2.2.1. DSM-IV-TR Application Misunderstood

Looking at page 5 of the verdict, the defense claims as follows: “The DSM-IV-TR diagnostic criteria for substance dependency is only applied to case examples where the substances include cocaine, alcohol, and tobacco, and that the above criteria cannot be applied in such a mechanical way to make a diagnosis in cases where the drugs were used in standard medical treatment.

“However, in actual fact, the DSM-IV-TR diagnostic criteria for drug dependency can also be applied to prescription drugs, including benzodiazepines.

With regards to the fact that the DSM-IV-TR diagnostic criteria can also be applied to prescription drugs, including benzodiazepines, Specialist Dr. Judson has stated the following:

“This is to confirm that the DSM-IV-TR is used to diagnose mental disorders. Included in the list of recognised mental disorders are those that are substance related, this includes those due to prescription medication. This also includes Benzodiazepine dependence.” (Appendix 1-2).

Dr. Judson stated in his first report: “To diagnose Benzodiazepine dependence we use the DSM-IV-TR Criteria here at the Alcohol & Drug Service. The DSM-IV-TR is the standard used by the American Psychiatric Association.

As noted in the DSM-IV-TR, drug dependence (TN: Same definition as substance dependence) is a maladaptive pattern of drug use leading to clinically significant impairment or distress, which is manifested by 3 or more of the Criteria occurring at any time in the same 12 month period (TN: See evidence article Koh B7, page 197 - Seven criteria for diagnosing substance dependency).

In Wayne’s (the appellant’s) case the clinical impairment included both physical and mental symptoms, and associated with this impairment was the impact on Wayne’s life, which included his inability to function at work” (Evidence article Koh A23 – Dr. Judson’s Report 1, article 2.1.3).

“Of the 7 Criteria above, Wayne (the appellant) met numbers: 1, 2, 4, 6, 7 above, in other words, Wayne met 5 out of the 7 Criteria, for which only 3 need to be met in order to determine dependence” (Evidence article Koh A23 – Dr. Judson’s Report 1, article 2.3).

Further, “As a back-up to the DSM-IV-TR Wayne’s (the appellant’s) clinical picture was measured against the ICD 10 criteria which is used more commonly in Europe to diagnose substance (drug) dependence” (Evidence article Koh A23 - Report 1, article 2.1.3).

2.2.2. Interpretation of DSM-IV-TR Interpretation Was Wrong

Looking at the verdict it is apparent the High Court did not take into consideration all the criteria that the appellant met (1. Tolerance, 2. Withdrawal, 4. Loss of Control, 6. Impact on Life, 7. Continued Use Despite Knowledge of Harm).

It appears that only criteria (1) and (2) above were considered when the verdict was made. However, “when applying these criteria, it is not a simple case of looking at each of them individually. Rather, they should be looked at in a way that considers their relationship to one another within context of the overall clinical picture” (Evidence article Koh A35 - Dr. Judson’s Report 3, article 1.2.2).

Furthermore, with regards to (1) Tolerance and (2) Withdrawal above, it appears that only parts of the evidence were incorporated into the equation and pieced together by the High Court in a roundabout way resulting in an unfair judgment.

However, “sensible use of diagnostic criteria requires some interpolation and judgment (by a specialist in addictive medicine), taking into consideration the overall problem, as highlighted by Wesson, DR, Smith, DE. & Ling, W. in their discussion on Benzodiazepine and other sedative hypnotic addiction in (Principles of addiction medicine third edition)” (Dr. Judson’s Report 1, article 2.1.1).

Furthermore, as Dr. Judson’s testimony was declined, we did not have the opportunity for him to exercise the above mentioned interpolation and judgment, as a specialist in addictive medicine, within the realms of the court.

Out of all the relevant parties, Dr. Judson (specialist in addictive medicine) is the only one who has the ability to make this interpolation and judgment. This is because he has undergone special training, he has vast experience as a specialist in addictive medicine, and because he has the appropriate qualifications to do so.

NB: As a result there has been no testimony by an expert witness in addictive medicine in this case which has left the evidence further open to interpretation by unqualified people. However, Specialist Dr. Judson’s reports do in fact show the necessary interpolation and judgment taking into consideration the overall problem based on the evidence (patient files).

In order to confirm this, following the handing down of the High Court verdict, I decided to receive an additional expert opinion directly from Professor Ashton with regards to whether or not the appellant did in fact met the criteria for (1) Tolerance and (2) Withdrawal (NB: Professor Ashton is one of the most knowledgeable experts on benzodiazepine dependency in the world).

