychiatric illness of which there is little but to aid commanders at all levels in the counselling process which is very much in need, and will continue after the units have returned to UK/BAOR. Unfortunately our medical colleagues are less sensitive to this; Alistair shares this view. Hence it may have to be through the executive net that matters are followed up…"

7.B.34           When questioned as to the impact that the deployment of FPTs would have had Surgeon Commander Jolly gave evidence that –

"…the absence of FPTs ashore made no real difference in the final analysis. The system worked well without them because the primary battleshock load was so low."

Although he later added –

"In terms of my responsibilities to 3 Commando Brigade, they made no difference to the direct care during the land battles of the Falklands War to my teams at Ajax Bay.

In the aftermath, I think they would have made a difference, for the reasons that I have just given you. I think they would have highlighted, in a way that Surgeon Commander O’Connell tried to, both by letter, which I believe is in the documents, and a signal which I am not sure whether it is in the documents or not, that there were going to be some problems later on and they needed to be anticipated."

7.B.35           En route home Surgeon Cdr O’Connell found himself carrying out "ventilation and defusing work" on an ad hoc basis. He says that he would be approached by young Marine officers to discuss their men; but that they would start to talk about their own experiences and feelings. A number of other witnesses gave evidence as to informal group discussions in the course of the return voyage.

7.B.36           Psychiatric casualties

Psychiatric casualties identified in the course of Operation Corporate were minimal. The Medical Report on Operation Corporate submitted by Surgeon Captain Blackstone to the Medical Director General (Naval) on 1 November 1982 which contained an analysis of all casualties, identified only six psychiatric casualties under the descriptions ‘shell shock’, ‘battleshock’, ‘shock’ and ‘battle fatigue’, less than 2% of the figure for those wounded in action. As to individual units Major Hughes gave evidence that he saw no battleshock casualties in 2 Para. He did not treat any men "…incapable of fighting because of an acute psychiatric reaction to the stress of battle." In his view that was because the battle was too intense and too short and because –

"I was attached to an elite unit that had high morale, a good leader and was well trained. In addition all the men I was responsible for had undergone rigorous physical and psychological screening just to join the battalion."

Similarly Lt Col Warsap, RMO to the Scots Guards, wrote an article in the Journal of the RAMC saying that there was "not one case of psychiatric or emotional instability".

7.B.37           Brigadier Abraham took a different view. Having spoken to the MOs of three of the battalions involved in the campaign, and having examined the casualty evacuation lists and the case notes of all casualties that seemed likely to have been psychiatric, he formed the view that the true ratio of battleshock to WIA (wounded in action) was 5/10%, a figure that he gave in a paper delivered at the Third International Conference on Psychiatric Adjustment in Time of Peace and War at Tel Aviv in January 1983 entitled ‘Stress Casualties in the Falklands Land Force’, and repeated in an editorial published in the February 1983 edition of the Journal of the RAMC.

7.B.38           In a letter to the Medical Director General (M) at the Ministry of Defence dated 25 October 1982 Surgeon Commander Scott-Brown gave early warning that there was over-optimism as to the level of psychiatric casualties.

‘Claimants on South Atlantic Fund (Psychiatric)

1. The initial presentation of psychiatric casualties as a result of Operation Corporate was distinctly limited both in numbers and in degree of pathology.
2. Most of these cases appear to have made at least in the short term a reasonable recovery.
3. Following the Falklands experience, the Naval personnel being re-exposed to a stressful situation in sea-going ships have been developing phobic anxiety states and other forms of pathology. The outcome of such emerging pathology is uncertain and some degree of disability may remain.
4. In my view further cases may emerge over the next year or two, though the trigger to psychopathology may well be identified as a Falklands Islands experience.
5. In my view a marker should be placed for potential psychiatric claimants on this fund.
6. Whereas the prognosis for physical trauma can be fairly easily ascertained at a relatively early stage, the psychiatric prognosis is much more nebulous and the effects are likely to be considerably deferred.’

7.B.39           On 12 November 1982 Brigadier Wickenden wrote to AMD1 at the Ministry of Defence in more optimistic terms -

"Psychiatric morbidity within the Army due to combat in the Falklands Islands has been very light. The final figure will probably amount to less than 2% of the total casualties. We may expect to receive a small trickle for some time, mostly presenting as depressive reactions with ideas of guilt and unworthiness concerning the adequacy of their performance under fire. These, however, will not concern the garrison on the Islands."

7.B.40           At a symposium held at the Institute of Naval Medicine in April 1983 Surgeon Commander Scott-Brown gave a paper in which he emphasised the low number of battleshock casualties and acute stress reactions estimating approximately 12 cases on the Uganda (a figure that was subsequently assessed at 14-16) and a few cases on the Canberra. He also said in the paper that –

"Had the numbers been larger we would have been in great difficulty because the psychiatric resources in my opinion, and the opinion of my colleagues also, were wrongly deployed. In our view we should have been ashore in Ajax Bay where the stressed individuals could have been returned to duty."

 

a view with which Brigadier Abraham concurs. Surgeon Commander Scott-Brown also made the following point -

"Of lesser relevance during combat but of later significance are the delayed reactions. We have had some 54 cases of late psychiatric disorder presenting since the conflict and these are cases where we think the Falklands experience had something to do with them as a precipitator of the illness. Some 15 individuals in the RN and the Royal Marines are still under surveillance. This is of very little relevance during the battle - we wondered why these individuals have shown up now. In some cases we feel it is because either their return to duty has been delayed or has been too premature, in other words Hobson's choice - you can be wrong whichever way you play it. And there are no clear guidelines as to when you should send people back to stress. These delayed reactions are psychiatric syndromes presented after combat through which the individual had apparently progressed without difficulty. In the light of Corporate experience few of these cases would have been identified at screening. Late reactions were probably less common in an ongoing war where there was a higher commitment on the part of individuals than in a peacetime setting."

7.B.41           In 1984 Brigadier Abraham and Major General Roberts produced a paper entitled "Stress Casualties in the Falklands Land Forces" in which the battleshock/WIA ratio was given as 7%. Importantly Brigadier Abraham gave evidence in his first written statement that –

"60. I was of course aware that Army psychiatrists, at the Cambridge Military Hospital Aldershot and the QEMH mainly, were seeing a steady trickle of post-Operation Corporate cases in outpatients throughout the 1980s. My thinking in the early 1980s was that these cases were being 'picked up' through the regimental system and referred to psychiatric specialists by UMOs. I accept that by the late 1980s it gradually became clear that some cases, the numbers of which could not be ascertained with any degree of exactitude, were going unrecognised and undiagnosed for whatever reason: either the person himself was unaware of what was wrong, or if he was aware he was able to conceal it; or those around him were unaware that anything was wrong, or if they were aware they were unaware of the nature of the problem because of confounding factors such as heavy drinking, which would only infrequently have been secondary to psychiatric disorder."

7.B.42           Finally in this context reference should be made to the study carried out by Dr Hughes (formerly Major Hughes RMO to 2 Para) and Dr O'Brien and published in the British Journal of Psychiatry 1991 159, 135-141 entitled "Symptoms of Post-traumatic Stress Disorder in Falklands Veterans Five Years After the Conflict." Although not published until 1991, work on the research project began in 1986. The abstract reads –

"A group of 64 Falklands war veterans who were still serving in the British Army were studied and compared with a group of matched controls. Half the veterans reported some symptoms of post-traumatic stress disorder, and 22% were rated as having the complete PTSD syndrome. Presence of the symptoms was associated with intensity of combat experience and the retrospective report of emotional difficulties in the initial period on return from the war."

7.B.43           Dr O'Brien, who gave evidence in the trial of the generic issues both as a witness of fact and later in an expert capacity, acknowledges that the study has serious methodological weaknesses, in particular that it was entirely questionnaire based so that there was no objective confirmation of diagnoses. It follows that any reliance upon it must be guarded.

7.B.44           Conclusions

Given the decision of the House of Lords in Matthews v MoD and my conclusions as to the proper construction of section 10 of the Crown Proceedings Act 1947, no causes of action arise in relation to the Falklands War. But I propose nevertheless shortly to address two of the issues that arose in relation to Operation Corporate, the ambit of the combat immunity and forward psychiatry.

7.B.45           Combat immunity

It was the Claimants’ case in essence that the MoD was in breach of its duty of care in failing to deploy psychiatric support on the Falkland Islands, secondly in failing to apply the principles of forward psychiatry, and thirdly in failing to carry out debriefing. It was submitted on behalf of the MoD that in relation to each the acts and omissions upon which the Claimants sought to rely were subject to the combat immunity.

7.B.46           As to the first limb of the Claimants’ case, there is no direct evidence as to the basis upon which the task force and in particular the medical/psychiatric services were assembled. But I am satisfied that the explanation for the failure to take up Brigadier Abraham's proposal for the deployment of a psychiatric support team advanced both by him and by Sir Alan Reay is probably correct (see paragraph 7.B.15 and 17). Operation Corporate involved an amphibious landing carried out 8000 miles from the UK by a very substantial task force assembled in a very short period of time. That must have imposed the most severe operational constraints. Decisions as to the composition of the task force were necessarily subject to the overriding military objective, and in my judgment must fall within the combat immunity.

7.B.47           The issue in relation to the second and third limbs of the Claimants’ case was whether the immunity applied to lulls in the battle, ie periods when units were not directly engaged with the enemy, for example in relation to 2 Para the period between the battle for Goose Green and the battle for Wireless Ridge. In fact Brigadier Chaundler and his MO, Captain Hughes took advantage of the lull to identify any of their men who were in difficulties, see paragraph 7.B.8 above. But the issue is whether they were under a duty to do so.

7.B.48           I consider the submission that the combat immunity should not apply during such periods to be unrealistic. Commanders will obviously be concerned for the welfare of their men, as was so clearly demonstrated by Brigadier Chaundler; but the steps that a commander or his MO can take in such circumstances will be dictated or at least influenced by operational considerations. Furthermore the argument that the immunity should not apply during lulls in the battle presents obvious practical difficulties. For how long will such a lull have to last before the immunity ceases to apply? At what point will the immunity again apply?

7.B.49           In my judgment the combat immunity applied to all operations conducted on the Falkland Islands until the permanent cessation of hostilities. The Argentine forces on the Falkland Islands surrendered on 14 June; but the task force had to remain on the alert to defend itself against further hostilities until the 21 June when the new President of Argentina, General Bignone, announced that the ceasefire would be observed by all Argentine forces. I consider that the immunity applied until that point.

7.B.50           Forward Psychiatry

It is clear from the evidence that the RMOs serving with the units deployed in the Falklands were well aware of the principles of forward psychiatry, and would have applied them to detected cases of battleshock in so far as it was practical to do so given the circumstances in which they were operating.

