When neurological symptoms are dismissed for years: can delayed diagnosis of functional neurological disorder give rise to a medical negligence claim in NSW?
That account is not unusual. For many people living with functional neurological disorder, the diagnostic journey is not measured in weeks. It is measured in years — years of presentations, dismissals, misattributions, and accumulating harm. The question this article addresses is a legal one: at what point does that delay cross the line from a difficult diagnostic challenge into a failure that the law in NSW recognises as negligence?
What functional neurological disorder is — and how it should be managed
Functional neurological disorder — referred to throughout this article as FND — is a condition in which the nervous system fails to function correctly, producing real and often disabling neurological symptoms, without a structural lesion or disease process that explains them through conventional neuroimaging or pathology. The symptoms are not fabricated. They are not a product of conscious deception. They arise from a disruption in how the brain generates and controls movement, sensation, and other neurological functions.
Common presentations include functional limb weakness or paralysis, functional tremor, non-epileptic seizures (also called dissociative seizures or functional seizures), functional movement disorders, sensory disturbance, and cognitive symptoms including memory and concentration difficulties. Many patients present with more than one symptom type simultaneously. For further background on the condition, Healthdirect Australia provides accessible clinical information for patients and families.
FND is not rare. International prevalence data consistently places it among the most common conditions seen in neurology outpatient clinics — second only to headache disorders in some studies.1 Australian neurological practice reflects this. The condition affects people across all age groups, though it is more commonly diagnosed in women and in younger to middle-aged adults.
The critical point — and the one that carries the most legal weight — is that FND is now a diagnosis made on positive clinical grounds, not by exclusion. That shift is fundamental. For decades, clinicians treated FND as a diagnosis of last resort: something you concluded when everything else had been ruled out. Contemporary neurology has moved decisively away from that model.
What it requires: Clinicians should diagnose FND on the basis of positive clinical signs — including Hoover’s sign for functional leg weakness, the entrainment test for functional tremor, and characteristic features of dissociative seizures — rather than treating it as a diagnosis of exclusion reached only after exhaustive investigation.
Why this matters: A clinician who continues to investigate for structural pathology while ignoring positive clinical signs of FND, or who defers referral to a neurologist with FND expertise, may fail to meet the standard of care the profession now requires.
Standard management of FND involves early diagnosis by a neurologist familiar with the condition, clear and non-stigmatising explanation of the diagnosis to the patient, and referral to a multidisciplinary team. That team typically includes a neurologist, a physiotherapist with specialist neurological rehabilitation experience, and a psychologist or psychiatrist. Physiotherapy directed at FND — using specific retraining techniques — has the strongest evidence base for functional motor symptoms.2 Early intervention consistently produces better outcomes than delayed treatment.
What patients should reasonably expect is this: a clinician who takes a thorough history, examines for positive clinical signs of FND, refers promptly to neurology when those signs are present, and does not dismiss neurological symptoms as psychiatric illness without proper assessment. That is not a high bar. It is the standard the profession has set for itself.
The standard of care — what clinicians are required to do
The standard of care in law means the standard of a reasonably competent clinician practising in the same specialty in the same circumstances. It is an objective test. What this particular clinician believed or intended is not the measure. What a competent clinician in that role would have done is the measure.
For FND, the standard of care requires different things at different points in the clinical pathway. A GP seeing a patient with new-onset functional limb weakness, tremor, or dissociative episodes is not expected to diagnose FND themselves. The GP is expected to recognise that the presentation warrants neurological assessment and to refer promptly. A neurologist, by contrast, is expected to know the positive clinical signs of FND, to apply them in examination, and to make the diagnosis when those signs are present — rather than cycling the patient through repeated investigations that will not change the clinical picture.
What it requires: Neurologists should be familiar with the positive clinical signs that establish an FND diagnosis, should communicate the diagnosis clearly and without stigma, and should coordinate access to multidisciplinary rehabilitation including specialist physiotherapy and psychological support.
Why this matters: A neurologist who fails to apply positive diagnostic criteria, who attributes symptoms to psychiatric illness without neurological assessment, or who fails to refer to a multidisciplinary team, may not meet the standard the profession requires of a specialist in this field.
