Secondary Psychiatric Victims – Final Verdict on secondary victim claims and clinical negligence

Claims in relation to psychiatric injury are now almost as common as claims for physical injury, given the recent move in society towards recognition and protection of mental health. In the main, these are what’s known as primary psychiatric victims, people who have suffered a psychiatric injury as a result of negligence, or as a result of physical injury caused by negligence.

What is a secondary psychiatric injury victim claim?

There is also a class of claims known as secondary victim claims, where someone has suffered a psychiatric injury as a result of witnessing someone else suffer physical injury or death. The ‘control mechanisms’ are very tight to allow claims of this injury – they arose from case law which came about after the Hillsborough disaster, and the horror that people witnessed. The five elements which restrict these sorts of claims are:

1. There must be a marital or parental relationship between the claimant and the primary victim;
2. The claimant must have suffered a sudden and unexpected shock to the nervous system;
3. The claimant was personally present or more or less in the immediate vicinity and witnessed the aftermath;
4. Injury arose from witnessing the death of or extreme danger to or injury suffered by the primary victim;
5. There was a close temporal connection between the event and the claimant’s perception of it.

Background

Three separate cases which have been heard together, have gone right through the court process, through the Court of Appeal and now to the Supreme Court. The circumstances of each case were different, but they were all clinical negligence cases, and all dealt with the concept of a horrific event (death) occurring sometime after the negligence. The final judgement was given by the Supreme Court today.

In the lead case of Paul, two young daughters witnessed their father’s heart attack and death, following an alleged negligent failure to treat his heart condition 14 months earlier. They suffered psychiatric injury as a result of witnessing this. The key question that the courts have been debating was in respect of the fifth of the above elements – whether a delay in time between the negligence and the actual horrific event, can allow a secondary victim claim. In January 2022, the Court of Appeal decided that they were bound by previous case law, and the horrific event could not be a separate event removed in time from the negligence. The negligence and the ‘event’ need to take place together or be part of a continuum.

The main issues which have led judges to find for a Defendant and not a Claimant in the previous case law, have been firstly that if it were to be allowed, then secondary victims would be able to claim damages months or years after the negligent event, and a line has to be drawn somewhere. Secondly, a feeling that to amend the scope of this law to this extent was a job for Parliament and not for the courts.

Supreme Court Judgement

On 12^th January 2024, the Supreme Court agreed with the Court of Appeal and dismissed the Claimants’ appeals. The Supreme Court drew a distinction between accidents and negligence, and confirmed that the duty of care a doctor owes to a patient does not extend to protect members of the patient’s family from suffering psychiatric illness from the experience of witnessing the patient’s death or a medical crisis. There was an emphasis on the need to limit those eligible to damages to those most directly connected to the accident caused by negligence, and have a straightforward and logical framework in place.

Importantly, the Supreme Court has also removed the need for the claimant to show that they experienced a sudden and unexpected shock to the nervous system, and that simple principles of causation where a claimant can show they were present when a loved one was killed or injured and that this caused the psychiatric injury, was sufficient. They also removed the need for the accident to be shown as a particularly horrifying event, as long as the injury was still reasonably foreseeable.

This clarifies the position in relation to these claims. In future, claims in a medical negligence context, will very much be restricted to events where the negligence and the horrific event happen at the same time or immediately after one another. The courts will scrutinise the time frames involved very carefully, to ensure that these criteria are met, and it should do the job of managing concerns regarding potential ‘floodgate’ litigation.