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Dr Janet Boakes findings in the Nazareth House case presided over by Lord Drummond in the Scottish Court of Sessions 2nd June 2005

[77] Dr Boakes is a clinical psychiatrist and psychotherapist, specializing in psychotherapy and particularly in group psychotherapy. She is a Fellow of the Royal College of Psychiatrists. She is a Consultant Psychiatrist and Psychotherapist and Clinical Director at South West London and St. George's NHS Trust and an Honorary Senior Lecturer at St. George's Hospital Medical School. She was a member of the Royal College of Psychiatrists working party on reported recovered memories of child sexual abuse, which led to the publication of a consensus document setting out guidelines for psychiatrists in this area. She is also one of the four co-authors of a review article, "Recovered memories of childhood sexual abuse: implications for clinical practice"(British Journal of Psychiatry (1998), 172, 296-307; no 7/96 of process). She has a particular interest in the topic of false memory, especially in the area of false memories that might have been induced by psychotherapy.

[78] Dr Boakes had examined Mr M with a view to considering what symptoms he has or had as a direct consequence of the abuse that he alleged was sustained while in the care of the second defenders (number 7/9 of process). Mr M told Dr Boakes that he had read about abuse at Nazareth House in a newspaper. He stated to her "People say you can block it out but you don't -- I hate talking about it". In relation to Mr M's mood, Dr Boakes stated that he was affectively flat and looked depressed, but that he did not describe symptoms of depression although his sleep was poor and he tended to catnap and to have nightmares. She described him as dysthymic rather than actively depressed; dysthymia is a state involving a generalized gloominess of attitude that falls short of actual depression. Dr Boakes also considered that Mr M was anxious and possibly a little paranoid; he had described an exaggerated startle reaction all his life. He did not describe panic attacks or flashbacks. He described minor checking rituals, such as turning the light on and off a number of times before going to bed, and obsessively lining things up. Dr Boakes' diagnosis was that he had a personality disorder with paranoid features and comorbid dysthymia with periodic exacerbation into frank depression. She found no evidence of PTSD and only minimal evidence of obsessive compulsive disorder.

[79] Dr Boakes was of opinion that some of Mr M's allegations strained credulity. Nevertheless, she thought that the reality of his allegations was evidenced by the fact that he said that he never forgot. He had told her "you can't block it out". She stated that that fitted with knowledge of memory; people do not forget significantly abusive and traumatic experiences. Dr Boakes' diagnosis of Mr M was that he had a personality disorder and had experienced periodic episodes of depressive illness.

[80] In her report on Mr M, Dr Boakes commented on Miss Gray Taylor's psychological report of 8 April 1998 (number 6/1 of the M process). She disagreed with Miss Gray Taylor's diagnosis of post traumatic stress disorder. PTSD follows exposure to an event that is exceptionally threatening or catastrophic, life threatening, and likely to cause distress in anyone. Mr M's experiences did not in Dr Boakes' opinion fall into this category; they were very upsetting, but that was all. In addition, according to one of the standard classifications, ICD-10, symptoms should occur within six months of the event. It was not clear that that happened in Mr M's case. Dr Boakes also commented on the differences between Miss Gray Taylor's approach to diagnosis and her own approach. Miss Gray Taylor had based her diagnosis on a variety of psychological tests. These were described as very different from the psychiatric approach, where the "gold standard" is the mental state examination at the time of presentation. That included a detailed account from the patient of his symptoms and a search for specific features of mental illness. Dr Boakes was not able, however, to give a detailed critique of the tests used by Miss Gray Taylor as such tests are not among the tools used by psychiatrists.

[81] Dr Boakes had not examined Mrs W, but had examined Mrs B. She accepted that Mrs B suffered from psychiatric disorders. She was depressed, and Dr Boakes thought that her depression had not been adequately treated. She also suffered from agoraphobia and had some symptoms of obsessive compulsive disorder. She did not have specific symptoms of PTSD, although Dr Boakes accepted that she might have displayed such symptoms when examined by Miss Gray Taylor. If that were so, however, it was not clear whether any symptoms were caused by the circumstances of raising the present action rather than events many years ago. Mrs B had tended to attribute her problems to current events, albeit with some contribution from childhood events. Mrs B had told her husband and general practitioner about her treatment in Nazareth House; consequently she clearly had a continuous memory of events.

[82] Dr Boakes was asked to comment on the views of Dr Tierney as expressed in the two reports prepared by him that were available to the court (generic productions 7 and 10). She stated that Professor van der Kolk, on whose works Dr Tierney placed great reliance, was at one end of a spectrum of views on the effects of childhood trauma on adult development. Van der Kolk thought that the effect of such trauma is to cause the sufferer to forget that the event ever happened. She thought that it was disingenuous to suggest that Van der Kolk discusses the most recent consensus view of DESNOS. Indeed, DESNOS did not appear as a separate syndrome in either of the standard diagnostic manuals, DSM-IV and ICD-10. When the DSM-IV manual was under discussion, van der Kolk and another academic, J. Herman, had argued that DESNOS should be recognized as a separate syndrome, and it was included as part of the field trials. When the committee responsible for the relevant part of the manual considered it, however, they disagreed with van der Kolk and Herman, and DESNOS was not included. The principal reason was that the data did not support van der Kolk and Herman's argument; people who were said to suffer from DESNOS met the criteria for standard PTSD, and in many cases also the criteria for borderline personality disorder.