7.B.51           Secondly there was an issue of causation in relation to the submission that psychiatric support should have been deployed in the Falkland Islands. The battle for the Falklands was a fluid and fast moving campaign fought over the most inhospitable terrain in adverse weather conditions. Casualties had to be evacuated by helicopter to Ajax Bay and thence to either the Uganda or the Canberra; and under the Geneva Convention any casualties transferred to the Uganda would not have been able to rejoin as their units. So far as the Canberra was concerned, it was unable to anchor in the San Carlos water because of the inability of the task force to establish air superiority. Furthermore the sinking of the Atlantic Conveyor with the loss of the tentage that it was carrying meant that in practice a unit could not have been established at San Carlos or Ajax Bay. As Dr Jolly pointed out there was no holding space at Ajax Bay and the holding time had to be as short as possible. Thus given the nature of the battle and the terrain over which it was fought, it would not have been possible for FPTs to have functioned in the way that had been intended. In short I do not consider that their presence in the task force would have made any material difference to the treatment of any individual soldier.

7.C. THE GULF WAR – OPERATION GRANBY

7.C.1           Operation Granby was the largest conventional war operation mounted by the British army since the end of the Second World War. A concise account of the operation is contained in "An Account of the Gulf Crisis 1990-1991 and the British Armies Contribution To the Liberation of Kuwait", a document prepared in 1991 under the direction of the Inspector General Doctrine and Training Ministry of Defence, from which I have drawn extensively.

7.C.2           During the third week in July 1990 Iraq began a military build up along its border with Kuwait and in the early hours of 2 August Iraqi troops invaded Kuwait spearheaded by the elite Republican Guard. The invasion achieved complete surprise, and although there was fierce fighting around the Emir of Kuwait’s two main palaces, by the evening of 3 August Iraqi forces were in full control of Kuwait. On 6 August Iraqi armour started to mass along the Saudi Arabian border. The international response was swift. The UN Security Council met before dawn on 2 August and passed a resolution, UN Resolution 660, condemning the invasion and demanding an immediate withdrawal of Iraqi forces. On 6 August the UN resolved, UN Resolution 661, to impose sanctions on Iraq involving an embargo on all trade, the only exceptions being medicines and humanitarian food supplies. It was also resolved to enforce sanctions by an international naval blockade of the Gulf.

7.C.3           The early military response by the United States and Britain was to increase naval forces and deploy fighter aircraft to the area. The US Secretary of State, James Baker, then embarked upon a round of diplomacy to construct a coalition to provide political, military and financial support from the international community to back up Security Council Resolution 660. In the weeks following the invasion the immediate requirement was for defensive forces to be deployed in the region to deter any threat to Saudi Arabia.

7.C.4           On 14 September the Secretary of State for Defence announced that an armoured brigade, the Seventh Armoured Brigade, would be sent to the Gulf. The units making up the brigade immediately undertook a period of intensive training in Germany. On 28 September its heavy equipment was despatched to the Gulf by sea. Advance parties travelled to the Gulf on 10 October and the main party on 15 October. By the end of October 80% of the brigade had arrived in the Gulf. By mid-November training was complete, and the brigade was ready for war. But on 22 November the Secretary of State for Defence announced that further troops would be committed to the coalition to bring the United Kingdom contribution up to divisional strength. The effect was to double the number of UK troops in the Gulf to 33000, more than half of the manpower of the British army of the Rhine. Following intensive training and exercises the First Armoured Division under the command of Major General Smith was ready for war by the middle of February.

7.C.5           In the meantime offensive operations to liberate Kuwait had began on the night of 16/17 January 1991 with intensive air strikes and strikes by Tomahawk cruise missiles. The objective was to suppress the Iraqi air defences, to carry out strategic bombing with the aim of destroying Iraqi command and control and civil and military communication centres, and thirdly to weaken the Iraqi forces in preparation for a decisive and fast moving ground offensive. The air operations were conducted on a vast scale, at one stage averaging 2500 sorties per day. On 16 February the coalition forces also began an artillery bombardment of the Iraqi positions. The land offensive, Operation Desert Sword, began on 24 February. The training of the coalition forces had been designed to suggest to the Iraqis that the attack would be made by the shortest route, namely in a northerly direction from the south of Kuwait roughly parallel to the Gulf. But in fact the strategy was to attack from the west by what was described as a "left hook" which necessarily involved extremely lengthy lines of communications and supply. In the event the Iraqi resistance was minimal. There were mass surrenders of Iraqi forces. The battle was over in 100 hours. Coalition casualties were minimal. 250 coalition personnel were killed in action. 24 British servicemen were killed in action, a further 10 during the course of the hostilities, and 4 in the immediate aftermath.

7.C.6           On 2 March the UN Security Council passed US Resolution 686 setting out the manner in which the Iraqis should implement the earlier resolutions. On 3 April it set out the conditions for a formal cease fire, Resolution 687. On 6 April the Iraqi government accepted the conditions including the establishment of the UN force to monitor the cease fire which formally came into effect on 11 April.

7.C.7           The Medical Support for Operation Granby

Lieutenant General Sir Peter Beale, who was Commander Medical of the UK land forces when the planning for Operation Granby began, but who had become Director General of Army Medical Services (DGAMS) by the time that the land war began, gave evidence that some 51,000 service personnel were deployed to the Gulf, and of those over 5,000 were in medical units. I also heard evidence from two other senior officers who were involved in the planning of medical services for Operation Granby, Major General Short, who at the material time was Director Medical Operations and Plans in the rank of Colonel, and who assisted in the preparation of the outline operational medical plan, and Brigadier Lillywhite who took over from Sir Peter Beale as Commander Medical and was responsible for the medical policy for the prevention and management of combat stress and for the Army Psychiatric Service in the Gulf. He took advice both from DA Psych, Brigadier Abraham, and the psychiatrists in theatre. Their evidence shows that the policy was constantly refined to meet the exigencies of the evolving campaign. As Brigadier Lillywhite put it -

"The reason for there being one FPT (60FPT) at the start is that we were concerned with a brigade comprised of 7,000-8,000 men. Once the brigade swelled to a division of 25,800 we added a second FPT (61FPT). These FPTs were of course in addition to psychiatric teams organic to the deploying hospitals."

7.C.8           The arrangements for medical support included a number of hospitals. 22 and 32 Field Hospitals each established 200 bed hospitals at Al Quaysumah. 33 General Hospital set up a 600 bed hospital at Al Jubayl. 205 General Hospital also set up a 600 bed hospital at Riyadh.

7.C.9           Psychiatric Support

As I understand the evidence psychiatric units staffed by psychiatrists and support staff were attached to each of the General Hospitals. I heard evidence from Dr Deahl who served at both 205 and 33 General Hospitals and from Dr O'Brien who served with 33 General Hospital.

7.C.10           In addition two FPTs were deployed to the Gulf. On 7 August 1990 Brigadier Abraham, DA Psych, directed Major Mary Piper to set up and lead the psychiatric support for any UK troops that might be sent to the Gulf. Lt. Colonel Pocock produced a list of 12 mental nurses able and willing to man 60 FPT. On 17 August Major Piper produced lists of members for 60 FPT with reserves. The list was revised on 28 August. On 29 August DA Psych transmitted an outline plan for psychiatric support to D Med Ops and Plans anticipating the possibility of increases in the land forces to be committed to the Gulf and specifying the requirement of an eight man team for the support of a brigade group, in accordance with the Tactical Doctrine for a Field Psychiatric Team. Following the enlargement of the force to divisional strength, DA Psych informed the Army Medical Directorate of the requirement for a further FPT, 61 FPT, to be manned initially with the assistance of the RAF.

7.C.11           60 FPT consisted of two psychiatrists and six psychiatric nurses. It was deployed to the Gulf in early November 1990 and was initially under the command of Major Piper. In early January 1991 she returned to the United Kingdom and was replaced by Lt Colonel John Coogan. Second in command was Lt Colonel Gamble, then in the rank of Major, who served in the Gulf from 4 November 1990 until 15 March 1991.

7.C.12           60 FPT was initially located with 33 General Hospital at Al Jubayl in Saudi Arabia, and was then deployed in the Divisional Administration Area in support of the main battle group where, according to Lt Colonel Gamble, it carried out a peripatetic role doubling as both an FPT and a Battleshock Recovery Unit. 61 FPT, which arrived in the Gulf in January 1991, was under the command of Major Gillham and was based first in Al Jubayl then deployed forward to the Forward Force Maintenance Area near the Kuwaiti/Saudi border. Major Gillham says that it was effectively the second line FPT operating as a Battleshock Recovery Unit to hold combat stress casualties for up to seven days.

7.C.13           The evidence shows that both units encountered problems in obtaining the equipment and transport necessary to function effectively. This was the first time that such units had been deployed by the British army. They had not exercised either as a unit or with the units to which they were to be attached. But I am satisfied that such organisational problems were resolved, and secondly that they did not in fact hinder the FPTs in their operational role. Dr. Deahl, who was called on behalf of the Claimants agreed that the organisational shortcomings "probably did not make a material difference because of the small volume of casualties."

7.C.14           In the early stages of Operation Granby the role of 60 FPT was largely educational. Lieutenant Colonel Gamble gave evidence that the unit travelled throughout the British deployment carrying out briefings as well as managing day-to-day psychiatric problems as they arose. The briefings were directed to the recognition and management of battle shock. He described their content in the following terms –

"The briefings/presentations given were focussed on battleshock, how to recognise it and how to manage it. We did not dwell much on the treatment of PTSD for the obvious reason that this disorder would not have been expected to arise forward, but would have been dealt with by Primary Care and psychiatric personnel back in rear areas or back in their peace-time roles. The major message that we tried to get across was that one need not feel self-conscious about the need to see a psychiatrist. We emphasized that we were there for the battalions to make use of, and we also stressed that battleshock was a normal reaction by normal soldiers to abnormal events. We gave seniors a list of symptoms to look out for in their soldiers: in particular, a change in behaviour, increased irritability or 'twitchiness'. The advice was that such soldiers should be kept under observation in the first instance and then if necessary moved back to the B Echelons where we would visit them and assess. We also emphasized that the seniors themselves were not immune to battleshock and that they should not simply be looking for it in their soldiers."

7.C.15           He gave evidence that they attempted to brief as many units as they could and that "We did brief almost all the forward units excluding some artillery batteries." In the infantry and tank regiments briefings were given to officers and senior NCOs, in artillery regiments to the commanders of individual batteries. On what was essentially an experimental basis he and Captain Walker briefed all ranks in the 1^st Battalion The Royal Scots, briefing in his estimation between 300 - 400 hundred men.