The question of informed consent also arises in FND cases. Under the principle established in Rogers v Whitaker (1992) 175 CLR 479, clinicians must disclose information that a reasonable patient in the patient’s position would want to know. In the FND context, this includes the nature of the diagnosis, the evidence base for treatment, and the realistic prognosis with and without treatment. A clinician who withholds the FND diagnosis — or who communicates it in a way that implies the symptoms are not real — may fail this standard.
The following infographic maps the diagnostic pathway that the standard of care requires, and marks the points at which that pathway most commonly breaks down.
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1First neurological symptoms appear
Limb weakness, tremor, dissociative episodes, sensory disturbance, or cognitive symptoms. Symptoms are real, often disabling, and frequently sudden in onset. The patient presents to a GP or emergency department. -
2Initial presentation — standard of care requires: prompt neurological referral
A competent GP should recognise that new neurological symptoms require specialist assessment. Referral to neurology should occur at this stage. Common failure: symptoms attributed to anxiety, stress, or psychiatric illness without neurological examination. No referral made. -
3Neurology assessment — standard of care requires: positive clinical examination for FND signs
A neurologist should examine for Hoover’s sign, entrainment, and other positive FND markers. Diagnosis should be made on positive grounds. Common failure: neurologist orders repeated MRI, EEG, and blood panels without examining for positive FND signs. Patient told “nothing is wrong.” -
4Repeated presentations — escalating harm
Patient continues to present with worsening symptoms. Multiple emergency admissions. Symptoms progress. Employment, relationships, and independence deteriorate. Common failure: each presentation treated in isolation. No clinician coordinates care or revisits the diagnostic question. -
✓FND diagnosis finally made — often years after symptom onset
Diagnosis arrives, frequently after the patient self-advocates or sees a different specialist. By this point, the window for early intervention — when outcomes are best — has closed. Harm from the delay is often permanent.
This timeline reflects documented patterns in FND diagnostic delay. Individual presentations vary. The standard of care markers reflect current neurological and general practice guidelines.
Where care breaks down — specific failure patterns in FND
FND sits at an uncomfortable intersection. It is a neurological condition, but it does not show up on an MRI. It produces real physical symptoms, but those symptoms do not fit the pattern that most clinicians are trained to recognise as “organic.” That intersection creates predictable failure modes — and predictable harm.
Misattribution of neurological symptoms as psychiatric illness
A GP sees a 34-year-old woman with episodes of uncontrolled shaking, intermittent leg weakness, and fatigue. Her MRI is normal. Her blood tests are unremarkable. The GP records “anxiety disorder” and refers her to a psychologist. Nobody examines her for Hoover’s sign. Nobody refers her to neurology.
She attends the psychologist for eight months. Her symptoms worsen. She loses her job because she can no longer drive. Two years later, a neurologist she sees privately identifies positive FND signs in the first fifteen minutes of examination and makes the diagnosis.
The failure here is not that the GP lacked specialist knowledge of FND. The failure is that the GP attributed disabling neurological symptoms to a psychiatric condition without neurological assessment. That is a failure of the referral standard — and it is one of the most common failure patterns in FND care.
Confirmation bias plays a significant structural role in this failure. Once a clinician records “anxiety” in the notes, subsequent clinicians read that record before they examine the patient. The label travels with the patient. Each new clinician is primed to see anxiety rather than to examine afresh. The record that was meant to communicate clinical thinking instead forecloses it.
Dismissal as “medically unexplained” without diagnostic action
A second common failure pattern involves the phrase “medically unexplained symptoms” — a category that functions, in practice, as a clinical dead end. The clinician acknowledges that something is wrong but concludes that nothing can be done because nothing structural has been found. No further investigation is initiated. No specialist referral follows. The patient is sent home with the implicit message that their symptoms are not real enough to warrant action.
This failure is systemic as much as individual. The Australian Commission on Safety and Quality in Health Care has identified patients with complex or poorly understood conditions as a group at elevated risk of fragmented, inadequate care — precisely because no single clinician takes ownership of the diagnostic question.3
The legal consequence of this failure pattern is significant. A clinician who records “medically unexplained symptoms” and takes no further action has not met the standard of care if positive clinical signs of FND were present and not examined for. The absence of a structural finding is not a clinical conclusion. It is the beginning of a diagnostic question — and the standard of care requires that question to be pursued.
