A discussion of how alcohol memory lapses and distortions cause problems for litigants, lawyers and others in the courts. This paper is aimed at lawyers and other people working in the legal profession and the courts system. As well as giving them an introduction to the subject it may help them to think about other possible policy issues.
In this article I discuss some of the memory problems experienced by people with alcohol problems and those with whom they interact. These questions have not been the subject of particularly detailed study in the legal or scientific literature, nor do I break new ground. Nonetheless, it may be useful to highlight and discuss some examples of these problems, mostly drawn from the practice of the law, where there is ample scope for “dis-information” to circulate and where telling anything other than the truth can have very serious consequences for those involved or others affected by the drinker’s behaviour.
Denial
According to Bissel and Haberman[i]:
self-delusion and denial to self and others are integral parts of the problem. Anger, under-estimation of the problem, excuses, defensiveness and counter-attack can be expected.
The late Dr Witold Falkowski proposed[ii] classification of denial as including (1) denial of drinking or amount of drinking, (2) denial of its consequences to the drinker and (3) denial of its consequences to others. So an aggressive litigator who drinks more than he or she should and thinks their client is bound to succeed in court may be exposed as in denial if his client in fact loses on all claims.
Anyone interested in how denial can feature in people’s experiences of alcohol problems could gain insight from attending an open Alcoholics Anonymous (AA) meeting, where former drinkers describe the difficulties they faced in acknowledging the extent of their drinking or its consequences. Around 20% of AA meetings are open to anyone interested.
I start with examples.
Example 1: Work and litigation
In Teszke and others v 3M (UK) Limited three women caught with a bottle of British Sherry at work claimed that they only intended to turn it into a lamp and not to drink the contents. They were not believed and their dismissal was upheld by the (UK) Employment Appeal Tribunal[iii].
The process of arriving at this outcome may have been difficult, because denial often translates itself into intransigence, making it difficult to settle disputes. Unless the judge and lawyers are very confident in case management, opponents of the drinker may be intimidated into settling on unfavourable terms.
Example 2: Denial may be infectious
In Kelly v London Transport Executive [1982] 1 WLR 1055, the plaintiff employee bumped his head at work. He was given first aid and returned to work. A few months later he complained to his doctor of depression, eye trouble and bad hearing, which he alleged arose from the accident at work. He obtained legal aid and sued the Defendants. His solicitors obtained a total of 19 medical reports on him. He declined to accept a payment into court (i.e. an offer) of £750 or a subsequent offer of £4,000.
The medical reports were not disclosed to the Defendant until a few days before the trial. The Judge awarded the Plaintiff £75 damages on the basis that the various ailments of which he complained arose from his chronic alcohol use and not from the accident. The plaintiff’s solicitors were ordered to show cause why they should not have a wasted costs order (in effect a requirement to make a payment towards the costs of the débacle) made against them.
These cases illustrate denial or minimisation of drinking, which can occur in some people with alcohol dependence. The last case also shows how these misperceptions can sometimes affect family members or even legal representatives. In this case the solicitors were dragged into their client’s misperception.
The Civil Procedure Rules apply an overriding objective of “enabling the court to deal with cases justly and at proportionate cost”. The objective is often frustrated as it was in the Kelly case or in other cases where any party to litigation or solicitor, counsel, or judge is under the influence of alcohol.
Contagion can also arise when, for instance, one spouse, X, is fiercely loyal in defending the other (drinking) spouse, Y, against allegations that he/she has been, for instance, drinking at work or that they have spent the night together.
Blackouts
In a blackout the subject [i.e. the drinker] is temporarily unable to form new long-term memories, while relatively maintaining other skills such as talking or even driving[iv].
Most blackouts only last for a day or so but some last much longer. In that event, helping the person who has experienced the blackout to reconstruct their lost memory may also help with the recovery process[v], along with other therapies such as attending AA or cognitive behavioural therapy (CBT).
