2.2.4. Misunderstanding of (Diagnostic) Terminologies

In December 2000, Dr. M diagnosed the appellant as having “Jiritsu shinkei shicchoushou”. On December 21st, 2000 he provided the appellant with a diagnosis form written in English where he gave the English translation of Jiritsu shinkei shicchoushou as “autonomic nervous disorder” (Appendix 4).

However, there are many problems associated with this vague diagnostic term as outlined below:

Problem (1) Anxiety / Stress

In Japan, the term “autonomic nervous disorder” is used to refer to psychosomatic symptoms caused by daily anxiety/stress (This can be confirmed by simply sighting any book on Jiritsu shinkei shicchoushou or by conducting a simple internet search). NB: The reasoning behind this is that when the body is under stress the autonomic nervous system is affected.

In Western countries, the term “autonomic nervous disorder” is not used to refer to psychosomatic symptoms caused by daily anxiety/stress. Rather, this condition is simply referred to as “anxiety” or “stress” (Appendix 7: Evidence article Koh A35 - Dr. Judson’s Report 3, article 3.3.3).

(NB: In modern day English we do not differentiate much between “stress” and “anxiety”; rather both of these words are commonly used to refer to psychosomatic symptoms caused by pressures from daily life.)

Problem (2) Hyper-function Vs. Hypo-function

In Japan, the term “autonomic nervous disorder” is used as a diagnosis for conditions relating to hyper-function of the autonomic nervous system (e.g. psychosomatic symptoms caused by daily anxiety/stress).

In addition, it is also used as a diagnosis for conditions relating to hypo-function of the autonomic nervous system for which there are very many causes including neurological diseases.

In Western countries, the term “autonomic nervous disorder” is only used in relation to conditions which are manifested by hypo-function of the autonomic nervous system for which there are very many causes (e.g. neurological diseases).

This has been confirmed by Professor Ashton who states: “The term “autonomic nervous disorder” in the western world usually refers to hypofunction of the system due to very many causes including neurological diseases” (Appendix 5-2D, paragraph 2).

Problem (3) Umbrella Term

In Japan, the term “autonomic nervous disorder” is also often used as an umbrella term in cases where the cause of illness is not clearly known.

NB: The first high court judge also commented: “the diagnosis of “autonomic nervous disorder” is usually given to illnesses where the cause is not clearly understood”.

So, it is fair to say that in Japan, the term “autonomic nervous disorder” can be used to refer to a condition where the autonomic nervous system is in a state of irregularity whether this is manifested by either hypo-function or hyper-function of the system.

Problem (4) Disorder

As outlined above, Dr. M translated the term Jiritsu shinkei shicchoushou as “autonomic nervous disorder”, a term which is commonly used in Japan to refer to psychosomatic symptoms caused by daily anxiety/stress.

However Professor Ashton explains that the term “disorder” cannot be applied to simple psychosomatic symptoms caused by daily anxiety/stress.

“The activity of the autonomic nervous system is normally increased by stresses, both physical and mental but reverts to normal activity when the stress is removed.  Only when the overactivity of the autonomic nervous system persists in the absence of stress could this state be considered as a “disorder”. 

In your case, the symptoms of increased autonomic nervous system activity subsided when the stress was removed. As far as I can see there was no question that you had an “autonomic nervous “disorder” prior to taking benzodiazepines; your autonomic nervous system was merely responding in the normal and physiological way” (Appendix 5-2D, paragraph 3).

“…there was no question that you had...”  I meant this to mean that it was out of the question that you had an “autonomic nervous “disorder” prior to talking benzodiazepines, i.e. you could not have had it and it does not merit further consideration/is not an issue” (Appendix 5-2E, paragraph 5).

Problem (5) Makes No Reference to Cause

The term “autonomic nervous disorder” commonly used in Japan makes absolutely no reference to the cause. It merely refers to a state where the autonomic nervous system is being affected.

In western countries it is more common to use a diagnostic term that makes specific reference to the cause (shows the cause) such as “stress” or “dependency”.

Basis for Rationale

Considering the nature of the appellant’s symptoms and the fact that he did not have any other neurological illnesses/diseases, we can determine that the argument in this case is concerned with hyper-function of the autonomic nervous system.

Although the term “autonomic nervous disorder” would not apply to the appellant’s condition in the English sense of the term, when the defense argue the appellant’s symptoms using “autonomic nervous disorder” in the Japanese sense of the term, what they are actually referring to is hyper-function of the autonomic nervous system.

Hyper-function of the autonomic nervous system can be caused by (A) stress or anxiety and (B) benzodiazepine dependency as noted by Professor Ashton:

“The autonomic nervous system responds to anxiety and stress from any cause. Benzodiazepine tolerance, dependence and withdrawal all cause stress and anxiety, so the response of the autonomic nervous system is the same as its response to any other type of anxiety”.

