Hurdles for PTSD claims against the MoD

After several years and millions of pounds, the Iraq war inquiry chaired by Sir John Chilcot published its report on 6 July 2016. One of the many areas being scrutinised
is the failure of the Ministry of Defence (MoD) to follow the 'harmony guidelines'.

The guidelines were designed by the government to keep military personnel mentally and physically fit, ensuring that the UK maintains an effective fighting force. There are different guidelines for each service (Army, RAF, and Navy), restricting the time that personnel should spend away from their families and stipulating the time they must rest between operational tours.

When observed, the guidelines should reduce the risk of injury and mental strain to personnel.
If they are ignored, research suggests that there is a 20 to 50 per cent greater risk of personnel suffering from post-traumatic stress disorder (PTSD).

The report concludes, among other things, that the UK military was already operating at capacity when the invasion of Iraq was being considered; the harmony guidelines were in effect already being breached.

The guidelines then continued to be breached during the Iraq war, in which thousands of personnel were exposed to increased risk of injury. The report indicated that more
could have been done during the war to reduce this risk, for example through the provision of counselling services.

The MoD has a recognised duty of care towards service personnel analogous to that of an employer, and is responsible for their occupational and primary healthcare. Therefore, common law principles in claims for personal injury, employer's liability, stress at work, and clinical negligence can all be applied. However, there are a number of specific hurdles in respect of PTSD claims that claimants could come up against.

Claims by personnel for
PTSD per se are rarely successful because the condition is almost always caused by traumatic events in combat. In this respect, the MoD will normally be protected by the principle of combat immunity - claims cannot be brought in relation to events occurring in or associated with combat. However, in the light of recent developments
in this field, and if negligent decisions were made in this jurisdiction prior to any combat, claimants might be encouraged to challenge this immunity.

Military doctors should be actively looking for signs of PTSD and actively referring personnel with symptoms for psychiatric assessment, under their duty
of care. However, not all the symptoms will be apparent when presenting to a doctor and they are often mistaken for signs of other conditions, not always negligently. Service personnel are also notoriously reluctant
to complain about symptoms, which alleviates to some degree the legal burden on their doctors and managers.

There is also the issue of causation. Where PTSD has
not been caused by negligence, medical experts will need to identify whether any negligent failure to diagnose or treat
the condition would have
made any material difference
to the prognosis, failing which claimants may be left with an exacerbation claim that may
not be economically feasible. Early intervention for PTSD almost always results in a
better prognosis.

Some of the failures uncovered by the report occurred well over a decade ago; evidence may be hard to gather and memories will be stretched. Nevertheless, limitation applies.

Normally, claims in negligence must be brought within three years of the 'date of knowledge'. This assessment takes into account a number of factors, including when the claimant
first knew (or should have known) that there was a problem with their treatment. As a result, many claimants may be out of time to bring a claim.

However, it may be possible
to argue that facts and failures were not known until the recent publication of the Chilcot report or, in the alternative, that there are sound arguments under section 33 of the Limitation Act
to allow a claim out of time.

Practitioners should bear in mind the government-run Armed Forces Compensation Scheme, which compensates on a no fault basis for any injuries suffered
as a result of military service, including PTSD. But not all heads of loss are catered for under the scheme, and the awards are rarely comparable to the compensation that would follow a successful negligence claim.

Service personnel are in an unenviable position of being exposed to extraordinary danger and trauma. As such, they bear great risks to their health, PTSD being only one. I suspect, on the basis of anecdotal evidence from my clients, their families, and doctors, that it is a far more common risk than we know.

The Chilcot report highlights
a series of failings which go beyond the decision to go to war in Iraq, extending to the support and treatment of our troops.
It is too early to say whether the findings will open the floodgates for litigation. As damning as
the conclusions may be, there remain significant hurdles
for claimants.

Ahmed Al-Nahhas is an associate in the military claims team at Bolt Burdon Kemp @BoltBurdonKemp www.boltburdonkemp.co.uk