7.C.17           Casualties

Given the numbers deployed in the Gulf, the number of psychiatric casualties was very low. Lieutenant Gamble says that 60 FPT saw 33 men, the vast majority whom were not post traumatic cases. Major Gillham says that 61 FPT saw very few combat stress reactions, and in his witness statement advanced three reasons why numbers were so low –

"…the number of combat stress reactions we saw were few: I recall about twelve in all, which compared well with the pre-War estimate of about 50 per day. The reasons for this were I think three-fold. First, and as I have already stated, the number of psychiatric casualties were generally much lower than expected, admittedly on a 'worst case' basis. Secondly, the majority of psychiatric casualties were not in the forward areas, and it was from there that they would have been evacuated to us. Thirdly, I suspect that such casualties as there were in the forward areas tended to find their way into the hospitals, in particular 33GH, rather than the BRUs. Whether this made any difference in practice is certainly debatable since, as Dr O'Brien pointed out at the Military Psychiatry training day, 90% of the casualties his unit saw were returned to duty."

7.C.18           The minutes of the 7th Euromed conference held in September 1992 and chaired by Brigadier Abraham at which a report of the experiences of the British forces in the Gulf was given, records that the two FPTs only saw 10 casualties. The minutes also noted that the General Hospitals together saw 120 casualties, 85% of whom were returned to duty. Dr. O’Brien gave evidence as to the casualties seen at 33 Field Hospital by reference to a paper he delivered in June 1992 entitled "Gulf War Psychiatry – Psychosomatic aspects" which contained an analysis of casualties. He says that there were 160 referrals, two thirds of whom were suffering from physical rather than psychological complaints. As to the psychological complaints he says that -

"Most of the problems involved adjustment to a hostile and stressful environment and/or the inability to deal with problems back home, with anxiety and lowered mood."

 

7.C.20           Conclusions

The Gulf war represented a landmark in terms of the provision of psychiatric support for British forces in that it was the first occasion on which FPTs were deployed. Major General Short considers with hindsight that the arrangements were inadequate given in particular the stress imposed by the threat of NBC (nuclear, biological and chemical) agents. His views are shared by Dr. Deahl. But as a result of the short duration of the land war the arrangements for psychiatric support were not put to the test. They were unquestionably adequate to deal with the referrals that were in fact made. Accordingly I am satisfied that such shortcomings as there may have been did not have had any adverse consequences for the troops deployed to the Gulf.

7.D. BOSNIA – OPERATION GRAPPLE

7.D.1           The British army was involved in peacekeeping operations in Bosnia from the beginning of 1992. Troops were first deployed on Operation Hanwood, the predecessor to Operation Grapple. Operation Grapple began in the autumn of 1992 and ran in successive iterations until April 1996. By October 1995 large scale conflict and population displacement had ceased and the Dayton Accords of December 1995 brought a measure of peace to the region. These changes resulted in a transfer of military authority from the UN to NATO with a resultant increase in British troop numbers in the former Republic of Yugoslavia from 5,800 in October 1995 to 10,400 in March 1996 when Operation Grapple merged into Operation Resolute.

7.D.2           The nature of the conflict in the territory of the former Republic of Yugoslavia, a conflict fuelled by longstanding and bitter ethnic rivalries, is well known. Peacekeeping operations in such an environment imposed considerable stress on the participating forces. The nature of such stress was succinctly summarised by Meichenbaum in 1994 in a passage quoted by Dr Higson, the Claimants’ expert, in which Meichenbaum himself quoted Weisaeth on the unique demands placed upon United Nations soldiers –

"The fear of death and injury, the exposure to grotesque stimuli and the sights of carnage and deprivation involving innocents, the uncertainty about the rules of engagement for using deadly force, the enforced passivity of peace-keeping troops when facing danger can result in helplessness so severe that the UN soldiers’ self respect was damaged. They also experienced "a persistent fear of losing control of their anger". The continuing suppression of anger, exposure to danger and mass deaths, the low control and high responsibility, the time and group pressures, the lack of information, the high risk of failure or "responsibility" stress, the continual taunts, accumatively contributed to the UN soldiers’ somatic and psycho somatic symptoms and to psychiatric signs of distress. Recent reports on UN forces in Canada and Norway indicate the increasing rates of PTSD in peace-keeping troops when they return home…"

7.D.3           It was plainly foreseeable that troops engaged in peace-keeping operations in the former Republic of Yugoslavia might suffer psychiatric disorders as a consequence of exposure to the stresses to which such operations could give rise. As Colonel Anderson, DA Psych said in a circular to all military psychiatrists dated 16 June 1992 –

"It seems likely that the turbulence in the Balkans will generate psychiatric patients whose condition is attributable directly or indirectly to that conflict. In order to detect the scale of the problem it would be helpful if all such cases could be notified to a central point."

7.D.5           Psychiatric support for Operation Grapple

On 8 June 1992 Colonel Millar of the Army Medical Directorate wrote a Loose Minute headed ‘OP Hanwood – PTSD’ in which he said –

"I have spoken at some length to Comd Med UKLF today on this topic, and expressed my worries regarding the stress under which personnel in Yugoslavia may be operating. He shares these worries, but does not feel that the deployment of a psychiatrist would, at this time, be the correct approach.

You will, naturally, keep this under review, and should the situation change, counselling on the ground could well be considered an option. Of course, there are political and financial considerations here, which also be remembered."

7.D.6           In August 1992 Colonel Anderson visited the territories of Croatia, Serbia and Bosnia. He came to the conclusion that Forward Psychiatric Teams (FPTs) should be deployed, but says in his witness statement that such deployment was prevented by lack of resources and "resistance at high level." His evidence reflected the minutes of the Defence Medical Services Psychiatric Committee meeting of 15 September 1992 which recorded under "Any other business" that Colonel Anderson had –

"… recommended that a CPN should be sent … with the support of a visiting psychiatrist. This proposal has yet to be accepted."

7.D.7           The minutes of the Army Psychiatrists Meeting of 13 October 1992 note part of Colonel Anderson’s address to the meeting in the following terms –

"He then moved on to discuss Yugoslavia and the latest development that a CPN had been nominated and then denominated by UKLF. The Director anticipated that at some stage a CPN would deploy to Yugoslavia and the fact that this had not taken place so far was largely related to financial implications rather than lack of enthusiasm on the Director of Army Psychiatry’s part."

7.D.8           Colonel Anderson’s view was supported by the then Adjutant General, Sir David

Ramsbotham, who wrote to C in C UKLF on 20 October 1992 –

1. Having spoken to DA Psych last week …. I am more concerned than ever that we are not doing nearly enough in terms of psychiatric support for our operations in former Yugoslavia given that Op GRAPPLE is now to deploy. DA Psych would recommend that a Field Psychiatric team deploys in support of all UK personnel in theatre. This team consists of one psychiatrist, two psychiatric nurses and they may require transport and a driver. I have stood up a team that would be ready to deploy with the medical element of the NSE.

2. I would endorse this recommendation. … I believe that we cannot afford not to have this support: DA Psych has already assessed the prevailing conditions … as being very likely to generate stress related illness amongst our soldiers. The Services have been accused after both CORPORATE and GRANBY, often in the media, of paying insufficient attention to prevention and treatment of stress victims and I believe strongly that were we to do nothing, knowing what we already know about conditions in theatre, we risk a tide of indefensible post deployment litigation which will damage our caring reputation. …"

7.D.9           In the course of cross-examination Sir David Ramsbotham was asked whether he had views on the Loose Minute dated 8 June 1992 to which I have made reference in paragraph 4 above, and which was copied to his Military Assistant. His answer was revealing and is worth setting out in full -

"page 177

25 A. I do. I have very strong views on this because

page 178

1 the pattern that developed, and it really started in

2 the Gulf War, of Ministers laying down exact ceilings of

3 how many individual people might go to the theatre and

4 we had some absurd games during the Gulf War where one

5 particular unit, the Queen's Own Highlanders, was sent

6 three times to the Gulf because it was seen there by

7 various people, who said: it was not allowed to have it

8 there, it had better go home, and so it went home and

9 then had to go out again and then was seen there and was

10 sent back and had to go out again. And this game was

11 played again in absolute terms over the costing of

12 the intervention force in Bosnia and I was very

13 concerned, having been and seen some tasks that they

14 were likely to have to do, because I had visited the

15 operations in Croatia and seen what was going on and

16 knew and talked about what was happening in the Bosnia

17 thing that a lot of people were going to be in positions

18 where they were going to come under considerable

19 personal stress. I think I have mentioned people on

20 refugee crossing points and in isolated gun positions.

21 Therefore, I felt there had to be field psychiatric

22 support because the distances over which people were

23 going to be spread were pretty large and unless you had

24 cover you would not be able to do anything about it.

25 Now, I was told on the initial deployment that there

page 179

1 was no room for psychiatric support because the numbers

2 would not allow it and I think I remember speaking to

3 the commander in chief about this, saying, "Sorry, this

4 is simply not good enough. You have to put somebody in

5 there because you owe it to your people".

6 Well, then they started tremendous to-ing and

7 fro-ing because all the numbers had been worked out now

8 at UKLF, and who was going to be left off and what and

9 why, and of course they realised that the numbers they

10 had been given were not enough to meet. I said: well,

11 that is fine; all you do now is you go and say: we

12 cannot do the task with the numbers that we have been

13 given; we have to have more numbers, but you will

14 include the psychiatric support.

15 And I talked this over with the Surgeon General and

16 he said that he would talk with UKLF and that is what

17 this was. Actually somebody did go in the end --

7.D.10           It is not clear from the documents when and how the final decision came to be made; but in April 1993 Major Walker, a CPN then in the rank of Captain, was sent to Bosnia, where he was deployed until late September 1993. He was replaced by Captain Webster (now Mrs. Crick) who served until March 1994. She was replaced by Captain Raymond who served from March to September 1994; and in turn he was replaced by Sergeant Critten whose tour of duty ended in April 1995. In Operation Grapple 6, which ran from April to September 1995, two CPNs were deployed, an officer and a SNCO working as a team. That remained the position for Operation Grapple 7 although it appears from the end of tour report for Grapple 6 that a consultant psychiatrist was deployed for a period as part of 24 Air Mob Bde. In Operation Resolute 2 which ran from April to September 1996 a CPN and a psychiatrist were deployed together as what was described as a Community Mental Health Team (CMHT).

7.D.11           In May 1993 Major Palmer visited Bosnia and wrote a report entitled "The Psychological Aspects of Op Grapple." Under the heading ‘Background’ he said-

"1. Recent press exposures have revealed a catalogue of atrocities to which officers and soldiers have been exposed whilst serving in Bosnia. They have also revealed to the public the distress caused to soldiers involved from the commanding officer downwards.

