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The Supreme Court has today handed down its judgment in this conjoined appeal concerning whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence. The appeals were dismissed by a majority of six to one.
The Court differentiated more general accident claims from those arising following the impact of a wrong diagnosis or treatment, looking specifically at the duty of care and responsibilities owed by a medical practitioner to their patient. They found this duty does not extend to protecting their close family from the impact that negligent care or treatment could have. The Supreme Court found (at paragraph 138 of the judgment) “to impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role”.
Background
Each of the cases concerned an alleged failure by the defendant to diagnose the primary victim’s life threatening condition resulting in their close relatives witnessing the primary victim’s death causing psychiatric injury.
The central question for the earlier Court of Appeal hearing was the relevance of any time intervals between the clinical negligence, the damage caused by it and the horrific event that ultimately causes the psychiatric injury to the claimant.
The Court of Appeal found for the defendant on the basis that the existing Court of Appeal case law of Taylor v A. Novo (UK) Ltd [2013] (a non clinical negligence claim) remains binding. This indicated that the ‘relevant event’ would be the accident as opposed to any later consequences. Reservations were however expressed and the Court of Appeal itself granted permission for the claimants to appeal to the Supreme Court to enable the important issues within these cases to be considered.
Supreme Court decision
The key issues brought to the Supreme Court were whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities. In particular, as set out at paragraph 5 of the judgment, “whether this exceptional category of case includes – or can and should be extended to include – cases where the claimant’s injury is caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat”.
The Supreme Court considered the five elements but contrasted clinical negligence cases with non-accident cases and found significant difficulty in following the same path. The Court observed at paragraph 115 of the judgment that “we do not consider that an analogy can reasonably be drawn…where the claimant does not witness an accident but suffers illness as a result of witnessing such a person suffering a medical crisis”.
They agreed with the Court of Appeal in Novo, stating at paragraph 116 that to “extend the scope of allowable claims by secondary victims to situations where the claimant witnesses the death or illness of a relative from disease would give rise to unacceptable and unfair differences in treatment between different categories of claimant” and a fair test could not be determined.
The Supreme Court’s decision centred on the duty of care which a medical practitioner has to their patients. It determined that despite having enormous sympathy for the claimants and the position they found themselves, the test for secondary victim was not met and the claims did not succeed. In terms of previous case law, the Supreme Court determined that the previous clinical negligence case of Walters was wrongly decided on its facts and should not be followed. The cases of Sion, Shorter and Ronayne although correctly decided were decided on a wrong basis and should have been dismissed.
Comment
With this judgment, the Supreme Court has given a definitive judgment which gives certainty for all clinical negligence practitioners to follow.
This decision provides confirmation of the extent of the duty a medical practitioner has to their patient. The judgment looks solely at claims brought by family members as secondary victims and all the available provisions for compensation arising from a claim for clinical negligence available under the Fatal Accidents Act remain.
Related item: Court of Appeal ruling: secondary victim claims and clinical negligence
Healthcare
United Kingdom