In negligence law, health professionals, including nurses, can be held liable if their actions or omissions harm a patient. This harm is not limited to physical injury but can also include psychiatric injury, which courts have recognised in legal claims (Page v Smith [1996]).
Concerns remain that psychiatric harm can affect both those directly involved in an accident and those who witness it, are related to the person, or hear about it. Therefore, courts are limited over who can claim damages for psychiatric harm by specifying conditions under which a duty of care arises.
Primary and secondary victims
In psychiatric harm claims, the law differentiates between primary and secondary victims. To limit liability, distinct rules are applied to each category (White v Chief Constable of South Yorkshire Police [1999]).
Primary victims
A primary victim is someone directly involved in the incident. To qualify as a primary victim, one of the following four conditions must be met:.
Patients harmed by the negligent acts or omissions of a nurse or other health professional would be considered primary victims and can claim for both physical and psychiatric harm arising from the negligence.
Secondary victims
Secondary victims are those who are not directly involved in the negligent accident but are witnesses or mere bystanders. The courts seek to limit liability in these cases by imposing conditions that restrict the imposition of a duty of care to prevent a perceived flood of claims.
In Alcock v Chief Constable of South Yorkshire [1992], the House of Lords set out the requirements to be recognised as a secondary victim of an accident:
The UK Supreme Court recently reconsidered the law relating to secondary victims in Paul v Royal Wolverhampton NHS Trust and others [2024]. Three joined cases sought to overturn the judgments of the Court of Appeal in dismissing their claims of psychiatric harm arising from witnessing the deaths of a close family member as a result of a negligently undiagnosed illness that had gone untreated.
Although the Supreme Court made clear that generally in law there is no compensation payable for witnessing the death of another, the Court accepted that such compensation might be available where the witness could be considered as secondary victim to a negligent fatal accident (Paul v Royal Wolverhampton NHS Trust and others [2024]).
In reviewing the law and the limits on the duty owed to secondary victims of negligent accidents the Supreme Court revised the requirements established in Alcock and held that:
When applying the requirements to Paul v Royal Wolverhampton NHS Trust and others [2024] the Supreme Court held that witnessing a close relative's death from disease or other medical crisis arising from clinical negligence did not meet the conditions necessary to give rise to a duty of care as a secondary victim. Witnessing a relative's death from natural causes was considered by the Supreme Court to be part of the vicissitudes of life, not an accident. Health professionals owed a duty of care to their patients, they did not owe a duty to protect members of a patient's close family from exposure to the traumatic experience of witnessing a relative's death.
The Supreme Court held that seeing a death arising from a misdiagnosis and subsequent failure to treat an illness could not be equated to witnessing an accident or its immediate aftermath. An accident should be defined as a discrete, external event with a potential to cause injury to another. This was not the same as a death arising from disease or other medical crisis (Paul v Royal Wolverhampton NHS Trust and others [2024]).
In reaching this conclusion the Supreme Court overruled an earlier Court of Appeal decision in Walters v North Glamorgan NHS Trust [2002] where Mrs Walters recovered damages as a secondary victim after witnessing the death of her son following two days of illness. The mother was sleeping in the same room as her son in the hospital when he suffered a major epileptic seizure leading to coma and irreparable brain damage. Appropriate treatment was delayed by a misdiagnosis and, although transferred to a London hospital, he died in his mother's arms once the life support machine was switched off some 36 hours after the seizure.
The Supreme Court in Paul v Royal Wolverhampton NHS Trust and others [2024] held that, as traumatic for the mother as the case was, it would have failed if it had been argued at the time that the mother had not witnessed an accident or its immediate aftermath and so should not have been considered a secondary victim.
Conclusion
The decision in Paul v Royal Wolverhampton NHS Trust and others [2024] has given the Supreme Court the opportunity to re-establish the limits on recovery for psychiatric harm in secondary victim cases. In emphasising the need for secondary victims to witness an accident and reversing the Court of Appeal decision in Walters v North Glamorgan NHS Trust [2002] the Supreme Court has limited the liability of nurses and other health professionals for psychiatric harm where relatives witness traumatic incidents with patients with whom they have a bond of love and affection.
Although nurses do not have a duty to prevent psychiatric harm to relatives, they must recognise the impact and trauma of the death of a loved one and offer emotional support to grieving families as required by their professional standards (Nursing and Midwifery Council, 2018).