Is It Possible To Take Legal Action For Psychological Harm?

If you have suffered medical negligence, you may be wondering whether it is possible to make a claim for psychological harm. Emma Wray and her trainee Darcey Hayes, of Hodge Jones & Allen Solicitors, explain the basis for bringing such a claim.

The definition of Medical Negligence

Medical negligence occurs when healthcare professionals provide care that falls below a reasonable standard, which results in avoidable harm or injury. If medical negligence has been established, it is possible to claim not only for physical injuries, but also for psychological harm resulting from the negligence.

Therefore, it is possible to recover damages (compensation) for psychological injuries, provided there has been negligent treatment and an injury has occurred. The claimant must demonstrate that they have suffered a medically recognised psychiatric illness, which excludes claims for grief, sorrow, or distress.

What about a witness to a traumatic event? Primary vs Secondary Victims

The law approaches those who have suffered psychological harm in two ways, by considering whether you are a primary or secondary victim.

Primary victim

A ‘primary victim’ is the patient who received the negligent treatment. If negligence occurs during labour, the person giving birth will be a primary victim for these purposes.

Secondary victim

A ‘secondary victim’ is someone who has suffered psychological harm as a result of witnessing the injury or death of a loved one. This can be particularly relevant where a partner or close relative witnesses a traumatic birth, but there are significant additional requirements for bringing a claim on behalf of a secondary victim, including:

• the need for a close tie of love and affection with the primary victim.
• the need to have been close to the incident in time and space, meaning that the claimant must have been either personally present at the scene or its immediate aftermath.
• the need to have directly perceived the incident or its immediate aftermath. This means that the claimant must have seen or heard the event or its consequences, rather than, for example, hearing about it from a third person.

Bringing a secondary victim claim was thus always more difficult than a primary victim claim, and there have been numerous legal cases where defendants have resisted the bringing of secondary victim claims by raising arguments based on these criteria and their interpretation.

The arguments were considered by the Supreme Court in the 2024 case of Paul v Royal Wolverhampton NHS Trust. This ruling has further restricted those who can claim as secondary victims due to medical negligence. The case effectively imposed an “accident’ requirement, namely that a secondary victim must witness an “accident” (a sudden, shocking event with violent external means) or its immediate aftermath. An example of this could be a vehicle collision. The court distinguished this with medical negligence, in which there is usually no “accident” that occurs, rather a negligent act which is followed by a medical crisis, which may be witnessed by others.

The court ruled that witnessing a medical crisis or its aftermath is not sufficient to satisfy a secondary victim claim.

The majority six to one ruling also considered that the duty of care owed by a medical practitioner to a patient does not extend to members of the patient’s close family to prevent them from suffering harm in such circumstances. They held that “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.”

Whilst the ruling of Paul v Royal Wolverhampton NHS Trust makes bringing a secondary victim claim even more challenging, all claims should be dealt with on a case-by-case basis and legal advice sought if in doubt.

Process for bringing a claim for psychological harm

If your solicitor considers you can bring a claim for psychological harm, as part of your medical negligence claim, they will arrange for you to be examined or assessed by a medico-legal expert. This will often be a psychologist or a psychiatrist. The expert will prepare a report on the type of injury you have suffered, the likely cause of this injury, as well as the duration of your psychological injury. It may be the case that you suffered a psychological injury and have now recovered, or symptoms may be persisting. If the expert considers treatment is necessary, they will also outline their view on suggested treatment or therapies, and provide costings.

Outcome of a claim for psychological harm

If it can be satisfied that you suffered a recognised psychiatric injury and the necessary criteria is fulfilled, the injury will be valued in line with Judicial College Guidelines. These guidelines indicate the general damages (compensation) you could recover for pain, suffering and loss of amenity in a successful psychological injury claim. There is also scope to claim for other special damages arising from your psychological injury, for example loss of earnings and private medical treatment.

Our legal experts are experienced in handling medical negligence claims, including those involving psychological harm. If you or a loved one has suffered psychological injury due to negligent medical care, speak to our specialist team for clear guidance on your rights and next steps. Get expert advice today by calling 0330 822 3451 to see if you can make a claim for psychological harm.