[83] Van der Kolk and Herman's basic thesis was that the normal response to atrocities is to forget them, and that it was common for people to forget childhood abuse, especially sexual abuse, but for the abuse to manifest itself through symptoms, dreams and behavioural re-enactments. Van der Kolk suggested that the mind forgot but the body remembered. The difficulty with that, in Dr Boakes' opinion, was that memory was in the mind. A contrary view had been vigorously advanced by Professor McNally. His basic thesis was that people who are traumatized, far from developing amnesia, only wish that they could forget. Dr Boakes' opinion accorded almost fully with that of Professor McNally; she thought that the evidence pointed in that direction. A controversy existed, however, and Dr Boakes stated that she was very surprised to read in Dr Tierney's second report (generic production 10, at paragraph 1.2iii) "There is virtually total agreement in the literature on the link between childhood abuse [both sexual and physical] and the subsequent development, in a significant proportion of abused individuals, of post-traumatic stress disorder ... symptoms". While she was not familiar with the papers relied upon by Dr Tierney in expressing that conclusion, she was aware of studies that had followed people who had clearly been abused in childhood into adult life. In these it was found that a range of conditions could occur, but there was no clear syndrome, even in cases involving sexual abuse.

[84] Dr Boakes was asked for her comments on certain of the papers that had been relied on by Dr Tierney. She commented first on the paper by Chu and others, "Memories of childhood abuse: dissociation, amnesia, and corroboration" (see paragraph [70] above). Dr Chu and his collaborators followed the van der Kolk line on the effect of childhood trauma on memory. The paper claimed to show a high correlation between childhood abuse and amnesia in adult life. Dr Boakes doubted the paper's conclusions, however. First, she referred to one of the tables summarizing the results of the studies on which the paper was based (table 2 on page 752), and pointed out that the mean ages of the subjects at the onset of abuse were very low. In cases of complete amnesia, the mean age was 3.8 for physical abuse and 4.3 for sexual abuse. These figures were subject to standard deviations of 2.8 and 3.1 respectively. That meant that in some cases total amnesia resulted from experiences from the age of one upwards. That was most surprising, because that was well within the period covered by infantile amnesia, and it would not normally be possible for the subject to remember what happened. Thus anyone who claimed to have remembered abuse from ages of one to three was wrong. Secondly, Dr Boakes pointed out that many of the patients considered in the paper were having psychotherapy, which made the sample unrepresentative. Altogether, she thought that the study was badly constructed and subject to major methodological limitations.

[85] Dr Boakes considered the paper by Bremner and others, "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (generic production no 22, referred to in paragraph [68] above; Dr Tierney attached particular importance to this paper, and described it as probably the most important article on the subject). This study concluded that women who had suffered childhood abuse and consequent PTSD suffered deficits in verbal declarative memory but not visual memory. The studies on which it was based were confined to women who had suffered penetrative sexual abuse before the age of puberty. Thus it was based on exceptionally severe abuse. Evidence available from other sources indicated that the effects of penetrative sexual abuse at an early age were markedly more severe than those related to other forms of abuse. The primary explanation put forward in Bremner's paper for its findings was that stress could lead to alterations in the hippocampus, a part of the brain which plays a critical role in memory, in particular in relation to the encoding of new memories. Imaging studies had found smaller hippocampal volume or other alterations in the hippocampus.

[86] Nevertheless, the hypothesis that deficits in verbal memory were caused by damage to the hippocampus as a result of trauma was controversial. It had been based on findings that those who had been sexually abused, or had suffered trauma in Vietnam, had shrunken hippocampi. Those findings had been examined by a researcher called Gilbertson, who had considered identical twins where one had been in Vietnam and suffered PTSD and the other had not. It was found that both twins had small hippocampi; no significant difference was observed between the two groups. It accordingly appeared that being born with a small hippocampus might be a risk factor; such a person was more likely to develop PTSD if exposed to trauma. In general terms, Dr Boakes described Bremner's paper as almost impossible to interpret. It was full of methodological flaws in both selection and controls. It had not looked at a group of subjects who suffered from PTSD without sexual abuse, and the control sample (those who had suffered no abuse and no PTSD) had not been properly matched.