In English law a defendant to a serious criminal charge such as murder or a charge under the Fraud Act 2006 cannot rely as a defence on the fact that he or she was in blackout at the relevant time[vi]. In any event the Court may only accept (for the purpose of mitigation) that the defendant had blacked out some of his recollections, but not all.
Example 3: Crimes committed in blackout
A man woke up in a police cell. His clothes were covered in blood. He claimed to have no recollection as to how he got there. A policeman ultimately told him he was to be charged with murder[vii].
Another example can be seen in the Hollywood film, “Double Indemnity” (1944) where a potential witness in a murder case could not testify because he was in blackout at the relevant time.
In the legal context a barrister might wake up from a blackout realising that he has just accused the judge of being biased and incompetent.
Example 4: Commercial relations
An elderly woman, X, let her spare room in her London flat to a younger woman, Y. When Y came back late at night, X (who was then intoxicated) refused to let the younger lady in, claiming that she had no recollection of any arrangement to let.
This is an unusual example of “retrograde memory impairment”, that is, blackouts due to retrieval impairments (to use an IT metaphor) rather than those due to deficits in encoding[viii]. It may be, of course, that that X did actually remember the arrangement but just did not want Y in her flat, so tried to lie her way out of the problem, an illustration of the Richard Nixon defence: “I do not recall…”.
Or a solicitor acting for the buyer on a conveyancing transaction may have a long conversation with the vendor and realise the following day that he/she has forgotten everything that was said.
Attitude of the judiciary
The judiciary of England and Wales seem now to have bought into the concept of denial and are less willing than they used to be to accept statements from drinkers at face value.
Lady Wise, a Scottish appeal judge, has cited the Tribunal in L & Ors (children), Re [2000] EWCA Civ 194):
I can also understand the point about him (the Father) being in denial from my dealings with other appellants who have had varying degrees of alcohol dependency. That said, the fact that he almost lost his job in September 2015 owing to him attending work and his breath smelling of drink, I would have thought this would have triggered some kind of wake up call. However this does not seem to be the case and Mr Glassford appears to have carried on regardless to the point where he is now fighting to save his livelihood.
And Her honour Judge Gillian Matthews QC in Re A (A Child : Adoption Order)[ix]:
The level of denial on behalf of both parents was extremely high and it was as if they had been completely impervious to all the evidence which they had heard in court, rather like the way that they tend to shut out the outside world. I take fully into account what Miss Gupta said about the mother finding the allegations shameful and humiliating and thus difficult to admit. Nevertheless, I entirely agree with Dr. Kennedy’s description of the level of denial in this case as being absolutely extraordinary. Even objective medical fact that D. and E. had suffered gross failure to thrive is denied. It is as if the parents inhabit a parallel universe. Evidence is manipulated. A small example is that the father said I had given the guardian a second chance, when in reality I had dismissed the application to remove her as being without merit. I had simply said that she should arrange to see the parents before she filed her report.
Other medical conditions
Denial and blackouts are of course not the only drinking behaviours affecting cognitive functioning and memory. There are also Wernicke’s Encephalopathy, Korsakov’s syndrome, depression which is co-morbid with drinking[x] and the contribution of heavy drinking to the development of dementia[xi]. Each of these can involve memory loss and distortion.
Scientific research into alcohol and memory issues
There has been very little research into alcohol-related denial. However, GE Vaillant[xii] carried out an evaluation of over 600 individuals over 40 years covering their drinking practices, among other things. Based on the outcome of the research he considered why people went into denial. One of the factors was having alcohol dependent parents. This “may result in cognitive dissonance between childhood hatred of their parents’ drunkenness and increasing evidence of their own alcohol abuse”. Cognitive dissonance is “a psychological state of discomfort caused by conflicting attitudes, beliefs, or behaviours.”. Other risk factors identified by Vaillant include the drinking environment, such as a solicitor working in a firm where heavy drinking is acceptable.
