Psychiatric Injury – time for reform?

27 years after Hillsborough, the jury who heard two years of evidence at the highly publicised inquests into the deaths of 96 Liverpool fans decided that the supporters involved in the 1989 catastrophe were unlawfully killed.

The anniversary and decision from this long awaited inquest following the disaster, which resulted in over 700 casualties who either suffered physical or psychological damage, sees with it fresh calls for the law on psychiatric harm to be reformed. The Association of Personal Injury Lawyers (APIL) has previously described the current law on psychiatric injury claims as ‘old-fashioned, inflexible and unfair’.

The case of Alcock v Chief Constable of South Yorkshire Police [1992], which saw the victims of the disaster and their relatives bring a claim for compensation as a result of psychiatric rather than physical injury, established what is now known as the Alcock Test.

Largely as a matter of policy, there was a crucial distinction drawn between ‘primary victims’ (those directly involved in an event) and ‘secondary victims’ (those who witness an event unfold). In the absence of physical injury, this will usually require a claimant to prove that a recognisable psychiatric injury has been suffered. As the law currently stands, for secondary victims to successfully claim for psychiatric harm, they must meet all of the 4 Alcock Test criteria:

  1. Have a close tie of love and affection to a primary victim (i.e. someone who was physically injured);
  2. To have witnessed the event with their own unaided senses (not on TV);
  3. Have had ‘proximity’ to the event of its immediate aftermath; and 4. Suffer psychiatric injury by a shocking event. 

Since 1992, the law has stayed very much the same on this sensitive issue, and has been restrictive on those who can be deemed to have a ‘close tie’. Currently, a close tie in law is deemed only to exist between parents and children, spouses and fiancées. Anyone else who suffers as a result of witnessing a traumatic event has to prove ‘closeness’. However, there are increasing calls and attempts to set in motion reforms to the law on psychiatric injury.

The Negligence and Damages Bill, which was presented to the House of Commons on 13 October 2015, sought to change the threshold for bringing a claim for psychiatric injury.

The Bill, which was a private members bill, was prepared with the intention of reforming the current law relating to bereavement damages in addition to reforming conditions imposed on claimants to claim damages for psychiatric injuries. It sought to assist those suffering from psychiatric harm after witnessing the death or injury of others, and aimed to place psychiatric injury arising from the death of, or physical injury to, other persons on a similar footing to suffering direct physical harm. This reflects developments in modern day medical practice and the increased understanding that psychiatric illness can be just as, if not more, debilitating that physical injury.

The Bill also sought to impose a statutory duty of care on a defendant to ensure that a secondary victim does not suffer psychiatric injury as a result of the death or serious injury of another person.

Like Alcock, the Bill continued to specify that a claimant must suffer from a recognisable psychiatric illness. However, it suggested that this no longer has to be an illness caused by a ‘shock’ – a direct and immediate event. This suggestion could substantially expand the threshold to those who have witnessed distressing events over a longer period of time, such as a family member witnessing another family member experience a prolonged death as a result of clinical negligence.

The Bill also suggested substantial expansion of the list of relationships to be assumed as ‘close’ and does away with the need for the injured party to prove this ‘closeness’, in addition to removing the requirement for the injured to have been in close physical proximity.

All in all, whilst it has taken 27 years to reach the ruling on the Hillsborough Inquest, there certainly does seem to be the beginnings of a wave to change the law to marry up with the advances being made in understanding psychiatric injury. Whilst this version or this particular draft Bill on this area will now be inevitably be reworked, on the back of the Hillsborough decision, will there be more of a focus as the decision on the disaster serves as a reminder to all of the impact a catastrophe can have on mental health and wellbeing.