[87] Dr Boakes expressed a number of general criticisms of studies such as that carried out by Bremner and his collaborators. She inclined to the view that the writers of the relevant papers did not keep an open mind on the fundamental question as to whether trauma produces amnesia. Demonstrating that would be difficult; the only way of doing so would be a long-term study of a number of subjects. In Bremner's study, Dr Boakes thought that the sample used by him was inadequate. Perhaps more importantly, she thought that it was not possible to draw generalized conclusions from a sample of women who had been traumatized by penetrative sex and then to apply the conclusions to persons such as the present pursuers. Bremner's sample had suffered severe sexual abuse, whereas the present pursuers had not suffered any penetrative sexual abuse as a result of their experiences in Nazareth House. Thus even if the conclusions in the paper were correct, which Dr Boakes doubted, it could not be assumed that they would apply to the lesser forms of trauma suffered by the pursuers. In my opinion this point is clearly correct, and is of great importance.

[88] Dr Boakes also criticised the relevance of the tests on which papers such as Bremner's were based to the question of whether childhood abuse produces deficits in memory. The relevant tests (which are described at page 645 of Bremner's paper, generic production no 22) involved the recall of two story narratives, which represented verbal memory, and the reproduction of designs after a six second presentation, which tested visual memory. Thus the paper was concerned with recall of things that had happened a few minutes previously, not in childhood. Dr Boakes was of opinion that it is quite impossible to draw conclusions about memories of childhood abuse from tests of that nature. Dr Boakes was asked specifically about the possibility, which played an important part in Dr Tierney's evidence, that childhood abuse could produce a deficit in verbal memory in such a way that the victim could picture the abuse but could not speak about it. She stated that Bremner's paper provided no basis for any such suggestion, because all that it tested was the ability to remember matters that had occurred a very short time previously. Bremner's paper was concerned with the encoding of new memories; it said nothing about old memories. Dr Boakes thought that gross brain pathology would be required before a person could not put into words what he or she had seen. I accept Dr Boakes' opinion on this matter; it seems to me that tests of the sort described in Bremner's paper could not possibly justify a conclusion that persons traumatized in childhood suffer deficits in verbal but not in visual memory in relation to the events that occurred in childhood. I accordingly reject the suggestion put forward by Dr Tierney that the pursuers could have remembered what happened to them when they were resident in Nazareth House but were unable to put that into words.

[89] In cross examination it was suggested to Dr Boakes that the pursuers might have had difficulty in speaking about abuse because the words that they were forced to use caused them anxiety. Dr Boakes agreed that that was a possibility, but stated that it did not involve a failure of memory; it was rather an inability to verbalize. It was known that people regularly failed to report things that had happened, and studies had suggested that this was because they did not want to think about those things, or to be reminded of them. Reporting would make them embarrassed and upset. Nevertheless, in such cases there was a choice as to whether or not to report; there was no biological inhibition on reporting. That did not amount to a deficit of verbal or declarative memory.

[90] Dr Boakes was asked about the impact that publicity given to claims against the defenders might have on the available evidence. As mentioned above, she is one of the co-authors of a paper, "Recovered memories of childhood sexual abuse: implications for clinical practice" (S. Brandon, J. Boakes, D. Glaser and R. Green, British Journal of Psychiatry (1998), 172, 296-307; no 7/96 of process). The background to the paper was the growth in the United States of recovered memory therapy for past sexual abuse. This had caused great public and professional concern, with a polarization of views and fierce controversy within the American psychiatric community. Consequently a working group was set up by the Royal College of Psychiatrists to examine objectively the scientific evidence before such polarization developed in the United Kingdom. The paper represents the group's findings, as contained in a report to the Royal College of Psychiatrists. The report is generally in accordance with the evidence given by Dr Boakes in court, and I think that it is of some importance in demonstrating that there is substantial support within the psychiatric community for her views. In the report it is stated that:

"The problem following most forms of trauma is an inability to forget, rather than a complete expulsion from awareness, and amnesia for violent events is rare".

At a later point, the report states that:

"A growing body of research indicates that partially or completely inaccurate memories are not uncommon. Memory is vulnerable to suggestion. Implanted false stories can be 'adopted' and subsequently 'remembered' as actually experienced events whose recollections are vivid and subjectively indistinguishable from recollections of actual events".

In relation to survivors' groups, it is stated that:

"Survivors' groups are often supportive, helpful in restoring self-esteem and in reducing shame and isolation ... However, the practice of mixing those who clearly remember abuse with those who are suspected by the therapist of having repressed their memories of abuse ... has been strongly criticised ... because of the risk of suggestion and contagion among group members".

In relation to that passage, Dr Boakes explained research carried out when those who had never forgotten abuse were put together with those who had no memory of being abused. Those with no memory appeared to recover their memories of abuse after about 12 weeks, and some of those who had not forgotten recalled additional memories of abuse, generally of a more violent and serious nature than those that they already remembered. Dr Boakes thought that it was worrying that people with no previous memory of any abuse began to report stories of very serious abuse, mostly in early childhood or infancy. There had in fact been no objective evidence that any such abuse had actually occurred, and the researchers had not made any effort to find such evidence. Dr Boakes described this as a very worrying aspect of the research. The report concludes with detailed recommendations, which form the basis for recommendations issued by the Royal College of Psychiatrists. These included the need to look for corroborative evidence.

