Genevieve Brindley

In a recent decision relating to three cases — Paul v Wolverhamptom NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed — the UK Supreme Court had the opportunity to consider the law on negligently caused psychiatric illness to secondary victims.

In summary, these clinical negligence appeals related to failures to diagnose and treat the patients’ (the primary victims) life-threatening conditions, resulting in the unexpected death of the primary victims. The close family members of the primary victims (the secondary victims), though not injured directly by the defendant hospitals/doctors, claimed that they had suffered psychiatric injuries through the witnessing of the deaths of the primary victims or the immediate aftermath.

In the first instance in each respective case, the defendant applied to strike out the claim on the ground that, as a matter of law, the claim for damages for psychiatric injury cannot succeed. The Court of Appeal dismissed all the claims but granted permission to the claimants to appeal to the UK Supreme Court.

By a majority of six-to-one, the UK Supreme Court dismissed the three appeals as well.

In coming to its finding, the UK Supreme Court drew a distinction between secondary victims who sustained an illness as a result of an “accident”, namely witnessing a death or injury of a family member by an external traumatic event, and as a result of a “medical crisis”, namely the death or injury of a family member from illness or disease.

The UK Supreme Court also found that while doctors owe a duty of care to their patients, this does not “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”.

This decision will have a significant impact on the ability of secondary victims in UK clinical negligence claims to recover for psychiatric injuries.

It will, no doubt, be well received by UK defence practitioners, who will utilise the decision to strike down any such current claims, and UK plaintiff practitioners will likely be considering any potential medical scenarios that may allow for recovery.

Under Irish law, a person can claim to have suffered nervous shock due to psychiatric trauma as a result of witnessing/experiencing the immediate aftermath of medical negligence or the manner in which the news of the outcome of the medical negligence is relayed to that third party.

The Irish courts, unlike the UK courts, do not make the same distinction between primary and secondary victims.

It will be interesting to see if the UK Supreme Court’s decision will impact the Irish jurisdiction, as it so often does, and we will have to wait and see how this area of law develops in Ireland.

• Genevieve Brindley is an associate in the healthcare team at Carson McDowell in Dublin.