However, during long-term benzodiazepine use the stress/anxiety is continued for months or years and so the symptoms of autonomic nervous system activity also continue (Appendix 5-2D, paragraph 4). 

“…stress conditions (including benzodiazepine withdrawal) normally cause increased activity of the ANS” (Appendix 5-2E, paragraph 4). 

Solution for Abovementioned Problems

In order to avoid any further unnecessary and unfair confusion, and to make sure that both sides are talking about the same thing, I will refer to the appellant’s condition herein as: “autonomic nervous disorder (hyper-function of the autonomic nervous system)”.

Further, to get to the actual bones of this case, the focus should be on the cause of “autonomic nervous disorder (hyper-function of the autonomic nervous system)” and not just the mere fact that it existed.

Cause

In the differential diagnosis sections of Dr. Judson’s reports we have constantly given clear reasons (based on the evidence) for ruling out daily lifestyle related anxiety/stress as the main cause of the appellant’s condition “autonomic nervous disorder (hyper-function of the autonomic nervous system)” in late 2000~2001 (Appendix 7: Evidence article Koh A35 - Dr. Judson’s Report 3, article 3.3).

However, in contrast to this, the defense has never given any clear reasons (based on the evidence) for ruling out dependency as the main cause of the appellant’s condition “autonomic nervous disorder (hyper-function of the autonomic nervous system)” in late 2000~2001. They have simply been repetitively saying “the claimant had autonomic nervous disorder”, or in other words, hyper-function of the autonomic system.

NB: The above needs to be understood, and it must also be made clear that in order to prove dependency, we were never trying to rule out the fact that the appellant’s autonomic nervous system was being affected at the time. We were trying to rule out that the appellant’s condition was merely caused by underlying anxiety/ stress brought about by daily life pressures.

However, because the term used to describe daily anxiety/stress in Japan is “autonomic nervous disorder”, this appears to have caused some confusion and misunderstanding.

2.2.5. Autonomic Nervous Disorder (AND) Claim Has No Basis

As outlined above, there has been a fundamental problem with the Autonomic Nervous System Disorder issue throughout the entire proceedings which has had a severe and unfair influence on this case. This is because the following facts were not understood.

First, benzodiazepine dependency causes anxiety/stress and “autonomic nervous disorder (hyper-function of the autonomic nervous system)”. Professor Ashton (one of the most knowledgeable experts on benzodiazepine dependency in the world) confirms this fact as follows:

“The autonomic nervous system responds to anxiety and stress from any cause. Benzodiazepine tolerance, dependence and withdrawal all cause stress and anxiety, so the response of the autonomic nervous system is the same as its response to any other type of anxiety” (Appendix 5-2D, paragraph 4).

This was also commented on by Dr. Judson as follows: “Further to the above, we must also consider that dependency can produce the very symptoms they are designed to treat, i.e. anxiety symptoms, as noted by Professor Ashton based on a clinical study below” (Evidence article Koh A35 - Dr. Judson’s Report 3, article 3.3.15).

NB: Please note the Japanese translation error (the very same symptoms = the “very same” symptoms) (TN: Not “very similar” symptoms).

Second, it is possible to have a degree of “autonomic nervous disorder (hyper-function of the autonomic nervous system)” initially (before the treatment) due to daily stress, and then to have this later increased considerably during the treatment due to the formation of tolerance, dependency and subsequent withdrawal reaction.

NB: When this happens, the patient can experience a worsening of symptoms and the development of totally new symptoms during the treatment which is what happened in the appellant’s case (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, articles 2.2.3 & 2.2.9).

This has also been confirmed by Professor Ashton who said: “Benzodiazepines affect the whole nervous system, both the central nervous system and the autonomic (sympathetic and parasympathetic) nervous system which is controlled by the CNS.  

The initial effect is to decrease nervous system activity but with regular use, the whole system becomes hyperactive due to the development of tolerance. This is manifested by the withdrawal reaction if the drug is stopped, the dosage reduced, or even while benzodiazepines are still being taken” (Appendix 5-2A, paragraph 1).

“In case the court is interested, the mechanism of action of benzodiazepines is to increase the activity of GABA (gamma-aminobutyric acid), a neurotransmitter in the brain which acts to induce relaxation and calmness. When tolerance to this action develops, the receptors for GABA decrease (down-regulate), and GABA activity decreases, resulting in anxiety (and increased autonomic activity) which is further increased by dose reduction and withdrawal” (Appendix 5-2D, paragraph 5).

Professor Ashton stated that if the court and lawyers are arguing over ruling out benzodiazepine dependency because a patient’s autonomic nervous system is being affected (hyper-active) then they do not understand the physiology of the autonomic nervous system (Appendix 5-2D, paragraph 6).

Subsequently, the argument suggesting that the appellant could not have been drug dependent because he had “autonomic nervous disorder (hyper-function of the autonomic nervous system)” has no basis. Moreover, to the contrary, the presence of “autonomic nervous disorder (hyper-function of the autonomic nervous system)” actually supports the fact that the appellant was dependent.