[91] Dr Boakes also gave evidence about the Fourth Report of the Home Affairs Committee of the House of Commons, dealing with the conduct of investigations into past cases of abuse in children's homes (no 7/47 of the M process). This report arose out of concerns about the methods used by the police to investigate allegations of historical abuse in children's homes and other institutions. Those concerns centred in particular on the practice of "trawling" for information from a wide net of former residents. It was thought that this was liable to lead to false allegations, and a consequent risk of miscarriages of justice. The conclusions of the Committee (found at paragraphs 28-34 of the Report) were that standard letters of inquiry did not give rise to serious concerns, even though such letters might give some information about the nature of the investigation. The Committee thought, however, that a problem can be created when there is wider publicity about an investigation at the time when such letters are sent. The Committee also expressed concern at the use of "tick box" format questionnaires, in which possible victims are asked a series of specific questions about alleged abuse. The Committee considered that such documents present an open and specific invitation to the recipient to make an allegation, and could tempt persons who sought to "jump on the bandwagon". The Committee accordingly recommended that any initial approach by the police to former residents should so far as possible go no further than a general invitation to provide information.

[92] Against the background of that report, Dr Boakes was asked for her opinion on the publicity that claims against the defenders had received in the media. She commented first on certain of the articles that had appeared in the News of the World newspaper (generic productions 13, 14 and 15). She stated that that kind of reporting might encourage persons who had been abused to come forward, but it might also prompt them to elaborate their memories. It might encourage others to jump on the bandwagon. In addition, the promise of reward, such as was found in the News of the World article of 1 June 1998 (generic production 15, where Mr Fyfe was reported as talking about compensation of up to 100,000) might incite people to invent or exaggerate their stories. The BBC "Frontline Scotland" programme involved large numbers of alleged victims meeting in a hall. That might be helpful for some of them, but there was a risk that the memories of some might be elaborated, or that stories might be picked up without the fact being recognized. That possibility had been supported by experimental evidence carried out by Loftus and others, in which it was found that a suggestion by an authority figure can suggest to a number of people that something had happened in childhood that had not in fact happened. In that connection, Dr Boakes expressed particular concern at the article that had appeared in the Daily Mail on 26 January 1998 (no 7/51 of the W process), in which Mr Fyfe was quoted as stating that he was convinced of the allegations against the nuns. Mr Fyfe in his evidence denied that he had made any such allegations; nevertheless the allegations appeared in the press, and could easily have been read by potential claimants. Dr Boakes stated that such reporting might cause suggestible persons to exaggerate their stories or imagine things that did not happen; she thought that that was a matter of common sense.

Conclusions on psychological and psychiatric evidence

[93] As will perhaps be clear from the foregoing discussion, I unhesitatingly prefer the evidence of Dr Boakes. I do so for the following reasons.

1. I found the evidence of Dr Boakes to be very clear, and I found her general intellectual position coherent. In short, her opinion was that survivors of trauma are normally able to recall what happened to them, even if they wish that they could forget. The three pursuers had been able to recall what happened to them, and had mentioned it to various individuals; consequently any psychological explanation for an inability to remember was beside the point. Such individuals may be reluctant to speak, but that is simply because recalling events makes them embarrassed or upset; no complicated psychological explanation is required. That approach seems to me to accord with common sense. Moreover, it fits the facts of the present case, and in particular the ability of all three pursuers to remember what had happened and to speak about it to other persons.

2. By contrast, Dr Tierney's approach was largely based on the views advanced by Van der Kolk, Bremner and others. It involved acceptance that the pursuers displayed DESNOS criteria, and that, as a result of childhood abuse, they were unable to put into words what had happened to them, although they could remember it. In my opinion neither of these points was established.

i. In relation to the DESNOS criteria, I found the evidence of Dr Boakes summarized at paragraph [82] persuasive. I should add that that evidence was not significantly challenged in cross examination. I accordingly find that DESNOS has not been recognized as a distinct syndrome in the two leading diagnostic manuals, essentially because the evidence does not support its existence. Dr Tierney's evidence is accordingly seriously undermined by his heavy reliance on DESNOS criteria.

ii. In my opinion the suggestion that the pursuers were unable to express what they had experienced, although they could visualize it, was not established. It is quite inconsistent with the fact that all three pursuers were able to express to others what had happened to them; none of them claimed any memory deficit. The suggestion was in any event based on papers by Bremner and others. For the reasons explained by Dr Boakes at paragraphs [85] to [88], I consider that those papers cannot be relied on for present purposes. I discuss this point further below.

