In clinical negligence cases, it is unfortunately common that following a misdiagnosis the later death or serious injury of the patient may be witnessed by a close relative, causing psychiatric injury.

On 11th January 2024, the Supreme Court handed down judgment in the appeals of Paul and Another (Appellants v Royal Wolverhampton NHS Trust (Respondent), Polmear and Another (Appellants) v Royal Cornwall Hospitals NHS Trust, Purchase (Appellant) v Ahmed (Respondent) 2024 UKSC 1.

The 3 cases considered by the Supreme Court involved patients who died as a result of clinical negligence where their suffering or death was witnessed by their loved ones who claimed psychiatric injury as a result of the event.

The conclusion reached was that not only could the claimants in the 3 cases not recover damages, but that in the future a claimant who finds themselves in this position cannot bring a secondary victim claim.

This decision brings to an end many years of debate as to whether or not a person who witnesses the serious injury or death of a loved one as a result of an illness that proper medical treatment would have prevented, can bring a claim as a secondary victim.

In summary, the decision of the Supreme Court is that to satisfy the criteria for secondary victim claims, (set out in Alcock v Chief Constable of South Yorkshire Police) [1992] and confirmed in Frost v Chief Constable of South Yorkshire [1999] a claimant must a) be present at the scene of an accident (or its immediate aftermath), b) have witnessed it and c) have a close tie of love and affection with the primary victim.  The word ‘accident’ is described by the Court as a “term which refers to an unexpected and unintended event, which causes injury (or risk of injury) to a victim by violent external means”.  As a result, those who witness the consequences to their loved one caused by an illness, which proper treatment would have prevented, cannot satisfy that criteria.

Central to the decision was the Supreme Court Justices’ view that it cannot be right to attribute to a doctor an assumption of responsibility for the health of a member of the patient's family and therefore no duty of care is owed by the doctor to those relatives in the circumstances.

Could something be put in place to protect relatives from exposure to such traumatic events?  It is difficult to envisage in an emergency setting and with the NHS already at breaking point. 

Whilst the court has clarified this long-standing debate, hypothetically speaking there may still be situations where an accident occurs in a hospital setting which then leads to the death or serious injury and which is witnessed by a loved one. How the Court deals with this remains to be seen.

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