Further, Professor Ashton has confirmed that the cause of the appellant’s “autonomic nervous disorder (hyper-function of the autonomic nervous system)” in late 2000~2001 was indeed caused by benzodiazepine dependency. In her specialist opinion she stated:

“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 outlined by Professor Ashton above, benzodiazepines affect the whole nervous system, so when someone becomes dependent it is no wonder their autonomic nervous system is affected. In fact it is so obvious that it is not even usually mentioned in English literature which has been confirmed by Professor Ashton as follows:

“Most references on benzodiazepines do not actually mention “autonomic nervous system” because it is so obvious to medical readers” (Appendix 5-2C, paragraph 1).

The fact that benzodiazepines affect the whole nervous system is the very reason why patients end up suffering from so many psychological and physical symptoms including those briefly outlined by Professor Ashton (Appendix 5-2C, paragraph 2) most of which the appellant first developed following the drug treatment (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.2.3 & 2.2.9).

Subsequently, the defense’s argument suggesting that the appellant could not have been dependent because he had “autonomic nervous disorder (hyper-function of the autonomic nervous system)” is metaphorically speaking the same as saying that someone could not have had a cold because they had a virus. The entire rationale is totally unrealistic and absurd.

If the defense can successfully convince the court to rule out that the appellant was dependent based on the reason that he had “autonomic nervous disorder (hyper-function of the autonomic nervous system)”, then they could successfully convince the Eskimos to buy snow and make a fortune. It’s quite a remarkable achievement – totally unfair but remarkable nonetheless.

NB 1: For the reasons outlined above, this case is not about deciding whether the appellant had (A) “autonomic nervous disorder (hyper-function of the autonomic nervous system)”, or (B) benzodiazepine dependency. Rather, it is just a case of determining whether the appellant had benzodiazepine dependency or not because this in turn causes “autonomic nervous disorder (hyper-function of the autonomic nervous system)”.

The fact that the appellant developed new symptoms consistent with withdrawal during the treatment (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, article 2.2.3), the fact that the appellant suffered from withdrawal upon reduction (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) and the fact that the appellant met 5/7 DSM-IV-TR criteria (Appendix 2: Evidence article Koh A35 - Dr. Judson’s Report 3, Section 2) proves that he was indeed dependent and that this in turn caused the appellant’s condition of “autonomic nervous disorder (hyper-function of the autonomic nervous system)”.

NB 2: The appellant was only diagnosed with the condition of “Autonomic Nervous Disorder” after the course of Appellee X’s benzodiazepine prescriptions - never before. Even Appellee X himself did not make a diagnosis of “Autonomic Nervous Disorder” before the drug treatment commenced. He only started to claim “Autonomic Nervous Disorder” after his drug treatment. (TN: After court proceedings had begun)

2.2.6. No Pre-existing Neurological Disorder

As outlined above, on December 21st, 2000 Dr. M provided the appellant with a diagnosis form stating the English translation of the term “Jiritsu shinkei shicchoushou” as “autonomic nervous disorder” (Appendix 4).

However, the term “disorder” is used to describe a condition where the illness is inherent, permanent or abnormal. In the appellant’s case when the stress (caused by benzodiazepine induced tolerance, dependence and withdrawal) was removed, his symptoms improved, therefore, the appellant’s condition cannot be referred to as a “disorder” (Appendix 2-2D, paragraph 3). (TN: Should have been Appendix 5-2D, paragraph 3)

(TN: The above example given by Prof. Ashton regarding symptoms improving after “the stress” was removed may have actually been referring to the improvement of “work related stress” after changing jobs before the drug treatment began, and not necessarily from the later “benzodiazepine induced stress” as in the example above. Nevertheless, in either case there was improvement showing that there was no “disorder” of the autonomic nervous system.)

The fact that the appellant’s symptoms improved and his body (TN: autonomic nervous system) returned to a level of normality over time after stopping the benzodiazepines is clearly outlined in Specialist Dr. Judson’s reports which are based on the evidence; namely patient files (Evidence article Koh A35 - Dr. Judson’s Report 3, article 3.1), (Evidence article Koh A39 - Dr. Judson’s Report 4, article 2.5).

Further, the appellant had absolutely no history of any psychological or neurological problems. This fact has been confirmed by Neurologist Dr. Hutchinson who said: “There has not been a pointer to any other neurological disorder (apart from an acute vestibulopathy)” (Evidence article Koh A4 - Dr. Hutchinson’s Report).

This was also supported by the appellant’s long term GP, Dr. ter Haar, who said: “According to his (the Appellant’s) medical records from 1990 to 1999 he (the Appellant) had no symptoms relating to psychological, neurological or brain matters (Evidence article Koh A19 - Dr. ter Haar’s Report).