3. Dr Tierney placed particular reliance on the papers by Bremner and others mentioned at paragraphs [68] above, especially the paper entitled "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (generic production 22). In my opinion that paper is subject to three major criticisms. First, it, was concerned with individuals who had suffered severe penetrative sexual abuse in childhood. That is quite different from the present case, and for that reason alone I do not think that the paper is of any relevance. Secondly, the hypothesis put forward in that paper is that deficits in verbal memory are caused by damage to the hippocampus. That suggestion, however, is negatived by the research by Gilbertson referred to in paragraph [86] above. While that criticism goes to the mechanism whereby Bremner explains his observations rather than the observations themselves, it does I think cast some doubt on his views, because he is left with no real explanation for his apparent findings. Thirdly, Bremner's paper is based on the tests described at paragraph [88] above. These all relate to the ability to recall what has happened a few minutes previously. Thus the research on which the paper is based relates to short-term rather than long-term memory. That in my opinion is a fatal flaw; one thing that is quite clear is that the recollection or otherwise of childhood abuse involves long-term memory.

4. Dr Tierney suggested a second possible reason for delayed disclosure, namely dissociative symptoms and amnesia arising from childhood abuse (paragraph [70] above). This was largely based on the paper by Chu and others, "Memories of childhood abuse: dissociation, amnesia and corroboration" (no 7/97 of process). He stated that observations of dissociation were sometimes used to explain repression, but accepted that repression was a concept that was rarely used in contemporary practice. That of itself seems to me to undermine it as a reason to a substantial degree. In addition, Chu's paper was trenchantly criticized by Dr Boakes (paragraph [84] above). In particular, the paper appeared to be based on an inability to remember events that had occurred between the ages of one and three, a period covered by infantile amnesia where recollection would be highly exceptional. I accept those criticisms, and I did not consider that there is any validity in the suggestion that childhood abuse produced dissociative symptoms and amnesia.

5. I found that Dr Boakes gave her evidence in a manner that was conspicuously fair. That related in particular to her assessment of the available literature. By contrast, Dr Tierney appeared to make use of the literature that supported his basic argument in an uncritical manner, and seriously downplayed the existence of major disagreements among psychiatrists and psychologists. This can be illustrated by a number of examples. First, Dr Tierney placed strong reliance on the work of Van der Kolk and his collaborators, in particular the book "Traumatic Stress", which he described as one of the most authoritative summaries of research on the effects of ill treatment in childhood on subsequent development. He described the views expressed in the book as "the most recent consensus view of the general effects of severe ill treatment at an early age in later life". The opinions of McNally and his supporters were dismissed as a minority view. It became clear, however, that the views of Van der Kolk and his collaborators are highly controversial. The contrary views advanced by McNally clearly command widespread support, not least from Dr Boakes, whose views accord with her collaborators on the paper prepared for the Royal College of Psychiatrists discussed at paragraph [90] above. In my opinion Dr Tierney's attempt to suggest that Van der Kolk's views represented a consensus were wholly misplaced. Secondly, Dr Tierney relied heavily upon the DESNOS criteria, as if they were a matter of established and barely disputed scientific fact. It became clear, however, that the bodies responsible for the two major diagnostic manuals had not accepted DESNOS as a distinct syndrome. Thirdly, Dr Tierney placed particular reliance on the paper by Bremner and others entitled "Deficits in verbal declarative memory function in women with childhood sexual-abuse related post-traumatic stress disorder". That paper, however, was subject to the very strong criticisms discussed above. It seemed to me that the three foregoing examples were fundamental to Dr Tierney's opinion on the three pursuers. Consequently they cannot be dismissed as peripheral or unimportant. I accordingly consider that these examples seriously undermine his evidence.

6. I found Dr Tierney's explanation of the distinction between verbal and visual memory to be unclear. Ultimately, his position as expressed in re-examination appeared to be that persons who had suffered abuse are reluctant to speak about it, rather than unable. He explained this, however, in terms of the distinction between visual and verbal memory, in a manner that I did not fully understand. Dr Boakes, by contrast, explained the distinction between visual and verbal memory as relating to the manner in which a thing is recalled (graphically or verbally); this was borne out by the description of the tests administered by Bremner (see paragraph [88] above). Thus the verbal memory is the norm, and visual memory relates to the ability to draw things. On that basis, I do not understand the relevance of the distinction between visual and verbal memory to the pursuers; no one has suggested that they were able to draw the abuse but not to put it into words. For this reason I think that Dr Tierney's views may have proceeded on a misunderstanding of the literature.