2. It is internationally recognised that Post Traumatic Stress Disorder (PTSD) is a "delayed and/or protracted response to a stressful event or situation of an exceptionally threatening or catastrophic nature outside the range of normal human experience.

3. Knowledge of the events portrayed in the press and as result of debriefing in theatre reveal a catalogue of grotesque, unexpected and unpredictable incidents which are highly likely to cause future PTSD in those exposed to them. This likelihood is further compounded by the impotence or helplessness experienced by those involved to either understand, prevent or atone for these atrocities."

7.D.12           He then went on to identify the factors in theatre that were expected to add to the vulnerability to PTSD. He noted one such factor as –

"Fear of labelling and consequent problems with future career development if they seek help, especially in officers and SNCOs, which is a particular relevance in this situation as it is predominantly the commanders who are involved in the negotiations and less savoury aspects of this work."

7.D.13           He also said that the aim of any psychological intervention in Operation Grapple "must… be primarily aimed at preventing and or minimising the chances of soldiers and officers developing PTSD", and recommended the full time deployment of a psychiatrist in theatre. That recommendation was not taken up, Colonel Anderson being of the view that regular monthly visits from a psychiatrist would suffice. In the event regular monthly visits were not achieved. Major Walker reported visits by a psychiatrist "Every six-eight weeks". Mrs Crick received only one such visit during her six month tour of duty, a visit which lasted four days. It appears from Captain Raymond’s end of tour report that there was only one visit by a psychiatrist during his tour of duty, a five-day visit by Colonel Anderson. Captain Raymond also recommended in his report that two CPNs should be deployed. Sergeant Critten received no support from a psychiatrist as a result of the problem that arose in the Autumn of 1994 when a question arose as to whether there should be further visits to Bosnia by a psychiatrist. It appears to have arisen as a consequence of an inadequate report on a visit in September 1994. Brigadier Short, then commander medical UKLF, refused to sanction further visits by a psychiatrist until the report had been rewritten. He explained in his oral evidence that he supported psychiatric provision but was ‘up against commanders in the field who were saying that they (psychiatrists) are there on a field trip, a jolly". A joint nursing and medical justification for such visits was therefore produced, Major Baggaley providing the medical input. On the 11 November 1994 Major Baggaley wrote direct to Com Med UKLF pointing out that –

"There are a considerable number of soldiers presenting with serious psychiatric problems as a result of service on Op Grapple. For example there are at least 3 inpatients on ward 5 currently with PTSD relating to service in Bosnia who are being medically discharged. There are many more (50-60) currently being treated on an out-patient basis in UK.".

"… that there is considerable anger from staff in theatre about what they regard as "medical tourism". I suspect that staff in theatre may not appreciate that the visit form (sic) the psychiatrist is not to collect souvenirs and photographs but is part of a concerted attempt to minimise adverse psychological reactions amongst the soldiers under their command."

Visits by a psychiatrist were subsequently restored.

7.D.14           The evidence as to the basis upon which decisions were taken as to psychiatric support for Operation Grapple is far from clear. But in essence the sequence of events appears to have been that initially no provision was made, that there was strong resistance to the deployment of psychiatric support, that in August 1992 Colonel Anderson came to the conclusion that an FPT should be deployed, a proposal that received the strong support of the AG, Sir David Ramsbotham, but was modified so as to reduce the support to a single CPN with the support of a visiting psychiatrist. It also appears that the resistance was on financial grounds unrelated to strategic considerations and was at a political rather than military level. As Sir David Ramsbotham put it –

"…one community psychiatric nurse was sent initially, and the Force was lucky to get that, as it was subject to minute numerical screening by politicians."

7.D.15           The question therefore arises as to whether the provision actually made for psychiatric support was adequate. In addressing that question it is necessary first to consider the role of the CPNs. Major Walker summarised their role in Operation Grapple in his end of tour report dated 25 September 1993 in the following terms –

"a. Resource to RMOs and Commanders on Psychiatric problems

b. To run an educational package on normal operational stress and to de-psychiatrise the subject.

c. To provide on going counselling facilities.

d. To provide psychological debriefing sessions appropriately after critical incidents in TAOR [total area of responsibility].

e. To advise commanders on the management of personnel involved in such incidents.

f. To run an educational package on Post Tour Stress and Post Traumatic Stress Syndrome to all Units in theatre."

Mrs Crick agreed with that summary. In essence the role was twofold, therapeutic and educational.

7.D.16           The question of whether the CPNs were able effectively to discharge their therapeutic role involves consideration of the resources available to them in theatre, and secondly the question of whether the deployment of a single CPN with occasional visits from a psychiatrist was adequate to meet the demand for psychiatric services.

7.D.17           The resources available to the CPNs in theatre

Major Walker commented on the facilities available to him in his end of tour report –

"Because this was the first deployment of a CPN in theatre, there was no real estate and patients were seen in the corridor of the MST. The OC Medical Squadron relocated assets and an ISO Office was provided as a CPN Office. Tables and chairs etc were provided by QM HQ NSE (UK). The following was (sic) requested by the CPN and provided by SO3 (MED)

a) Television and Video for presentations.

b) Tape recorder (Imaginal Exposure)."

Mrs. Crick also commented on the lack of resources in her post tour report dated 7 March 1994 –

"The CPN on Grapple II had an ISO Office specifically provided for the CPN's use. On 28 02 94 the CPN was removed from this ISO and now shares an office with the MST clerk. The current arrangement is that the clerk is asked to leave the office when the CPN sees patients. The CPN feels this arrangement is inadequate, as the office is frequented by many MST staff who wish to use the phone or computer, or see the clerk. The CPN is hopeful that when the extension to the MST is provided the OC MST will make a more adequate and private area available to the CPN."

7.D.18           The evidence shows that there was a lack of adequate planning and preparation for the deployment of CPNs; but although that initially presented difficulties, there is no evidence to suggest that it had adverse consequences for any patients.

7.D.19           The demand for psychiatric services

Details of the number of patients referred to the CPNs are contained in their end of tour reports. Captain Walker received eighty referrals on Operation Grapple 2, four suffering from a traumatic reaction including one with PTSD. Fifty-seven patients were referred to Mrs. Crick of whom twenty-two had "Post trauma stress (incident in theatre)". Captain Raymond saw seventy-six including two whom he diagnosed to be suffering from PTSD. Sergeant Critten’s breakdown of his consultations in theatre shows that he saw one hundred and two new patients, two with post traumatic stress reaction and one with PTSD. He gave a critical incident stress debrief to fifty-seven. The CPNs’ role was not limited to the treatment of individuals; but the figures do not suggest an excessive workload.

7.D.20           Major Walker gave evidence that he did not consider that there was a need for a full time psychiatrist to be deployed in theatre, evidence consistent with the views expressed by him in a document dated 30 August 1993 and headed "PSYCHIATRIC SUPPORT TO OP GRAPPLE". He also says in the document that "psychopathology using current figures would not justify the deployment of an additional CPN." Major Walker did in fact request an additional CPN to assist on a training program scheduled for the last two weeks in September 1993 in Split. Such reinforcement was forthcoming to assist in delivering an educational program to troops.

7.D.21           Mrs Crick was critical of the level of psychiatric support for the CPN in theatre but gave evidence that she did not think it necessary for a psychiatrist to be deployed in theatre on a full time basis. As to the appropriate level of staffing of CPNs, her evidence was that deployment of two CPNs was desirable in terms of support for one another, not because it was needed to meet the demand for psychiatric services. Similar evidence was given by Dr. Baggaley, Colonel Anderson and Major Walker. The point was explored in detail with Dr. Baggaley both in chief and in cross-examination. He explained that in his view "The theoretical ideal would have been to have a field psychiatric team because it would have provided mutual support." But he went on to say that –

"My personal view is that to deliver the job on the ground, you actually need one CPN and a visiting psychiatrist. That is what you need to see the patients on the ground.

The advantages of having a field psychiatric team are really for its own internal health and for its own internal training and also there is the – you know, I mentioned earlier the politics of it is to be seen to be useful, deployable part of the army but I honestly do not think that it would have made, or did make, the slightest difference to any soldier.

I do think there has been one extra case of psychiatric injury due to a failure to deploy a field psychiatric team."

7.D.22           Similarly Captain Raymond said in his end of tour report -

"Whilst the CPN has not had an especially large caseload, the CPN believes there would be many advantages in the deployment of two CPNs instead of one … if two CPNs were available, the majority of the time they could provide psychiatric support more effectively. This particular problem is worsening as the British area of responsibility continues to expand."

7.D.23           The desirability of support for a single CPN was underlined by the difficulties encountered by Sergeant Critten, who appears to have made his own arrangements for short term relief, and who says in his end of tour report that "There was a high probability that if the CPN had not made alternative arrangements then the CPN would have developed a stress reaction and become dysfunctional."

7.D.24           In this context the Defence invites comparison with the level of psychiatric support deployed in theatre by the other nations involved in the peacekeeping operations in Bosnia. Major Walker gave evidence that no such support was provided for the Dutch, French, Norwegian or Canadian forces. I am not greatly assisted by the comparison. The risk of psychiatric injury in those exposed to trauma in Bosnia was recognised by those responsible for the provision of psychiatric services to the British forces. The issue is whether the steps taken to meet that risk were adequate. The fact that no such steps were taken by the armed forces of other participating countries does not assist me in addressing that issue in the absence of any evidence as to the perception of risk within such forces and of comparative figures as to the number of troops deployed.

7.D.25           In my judgment the evidence does not demonstrate that there was a need for an FPT to be deployed in Bosnia. Secondly and whilst it would plainly have been desirable for the CPNs to have had the benefit of mutual support in theatre, the evidence shows that the provision made was adequate to meet the need for psychiatric intervention. Thirdly I am satisfied that it would have been desirable for psychiatrists to have visited Bosnia on a regular monthly basis in accordance with Colonel Anderson’s view of the appropriate level of support for the CPNs in the field. But there was no evidence before me that the less frequent and less regular visits that were in fact made, resulted in inadequate or inappropriate therapy for those in need of treatment. Thus whatever criticisms can be made of the basis upon which decisions were taken as to the deployment of psychiatric support for Operation Grapple, the evidence does not support the contention that the arrangements for psychiatric support had adverse consequences for the troops engaged on the operation.

7.D.26           The position with regard to the educational component of psychiatric support is more complex. A distinction has to be drawn between pre-deployment briefing, and the briefing carried out by CPNs in theatre ((b) and (f) of Major Walker’s analysis of the role of CPNs in Bosnia).

