Psychiatric injury to secondary victims

Please note that this News item is not maintained, and reflects the law as at the date of publication or update.

A ‘secondary victim’ is someone who witnesses an incident, or its immediate aftermath, and suffers psychiatric harm as a result.

For many years, uncertainty has surrounded medical negligence claims brought by secondary victims. The Supreme Court brought an end to this uncertainty in January 2024, ruling that grieving relatives will no longer be able to bring claims as secondary victims.

The Court heard three conjoined cases, each brought by a secondary victim seeking compensation for psychiatric illness caused by the experience of witnessing the death of a close family member in distressing circumstances. In each case, the death was allegedly caused by a negligent failure to diagnose and treat a life-threatening medical condition. Sometime later, these conditions developed and resulted in the avoidable deaths of the primary victims.

For a secondary victim claim to be successful, the following conditions must be met:

  1. There must be a close tie of love and affection between the secondary victim and the primary victim;
  2. The secondary victim must have been present at the scene of the ‘accident’, or in the immediate vicinity and witness the aftermath;
  3. The secondary victim must suffer injury due to witnessing the death, or extreme danger to or injury to the primary victim;
  4. Lastly, there must be a close temporal connection between the event and the claimant’s perception of it, combined with a close relationship of affection between the claimant and the primary victim.

A textbook example would be a parent seeing their child struck by a negligently driven vehicle and suffering psychiatric injury as a result. Everything happens at the same time: the parent witnesses the negligent driving and the accident taking place first hand and the injury or threat of injury in the immediate aftermath.

The Court considered whether these requirements could, and should, be extended to include cases where the injury is caused by witnessing the death or injury of a close relative, not in an accident but from a medical condition which a clinician had negligently failed to diagnose and provide treatment for.

It was concluded that the necessary comparisons could not be drawn between cases involving accidents and those where the secondary victim witnesses a death or serious injury caused by negligent medical treatment. Accidents were said to be discrete external events – where it is clear whether someone was present – whereas in medical negligence claims there is no event.

The Court also maintained that whilst doctors have a duty to their patients, doctors should not owe a duty to protect the patient’s family from risk of psychiatric illness by witnessing a preventable death or serious injury. It was considered that extending their duty this far would not be in society’s best interests.

This decision effectively bars all secondary victim claims in medical negligence matters and has received a mixed reception.

For those who regularly act for defendant doctors and medical authorities, the decision provides welcome clarity to a difficult and sometimes conflicting area of law; and  the decision to limit the responsibility of hospitals and doctors to their patients reflects societal opinions of what is reasonable.

For families directly affected by the decision, however, there will no doubt exist a feeling that their suffering holds insufficient weight.

Gaby Hardwicke Solicitors’ expert clinical negligence team can advise on all aspects of complex compensation claims.  For more information, please contact a member of the team on 01323 435900.

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