7. I am of opinion that Dr Boakes' reasons for rejecting a diagnosis of PTSD are to be preferred, essentially for the reasons set out at paragraphs [80] and [81] above. Dr Boakes explained that PTSD requires exposure to an event that is especially catastrophic or traumatic, normally of a life-threatening nature. In my opinion that is fully borne out by the definition of PTSD found in the World Health Organization Classification of Mental and Behavioural Disorders, ICD-10, one of the standard diagnostic manuals used in relation to disorders of the mind (reproduced at generic production 10B). The first criterion found in the ICD-10 definition is that "The patient must have been exposed to a stressful event or situation (either short- or long-lasting) of exceptionally threatening or catastrophic nature, which would be likely to cause pervasive distress in almost anyone". I do not understand how it could reasonably be said that the experiences of the present pursuers were of that nature. Their experiences in Nazareth House may have been unpleasant and distressing, but they could not be described as "of [an] exceptionally threatening or catastrophic nature". In addition, the definition in ICD-10 makes it clear that the general symptoms of PTSD must appear within six months of the stressful event or the end of a period of stress. These general symptoms include "reliving" of the stressor in intrusive flashbacks, vivid memories or recurring dreams; avoidance behaviour of a sort that was not present before exposure to the stressor; and either inability to recall events or persistent symptoms of increased psychological sensitivity and arousal. Dr Boakes pointed out that it is very difficult indeed to know years after the event whether the general symptoms were present within the required six-month time period. In addition, on the basis of her examination of Mr M, she was of opinion that he did not meet the criteria for PTSD. I found her assessment convincing. Dr Boakes did not examine Mrs W, and therefore could not express an opinion on her state. She did examine Mrs B and found no evidence of PTSD, but did not rule out that symptoms might have been present at an earlier stage. In these two cases, however, I am of opinion that PTSD is improbable on the basis that the experiences of Mrs W and Mrs B in Nazareth House were not exceptionally threatening or catastrophic.

[94] Counsel for the pursuers criticized the evidence of Dr Boakes for a number of essentially minor reasons. She referred to the drug coproximal as an antidepressant, which it is not; nevertheless, she stated that it was a drug that she never used in practice. She made a passing reference to compensation neurosis, but ultimately accepted that that was not backed up by research. She had interviewed Mr M in the defenders' agents' office, and accepted that that was perhaps not appropriate. In my opinion these criticisms are not significant when set against the totality of Dr Boakes' evidence, which I found impressive. Counsel for the pursuers also criticized Dr Boakes as a witness too close to the defenders' cause, too strident in her evidence and having a fixed mind set. I did not detect any of these features in her evidence.

[95] On the basis of Dr Boakes' evidence, I arrive at the following conclusions.

1. It is not been proved that any of the pursuers suffered from post-traumatic stress disorder.

2. The DESNOS criteria do not command general recognition, and are not relevant to the pursuers.

3. No general psychological or other medical explanation has been established for the pursuers' delay in reporting the abuse that they are alleged to have suffered when in Nazareth House.

4. In particular, it has not been established that the pursuers suffered any material deficits in or difficulties with verbal memory. Likewise, it has not been established that the pursuers suffered from dissociative symptoms and amnesia resulting from childhood abuse.

5. The pursuers were all reluctant to speak about their experiences in Nazareth House, but the main reasons for that were the distress and embarrassment that they suffered when recounting their experiences, together with lack of confidence. All three pursuers did of course disclose their experiences to a limited number of persons even before the disclosures in the News of the World newspaper.

6. All three pursuers nevertheless suffered from psychiatric or psychological disorders. This was particularly true of Mrs B, who suffered from depression, agoraphobia and a degree of obsessive compulsive disorder. Mr M suffered from a personality disorder with paranoid features and comorbid dysthymia with periods of straightforward depression. Mrs W suffered from periodic depression.

[96] It follows that, of Dr Tierney's suggested general reasons for non-disclosure (summarized at paragraphs [68]-[73] above), the first three must be rejected and only the last three are of any relevance. These related to the life histories of the pursuers, both between the ages of 18 and 21 and at the time of their assessment by Miss Gray Taylor, and the vulnerable state of the three pursuers when they left the care of the defenders. I accept that there is some degree of force in these reasons, although I reject the diagnosis of PTSD. In particular I accept that all three pursuers suffered from depression and lack of self-esteem or self-confidence. Mr M had been in prison on a number of occasions between the ages of 18 and 21 and drank to excess during that period. Mrs B was not prepared for life outside Nazareth House, and had serious family difficulties between the ages of 18 and 21. Mrs W had a number of low-paid jobs and abusive relationships. These factors are relevant to the failure of all three pursuers to make complaints.

[97] One other part of Dr Boakes' evidence is important. In her report on Mr M (no 7/9 of process, paragraph 5.15) she records Mr M's family background as noted by Mr Mahmood, a clinical psychologist and psychotherapist who treated him in 1997. Mr Mahmood describes Mr M as "a severely damaged and disturbed young man from a deprived and unfortunate background". It is unnecessary to go into the details of Mr M's background, which was dealt with to some extent in his evidence. What is important is that his home background was seriously disadvantaged; indeed that is why he was taken into care. Both Mrs W and Mrs B gave evidence about their home backgrounds and the events that led to their being taken into care. In both cases it is clear that they too came from most unfortunate home backgrounds, and that that is why they were taken into care. In each case the nature of the home background is borne out by the relevant report by Miss Gray Taylor (no 6/1 of each process). It also came to light during the evidence that at the age of 15 one of the pursuers suffered an incident of such a nature that it could easily have produced long-term psychological trauma. The incident was not related to Nazareth House. That too is a matter that could very easily have contributed to that pursuer's subsequent psychological state and unfortunate history as an adult.