7.D.27           As to pre-deployment briefing, in August 1993 a meeting was held to consider the psychiatric support to Operation Grapple and to determine AMS and JFHQ policy on this issue. The current support was described as -

" … somewhat confused and haphazard to date with support in BAOR and UKLF differing, personnel deploying to theatre without this HQ’s knowledge …"

7.D.28           It is clear from the record of the meeting that effective pre-deployment briefing on the operational stresses likely to be encountered during Operation Grapple was not available in the early stages of the deployment -

"The ideal pre deployment training would consist of work in smallish groups (max 20) led by a CPN/Psychiatrist. It is accepted that this is unlikely to be possible given the pressure on time. It is felt that the current provision of a lecture to up to 500 people at a time is inappropriate, and is paying lip-service to the requirement. However this should continue in the absence of a better solution. The rationale for this is that the lecture serves as an introduction for troops, makes them aware of the problem and makes the appearance of the CPN in theatre less of a surprise."

7.D.29           In the document "PSYCHIATRIC SUPPORT FOR OP GRAPPLE" dated 30 August 1993 to which I have already made reference, Major Walker says

"There is little value in the CPN from the battalion area joining in the pre tour training, it may in fact have a negative effect in that it can increase the anxiety of personnel prior to deployment.

ATD 5 training is sufficient for pre tour deployment."

7.D.30           Mrs Crick was critical of the pre-Grapple training in her end of tour report in March 1994 -

"It is felt that the pre-Grapple training packages "psychiatric contribution" is wholly inadequate and inappropriate. Most of those who actually got a psychiatric presentation were just shown the "Mind At War" video with no explanation of its context or meaning to them as soldiers about to go to Bosnia/Croatia.

There are enough CPNs and Psychiatrists with experience of this theatre to get together and devise an appropriate package for pre-Grapple training. I suggest this be implemented as soon as possible."

7.D.31           Furthermore the evidence shows that not all troops deployed to Bosnia received a pre-deployment briefing on operational stress. The third CPN, Captain Raymond who was in Bosnia from March to September 1994, said in his end of tour report that –

"Many different units reported that they had no psychiatric input prior to OP Grapple due to deployment at very short notice. This highlights the need for more mental health education during basic training as a large number of people have only recently left recruit training or Sandhurst, only to find themselves on an operational tour."

7.D.32           His successor, Sergeant Critten, said in his end of tour report that –

"The majority of various units spoken to in TAOR (Tactical Area of Operational Responsibility) reported that they had had no psychiatric/psychological input prior to deployment, had this have taken place then individuals felt they would have been psychologically better prepared for an operational tour. This highlights the need for a greater awareness of mental health issues across the military rank structure especially before operation tours."

7.D.33           Thus the contemporary evidence shows that although there was a recognition of the desirability of pre-deployment briefing, it was not given to all troops; and the briefing that was given was in the view of the CPNs, who were well placed to make a judgment, inadequate and inappropriate.

7.D.34           As to briefing in theatre both Major Walker and Mrs Crick identified a problem with regard to training materials. Major Walker took steps to address it by producing a leaflet based on a Red Cross leaflet; but in giving presentations to the troops all that was available were the 1991 video "Realities of War" and the older Royal Navy film "Battlestress". As he says in his report –

"There does appear to be a requirement for a training video on "Operational Stress" as the present options of "Battleshock" and PTSD are inappropriate".

7.D.35           Mrs Crick shared his view but also felt that the training video "The Mind at War" introduced in October 1993 did not meet the particular needs of the deployment in Bosnia – "for fear of boring people to death", and following her return from Bosnia she and Captain Walker edited it, both to shorten it and to insert material specific to Bosnia.

7.D.36           On 31 January 1994 Major Baggaley, then senior lecturer in military psychiatry, produced a paper in which he proposed the formation of a working group, the Traumatic Stress Management Working Group (TSMWG). The first and introductory paragraph said –

"There is a requirement to provide lectures/seminars to troops who are on operational duties. This currently applies to units going to the former Yugoslavia and Northern Ireland. There has been a number of different initiatives from CPN’s and psychiatrists in different commands which has resulted in some excellent presentations. Unfortunately this has also resulted in considerable duplication of effort, subtle differences in emphasis and some inter personal, inter professional and inter unit rivalry. It would seem sensible to try to co-ordinate this activity and produce a common package or packages for use by both Army psychiatrists and Army psychiatric nurses."

Minutes of the group dated August 1994 indicated that a form for such presentations had been approved and would be made available for distribution; but the evidence is unclear as to what happen thereafter.

7.D.37           The ability of the CPNs to carry out briefing on the stresses likely to be encountered on Operation Grapple was dependant to a considerable degree on the cooperation and support of commanders. The evidence shows that in general it was forthcoming. In November 1993 Major Walker and Mrs Crick wrote an article in which they summarised their experience in the following terms –

"Generally, commanders at all levels who had served in Bosnia recognised the importance of education, recognition and early intervention with regard to operational and post-trauma stress, and similarly recognised that such measures will contribute to the efficient functioning of the unit and preserve their workforce."

7.D.38           Mrs Crick described the response of the CO of the Coldstream Guards in the following terms –

"How were relationships with the COs in the

20 Coldstream Guards? What happened?

21 A. Certainly, as soon as the commanding officer arrived in

22 theatre, my Lord, I saw him and talked to him about

23 the plan that we had with regard to managing operation

24 and traumatic stress within Bosnia. He fully endorsed

25 everything that was being done, offered his help

page 31

1 unreservedly and support for that, and it was fortunate

2 too that his senior non-commissioned officers, as well

3 as his officers, were also very much tuned into trying

4 to ensure that their troops did not actually succumb to

5 problems of stress without their knowledge of it and

6 they were keen to learn as much as they could so that

7 that could be avoided."

7.D.39           Major Baggaley’s report of his visit to Bosnia in December 1993, the principal aim of which was to debrief Mrs Crick, includes the comment that –

"She has occasionally received a rather dismissive and sceptical response from some members of the RAMC but she seems able to cope with this and has received support and encouragement from the SMO’s"

7.D.40           Mrs Crick was driven to write complaining about the public display of outright hostility to which she was subjected by one officer. But I am satisfied that this was an isolated incident. It is also noteworthy in this context that Mark McCormick, who gave oral evidence in the course of the trial of the generic issues, and who served in Bosnia with the Argyle and Sutherland Highlanders, gave evidence as to the response of his sergeant to the presentation given by Mrs. Crick. He said that –

"The platoon sergeant made it known on no account would there be anyone seen on a one to one or any less than a platoon size group to see the psychiatrist. "

7.D.41           The third CPN, Captain Raymond, said in his end of tour report –

"The presentations [on operational stresses] have been generally very well received by soldiers and commanders. Some commanders expressed a concern, prior to presentations, that stress should not be advertised and that some soldiers may learn to manipulate the system as a result of learning about stress; following the presentations however, commanders commented that they appreciated that unit support was emphasised and that the CPN is available to augment that support."

7.D.42           Colonel Anderson, who made three visits to Bosnia during Operation Grapple, said that the commanders that he encountered were "interested and supportive" and that he "did not encounter any hostility or resistance to the idea of (a) a psychiatrist being there or (b) the idea of stress occurring in troops".

7.D.43           I am satisfied that the response to the presence of CPNs was generally positive at the officer level. As to NCOs and serving soldiers the evidence was limited, but tended to suggest that historical attitudes to psychological disorder persisted notwithstanding the briefings that they received.

7.D.44           Finally the evidence, in particular that of Major Walker and Mrs Crick who were impressive witnesses, shows that notwithstanding the difficulties presented by the inadequacy of the briefing materials available to them, the CPNs were able to carry out a systematic briefing of the units deployed on Operation Grapple as to the stresses likely to be encountered and their possible after effects. In those circumstances the failure to give adequate and appropriate pre-deployment briefing identified by the CPNs (see paragraph 7.D.33 above) is highly unlikely to have had any adverse consequences.

8. PRE-RECRUITMENT SCREENING

8.1      I propose to address the issue of pre-recruitment screening under the following heads -

1. The Claimants’ Case

2. The legal issues

3. The factual evidence as to pre-recruitment screening during the Relevant Period

4. The evidence as to the USA and Israel

5. The expert evidence

6. Conclusions

8.2     . 1. The Claimants’ Case

At paragraph F10 of the Amended Generic Statement of Case the Claimants assert that the MoD should have excluded from service with HM Armed Forces anyone who was not "…reasonably fit to withstand the psychological stresses which he or she will face in combat or conflict and in service life generally." In Section F of the Synopsis of Claimants’ Case on System served on 7 December 2001, and revised on 10 June 2002 (See Appendix 3) they set out their case in detail. In essence they alleged that the MoD ought to have operated an effective system for assessing or screening recruits so as to identify three specific risk factors, a history of any psychiatric illness or disorder or personality disorder, secondly a similar history in the close family, and thirdly low intelligence; the history to be elicited by structured interview and by a report from a GP or family doctor, the level of intelligence to be established by standard IQ tests and a report from the last school or college attended. They contend that those with a relevant positive history should have been referred for psychological/psychiatric assessment, and that a "significant positive history, personal or familial – by way of example only, psychosis, schizophrenia and personality disorder should usually have led to rejection." As to low levels of intelligence, they contend that those with an IQ of 80 or below should have been rejected, and those with an IQ of between 81 and 85 carefully considered with regard to regiment and role if recruited.

8.3      The issues between the parties narrowed as the trial progressed. Save for the fundamental issue as to the existence of a duty of care to a recruit before his enlistment, the live issues are whether –

(i) confirmation of the information given by a recruit as to his own medical history and/or that of is close family ought to have been sought,

(ii) a history of psychiatric disorder in the close family ought to have resulted in rejection.

8.4      2. The legal issue

The MoD submits that as a general principle, and save for the rights and obligations imposed by the laws against discrimination, there is no duty upon an employer to exercise skill and care in the recruitment of potential employees; and that in consequence it was not under any obligation to carry out the screening of recruits for which the Claimants contend. Secondly it submits that the law should not be extended so as to impose such a duty.

8.5      As to the first submission the MoD rely upon the decisions of the Court of Appeal in Kapfunde v Abbey National plc and another (1998) 45 BMLR 176 and Withers v Perry Chain [1961] 1 WLR 1314. In Kapfunde the appellant sought to argue that a GP who carried out a pre-recruitment medical for the Abbey National was negligent in her assessment of the appellant for a permanent position. The Court of Appeal held that the GP owed no duty of care to the appellant; and that her position was comparable to that of the social worker and doctors in X (minors) v Bedfordshire CC [1995] 2 AC 633. In relation to the liability of an employer to a potential employee Kennedy LJ said at p. 181 –

"It is, in my judgment, important to stress at the outset when considering whether or not there was a duty of care those factors which may be significant when it comes to distinguishing between this and other types of case. I have in mind particularly

1. The lack of any doctor/patient relationship…..

2. Leaving anti-discrimination law on one side…the lack of any legal liability upon Abbey National, or any other potential employer, to exercise skill and care in processing applications for employment. As Mr Raggatt accepted at the outset of his submissions, it is still the law that an employer is free to choose who he wishes to employ and may have quixotic reasons for rejecting apparently worthy candidates."

