Can parents still claim for psychiatric injury after a negligent birth? We explain Paul and the current legal position.
What have been the effects on psychiatric injuries caused by negligence during birth during the last 18 months?
In January 2024, the Supreme Court released their decision on Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1 (‘Paul’), which caused a seismic shift in the way medical negligence solicitors manage and handle pyschiatric claims for secondary victims. This has had an impact on parents who have witnessed a negligent birth which has caused a birth injury.
Prior to this decision, parents who witnessed a birth injury event could bring a claim for psychiatric injury, even where they had not themselves suffered a physical injury, provided that the psychiatric injury was caused by witnessing the event. This included fathers present during labour and mothers in the period immediately following the child's birth.
To succeed in a claim as a secondary victim, a parent had to satisfy the following legal test:
- they had a close tie of love and affection with the primary victim (usually their child);
- they were sufficiently close in both time and place to the traumatic event;
- they directly witnessed the event with their own senses, rather than hearing about it from someone else;
- the event constituted an accident, or its immediate aftermath; and
- the event was sufficiently shocking to cause a recognised psychiatric injury.
These principles continue to apply where a person develops a recognised psychiatric illness, such as post-traumatic stress disorder (PTSD) or an adjustment disorder, after witnessing a sudden and traumatic accident. A common example is a road traffic collision where a person witnesses (or is first on the scene of) a serious accident involving a loved one. If these criteria are met, the witness may be entitled to bring a claim as a secondary victim.
The decision in Paul considered how these principles apply in the context of medical negligence. The Supreme Court held that a medical crisis resulting from an untreated or negligently treated illness is not legally equivalent to an "accident" such as a road traffic collision for the purposes of a secondary victim claim. As a result, the law does not generally allow claims by loved ones who develop a psychiatric injury after witnessing a relative's death or deterioration caused by an illness for which medical treatment was sought.
However, the Court deliberately left open the possibility that secondary victim claims may still arise where the psychiatric injury results from witnessing a discrete medical accident, rather than the progression of an illness. Whether such a claim succeeds will depend on the particular facts of the case.
Examples that were provided were: -
- a doctor giving the wrong dose; or
- administering the wrong drug,
- causing an acute adverse reaction witnessed by a close relative
How does this affect fathers, and other birthing partners present at birth?
Prior to the Supreme Court's decision in Paul, fathers and other birth partners who witnessed a traumatic delivery resulting in a serious injury to their child could, in principle, recover compensation for a recognised psychiatric injury they suffered as a consequence of those events, provided they satisfied the legal test for a secondary victim claim.
Following Paul, the legal position is far less certain. A father or birth partner who witnesses a traumatic delivery must now establish that what they witnessed amounted to a discrete medical accident, rather than the progression or deterioration of an underlying medical condition. The distinction is likely to be highly fact-specific and will depend on the circumstances of each individual case.
Importantly, the Supreme Court did not rule that all secondary victim claims arising from childbirth are barred. Instead, it left open the possibility that claims may still succeed where the psychiatric injury results from witnessing a discrete medical accident during labour or delivery. This issue is therefore likely to continue to be considered by the Courts as further cases arise.
The application of Paul in these circumstances, were considered in MIM v Sheffield Teaching Hospitals NHS Foundation Trust. This related to the pyschiatric injury claim for the father of a child who had suffered a hypoxic injury as a result of negligence during delivery. The hypoxic brain damage took place prior to the child’s birth, and as a result this meant that the father had alarms repeatedly sounding and being silenced, inappropriate reassurance as a result, irritation and a lack of urgency which increased his anxiety, and the final ‘panic station’ near the end of labour. The father was also witness to the birth of his son in a poor condition, which required immediate resuscitation.
