1. The Supreme Court in the UK recently gave a single judgment in three cases of medical negligence, the result of which is that in future and subject to possible rare exceptions, recovery for negligently caused psychiatric illness by secondary victims will be closed off in medical negligence cases in the UK. This highly persuasive authority is likely to be followed in the Hong Kong courts.
2. The cases reviewed gave rise to a fundamental question about the nature of a doctor’s role. The Supreme Court did not accept that the responsibilities of a medical practitioner extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the manifestation of injury or disease. This was a vicissitude of life which is part of the human condition.
3. In the opinion of the Supreme Court, persons whom doctors ought reasonably to have in mind when considering care of a patient do not include members of the patient’s close family who might be psychologically affected by witnessing the effects of the disease which the doctor ought to have diagnosed and treated. Their relationship was not close enough to give rise to a duty of care. 
4. The Supreme Court left open the question of whether rules governing claims by secondary victims arising from accidents could ever apply in a medical setting. This issue was left to be addressed in a case where such an issue arose on the facts.
5. The Supreme Court held that a number of such cases following on from a case arising out of the Hillsborough disaster were wrongly decided. It continues to be the case that a claimant can recover damages as a secondary victim where the case involves an accident which causes injury or death to the primary victim and is witnessed by the claimant. However, the Supreme Court concluded the position was different where the claimant does not witness an accident but suffers illness as a result of witnessing such a person suffering a medical crisis. One of the reasons for this was a policy decision. In the cases under consideration, claimants attended the hospital where their child or close relative was being treated. In two of them, the claimants were present when a close relative died in shocking circumstances. In the third, the claimant came upon her daughter minutes after she died. The Supreme Court held it was undesirable for decisions about end of life care to be complicated by the risk that, if it was said the death ought to have been prevented, the hospital will be exposed to potential legal liability to family members as a result of them seeing and remaining with a patient at their death. In future, damages for personal injury to secondary victims can no longer be recovered unless the claimant has witnessed an accident or its aftermath.   
6. The Supreme Court considered whether a doctor, in providing medical services to a patient, not only owes a duty to protect the patient from harm but also owes a duty to close members of the patient’s family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness, caused by the doctor’s negligence.
7. In each of the cases it was claimed that personal injuries resulted from the negligence of the defendant doctor or health authority in failing to diagnose and treat a life-threatening medical condition from which a relative suffered. The claimants contended the defendants were not only responsible for the death of the person whose life was lost but were also liable to compensate them for psychiatric illness caused by their experience of witnessing the deaths.
8. The recent decision relates to claims against NHS Trusts in England. The injuries complained of were caused by witnessing the death of a close relative, not in an accident but from a medical condition which the defendants negligently failed to diagnose and treat.
9. It has long been established by UK case law that compensation may be payable to victims (primary victims) but not others (secondary victims) who suffer harm by witnessing a primary victim’s injuries or death. Further, damages may be recovered in a limited category of cases for personal injury consequent on the death or injury of another person. The claim does not arise from the death or injury of a person or a defendant’s responsibility for it but from the fact the claimant has witnessed a wrongful death or injury or threat of such death or injury to a loved one. This category was thought to include claims where a claimant suffers personal injury, including psychiatric illness, as a result of witnessing an accident in which a close relative is killed or injured as a result of the defendant’s negligent act or omission.

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Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice. Please contact [email protected] if you have any questions about the article.