Where has the Supreme Court’s decision left those who have witnessed the preventable death of a loved one as a result of clinical negligence and suffered psychiatric harm as a consequence?
Elizabeth Francis discusses the long awaited judgement handed down from the Supreme Court
Paul v Royal Wolverhampton NHS Trust…
In a disappointing and long awaited judgment handed down yesterday, 11 January 2024, the Supreme Court dismissed these conjoined appeals, ruling that in cases where a death that otherwise could have been avoided, but for the negligence of clinicians who breached their duty of care to their patient, was witnessed by a close relative or loved one resulting in a recognized psychiatric illness, that close relative or loved one was not permitted to recover any compensation for their resulting injury.
Although sympathy with the ‘secondary victims’ was expressed, the Supreme Court made several observations about the basis for this decision including:
- “…we would not accept that our society has yet reached a point where the experience of witnessing the death of a close family member from disease is something from which a person can reasonably expect to be shielded by the medical profession….such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition” [139]
- “The persons whom doctors ought reasonably to have in contemplation when directing their minds to the care of a patient do not include members of the patient’s close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated.” [142].
- The doctor does not owe a patient’s relatives a duty to prevent them suffering harm as a result of witnessing the death of their relative [256];
- “It is undesirable for decisions about end-of-life care to be complicated by the risk that, if it is said that the death ought to have been prevented, the hospital will be exposed to potential legal liability to family members as a result of them seeing and remaining with the patient” [117].
As astutely observed within the dissenting judgment of Lord Burrows, this represents a significant backward step, overruling Walters and departing from almost all prior reported reasoning, which closes off claims for negligently caused psychiatric illness by the loved ones of patients in virtually all circumstances involving medical negligence. The only potential situation in which a claim could seemingly be pursued within the context of medical negligence would now be where there is an accident – an event external to the primary victim – where the accident or its immediate consequences are readily identifiable and observable [205]. In the words of Lord Carloway [para 254] “There must be an accident to be witnessed”.
Accident cases were described by the Supreme Court as having three significant features which help to define the limits of the category of claims by secondary victims, as none of these three significant features of accident cases is applicable where the claimant suffers illness from witnessing physical injury or illness in another person but does not witness any accident [111]:
- An accident is, by definition, a discrete event in the ordinary sense of that word [108];
- Witnessing an accident involving a close family member is itself likely to be a disturbing and upsetting event even if that person in fact escapes unharmed [109];
- It is often difficult or arbitrary in accident cases to distinguish between primary and secondary victims – i.e. the fear for he claimant’s own safety and fear for the safety of a close family member [110].
In my extensive experience no such potential situations can be called to mind, and indeed the Supreme Court were shown no cases based on the presence at and direct perception of an accident.
Sadly in dismissing these 3 appeals the Supreme Court’s decision seeks to close the door to those who had been contemplating pursuing a claim as a secondary victim arising from clinical negligence but no doubt there will be further scrutiny in the forthcoming months and years in order to try to salvage something from this disheartening dismissal.
Please do not hesitate to contact me directly for further advice.
Elizabeth Francis
Atlantic Chambers
