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Psychiatric Injury – Is it time for a change in the law?

Nearly 25 years on after the Hillsborough Disaster law reform is still needed to expand and simplify under which circumstances a victim can claim compensation for psychiatric damage.  APIL (Association of Personal Injury Lawyers) have recently launched a press campaign challenging the current law to make it easier for those who have suffered psychiatric injury to obtain compensation. 

THE CURRENT LAW

In the context of making a claim for psychiatric injury there are two types of victim : primary and secondary victims.  A primary victim is involved as an active participant and suffers physical injury (or was at risk of suffering physical injury) due to someone else’s negligence, whereas a secondary victim is someone who suffers psychiatric injury due to witnessing someone else suffering injury due to negligence, but who was not at risk of physical injury themselves.

The Courts have in the past been anxious to avoid multiple claims being made for a single event.  In the wake of the Hillsborough Disaster, the Courts compiled the following test setting out who could claim as a secondary victim:

• Have a  close tie of love and affection with the primary victim
• Have witnessed the event or the ‘immediate aftermath’ of the event
• Have direct perception of the harm to the primary victim; and
• Have suffered psychiatric injury due to a sudden shocking event.

Each of these elements must be proven to make a successful claim and each element has been subject to further examination by the Courts since the Hillsborough cases to try to further define what it means.

By way of example, ‘Close ties of love and affection’ are defined as only automatically existing between parents and children, spouses and fiancés.  Any other type of relationship must be proved to be a close tie.  These restrictions make it very difficult for certain people to successfully make a claim.

LAW REFORM AND THE APIL CAMPAIGN

APIL would like the law in England and Wales to follow the example of Scotland.  Here, ‘Close ties of love and affection’ in Scotland include civil partners, siblings, grandparents, grandchildren as well as colleagues and friends.

APIL also want the definition of ‘shocking’ changed to ‘distressing’.  This would be easier to prove and is hoped would make the system fairer.  People who develop a psychiatric illness as a result of events that take place over a period of time, such as is often the case in cases involving substandard medical treatment, would then still be entitled to claim.  They argue it should not simply be restricted to one shocking event, which frequently rules out what appear to be extremely deserving claims.

By way of example in relation to suffering psychiatric injury due to negligent medical treatment – if you witness your loved one suffering an act of medical negligence which causes immediate death then you would likely meet the criteria relating to a ‘shocking event’.  If another person witnesses the same treatment but their loved one does not die immediately, and instead suffers a long drawn out death over the coming weeks or months, then they would likely not meet the criteria for a ‘shocking event’.  Is it right that one can claim and the other cannot?

Matthew Stockwell, Barrister and President of APIL comments:

If you witness the death of your loved one on the television, hear about it on Facebook or see it on Skype and then suffer psychiatric injury, why are you unable to obtain the financial support necessary to put your life back together again? The law has not kept pace with the realities of modern life.”

The current law is inflexible and fails to take into account the complexities of psychiatric injury and the many different ways that people can suffer psychiatric injury.  People suffering psychiatric injury are already vulnerable and if a loved one has either died or been injured as a result of a negligent act, then they should be able to make a successful claim in negligence without the worry of jumping through unnecessary and archaic legal tests.

We support the APIL campaign to bring the law up to date.  The Clinical Negligence Team’s specialist lawyers are experienced in advising claimants who have suffered psychiatric injury in many different circumstances involving different forms of medical treatment and can advise you on the legal position for your potential claim.  We understand that this will be a very difficult time and we aim to make the process as stress free as possible.  Please contact me or one of my colleagues if you wish to discuss your experience for advice on whether a claim can be made.

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