Mancer v The Commonwealth of Australia

[2000] NSWSC 1204

CITATION:	Mancer v The Commonwealth of Australia [2000] NSWSC 1204
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 21236/95
HEARING DATE(S):	28 Novrmber 2000 and 11 & 12 December 2000
JUDGMENT DATE:	15 December 2000
PARTIES :	Mervyn Arthur Mancer (Plaintiff) The Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr I Butcher (Plaintiff) Mr P Jones (Defendant)
SOLICITORS:	Mr James Taylor of James Taylor & Co Myrtleford, Victoria (Plaintiff) Mr G Kathner Australia Government Solicitors Office (Defendant)
CATCHWORDS:	Whether plaintiff should undergo MMPI-2 personality test
LEGISLATION CITED:	Supreme Court Rules - Part 25 r 4(1), Part 25 r 5 Evidence Act - s 102
CASES CITED:	McLean v Commonwealth (unreported 4 July 1996, 21250/95)
DECISION:	see para 28

12

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 15 DECEMBER 2000

21236/95 - MERVYN ARTHUR MANCER v
COMMONWEALTH OF AUSTRALIA

JUDGMENT (Whether plaintiff should undergo

MMPI-2 personality test)
1 MASTER: By notice of motion filed 15 June 2000 the defendant seeks an order pursuant to Part 25 r 4(1) of the Supreme Court Rules (SCR) that the proceedings be stayed until the plaintiff attends for an examination by Dr Fernando Roldan, a clinical psychologist, and undergoes the tests required of him by Dr Roldan including undertaking the Minnesota Multiphasic Personality Inventory; or alternatively, an order that the plaintiff attend upon an appointment with Dr Roldan and complete the tests required of him by Dr Roldan including the Minnesota Multiphasic Personality Inventory (MMPI-2).

2   The defendant relied on three affidavits of Gregory George Kathner sworn 14 June 2000, 29 September 2000 and 1 November 2000, two affidavits of Dr Fernando Hector Roldan sworn 3 August 2000 and 2 November 2000, and affidavits of Dr Derek Lovell, psychiatrist sworn 31 October 2000 and Dr John R Champion, psychiatrist sworn 2 November 2000. The plaintiff relied on the affidavit of his solicitor James Taylor sworn 6 October 2000 and 27 November 2000 and an affidavit of Dr Graeme Senior, senior lecturer at the Department of Psychology, University of Southern Queensland, Toowoomba sworn 2 October 2000 and Dr Knox sworn 21 August 2000.

3   On 10 February 1964 the plaintiff was a crew member of the aircraft carrier HMAS Melbourne. He was a leading officers’ cook. On that day the Melbourne was involved in joint exercises with the destroyer HMAS Voyager. At approximately 2056 hours eastern standard time a collision occurred between the Melbourne and the Voyager at sea about 20 miles south east of Jervis Bay (the collision), 82 men from the Voyager lost their lives in the collision. Between 1995 and 1997 the plaintiff became aware that he suffered from post traumatic stress disorder which caused a dramatic increase in alcohol and tobacco consumption, emphysema and irritable bowel syndrome. On 12 July, 1999 the plaintiff was granted an extension of time within which to commence proceedings in respect of the personal injuries he suffered as a result of the collision.

4 Part 25 SCR refers to medical examinations. The relevant portion of Part 25 r 4 reads as follows:

“Non-compliance with notice
4(1) Where a notice for medical examination of a person concerned is served pursuant to rule 2 and the person concerned does not submit to examination in accordance with the notice, the Court may, on terms, stay the proceedings as to any claim for relief by or for the benefit of the person concerned.”

5 and Part 25 r 5 states:

“Order for examination
5(1) The Court may, on terms, make orders for the medical examination of a person concerned, including an order that a person concerned submit to examination by a specified medical expert at a specified time and place.
(2) Where the Court orders that a person concerned submit to examination by a medical expert, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of him by the medical expert for the purposes of the examination.”

6   A medical expert includes a psychologist. (Part 25 r 2).

7   Mr Kathner solicitor for the defendant, indicated that there were 45 Voyager matters that have not been finalised. If this plaintiff was ordered to undergo the MMPI-2 test, he intends to request the other plaintiff’s to similarly undergo this test. It is common ground that the plaintiff has refused to participate in the MMPI-2 test. This test is a pencil and paper one which takes about 45 to 60 minutes to complete.