The Court considered that in these events were continuous and progressive, rather than the one sudden event, and that the events were a medical crisis that was unfolding over time. This therefore meant that the father was unable to recover compensation for his pyschiatric injury as a secondary victim, as this was caused by witnessing the events of a medical crisis as opposed to an accident. This case has therefore difficult for fathers and birthing partners to claim for pyschiatric injuries as a secondary victim due to witnessing a traumatic labour in similar circumstances due to negligence.
What about the position of mothers and birthing people?
Mothers and other birthing people are in a different legal position from fathers and other birth partners because they are carrying the child during pregnancy and labour. It is a long-established principle of English law that a fetus does not have a separate legal personality until it is born alive. Until that point, the law does not recognise the fetus as a distinct legal person.
This principle has been recognised across a number of areas of law, including criminal law, coronial law and medical law, such as cases concerning a pregnant person's right to refuse medical treatment. It is this legal distinction that has shaped the courts' approach to claims arising from pregnancy and childbirth.
This distinction is important because, unlike fathers and other birth partners, a mother who suffers psychiatric injury as a result of negligent treatment during labour is not simply a witness to injury suffered by another person. She is herself the direct recipient of the negligent medical treatment. That difference has significant legal consequences when considering whether her claim is brought as a primary or secondary victim.
This principle was considered in YAH v Medway NHS Foundation Trust EWHC 2964 (QB). In this case, the child was born by emergency c-section in poor condition after a negligent delay in delivery despite clear signs of fetal distress. It was held that the mother was a primary victim, not a secondary victim, because the negligence occurred before the child was born, when in law the mother and unborn child are one legal person. This meant that the mother did not need to prove that she was a secondary victim for the purpose of recovering compensation for her psychiatric injury as a result of the traumatic birth, as she was a primary victim.
The position may be more difficult where the alleged negligence occurs after the baby has been born. This was considered in the case of MIM v Sheffield Teaching Hospitals NHS Foundation Trust. For example, where the alleged negligence relates to the resuscitation of a newborn baby or a failure to appropriately monitor the baby after birth, a court may conclude that the parent witnessed the deterioration of a medical condition, rather than a discrete medical accident.
If that analysis is correct, a claim for psychiatric injury as a secondary victim is unlikely to succeed unless it can be established that the psychiatric injury resulted from witnessing a distinct medical accident, rather than the consequences of an underlying medical condition. As the Supreme Court made clear in Paul, the distinction between a medical accident and the progression of an illness is likely to be highly fact-sensitive and will depend on the circumstances of the individual case.
Conclusion
The Supreme Court's decision in Paul has undoubtedly changed the legal landscape for claims involving psychiatric injury following a traumatic birth. However, it does not mean that these claims can no longer be brought.
Whether a claim is likely to succeed will depend on a careful analysis of the individual circumstances. Factors such as when the negligent event occurred, whether it took place before or after the baby's birth, and whether the psychiatric injury arose from witnessing a discrete medical accident or the deterioration of a medical condition can all be crucial.
The law in this area is complex and continues to develop. If you or your family have been affected by a traumatic birth, it is important not to assume that you do not have a claim simply because of the decision in Paul. Every case turns on its own facts.
These cases often involve much more than a claim for psychiatric injury alone. They may also include a claim on behalf of a child who has suffered a birth injury, requiring careful consideration of the family's circumstances as a whole. Seeking specialist legal advice at an early stage can help you understand your options and ensure that no potential claim is overlooked.
If you believe you have suffered a pyschiatric injury as a result of birth regardless of whether or not this was caused by medical negligence, you can self-refer to talking therapies through the NHS. There are also charities who are available to support you in the event that the events led to the loss of your child, including Zephyr’s and Tommy’s.
Quote from author. Lauren Kerse, Associate Director, and Specialist Medical Negligence Solicitor from MDS, said “Psychiatric injury claims caused because of a medical negligence event during childbirth, have undoubtedly been affected by the Paul decision. It is important that specialist legal advice is obtained so that you are aware whether this could form part of any claim associated with negligence during childbirth.”
