The Mental Grind: DSM-5 and new Psychological Injuries

As is common most mornings, I recently stopped at my local coffee shop on the way into work.  Imagine my surprise and dismay when I discovered the doors locked, lights out and a note advising that the owners have now retired (and thanking their “many loyal customers over the years”).

Running late and somewhat in denial I continued on to my office.  The rest of the morning passed in a haze as I remained out of sorts.  However, I have now discovered that I am, in fact, suffering from caffeine withdrawal syndrome characterized by fatigue (check!), headache (check!) and difficulty focusing (check! … wait, where was I again?). This realization caused me to draft a strongly worded letter to my now retired coffee shop proprietors at their retirement home on Saltspring Island, giving them 3 days to remedy the situation and re-open the coffee shop.

As absurd as it sounds, my claim may have merit.  It has long been a necessary element of any tort claim that a plaintiff suffers damage.  In the context of personal injury litigation this may involve proof of a “recognized psychological injury”, a requirement which was described by Madam Justice McLachlin in the Supreme Court of Canada decision of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 as follows:

[9] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset.  Personal injury at law connotes serious trauma or illness: [cites omitted]  The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.  I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.  The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60).  Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.

Courts often turn to expert evidence from psychiatrists in order to make a determination of whether a plaintiff suffers from a psychological disturbance sufficient to constitute personal injury.  In this regard, the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”) provides a framework for diagnosing psychiatric illnesses.

The DSM-5 released in May 2013 contains 15 new diagnoses, including caffeine withdrawal. However, the DSM-5 has received extensive criticism from the psychiatric industry with the American National Institute of Mental Health cautioning physicians to “use the DSM-5 cautiously, if at all”.  Dr. Allen Frances who chaired the task force for the prior DSM-IV reported in Psychology Today that the “saddest moment” of his 45 year career was when the Board of Trustees of the American Psychiatric Association gave “its final approval to a deeply flawed DSM 5 containing many changes that seem clearly unsafe and scientifically unsound.”

It may well be that inclusion in the DSM-5 elevates “psychological upset” to the level of “psychological disturbance” so that it is possible that a mental state which prior to May 2013 would not have given rise to a claim for damages will now be considered a “psychological injury”.

Whether the DSM-5 will lead to an increase in types of claims being advanced remains to be seen.  In the meantime, I will take two cups of joe and call my psychiatrist in the morning.

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