In a later paper[xiii], Vaillant has suggested that failure to observe these (i.e. his) guidelines by medical professionals has likely contributed to a reputation for denial among people with alcohol dependence. The late Dr Griffith Edwards tells us that medical practitioners sometimes accuse their patients/clients of denial when the client does not accept the advice they are given as to going into treatment[xiv].
The literature on blackouts is more impressive. Weatherill and Fromme (2016) say:
individual differences, not just alcohol consumption, increase the likelihood of experiencing an alcohol-induced blackout, and the consequences of alcohol-induced blackouts extend beyond the consequences related to the drinking episode to include psychiatric symptoms and neurobiological abnormalities. Prospective studies and a standardized assessment of alcohol-induced blackouts are needed to fully characterize factors associated with alcohol-induced blackouts and to improve prevention strategies.
The legal profession could possibly launch such an initiative on its own account.
There is much useful information in Hamin Lee et al (2009)[xv] who tell us that blackouts are no longer considered as a sign of alcohol dependency. Among their key points they say:
Gulping drinks, drinking on an empty stomach, or drinking liquor (opposed to beer) are risk factors of an alcoholic blackout [7]. However, not all subjects who drink rapidly and excessively experience blackouts, suggesting that there are individuals that are genetically more vulnerable to alcohol-induced memory impairment.
Family Drug and Alcohol Courts and some criminal courts apply a “problem solving approach” to cases where the litigants have a drinking problem. There may be an argument for extending this approach to a wider range of cases[xvi].
Written by Jonathan Goodliffe, Solicitor.
All IAS Blogposts are published with the permission of the author. The views expressed are solely the author’s own and do not necessarily represent the views of the Institute of Alcohol Studies.
[i] “Alcoholism in the Professions” Oxford (1984) page 181
[ii] In a lecture in January 1991
[iii] “British Sherry was a very cheap wine made from imported grape juice. If the ladies had had a bottle of Spanish sherry, their excuse might have been more credible.
[iv] Alcohol-Induced Blackout, Hamin Lee , Sungwon Roh , Dai Jin Kim. Int J Environ Res Public Health 2009 Nov 6;6(11):2783–2792. doi: 10.3390/
[v] Marsden et al.Contemp. Clin. Trials Commun. 2017 Nov 2:8:264-273.
doi: 10.1016/j.conctc.2017.10.009. eCollection 2017 Dec.
[vi] R v Tandy [1989] 1 WLR 350, England and Wales Court of Appeal
[vii] This story originally appeared in what was then “Alcohol Concern Magazine”
[viii] See Hamin Lee et al, ibidem.
[ix] [2015] EWFC 63 (26 January 2015)
[x] Köhler CA, Carvalho AF, Alves GS, McIntyre RS, Hyphantis TN, Cammarota M. Autobiographical Memory Disturbances in Depression: A Novel Therapeutic Target? Neural Plast. 2015;2015:759139. doi: 10.1155/2015/759139. Epub 2015 Aug 25. PMID: 26380121; PMCID: PMC4561987.
[xi] “The Evolution and Treatment of Korsakoff’s Syndrome Out of Sight, Out of Mind?” A D Thomson Irene Guerrini, E Jane Marshall Neuropsychol Rev. 2012 May 9;22(2):81–92. doi: 10.1007/s11065-012-9196-z
[xii] “The natural history of alcoholism” Harvard University Press 1983 page 172
[xiii] Vaillant 1995, p 33
[xiv] Alcohol, the ambiguous molecule (2000). Penguin Books page 134
[xv] (2009) Int. J. Environ Res. public health 6 (11) 2783 – 2792
[xvi] See Goodliffe J (2009) “A promising start for the Family Drug and Alcohol Court” Alcohol Alert https://www.ias.org.uk/alcohol_alert/issue-3-2009/ accessed 31 August 2009.