Misdiagnosis as epilepsy — and the harm of inappropriate treatment
Dissociative seizures — one of the most common presentations of FND — are frequently misdiagnosed as epileptic seizures. The distinction matters enormously. Anti-epileptic medication does not treat dissociative seizures. It exposes the patient to significant side effects, including cognitive impairment, mood disturbance, and teratogenic risk in women of childbearing age, without any therapeutic benefit.
A patient who presents with seizure-like episodes and receives a diagnosis of epilepsy without video-EEG telemetry — the investigation that can distinguish epileptic from dissociative seizures — may spend years on medication that harms them while the underlying FND goes untreated. The standard of care for new-onset seizures in adults includes consideration of video-EEG telemetry where the diagnosis is uncertain. A neurologist who prescribes anti-epileptic medication without that investigation, in a presentation that carries features consistent with dissociative seizures, may not meet that standard.
What happened: A child presented with symptoms that were mismanaged, and the question before the High Court concerned how causation should be assessed where a delay in diagnosis deprived the patient of a chance of a better outcome.
What the court found: The High Court confirmed that Australian law does not recognise “loss of chance” as a standalone head of damage in personal injury claims — causation must be established on the balance of probabilities that the breach caused the harm, not merely that it reduced the chance of a better outcome.
Why this matters: In FND delay cases, this means the legal question is whether, on the balance of probabilities, earlier diagnosis and treatment would have produced a materially better outcome — not simply whether the delay reduced the patient’s chances. Expert neurological evidence about the relationship between early intervention and outcome is therefore central to any claim.
Failure to communicate the diagnosis clearly and without stigma
A fourth failure pattern occurs not in the diagnostic process but in its communication. Some patients receive an FND diagnosis but are told, in effect, that their symptoms are psychological — that the problem is “in their head.” That framing is both clinically inaccurate and harmful. FND is a neurological condition. Its symptoms arise from a disorder of nervous system function, not from conscious fabrication or primary psychiatric illness.
A clinician who communicates the FND diagnosis in a way that implies the patient is not genuinely unwell, or who fails to explain the evidence base for treatment, may breach the informed consent standard established in Rogers v Whitaker. The patient who leaves the consultation believing their symptoms are imaginary is not in a position to make an informed decision about treatment. That failure has real consequences: patients who receive a stigmatising explanation of FND are less likely to engage with rehabilitation and more likely to deteriorate.
The legal framework in NSW
Medical negligence claims in NSW are governed primarily by the Civil Liability Act 2002 (NSW). That Act sets the framework within which courts assess whether a clinician’s conduct fell below the required standard and whether that failure caused the patient’s harm. A full explanation of how these claims work is available at Reframe Legal — Medical Negligence.
Section 5O of the Act provides a defence where a clinician acted in a manner that was widely accepted by peer professional opinion as competent professional practice. This defence is significant — but it is not absolute. Section 5O does not protect a clinician whose conduct, even if accepted by some peers, was not rational or not based on a proper consideration of the patient’s situation. In FND cases, a clinician who attributed neurological symptoms to anxiety because “that’s what many GPs would do” cannot rely on that practice being widespread if the practice itself is not rational in light of the clinical picture.
Section 5D addresses causation. The “but for” test asks: but for the clinician’s breach, would the harm have occurred? In FND delay cases, this requires expert evidence about what earlier diagnosis and treatment would have achieved. Where the evidence establishes that earlier physiotherapy-based rehabilitation would have produced significantly better functional outcomes — and that evidence is available — causation can be established.
The duty of care in FND cases may rest with a GP who failed to refer, a neurologist who failed to diagnose, a hospital that failed to coordinate care, or all three. Each clinician who had an opportunity to identify FND and failed to take reasonable steps to do so may carry a portion of the legal responsibility for the harm that followed.
The critical distinction the law draws is between a bad outcome and a breach. FND is a genuinely complex condition. Some diagnostic delay is an inherent feature of a condition that was poorly understood for decades and remains under-recognised in parts of the medical system. A delay that occurred despite a clinician taking all reasonable steps — examining for positive signs, referring appropriately, and communicating clearly — is not negligence. A delay that occurred because a clinician dismissed symptoms without examination, failed to refer, or attributed neurological presentations to psychiatric illness without proper assessment, is a different matter entirely.