8   In McLean v Commonwealth, (unreported 4 July 1996, 21250/95) Sperling J ruled on whether cross examination should be permitted on the topic of the result of MMPI-2 inventory of psychological tests including three validity scales. Dr Bryant’s reports were tendered in evidence. Dr Bryant concluded that the plaintiff had fabricated or exaggerated, in answering questions relating to those scales. From that Dr Bryant inferred that the plaintiff had or was likely to have or may have exaggerated, if not misstated, his symptoms and the course of events. It was suggested that the reliability of the plaintiff as a historian as to what happened at the time of the collision, how it affected him and how he has since been affected is critical. The defendant sought to establish that the results of the tests administered by Dr Bryant showed that firstly, the plaintiff was not a reliable historian and, accordingly, that it would be reasonable for the witness to look to other sources for the true history rather than rely upon the plaintiff’s account of the onset and development of his symptoms; secondly, show if the plaintiff has a particular state of mind at the time of the testing, namely, one of a tendency to exaggerate, and that that state of mind is of probative value in assessing the reliability of the history which the plaintiff had provided. The reasons why Sperling J did not allow questions on this topic were:

(1) It runs counter to the credibility rule in s 102 of the Evidence Act 1995.

(2) It is a matter for the jury to assess the credibility of the witness.

(3) It runs counter to the established principle concerning the nature of expert evidence and does not fall within ss 103 and 106 of the Evidence Act 1995.

9   The MMPI-2 is an objective psychometric test which is a broad band test which measures major personality characteristics and symptoms of psychopathology.

10   The MMPI is a personality measurement test which originated in the United States of America and was introduced in the 1940’s primarily as a economic test for World War I veterans. “Personality” involves a persons feelings about themself, their beliefs about themself and belief about himself/herself and how others interact with them. The MMPI test was revised in 1989 and then became known as the MMPI-2 test. Specifically, the MMPI-2 test introduced a PK and PS scale which are relevant to the diagnosis of PTSD.

11   The basic test consists of 367 questions such as “I enjoy detective mystery stories” (Q 15), “I sometimes tease animals” (Q 68), “I have often wished I were a girl (or if you are a girl) I have never been sorry that I am a girl” (Q 62), “I think I would like the work of a building contractor” (Q 197) and “I often hear voices without knowing where they come from”. The extended version consists of 567 questions. Dr Roldan gave evidence that the plaintiff could answer the basic test and this would provide relevant information, but the basic test does not include the PK and PS scales. Dr Roldan uses the MMPI-2 in 95% of his cases. His practice is primarily a medico-legal one. He has conducted about 1,500 MMPI-2 tests. There is some expertise is required in interpreting the results of the MMPI-2 test.

12   Dr Roldan gave evidence that while he would not make a diagnosis purely on the results of an MMPI-2 test, it would assist in his assessment of the individual. Aside from Dr Knox the other doctors and psychologists agreed that it is beneficial to have regard to different sources of information when evaluating a patient’s medical condition. If the plaintiff were to undergo a medical examination with Dr Roldan he would carry out the consultation in a structured manner. Initially he would see the plaintiff and give him the outline of the consultation. He would then inform the plaintiff that he could take breaks, rest or go for a walk whenever required. Dr Roldan then conducts a detailed clinical interview over a period of one to two hours. He has not been able to carry out the clinical interview with the plaintiff to date because the plaintiff has refused to attend. It would not be expedient and costs effective to require the plaintiff travel from Western Australia to undergo clinical assessment with Dr Roldan and then return at some later stage to undergo the MMPI-2 test. Returning to the consultation, Dr Roldan would then elicit symptoms from the plaintiff in a non-leading manner in regard to symptoms complexes as described in DSM-IV, another United States based diagnostic test He then determines what would be the appropriate psychometric test to be conducted.

13   Prior to administering any tests, Dr Roldan carries out a literacy and reading test. He then explains how the test is to be performed. The plaintiff then performs the test by marking “true” or “false” next to the various propositions. Dr Roldan may then ask the patient to undergo other psychometric tests, and then speak further with the patient before allowing them to leave. Dr Roldan scores the test and integrates the test results with the clinical examination and other sources of information such as other medical reports before arriving at a formulation of his own report.

14   Dr Champion gave evidence and was cross examined. In his report dated 10 October 2000 Dr Champion stated that like all psychometric testing the MMPI 2 provides information which is helpful in coming to a diagnosis and assessment of an individual but is not an instrument which can or should be used alone to produce “a diagnosis”. The result of investigations are of help in providing information which, when interpreted in the context of a range of other inputs, is helpful in achieving accurate objective diagnosis.

15   Dr Champion stressed that the MMPI-2 test is an important tool in circumstances where it is necessary to give a specific diagnosis. It was not so important in his clinical practice as opposed to his forensic practice. In clinical practice a precise diagnosis between PTSD and anxiety and depression is not critical because the treatment for either condition is essentially the same. He gave evidence that when he is forming a medical opinion for forensic purposes he has ordered that the MMPI-2 test be conducted by a psychologist four to five times in each year. He would have access to this test in 60 to 70% of cases where PTSD was a possible diagnosis the test being previously carried out. In the other cases, the test may not be performed as there may be pressures of time or more importantly because the diagnosis was clear.

16   All the doctors agreed that to administer an MMPI-2 test in isolation is of no value. The test results can be useful if carried out in conjunction with a clinical interview. Drs Roland and Lovell agreed that the MMPI test is a widely used and accepted test for emotional and personality function.