At p.190 Millett LJ added –

"The appellant was required to complete a questionnaire and to provide it to Abbey National. Abbey National was not obliged to consider it with due care, or at all. It was free to employ the appellant, or not to employ her, as it chose, provided that it did not unlawfully discriminate against her on improper grounds. This apart, it could adopt whatever criteria for employment it liked, however capricious, and could apply or disapply its own criteria at will. It was under no duty to the appellant to submit her questionnaire to professional assessment, but it chose to do so. Dr Daniel was instructed by Abbey National to advise it on the appellant’s suitability for employment. She was obliged to acquaint herself with Abbey National’s criteria for employment and to consider the questionnaire which the appellant had completed with proper professional skill and care in order to give proper advice to Abbey National. But these duties were owed to Abbey National and not to the appellant."

8.6      In Kapfunde the appellant’s application for a permanent post was of course unsuccessful, whereas the Claimants’ complaint is the converse, namely that soldiers were recruited who ought not to have been. But that factual distinction does not undermine the principle that no duty of care is owed in such circumstances. The existence of a duty of care in relation to the processing of an application for employment cannot depend upon the outcome of the application.

8.7      It is also clear from X v Bedfordshire CC and Kapfunde that the medical officer or GP carrying out the initial medical examination of a recruit, or the psychiatrist or psychologist to whom, under the Claimants’ Case on System, a recruit should have been referred, would not owe a duty of care to the potential recruit. Kennedy LJ held in Kapfunde that there was no special relationship between a doctor carrying out a pre-recruitment medical to the potential recruit and that Baker v Kaye (1996) 39 BMLR 12 was wrongly decided in that respect.

8.8      In Withers the court was concerned with the case of a young woman who had been employed for some years on assembly work in the defendants’ factory and who contracted dermatitis from contact with grease. A month after starting work she was transferred to different work which involved handling parts that were grease-free but had passed through a bath of lubricating suds containing some oil and a drying chamber before reaching her point on the production line. The employee had three attacks of dermatitis resulting in absences from work of some weeks; but on her return to work after each attack she continued with the same work without protest until it became possible to move her to other suitable work. She sued her employers alleging that they had been negligent in permitting her to continue with the work knowing that she suffered from dermatitis. The Court of Appeal held that there was no legal duty on an employer to refuse to employ an adult employee on work he was willing to do because the employer thought that it was not in the employee’s best interests. If the common law were otherwise, it would be imposing a restriction on the freedom of the individual, and would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him. Moreover, there was no duty at common law requiring an employer to dismiss an employee rather than to retain him in employment and allow him to earn his wages, because he might be at some risk. If there was a risk, it was for the employee to weigh it against the desirability or necessity of the employment. The duty of the defendants was to take reasonable care of the plaintiff in the employment in which she was engaged, having regard to the fact that she had had dermatitis.

8.9      The passage in the judgment of Devlin LJ upon which the MoD relies is at page 1320 –

"It has not been suggested that the defendants deliberately exposed the plaintiff to risk. They clearly were anxious to give her the sort of work which she wanted. But it is said that they ought to have appreciated that the job they selected for her was not in fact safe for her and refused her permission to do it. In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of schoolmaster and pupil. There is no obligation on an employer to offer a safe alternative, though no doubt a considerate employer would always try to do so - as the defendants thought they had done here…I agree with what my Lord has said, that if the common law were to be otherwise it would be oppressive to the employee, by limiting his ability to find work, rather than beneficial to him. If the employer were to conceal the risk or fail to give the employee information which he had or might help her to evaluate it properly, there might perhaps be liability…"

8.10      The decision in Withers is not directly applicable as it involved the duty of care owed by an employer to its employee. It provides some support for the MoD’s submission in that the discharge of the duty for which the Claimants contend would involve the rejection of those seeking to enlist in the armed forces, and would therefore run counter to the ratio of the decision in Withers, namely that there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. But Kapfunde provides clear authority for the proposition that as a general rule an employer is not under a duty to exercise skill and care in the recruitment of potential employees.

8.11      The question then arises as to whether, in the context of recruitment for the armed forces, the law should be extended so as to impose such a duty. As to that counsel for the MoD inevitably referred me to Caparo v Dickman [1990] 2 AC 605. But before embarking upon an analysis of the factors to be taken into account in applying the Caparo test, it is helpful to consider the nature of the duty for which the Claimants contend.

8.12      It is the Claimants’ case that the MoD owed "a specific duty …to identify such vulnerable individuals (ie those likely to develop PTD prior to recruitment to the services) before recruitment." (see paras F1 and F2 of the Amended Generic Statement of Case). The existence of such a duty is based upon the premise that during the Relevant Period it was possible to identify vulnerability to the development of PTD/PTSD with sufficient certainty to exclude potential recruits. Unless that premise is valid, no such duty can arise. As will be seen from section 5 below, the expert evidence does not demonstrate that to have been the case. The Claimants cannot point to any established body of evidence demonstrating that the presence of the risk factors upon which they seek to place reliance, made it likely that an individual would develop PTD/PTSD following exposure to trauma in combat. They have not therefore established the foundation upon which to attempt to construct an argument that a specific duty of care arises in these circumstances. It is not therefore necessary to embark upon a Caparo analysis.

8.13      I therefore find that the MoD was not under a duty of care to recruits in relation to pre-recruitment screening. That is a finding which is sufficient to dispose of the issue; but I propose nevertheless to consider the relevant evidence.

8.14      3. The factual evidence as to pre-recruitment screening during the relevant period

A number of witnesses gave evidence as to the MoD’s practice at recruitment -

- Mr Stephen Roberts (day 22) as to practice in the 1970s and 1980s

- Dr O’Brien (day 34) as to practice in the 1980s

- Colonel Gamble (day 36) as to practice in the 1980s and 1990s

- Brigadier Abraham in his written evidence

- Lt General Sir Peter Beale in his written evidence

- Brigadier Wickenden in his written evidence.

8.15      Their evidence was limited to recruitment for the army. It bears out the MoD’s case as set out in F8 of the Generic Defence namely -

1. Candidates were interviewed by a recruiting officer, generally being a senior and experienced NCO.
2. Such officers did not carry out formal psychometric tests... Candidates were however subjected to a series of basic IQ tests, which eliminated a substantial proportion of applicants in the late 1970s.
3. A proportion of the remaining applicants were rejected by the recruiting officers (and/or by the officers at the recruitment centre at Sutton Coldfield) exercising their judgment, based on experience, as to whether the candidate was likely to make a good soldier. In the late 1970s, 60-80% of all applicants were rejected.
4. Candidates in addition underwent a fitness test carried out by a Medical Officer, who took a history from the candidate and graded him according to the PULHEEMS standard. Medical Officers were not provided with the candidate’s civilian medical records. They relied… on the honesty of the candidate as to any relevant medical history, both as to physical and mental health.
5. Candidates were required to complete a pro forma questionnaire which amongst other matters sought information as to any history of mental illness.
6. Where the Medical Officer was of the view, having assessed the candidate and having had sight of the information provided by the candidate, that the candidate had a history of significant psychiatric disorder or disability, that candidate would not in general be accepted for entry into service.
7. Where the Medical Officer had doubts about the suitability of a candidate in terms of his mental health, he would refer the candidate for assessment by a psychiatrist. The psychiatrist would then assess the candidate as to his suitability to enter the Armed Forces.

8.16      Medical examinations were carried out either by an MO or by a local GP contracted to undertake the task. The examination was conducted by reference to form F. Med 1 (see Section 3 para 12). The form is divided into five sections. Section 1 is completed by the applicant and gives details of name, age, and civilian occupation. Section 2 is completed by the examiner on the basis of the history given by the applicant; it includes questions on the applicant’s family history (including history of mental disorder or breakdown) and whether the application has ever suffered from a range of disorders including nervous breakdown or mental disease). Section 3 is the certificate which the applicant must sign to the effect "I certify that I have answered as fully as possible all the questions asked about my family and personal health, and that the information I have given is true to the best of my knowledge. I have no objection to the Service Medical Authorities having access to any of my previous medical history." Section 4 records the medical examination which included hearing and sight tests, full body examination and investigation into mental capacity and emotional stability. Finally section 5 records the PULHEEMS assessment.

8.17      Dr O’Brien, who served as a military doctor from 1981 until 1995, initially as an MO and from 1983 as a psychiatrist, explained how the system operated -

"My understanding of the system before the major reorganisation and reduction in the Armed Forces with Options For Change is as follows. Those who approach Army Careers Offices had interviews and did a battery of intelligence tests. They did not do personality or other psychological tests. References were taken. There would be a medical. In that medical the applicant would answer specific questions about previous history including psychiatric history and would make a signed and witnessed statement about veracity. A doctor would carry out a full medical including review of the history. There were, and are, agreed standards of medical fitness for all employments both for entry and for retention in the Army. The presence of current significant mental health problems or current receipt of treatment for the same would result in rejection. A history of severe mental illness would result in rejection. Where there was doubt about severity of previous illness or a history of previous minor illness the normal procedure was to refer to an Army specialist for opinion. As a psychiatrist in the Army I saw many individuals referred for assessment. Those with current illness would be rejected. Those diagnosed as having a significant constitutional illness in their history such as schizophrenia or bipolar disorder would be considered permanently unfit. Those with a previous history of minor illness would be assessed individually but would not be considered potentially fit for recruitment unless they had been symptom free for one year. Where there was doubt a standard practice was to suggest reapplication in a further twelve months if those twelve months were symptom free.

It should be noted that potential recruits would normally go to Sutton Coldfield for final selection over a two day process of assessment and interview by experienced NCOs and officers, as well as physical tests and further medical review as necessary. Any potential recruits identified as having difficulties at this stage would be rejected or sent for further specialist assessment.

Those potential recruits who passed Sutton Coldfield would be offered a specific post and given a date to attend for training. Through basic training they would continue to be observed and assessed. Each year there would be a few cases admitted to QEMH of recruits who had been recognised by the training NCOs to be mentally unwell. This would usually happen within days of arrival at the training depot.

It should also be noted that during the basic training period new applicants are recruits rather than serving soldiers. Their enlistment would be confirmed at the successful completion of basic training and with a final service medical. The system was so designed that until that point it was essentially simple for the service to release individuals who were unable to make progress, fit in, or had medical problems. Similarly there was a window of time when the individual could take his own discharge as of right if he believed himself to be ill-suited."