What happened: A patient presented with symptoms that a GP failed to investigate adequately. The question before the Court of Appeal concerned whether the GP’s failure to refer for specialist assessment constituted a breach of the standard of care.
What the court found: The Court of Appeal confirmed that a GP’s duty includes recognising the limits of their own expertise and referring to a specialist when the clinical picture warrants it. Failure to refer when referral was indicated constituted a breach.
Why this matters: For FND patients whose GPs attributed neurological symptoms to anxiety without neurological referral, this case supports the proposition that the failure to refer — not just the failure to diagnose — can constitute a breach of the standard of care.
When delayed FND diagnosis may amount to medical negligence
Not every delayed FND diagnosis gives rise to a legal claim. The law requires a breach of the standard of care that caused measurable harm. The following scenarios map specific factual situations to the legal framework.
A GP attributed neurological symptoms to anxiety without neurological referral
Where a patient presented with limb weakness, tremor, or dissociative episodes and a GP recorded a psychiatric diagnosis without referring to neurology, the referral standard may have been breached. The legal question is whether a reasonably competent GP, faced with those symptoms, would have referred. In most presentations of this kind, the answer is yes. The harm is the delay in diagnosis and the deterioration that occurred during that delay.
A neurologist failed to examine for positive FND signs
Where a neurologist saw a patient with a presentation consistent with FND, ordered investigations that returned normal results, and concluded “nothing is wrong” without examining for Hoover’s sign, entrainment, or other positive markers, the diagnostic standard may have been breached. The contemporary standard of care in neurology requires positive clinical examination for FND. A neurologist who does not apply that examination is not meeting the standard the profession requires of a specialist.
Dissociative seizures were misdiagnosed as epilepsy without adequate investigation
Where a patient received anti-epileptic medication for seizures that were in fact dissociative, without video-EEG telemetry or other investigation adequate to distinguish the two, two separate breaches may arise: the failure to diagnose FND, and the harm caused by inappropriate medication. Both are legally cognisable. Expert neurological evidence will be required to establish what investigation the standard of care required and what the correct diagnosis would have been.
Multiple clinicians failed across a prolonged period without any coordinating care
Where a patient presented repeatedly over years to different clinicians — GPs, emergency physicians, neurologists — and no clinician took responsibility for the diagnostic question, a systemic failure may have occurred. Each individual clinician may have fallen below the standard of care at their own decision point. The cumulative harm from that systemic failure may be greater than the harm attributable to any single clinician’s breach.
The three elements of negligence applied to FND
For a medical negligence claim to succeed in NSW, three elements must all be established: duty of care, breach, and causation. In FND delay cases, each element has specific content. The duty is owed by the clinician who had the opportunity to diagnose or refer. The breach is the failure to meet the standard of care at that clinical decision point. Causation requires proof, on the balance of probabilities, that earlier diagnosis and treatment would have produced a materially better outcome. All three must be present. A breach without causable harm does not give rise to a successful claim.
A neurologist who examined for positive FND signs, found the picture equivocal, ordered further investigation to exclude structural pathology, and referred to a multidisciplinary team within a reasonable timeframe — even if the diagnosis took several months to confirm.
A GP who saw a patient with disabling limb weakness and dissociative episodes on three separate occasions over twelve months, recorded “anxiety” each time without neurological referral, and whose patient subsequently lost independent mobility during that period.
This is a general educational framework only. Each case depends on its individual facts and circumstances.
The failure mode breakdown — three common misdiagnosis patterns
Misattributed as psychiatric illness
Dismissed as “medically unexplained”
Confused with epilepsy
These patterns reflect documented failure modes in FND care. Individual presentations vary. This diagram is for educational purposes only.
Long-term and permanent harm from delayed FND diagnosis
The harm from delayed FND diagnosis is not abstract. It accumulates in specific, measurable ways — and it compounds over time.
Physically, the consequences of untreated FND include progressive functional disability, loss of independent mobility, and the development of secondary complications including chronic pain, deconditioning, and the physical harm caused by inappropriate medication. Patients with dissociative seizures who are misdiagnosed with epilepsy and placed on anti-epileptic drugs face risks including cognitive impairment, mood disorders, and — for women of childbearing age — teratogenic risk if they become pregnant while on sodium valproate or similar agents.