I sent her a copy of the appellant’s symptoms history taken directly from Dr. Judson’s reports (Evidence article Koh A23 - Report 1, article 1.4) and (Evidence article Koh A35 - Report 3, article 2.1~2.2) which outline the symptoms and medical history (before / during / after the benzodiazepine treatment).

NB: It must be clearly understood that these reports are based on the official evidence – patient files (Appendix 7: Koh A35 - Dr. Judson’s Report 3, article 3.4 for reference).

Also, note that Evidence article Koh A26 is now recorded as Koh A37 – 1~3).

As a result of viewing the appellant’s symptoms history, Professor Ashton stated the following: “Nearly all Wayne Douglas’s symptoms during benzodiazepine treatment, dosage reduction and withdrawal (recorded in Dr. Judson’s report) are due to dependence and symptoms of autonomic overactivity, which is common in these circumstances” (Appendix 5-2C, paragraph 3).

As well as having fulfilled the criteria for (1) Tolerance and (2) Withdrawal, the appellant also fulfilled the criteria for (4) Loss of Control, (6) Impact on Life and (7) Continued Use Despite Knowledge of Harm. This fact was determined by a specialist in addictive medicine based on the official evidence (patient files) using the DSM-IV-TR diagnostic criteria (Appendices 2 & 3).

2.2.3. Five DSM-IV-TR Criteria Not Considered Within Context of the Overall Clinical Picture

As outlined above, sensible use of diagnostic criteria (DSM-IV-TR) requires some interpolation and judgment (by a specialist in addictive medicine), taking into consideration the overall problem. Also, “when applying these criteria, it is not a simple case of looking at each of them individually. Rather, they should be looked at in a way that considers their relationship to one another within context of the overall clinical picture” (Evidence article Koh A35 - Dr. Judson’s Report 3, article 1.2.2).

However, looking at the verdict it is apparent that, first and foremost, the criteria were not looked at in a way that considers their relationship to one another and it is also apparent that not all the relevant facts contained within the overall clinical picture were considered in a specialist way either, and subsequently, it is not possible for a fair judgment to have been made.

The overall clinical picture contains the following facts:

(A)

The fact that the appellant’s condition worsened and that he also developed new withdrawal type symptoms during the course of the treatment at a time when he should have been getting better (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.2).

(B)

A series of unsuccessful attempts at reduction were made (Evidence article Koh A39 - Dr. Judson’s Report 4, article 1.5).

(C)

The appellant continued to use despite showing awareness that the drugs were causing him harm (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.5).

(D)

The appellant was still able to work in Japan, albeit on light duties, before the treatment began but struggled to carry out his normal duties during the term of his treatment. He eventually ended up not being able to work to the end of the contract maturity date (March 30th), and subsequently, the appellant ended up having to cut his contract short by just one week and returned to his home country on March 25th (Evidence article Koh? – Saitama International Association contract), (Evidence article Koh? – Return air ticket to NZ).

Further, after the appellant terminated his employment contract he found himself in a state where he was unable to work again for over one year thereafter (Evidence article Koh A41 – Dr. Whitwell’s patient file), (Evidence Koh? – Sickness Benefit Certificate from Work & Income New Zealand). (TN: The reason why there are no evidence article numbers above is because the evidence reference sheets were not available at the time of writing)

(E)

The impact on life, including the above example relating to employment, only occurred after the drug treatment – not before (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.4).

(F)

The fact that the appellant suffered from withdrawal upon reducing the benzodiazepines (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.2.9), (Evidence article Koh A41 – Dr. Whitwell’s patient file, pg 3)

(G)

As Dr. Judson stated in his 2nd report: “On Wayne’s return to New Zealand to a supportive family, and also when he had time away from Japan and work, his stress levels would have fallen significantly. However, during this period he still experienced symptoms consistent with withdrawal (Evidence article Koh A28 - Dr. Judson’s Report 2, pg 4)

(H)

As Dr. Judson stated in his 3rd report: ‘(After abstinence from benzodiazepines), he was able to return to Japan once again to live and work, and despite being under much greater stress there now with his current claim for compensation, I understand that he continues to maintain a much better state of health at this present time’ (Evidence article Koh A35 - Dr. Judson’s Report 3, article 3.1.9).

NB: Neither the defense or the High Court have provided any kind of explanation or debate regarding (H) above. Further, due to the events of the Great Eastern Japan Disaster, the appellant has far more additional problems now but still maintains far better health.