17   A passage from the American psychiatry text by Kaplan and Saddock, Comprehensive Textbook of Psychiatry/VI, 6th edition Volume 1, refer to the strengths and weakness of the MMPI-2 test. It states that:

“The fact that MMPI is the most widely used and researched psychological personality measurement device is undoubtedly one of its major strengths. Several hundred research papers on the MMPI appear in the literature each year, and it has been extensively used in cross-cultural clinical and research applications. The huge body of literature generated has resulted in a catalog of MMPI correlates on a wide variety of clinical cases, providing descriptive, predictive, diagnostic, and prognostic information.
Another strength of the MMPI is its atheoretical nature, a characteristic that probably increases its usefulness over a broad spectrum. The presence of validity scales designed to assess test taking attitude, in addition to clinical and personality information, is a distinct advantage that the MMPI maintains over many other personality assessment tools.”

18   The text also refers to a criticism of the test, namely that the test is based on outdated normative data. The criticism is levelled at the way the normative cohort of the MMPI-2 test is characterised by a relatively high degree of educational attainment and falls at the upper end of the socio economic status. The plaintiff attended schooling to second year at high school, and this criticism has been picked up by Drs Senior and Knox. Dr Senior said that completion of schooling to this stage was the minimum education necessary to undergo the test. Dr Senior agreed that any reservations concerning the plaintiff’s reading ability could be overcome by the reading and literacy testing being administered by Dr Roldan to ascertain whether he is in fact capable of doing the test. When Dr Knox was asked if a reading test was administered prior to the MMPI-2 test being conducted, would that overcome any perceived problem the plaintiff may have with his lack of reading ability, he answered that as he has not administered the test, he did not know. If the plaintiff’s reading and comprehension is not good enough, Dr Roldan gave evidence that the test will not be performed.

19   Dr Lovell psychiatrist, has written two legal reports in relation to the plaintiff and has not finalised his opinion. He is of the view that the results of an MMPI-2 test may be useful in order for him to finalise his opinion.

20   Dr Senior a senior lecturer in psychology at Southern Queensland University, was cross examined. The plaintiff’s background history was given to Dr Senior and he formed the view that the test would be a useful test in a medico-legal setting because it describes what the plaintiff is trying to tell you and would give a good overall assessment of the presentation of the plaintiff. According to Dr Senior, the test should not be used to bolster a diagnosis of PTSD, nor can it demonstrate the severity of the symptoms suffered by the plaintiff.

21   Dr Knox a psychiatrist, wrote a report dated 11 August 2000. He practices in the ACT. He has both a clinical practice and does medico-legal work. His objection to the administration of MMPI-2 test upon the plaintiff for two main reasons, firstly, that if the plaintiff was required to complete the test in a hostile medico-legal environment and secondly the plaintiff’s lack of education.

22   Dr Knox studied the MMPI test while studying for his diploma in psychiatry and undertook a lecture at the Centre for War Caused PTSD in Melbourne on MMPI-2. He has never used the MMPI-2 and says that most psychiatrists do not use it because it does not have any value. While he has not used the MMPI-2, in order to write the report he researched the MMPI-2 test.

23   Dr Knox quoted the following passage from “Psychological Evaluations for the Courts”, 2nd edition, 1997 Melton at page 47 which notes:

“Unfortunately, most traditional tests have neither been developed nor validated specifically to inform judgements about legally relevant behavior. This fact should caution against their indiscriminate use.”

24   This passage refers to psychological tests in general.

25   More importantly, the summary at the end of chapter III indicated that while clinicians should be cautious in their approach to using psychological testing to assess malingering, a judicious use of the MMPI-2 is warranted.

26   The plaintiff submitted that a proper diagnosis of his condition can be made without reference to the results of the MMPI-2 tests, and this test is unnecessary. I have taken into account that the plaintiff does not want to undergo the MMPI-2 test. It was only Dr Knox who held the view that the plaintiff’s being required to undergo that test was of no value. All the other experts were of the view that the results of the MMPI-2 test would be useful in assisting them to assess the plaintiff’s medical condition. This case is a difficult one in the sense that the alleged cause of the plaintiff’s psychiatric condition occurred some 36 years ago. It is a matter for the judge at trial to determine the admissibility of the test results if the plaintiff raises objections to the admissibility of the reports. Dr Senior criticised the test being used to assess malingering and Sperling J has already made ruling in relation to the use of validity scales. It is my view that the plaintiff should attend medical examination arranged with Dr Roldan. The plaintiff is obliged to undergo a MMPI-2 test provided he passes the reading and literacy test. The proceedings should be stayed until the plaintiff attends this medical examination.

27   Costs are discretionary. This was a hard fought motion which took place over a number of days. Costs should follow the event. The plaintiff is to pay the defendant’s costs.

28   The orders I make are:

(1) The plaintiff is to attend medical examination with Dr Roldan which includes an MMPI-2 test.

(2) The proceedings are stayed until order (1) is complied with.

(3) The plaintiff is to pay the defendant’s costs.
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Last Modified: 12/18/2000