Psychologically, the impact of years of dismissal is severe and well-documented. Patients who are repeatedly told their symptoms are not real, or that they are a product of anxiety or stress, experience significant harm to their sense of self and their trust in the medical system. Research published in the Journal of Neurology, Neurosurgery and Psychiatry has documented elevated rates of depression, anxiety, and post-traumatic stress in FND patients — rates that are substantially higher in those who experienced prolonged diagnostic delay.4 That psychological harm is legally compensable as part of the overall injury.
Financially, the consequences are often catastrophic. Many FND patients lose employment during the diagnostic delay period — not because their condition is untreatable, but because they could not access treatment. Lost income over a multi-year diagnostic delay, combined with the cost of repeated investigations, emergency presentations, and private specialist appointments, can represent a substantial financial loss. Future care costs — including ongoing physiotherapy, psychological support, and home modification — add further to the economic picture.
The harm compounds because FND outcomes are strongly time-dependent. The evidence base consistently shows that early intervention — particularly physiotherapy-based rehabilitation initiated within months of symptom onset — produces significantly better functional outcomes than the same treatment initiated years later.2 Every year of diagnostic delay is a year in which the window for optimal recovery narrows. That narrowing is the mechanism by which the breach causes the harm.
What compensation covers in NSW
Where a medical negligence claim succeeds, NSW law provides for two broad categories of compensation. General damages cover pain, suffering, and loss of enjoyment of life. Special damages cover economic losses — past and future medical expenses, lost income, and the cost of care.
Under section 16 of the Civil Liability Act 2002 (NSW), non-economic loss (general damages) is only recoverable if the severity of the harm reaches a threshold — currently set at 15% of a most extreme case. This threshold is not a barrier to most serious FND claims involving permanent functional disability. It is, however, a reason why the medical evidence establishing the extent and permanence of the harm is critical to the quantum of any claim.
The limitation period under the Limitation Act 1969 (NSW) is generally three years from the date the cause of action accrues. For FND patients, the cause of action may not accrue until the date of diagnosis — the point at which the patient first knew, or ought reasonably to have known, that they had suffered harm as a result of a clinician’s failure. This is a legally complex question that requires careful analysis in each case.
| Severity of harm | Indicative range (NSW) | Key factors |
|---|---|---|
| Moderate injury with recovery | $50,000–$150,000 | Duration of pain, treatment required, time off work |
| Serious injury with lasting effects | $150,000–$500,000 | Permanent impairment, ongoing treatment, care needs |
| Severe or life-changing injury | $500,000–$2,000,000+ | Catastrophic loss of function, lifetime care, lost earnings |
These figures are general reference ranges only. Each case turns on its own evidence — medical records, expert clinical opinion, and economic reports that quantify the actual loss.
How to think about your own situation
The questions below are not a legal test. They are prompts to help you think clearly about whether your experience may warrant further examination.
These questions are not a legal test. But the pattern they reveal — when several of them point in the same direction — is often the starting point for a proper examination of whether the standard of care was met. A detailed account of how medical negligence claims proceed in NSW is available at Reframe Legal — How Medical Negligence Claims Work in NSW.
Uncertainty is normal — and it is not evidence that nothing went wrong
Most people who have lived through a prolonged FND diagnostic journey feel uncertain about whether what happened to them was wrong in a legal sense. That uncertainty is rational. The medical system is complex. Clinicians are generally well-intentioned. And FND is a condition that the medical profession itself has struggled to understand and communicate clearly.
But uncertainty about whether something went wrong is not the same as evidence that nothing went wrong. The law does not ask how certain you feel. It asks what the objective evidence shows — what the medical records document, what the clinical guidelines required at each decision point, and what a competent clinician in that specialty would have done.
In my view, the standard of care for FND is now clear enough that the question of whether it was met in any individual case is answerable from the records. The records almost always tell a clearer story than anyone’s recollection of events. What was documented, what was not documented, what referrals were made and when, and what investigations were ordered — all of that is in the file. Legal analysis works from that file, not from the patient’s certainty or uncertainty about what happened.
