Speaking with different voices: the problems with English law and psychiatric injury

Private law courts in the UK have maintained the de minimis threshold as a condition precedent for a successful claim for the infliction of mental harm. This de minimis threshold necessitates the presence of a ‘recognised psychiatric illness’ as opposed to ‘mere emotion’. This standard has also been adopted by the criminal law courts when reading the Offences Against the Person Act 1861 to include non‐physical injury. In determining the cut‐off point between psychiatric injury and mere emotion, the courts have adopted a generally passive acceptance of expert testimony and the guidelines used by mental health professionals to make diagnoses. Yet these guidelines were developed for use in a clinical setting, not a legal one. This paper examines the difficulty inherent in utilising the ‘dimensional’ diagnostic criteria used by mental health professionals to answer ‘categorical’ legal questions. This is of particular concern following publication of the new diagnostic manual, DSM‐V, in 2013, which will further exacerbate concerns about compatibility. It is argued that a new set of diagnostic guidelines, tailored specifically for use in a legal context, is now a necessity.