[98] The injuries that the pursuers claimed to have suffered as a result of their treatment in Nazareth House are set out in paragraphs [16]-[19] above. It can be seen that the principal complaint is of psychological injury, with resulting difficulties in forming and maintaining personal relationships and in obtaining employment. The matters mentioned in the last paragraph are important because they mean that the pursuers' psychological problems in adult life cannot be unambiguously related to their treatment while they were in Nazareth House. Part of the explanation may lie in the pursuers' home backgrounds, either through genetic factors or because of their experiences at home before they were taken into care. It may also lie in other experiences that the pursuers had in childhood or adolescence, unrelated to Nazareth House. At any proof on the merits of the pursuers' claims, therefore, an important task facing the court will be to separate the effects of physical abuse by persons for whom the defenders are responsible from the effects of the pursuers' family backgrounds and other experiences. A further task may be to separate the effects of physical abuse in Nazareth House from the general effects of institutional care, in the manner discussed in paragraph [23] above.

Conclusions on explanations for delay in raising proceedings

[99] Relying on the evidence given by the pursuers and Dr Tierney, counsel for the pursuers submitted that a number of good reasons emerged for the pursuers' not coming forward earlier with claims against the defenders. Some of these were implicit in their evidence while others were explicit. First, counsel emphasized the poverty of the pursuers' backgrounds, and the fact that they had all experienced severe family breakdown. All had been unemployed for substantial periods. Mr M had engaged in significant criminal activity during his late teens. All three pursuers suffered from medical problems, including depression and somatization, or many more visits to the doctor than is normal. Both Mr M and Mrs B suffered from agoraphobia. The psychological reports prepared by Miss Valerie Gray Taylor on the three pursuers indicated that their quality of life was in the very lowest percentile of the population. For individuals with that background, it would not be easy to enter a solicitor's office and ask him to raise an action against an order of nuns. Between the ages of 18 and 21, such persons would be entirely lacking in self-confidence. Consequently it was not reasonable to think that they could had approached a solicitor and asked him to act during the last three years of the limitation period. In any event, even if they had contacted a solicitor, it is quite likely that he would not have believed the pursuers' stories, just as Mr M's criminal solicitor had not appeared to believe what he was told. Consequently, counsel submitted, it is probable that no solicitor would have been willing to act for the pursuers prior to the end of the limitation period.

[100] Secondly, counsel submitted that on their evidence none of the pursuers thought that they would be believed if they gave an account of what had happened to them in Nazareth House. When they were children they had complained to the police and social workers, but no one had paid any attention to their complaints. In particular, there appeared to be a general reluctance to believe that nuns could be guilty of cruelty to children.

[101] Thirdly, counsel submitted that the pursuers did not know that they could bring a civil action against the defenders. Mr M had explained that he did not know that a civil action would be possible until he had read an article to that effect in the News of the World. Both Mrs W and Mrs B likewise said in evidence that they did not know that they could bring a civil action against the defenders until the matter was raised in the press; indeed, Mrs W stated that she had not realized that she could take action against the defenders until she spoke to Mr Fyfe. Counsel submitted that this was an important consideration and that the court should be wary of submissions from the defenders, made from a middle-class point of view, that everyone should know the law and be well aware of their rights.

[102] Fourthly, counsel submitted that the pursuers had wanted to block out their experiences in Nazareth House; consequently they were very reluctant to speak to anyone about the matter. Mr M gave the clearest evidence of that, indicating that he was not at all happy talking about these matters. Mrs W stated that she had not been able to speak about her treatment in Nazareth House until she was in her forties. When other complaints about the defenders had been made, however, the pursuers had felt that there was safety in numbers. Dr Tierney in his evidence had pointed to the difference between the making of an individual complaint and going forward as part of a group. Finally, counsel suggested that the reasons given by the defenders for not making their complaints earlier had not been challenged in cross-examination, and accordingly those reasons should be accepted by the court. I do not accept this last point; there was extensive cross-examination directed to the reasons for not making complaints earlier.

[103] Counsel for the defenders submitted that none of the pursuers had given a satisfactory explanation for the delay in intimating a claim. All three had mentioned their experiences to others, and all three had had contact with lawyers at an earlier stage. Mrs W did not in terms state that she had been ignorant of any right to compensation. Mrs B had been prepared to speak to the press, and could not be portrayed as a nave and vulnerable lady inhibited from taking appropriate action. Mr M, counsel submitted, was an astonishing case, because he stated in court more than once that he did not want compensation and did not want to proceed with the action.

