16 January 2024
Toni Hall a solicitor in the Clinical Negligence Department considers the recent decision of the Supreme Court in the case of Paul and another v Royal Wolverhampton NHS Trust (2023) where the Claimants in each of the three original cases had sought compensation for psychiatric injuries suffered after witnessing the death of family members after they had received negligent medical treatment. The negligent treatments related to a failure to diagnose life threatening conditions with the deaths occurring many months after a correct diagnosis was made. In each case, the Claimants witnessed or attended shortly after the family members death.
The Claimants’ claims were all dismissed at first instance, however, the decisions were appealed before reaching the Supreme Court, who also dismissed the claims.
The Supreme Court considered that a line must be drawn to keep the liability of negligent acts for secondary victims within reasonable bounds. In respect of a duty of care, the Court concluded that the common law did not recognise one person as having any legally comprehensible interest in the physical well-being of another:
“…We are not able to accept that the responsibility of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative…”
Despite finding that no duty of care was owed in respect of a patient’s family members, the Supreme Court also analysed the control mechanisms for establishing a claim for secondary victims, as originally set out by Alcock v Chief Constable of South Yorkshire Police (1992), which confirmed that a Claimant must (i) be present at the scene of an accident or immediate aftermath, (ii) have witnessed it, (iii) have a close tie of love and affection with the primary victim and (iv) have suffered a sudden shock to the nervous system (with the accident having been a sufficiently horrifying event).
In the judgment of Paul, the Court defined an ‘accident’ as “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims.”
They further expanded on the definition of accident with
“In medical negligence cases the event (or its aftermath) witnessed by the secondary victim is generally not an accident; it is the suffering or death of their relative from illness. As a shorthand and without intending it to be a term of art, we will refer to such an event as a ‘medical crisis.”.
It therefore appears that most psychiatric harm claims will not succeed in the context of clinical negligence claims, as the requirement of an ‘accident’ would not be established.
In clarifying the position the Court removed the need for a potential secondary victim to prove a sudden shock to the nervous system, and that the accident was a horrifying event. Instead, they concluded that a Claimant need do no more than prove causation on a conventional basis. In respect of the requirement for a horrifying event, this is subjective and is therefore not susceptible to any clear definition.
Ultimately clinicians owe a duty of care to patients, but not a duty to protect their close family against the risk of illness from experiencing or witnessing the death or a medical crisis.