He explained in cross-examination that sometimes the applicant’s medical history was confirmed with his GP and that a form was available for that purpose, but that it was not routinely used.

8.18      Lt. Col Gamble, who joined the army in 1984 and who, like Dr O’Brien served initially as an MO then as a psychiatrist, also gave evidence as to how the system worked in practice -

"All potential recruits are seen by GPs for a general health screening, which covers their physical and mental well-being. The GPs may not be medical officers in the direct employ of the MoD but may be local GPs contracted to undertake this task. The screening process entails the completion of the Form F Med 1 which itself requires both a clinical examination and the answering of specific questions by the candidate. The form contains a series of boxes which the GP completes: one of these relates to any history of mental illness. If the candidate discloses a major mental illness such as, for example, schizophrenia, psychosis or the frank effects of substance abuse, this will in general be identified by the medical officer and the candidate will be excluded straightaway, without referral to a psychiatrist. I say 'in general' for at least two reasons: first, some GPs are unwilling to make the decision themselves, and prefer to refer the case for consideration by a psychiatrist; and, secondly, the mental illness may not always be frank or patent. I am thinking of cases where the illness is in remission or where the candidate seeks to mask its manifestations. That being said, most experienced GPs will have sufficient awareness of these matters such that their level of suspicion is raised.

If the medical officer or GP is unsure about the state of a recruit’s mental health, they will then be referred to a psychiatrist - usually a past or current military psychiatrist with experience of making this kind of assessment.

When someone is referred to me pre-enlistment, I will take a history of that person’s mental health and will then talk matters through with them for, on average, 40 to 45 minutes.

There is of course no guarantee that a candidate who has had or continues to have mental illness will disclose all relevant matters to the GP or the psychiatrist. Unless their mental health problems are sufficiently obvious to be picked up by the GP or specialist, one is reliant upon the candidates themselves to be honest about their past. I accept, of course, that a psychiatrist would be more likely to get to the bottom of a case than would a GP/Medical Officer.

On the other hand, not every candidate with some past contact with the social or psychological services (e.g. social workers, educational psychologists etc.) will necessarily be refused entry into service. In the end it comes down to a judgment which takes into account a number of factors. One of the things I always ask myself is whether I would want that person serving with me in my medical team during war or dangerous operations.

It is also important to understand that it would be wholly unrealistic for the Army to be too exclusive as to whom it would and would not accept. After all, it is looking to take soldiers who will be prepared to engage in obviously dangerous operations against enemy forces. Putting it bluntly, the Army needs to recruit those for infantry and other front line combat units who are prepared to advance upon and kill others, albeit in a disciplined and trained manner. If one excluded everyone who had ever seen a psychologist, psychiatrist or social worker in their past (for whatever reason), one would be left with a smaller and less aggressive army. Nonetheless, I should make clear that those with obvious and significant psychiatric problems would not be allowed to join"

8.19      Brigadier Abraham gave evidence as to the Army’s approach to "IQ testing" in his third witness statement -

"With the abolition of National Service and the creation of a professional Regular Army those with learning disabilities were rigorously excluded. This was accomplished by a simple intelligence test in the Recruiting Office followed by a sophisticated and reliable battery of tests administered at the Recruit Selection Centre or Basic Training Unit. The results were expressed in a single category called an SSG (Summed Selection Group) whose numbers roughly represented the distribution of intelligence within the population. (Rather like the Socio-Economic Groups I, II, III+, III-, IV, V). SSG 5s were not accepted. One effect of this system was that no-one in the Army had an IQ of less than 85"

 

 

8.20      4. The evidence as to the USA and Israel

USA

Colonel Belenky, who has over 25 years' military experience and is the Director of the Division of Neuropsychiatry in the Department of Psychiatry and Behavioural Sciences currently at the Walter Reed Institute, gave evidence in relation to the related topic of pre-deployment screening and the extent to which that was of relevance to pre-recruitment screening:

"12 Q. On your second statement, paragraph 3 on the Gulf War,

13 you tell us that the US Army deployed everyone to

14 the Gulf that was able to function in garrison.

15 What does that mean, please?

16 A. Well, what it meant was that people on prescription

17 medicines, people with family problems, sort of

18 the normal things that would get you out of deployment;

19 the people were simply sent anyway.

20 There were people who were deemed to be weak and who

21 were expected not to do well but they were sent

22 regardless. And the experience was that, in fact, very

23 often people were surprised at how well the people who

24 were deemed weak did and how poorly some people who were

25 stars in garrison and less demanding environments, how

page 48

1 poorly they did when they actually got in theatre.

2 This reinforced our idea that any sort of

3 pre-selection based on clinical impression or clinical

4 status really was of very limited use in terms of

5 predicting what will happen to a person once they are in

6 a theatre of operations.

7 But we really did, literally, send everybody.

8 Whether they were halt, lame, lazy or just plain crazy,

9 they went."

8.21      Colonel Stokes is currently Combat Stress Control Program Officer in the US Army Medical Command. Before taking up that appointment in 2000 he had spent nineteen years at the Academy of Health Sciences (AHS), U.S. Army Medical. In 1994 he gave an overview of the policy of the US Army in response to a request for information from the Irish Defence Forces. The Irish Defence Forces wanted to know whether the U.S. Army used any screening methods "to determine susceptibility to stress breakdown or post-traumatic stress syndrome (PTSS) before sending men into action". Col Stokes’ response was as follows -

"[2]. First, the U.S. Army does not generally use mass psychological screening methods to select or deselect personnel for combat.

1. In the early years of WWII, the U.S. military made a major effort to screen out from enlistment or the draft those individuals who would be likely to become "war neurosis" or "psychoneurosis" casualties in combat, based on their history of "neurotic" traits or signs. The effort failed. Many of the service members who passed the screening process still "broke down" when confronted with high combat stress under adverse conditions. After the screening program was abandoned, a study demonstrated that those who would have been screened out were no more likely to become stress casualties and no less likely to become decorated heroes than those who "passed" the screening. Going even further, one division psychiatrist in WWII ventured to predict that certain soldiers he had evaluated for neurotic problems during training would be prone to break down in combat. He found their breakdown rate was not higher and that some received decorations for valour in battle.

    

2. The conclusion reached by U.S. Army psychiatry (and now the basis of doctrine) is that mass screening is not worthwhile because of the high numbers of Type 1 and 2 errors (false positives and false negatives). The determinants of psychological malfunction during combat (called "battle fatigue" by the U.S. Army) appear to be less related to prior personality or pre-military history than to the current conditions in combat, the level of training and quality of leadership, the support system in the small combat unit ("unit cohesion"), and the support system at home. These factors can be influenced or at least mediated by unit leadership.

    

3. Some selection does go on in training, of course. A soldier who consistently fails to meet the demands of training will be administratively shifted to other duties, passed over for promotion, or barred from reenlistment. If a psychiatrist or psychologist certifies that the soldier's failure to adapt is due to a pre-existing personality disorder (as defined in the Diagnostic & Statistical Manual of Mental Disorders), that soldier can be expeditiously discharged from the Service.

    

4. The U.S. Special Operations Forces (SOF) have their own staff clinical psychologists at the U.S. Army John F. Kennedy Special Warfare School (USAJFKSWS) and at some of their headquarters units. These psychologists generally avoid publicity about their work, but I understand they are involved in personnel selection, both for admission into the SOF and for some especially demanding missions. The psychologists also monitor the Survival, Evasion, Resistance, Escape (SERE) course; that gruelling course prepares soldiers to endure interrogation and other coercion if captured. The objective of the SERE course is not to screen out the unsuitable, but rather to have everyone "pass", having learned the right lessons. A point of contact at the USAJFKSWS, Fort Bragg, NC, who might be contacted through diplomatic channels, is LTC Gary Greenfield.

    

5. Since U.S. Army psychiatry and psychology concede that we cannot predict cost-effectively who will break down during combat, it would be even less cost-effective to try to predict and screen out those who might be prone to develop post-traumatic stress disorder after combat. The problem, again, is the likelihood of false positive and false negative selections. However, several possible screening criteria have been discussed.
   
   
   1. Several studies have reported that soldiers who develop PTSS are more likely to have suffered abuse as children than are control subjects. However, it is unclear how many soldiers with histories of childhood abuse perform well and do not develop PTSS. It seems unfair and unwise to tell all those who were abused as children that they must be so crippled by the experience that they cannot even be allowed to volunteer for the Army in order to improve their lot. Information about prior history of abuse might, however, be used to plan special training or preventive stress control measures for those at risk.
   2. It has been suggested that soldiers who tend to use dissociation as a psychological defense may be more prone to PTSS than others who don't. But it has also been observed that many heroes who were decorated for valour describe dissociative experiences at the time of their heroism. It has even been suggested that dissociation defenses (combined with sound combat drill and strong unit cohesion) should even be taught to soldiers to help them endure the horrors of combat.
      
      
6. In summary, U.S. Army Medical Department doctrine is now less concerned with screening out soldiers because of supposed susceptibility to PTSS, and more concerned with what the individual soldier, buddies, leaders, chaplains, mental health personnel, and "the System" can do – before, during, and after combat – to protect or toughen against PTSS. We are trying to train the Army to adopt a "preventive maintenance" approach which recognizes and deals with traumatic stress routinely. This will be discussed further in paragraph 4.d.

8.22      Israel

The Israeli Defence Force is to be distinguished from the UK Army in that it is a conscript service. The IDF does not seek to exclude those perceived to be at risk of suffering ‘ASR/PTSD/PTD’. Professor Zohar is the director of the Psychiatry Department at the Chaim Sheba Medical Centre, Ramat Gan, Israel, an Associate Professor of Psychiatry at Tel Aviv University and a Lt Colonel in the Reserve of the IDF, and was called as an expert witness by the MoD. He explained in his first report that the IDF’s recruitment procedures -

"were never intended to foresee whether an individual will or will not develop PTSD."

In his oral evidence he explained that the recruitment process is designed to assist in allocating the recruit to an appropriate unit. He also explained that serving in the front line was considered an achievement in Israel, and recruits were likely to do their best to ensure that they are posted to the front line.

8.23      Another of the MoD’s expert witnesses, Professor Shalev, who holds the chair of the Department of Psychiatry at Hadassah University Hospital/Hebrew University Medical School, and who has vast experience of the IDF, said in response to the Claimants’ Synopsis -

"I repeat my previous statement that screening in the IDF does not concern combat stress reactions but rather successful career in combat unit. The IDF considers that there is no practical way to screen for CSR or PTSD. The accepted knowledge is that one will unnecessarily eliminate from the Corps up to a third of those who can serve if all vulnerability factors were to be used to exclude recruits from the service. The Department of Psychiatry of the IDF uses current diagnoses to screen soldiers.