It is also worth understanding that a complaint to AHPRA — Australian Health Practitioner Regulation Agency and a legal claim are separate processes with different purposes and different outcomes. AHPRA investigates whether a practitioner’s conduct warrants regulatory action. A legal claim seeks compensation for harm. Both may be appropriate in the same situation, but neither is a prerequisite for the other. Information about the informed consent dimension of FND care — including what clinicians are required to tell patients about their diagnosis and treatment options — is available at Reframe Legal — Informed Consent and Medical Negligence.
The people who seek a legal examination of their records are not, in my experience of this work, looking to punish anyone. They want to understand what happened. They want to know whether the years they lost to a condition that had a name and a treatment pathway the whole time were years that a different standard of care could have saved. That is a legitimate question. And it deserves an honest answer.
About the author
Dr Rosemary Listing is a lawyer with a PhD focused on medical negligence, practising in New South Wales. Her legal work concentrates on cases where clinical care failed to meet the standard that both the law and the medical profession require — and where that failure caused measurable, lasting harm to the patient.
Functional neurological disorder presents a particular kind of legal and clinical complexity. The condition sits at the intersection of neurology and psychiatry, it is diagnosed on positive clinical grounds that many clinicians have not been trained to apply, and its outcomes are strongly time-dependent. That combination — a diagnosable condition, a clear standard of care, and a direct relationship between delay and harm — creates a legal landscape that is more navigable than it might initially appear, but only for someone who understands both the clinical picture and the legal threshold.
The cases that have reached NSW courts, and the complaints recorded by the Health Care Complaints Commission, reveal a consistent pattern in how FND failures occur: symptoms dismissed as psychiatric without neurological examination; normal investigations treated as the end of the diagnostic process rather than the beginning; dissociative seizures mismanaged as epilepsy for years. That pattern is not random. It reflects structural gaps in how the condition is taught, recognised, and communicated across the health system.
The people who seek a legal examination of their records in FND cases are rarely looking to assign blame. Many waited years before asking any questions at all — often because clinicians had told them, implicitly or explicitly, that their symptoms were not real. By the time they seek legal analysis, they are usually looking for one thing: an honest account of whether what happened to them met the standard the profession sets for itself.
Dr Listing examines medical records alongside expert clinical opinion and applies the legal standard to give people that honest answer. The answer may be that the care, though imperfect, did not fall below the legal threshold. Or it may be that identifiable failures at specific clinical decision points caused harm that was avoidable. Either way, the answer — grounded in evidence rather than reassurance — is what most people are actually seeking.
- Stone J, Carson A, Duncan R, et al. “Symptoms ‘unexplained by organic disease’ in 1144 new neurology out-patients: how often does the diagnosis change at follow-up?” Brain 2009;132(10):2878–2888.
- Nielsen G, Stone J, Matthews A, et al. “Physiotherapy for functional motor disorders: a consensus recommendation.” Journal of Neurology, Neurosurgery and Psychiatry 2015;86(10):1113–1119.
- Australian Commission on Safety and Quality in Health Care. Safety and Quality Improvement Guide Standard 1: Governance for Safety and Quality in Health Service Organisations. Sydney: ACSQHC, 2012.
- Gelauff J, Stone J, Edwards M, Carson A. “The prognosis of functional (psychogenic) motor symptoms: a systematic review.” Journal of Neurology, Neurosurgery and Psychiatry 2014;85(2):220–226.
- Rogers v Whitaker (1992) 175 CLR 479 (High Court of Australia).
- Tabet v Gett (2010) 240 CLR 537 (High Court of Australia).
- Dobler v Halverson (2007) 70 NSWLR 151 (NSW Court of Appeal).
- Civil Liability Act 2002 (NSW), ss 5O, 5D, 16.
- Limitation Act 1969 (NSW), s 14.
- Neurological Society of Australia. Position statements and clinical guidance on functional neurological disorder. Available at: https://www.neurologicalsociety.com.au/
This article contains general legal information only. It does not constitute legal advice, and reading it does not create a lawyer–client relationship. The law discussed applies to New South Wales, Australia. Each person’s circumstances differ. Time limits apply to legal claims in NSW, and these limits may affect your position. You should seek independent legal advice about your specific situation.