[104] In my opinion there is some force in certain of the points made by counsel for the pursuers. To a substantial extent these echo the evidence of Dr Tierney that I have accepted in paragraph [96] above. I accept that all three pursuers experienced great personal difficulties between the ages of 18 and 21, and that indeed those difficulties have in large part continued until the present; this is one of the parts of Dr Tierney's evidence that I accept, for the reasons set out at paragraph [96] above. Mr M went through a period of excessive drinking together with criminal behaviour, which resulted in periods of imprisonment. Both Mrs W and Mrs B had great difficulties with personal relationships, and were in low-paid, unskilled jobs at this time. All three had clearly suffered a degree of psychological harm, resulting in depression and, in the case of Mrs B and Mr M, other psychological complaints. I accept that all of these factors might have inhibited the bringing of court proceedings. It is clear, however, that none of the present pursuers is anywhere near the situation of the pursuer in Comber v Greater Glasgow Health Board, supra. That case was distinguished in Kane v Argyll & Clyde Health Board, supra, a case which appears to me to bear a much greater similarity to the position of the present pursuers.

[105] I also accept that, at least between the ages of 18 and 21, all three pursuers did not think that they would be believed if they made complaints about that treatment in Nazareth House. In Mr M's case I think that this belief probably continued until the disclosures in the News of the World. Mrs W, on the other hand, received a sympathetic hearing from a number of people to whom she spoke during the 1990s, and I conclude that she must have realized well before 1997 that there was a reasonable possibility that her account of events would be believed. I think that the same is true of Mrs B; she had been prepared to go to the press, which tends to negative any view that she would not take action because she feared that she would not be believed.

[106] I think it probable that the three pursuers did not consciously realize until May 1997 that they could raise court proceedings in respect of their treatment in Nazareth House. I must qualify this, however, by stating that the probable reason for this state of affairs was simply that they did not think about the possibility of court proceedings, not that they thought about the possibility but decided that proceedings were impossible; there was no evidence that any pursuer had ever thought about the possibility. I am also conscious that Mrs W was not asked in terms about her ignorance of a right to compensation. In addition, both Mrs W and Mrs B were clearly intelligent women, and any serious reflection on the possibility of compensation would, I think, had a suggested to them that a claim might be possible. In my opinion the fact that the pursuers' ignorance of a right to compensation was caused by not thinking about the matter, rather than thinking about it and rejecting it, takes much of the force out of this point. The law must start from the proposition that everyone is aware of his or her rights, or at least has the means of ascertaining those rights. If people do not apply their minds to the question of whether such rights exist, it is difficult to see that there is any compelling reason for allowing them to bring claims well out of time. In addition, I note that the present case is not one where there was any suggestion that any of the pursuers was misled about his or her rights; this distinguishes is it from cases such as McIntyre v Armitage Shanks Ltd, supra.

[107] I accept that all of the pursuers were reluctant to speak about their experiences in Nazareth House, because they found it distressing and embarrassing to relive those experiences. I do not regard this as of more than minor significance, however. A great deal of litigation involves matters that are frankly unpleasant. This is true of virtually all personal injury litigation, and much else besides. The fact that giving an account of what happened is distressing or embarrassing cannot by itself be regarded as an excuse for failure to take action.

[108] Counsel for the defenders attached importance to Mr M's lack of a desire for compensation. Mr M has raised proceedings, however, and I think that I must take those proceedings at face value. In a sense a person in Mr M's position faces a dilemma; if he claims that he is anxious to receive compensation he will be stigmatized as only pursuing an action for the money, whereas if he states that he does not want compensation he is criticized as having no real interest in the outcome of proceedings. The only fair course of action seems to me to take the proceedings at face value.

[109] In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; (ii) all three pursuers did not think that they would be believed if they made complaints about their treatment in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and (iii) the pursuers did not consciously realize until 1997 that they could raise legal proceedings against the defenders, although that was the result of lack of thought rather than consideration and rejection of proceedings. I accept that all of these provide some explanation for the failure to raise proceedings before 1997. Even when they are taken together with the reluctance of the pursuers to speak about their experiences in Nazareth House, however, I am of opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the court's discretion under section 19A. I will now deal with those other matters.

Other matters relevant to the application of the section 19A discretion

[110] At the outset I should emphasize that the burden of establishing that the court should exercise its discretion under section 19A to allow the actions to proceed rests firmly on the pursuers. The reasons for this are set out by McHugh J. in Brisbane Regional Health Authority v Taylor, supra, at 186 CLR 552-553, quoted at paragraph [21] above. The limitation provision, that in section 17 in the present case, is the general rule, and the extension provision in section 19A forms an exception to it. Such an extension provision is, as McHugh J. points out, "a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case". McHugh J. states the result as follows:

"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that t

 
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