The IDF screens for IQ (no compulsory service below IQ = 70), but subjects with lower IQ can volunteer and would be accepted to selected position if they can show a record of good social adaptation (e.g., work records, recommendations from school or instructors).

Screening for IQ has been challenged for the following reasons: IQ is discriminatory, biased by race, education etc.. The military service is a venue for underprivileged to access higher social status. Denying such access would be discriminatory and raise opposition in a country such as Israel. Additionally, IQ explains a small amount of the global variance in the causation of PTSD.

The IDF does not screen for history of previous trauma because it is assumed that trauma would be found in the majority of recruits. Rejecting those with history of previous trauma would not be acceptable in Israel.

Moreover, previously traumatized individuals often become the best soldiers and officers - although some of them do pay for choosing to become soldiers. In Israel, the case of a brother (or son) repeating the path of a brother (or father) killed in action by volunteering to the same unit is frequent."

 

8.24      In cross-examination Professor Shalev said that -

1. There are about 30,000 male recruits to the IDF each year.
2. The "road score" assessments from the psychological screening at enlistment are the basis of the allocation of the recruit to unit. They are not used as the basis for promotion.
3. In a limited number of units the road scores are reviewed a year later. This does not happen in infantry units;
4. Police records are obtained for each recruit. A national register of admissions to psychiatric hospitals is also checked.
5. Psychiatric records are only obtained for those enlistees who are actually recruited in accordance with a confidentiality protocol.
6. In 1985/7 about 17% of those presenting to the recruitment centre were seen by a mental health officer.
7. This system means that a psychiatric history (other than that including in-patient admission) is not obtained.

It can be seen from that summary of the evidence that no conclusions adverse to the MoD can be drawn from a comparison with either US or Israel.

8.25     . The expert evidence

As to the effectiveness of pre-recruitment screening Professor Keane, whose written report was submitted on behalf of the Claimants, stated that the current studies "offer little evidence that [screening] will be effective in reducing combat casualties." He said -

"Screening at induction to determine if one has the psychiatric constitution to function effectively under stress is an imperfect science, an ideal that has not yet been reached"

and went on to comment that we cannot -

"mount a successful effort to screen out all people who will develop PTD under combat…. Nor that we can screen into the military those who will not develop PTD. The state of the science is not at that level of prediction. It may never actually be there".

8.26      Professor Friedman, whose report was also submitted on behalf of the Claimants, accepted that the evidence was not "clear-cut" and that a policy of exclusion based on likely risk factors would exclude those who make "decent soldiers" -

"The main pre-traumatic risk factors are currently thought to include: 1] Familial psychiatric illness; 2] parental poverty; 3] childhood trauma; 4] childhood behavior disorder; 5] prior psychiatric disorder; 6] neuroticism or personality disorder; 7] adverse life events; 8] low education; 9] learning problems in school. However, in terms of pre-enlistment screening at least there are considerable practical difficulties in eliciting a reliable and comprehensive history. There are social and manpower reasons for giving applicants a chance. The research has not been clear cut over the whole period as to the predictive force of the factors and some with these vulnerabilities make decent soldiers"

8.27      The views expressed by Professors Keane and Friedman are not surprising in the light of the meta-analysis carried out by Brewin et al (Meta-analysis of risk factors for posttraumatic stress disorder in trauma exposed adults - Journal of Consulting and Clinical Psychology 2000, 68: 748-66) which showed that no single variable was a particularly good or powerful predictor of developing PTSD. The best predictor was the intensity of the trauma itself, accounting for 23% of the overall causation. Brewin found that "pre-trauma variables do not appear to be powerful predictors of PTSD", and concluded, having analysed all relevant studies since 1980 that "attempts to identify a common set of pre-trauma predictors of PTSD that will be equally valid across different traumatised populations are premature."

8.28      The Brewin meta-analysis is also consistent with the historical analysis of the various attempts at screening, particularly in the Second World War, contained in the reports of Professor Wessely (screening and supplementary reports), Dr Marlowe (first report and RAND report), and Professor Pitman (first report). Professor Wessely explained why those screening attempts failed -

"6.1 The main problems encountered during the Second World War and in the following, optimistic, years, can be summed up in the words "false positives" and "false negatives". As already described, no screening procedure prevented later psychiatric disorder - people were being passed as fit who still broke down (false negatives). Studies also started to show the converse -no matter what instrument was tried, it rejected people who actually would have made good soldiers (false positives)."

8.29      In his RAND report Dr Marlowe explained the origin of the attempts at screening in the Second World War -

"The interwar years saw the development and spread of the concepts and assumptions of depth psychology, particularly of psychoanalytic thought. These contributed in great measure to assumptions about the sources of combat breakdown and symptom generation. They were also combined with eugenics theories to focus attention on screening and pre selection as the most effective ways to minimize the number of men who might become psychological casualties in wartime. And they created the foundation for the unsuccessful "selection out procedures" of Selective Service in World War II."

In his first report to the Court he explained that the US Army’s attempts were abandoned both because of the massive numbers excluded and the unreliability of the screening measures. He said that the Second World War -

"…began with a major emphasis on screening, both as a way of getting the most effective soldiers and of avoiding the high cost of neuropsychiatric casualties. Initially, 1.6 million men were rejected from the draft for emotional, mental, or educational disorders. Between 1942 and 1945, an additional 500,000 were separated from the Army on psychiatric or behavioral grounds.

As a means of avoiding psychological casualties, screening failed abysmally."

8.30      Dr Marlowe was also cross-examined on the subject. It was put to him that it was Glass’ view that screening had not been given a fair chance in the Second World War. He replied in the following terms -

"21 A. No, nor should it have been and I think Al (Glass) would agree

22 with that now. If people had been screened according to

23 the canons, mostly psychoanalytic and mostly about early

24 experience, we probably would have kept everyone out of

25 the military.

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1 We must remember how little has been known and

2 we still do not know really how to do it. There was an

3 article in The Lancet in 1945 on British psychiatric

4 casualties from D-Day, the initial invasion.

5 It was really rather fascinating because

6 the psychiatrist who wrote it said that there was one

7 common precipitant that indicated who was going to fail

8 in battle and that was enuresis prior to the age of

9 five. Unfortunately, he did not have a control group.

10 I think one must be very, very wary and never think

11 that we have a state of knowledge adequate to do certain

12 kinds of jobs."

8.31      Professor Pitman commented in his first report -

"Scepticism of the efficacy of screening in reducing subsequent combat-related psychopathology was expressed well before DSM-IV:

"If screening is to weed out all those likely to develop a psychiatric disorder, all should be weeded out" (Anderson, 1966, p. 391).

"The … failure of the psychiatric screening program [in World War II] has been well documented" (Glass, 1974, p. 803.)

"Much has been said about the hopelessness of eliminating battleshock by selection" (Abraham, 1982, p. 22)."

8.32      I turn then to consider the expert evidence as to the remaining issues between the parties identified in section 1 above, namely whether -

(a) confirmation of the information given by a recruit as to his own medical history and/or that of his close family ought to have been sought,

(b) a history of psychiatric disorder in the close family ought to have resulted in rejection.

8.33      Dr Freeman accepted that it would not be possible to operate a system of excluding recruits with a family history of psychiatric disorders such as depression, anxiety or panic disorders. He said that in order to screen out those with a family history of serious psychiatric disorder it would be necessary to obtain a GP report because the recruit’s reply would not be sufficiently reliable and/or detailed. But in cross-examination he said -

"4 My case is that in a very small number of cases,

5 where there might be serious mental illness, it is

6 important that that is known about. It may be from what

7 has been said that the current mechanism works

8 effectively, that in fact, if these cases do not emerge

9 within active service that they have been screened out

10 before."

8.34      On the issue of whether it was necessary as a matter of course to obtain confirmation of the information given by the recruit to the RMO or GP carrying out the medical examination at entry, there was the following exchange between Dr Freeman and counsel for the MoD -

"8 Would it not have been, or was it not a reasonable

7 system to rely on the truth of what the recruit said,

8 unless there was doubt in the GP's mind, and in cases of

9 such doubt, he would refer the recruit for psychiatric

10 opinion? What is wrong with that as a system?

11 A. Well, I guess that it is unlikely that you are going to

12 declare that you have a serious alcohol problem or that

13 you have had an episode of major depression. We know

14 that in civilian practice, commonly, if you want to get

15 the job, you have to conceal your past psychiatric

16 history and that is why occupational health reports are

17 asked for, and GPs.

18 Q. The recruiter, usually a sergeant, will be carrying out

19 a fairly detailed interview of the recruit, will be able

20 to form an opinion from his experience of what sort of

21 an individual he is dealing with. So, a pen portrait of

22 the man has already been obtained. Why not leave it to

23 the discretion of GPs in individual cases, in

24 circumstances of doubt, to pursue the matter further

25 with the civilian GP but not to do it systematically?

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1 What is wrong with that?

2 A. Okay, that is a middle road, that if you have an

3 experienced recruiter and they have some doubt, they

4 could ask for a report. If that was done, then that is

5 not unreasonable practice."

8.35      Dr Daly did not consider that a family history of any form of psychiatric disorder should have led to exclusion from service. He said that it should represent instead a "marker" for the future.

8.36      Professor Solomon did not consider that it was necessary to screen for a family history of psychiatric disorder. In terms of the applicant’s history Professor Solomon said that it was sufficient for only those with a significant or severe history of psychological, behavioural or psychiatric disorder to be excluded.

8.37      Dr Deahl adopted a similar approach to Dr Daly in suggesting that a family history of psychiatric disorder (other than possibly in the context of severe inherited disorders) should not represent a bar to enlistment -

"13 I think family history is much more problematic.

14 Many of us have family histories of a mental disorder of

15 one sort or another and if you excluded everybody with a

16 family history, of course, you would not have many

17 recruits left. I think if there is a particularly

18 serious family history, and I am thinking, for example,

19 of the inherited disorders like Huntingdon's disease, or

20 something like this, then they would be a special case,

21 but by and large, I would not use family history as

22 a bar to recruiting. I would, however, perhaps make

23 note of it --

24 Q. For what purpose would you note it?

25 A. -- for future reference because obviously a family

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1 history is a risk factor for a number of psychiatric

2 illnesses including some of the post-traumatic

3 disorders, so perhaps there would be a case of flagging

4 up a family history but they are notoriously unreliable

5 and I would not put great store on that.

6 But certainly a personal history of psychiatric

7 illness should be a bar unless there are good reasons to

8 the contrary".