The limit on a doctor’s duty of care – the decision in Paul v Wolverhampton NHS Trust

In publishing its decision in Paul v Wolverhampton NHS Trust this month, the Supreme Court was declaring an outcome in three appeals against the decisions of lower courts that struck out each of the three underlying claims for damages for medical malpractice.

In each case a close relative claimed they were entitled to compensation as a “secondary victim” for witnessing the injury or death of a close relative. They alleged the close relative could have been “saved” by competent medical treatment. 

The facts of the three cases were of course very sad. As the court noted, anyone reading the facts of each of the three cases would be moved by their circumstances. Even sadder perhaps is that, while the background facts of the three cases arose between the years 2011 to 2015, the cases were pursued in the hope that the existing legal rules (which would not allow these claims) would be extended. The existing rules were stated clearly in the 1992 case of Alcock (as to which read on) and restated in these appeals. 

That the decision of the Supreme Court is so clear in emphatically declaring the existing rules hold good will lay to rest any ongoing or pending speculative claims on similar bases. 

Secondary victims

The key question in these appeals was: Is a doctor liable to pay compensation to a close relative of a patient who might be psychologically affected by witnessing the effects of a disease the doctor ought to have diagnosed and treated?

And the very clear answer to that question, by a full court of seven Law Lords, with one dissenting opinion, was – no.

There are two reasons for this outcome. The first is that the circumstances which formed the basis of each of the claims, did not meet the criteria for claims by “secondary” victims. The second, again made clear (to the extent it was not already), was that our society considers that the duty of care of a doctor, and the scope of that duty of care, does simply not extend to secondary victims.

Looking at the first reason, a claimant who is a secondary victim can recover compensation in jurisdictions that do not include medical malpractice, but there are strict criteria which must be satisfied for such a claim to succeed:

  1. There must be an accident
  2. A close relative of the person involved in the accident, witnesses it or the immediate aftermath, and suffers injury as a consequence.

In the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Lord Oliver had identified those who might be regarded as secondary victims.

The Alcock case involved the death of 95 people who suffered crush injuries due to overcrowding at the Hillsborough football stadium. The appeals of the claimants, who had all witnessed the unfolding events, either at the stadium or on television, and were aware their relatives (who had died in the event) were at the stadium, were all dismissed. They were dismissed either because the claimants had not been at the stadium, so had not been at the scene to directly witness the events, or accident, that unfolded, or they were unable to prove their close relationship to the deceased. 

The Supreme Court agreed those criteria set out in the Alcock case had not changed since 1992. The Supreme Court also acknowledged that a line needed to be drawn in order to limit those who can claim compensation as secondary victims. Such criteria needed to be straightforward, certain, and comprehensible to the ordinary person.

In essence, the underlying facts of each of these cases before the Supreme Court were not analogous to accident cases.

Bad precedents?

Each of the claimants before the Supreme Court, relied on a past medical malpractice case. The case was that of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. This happens to be the only case where a past court ruling had been made awarding damages to a close relative in such circumstances. The Supreme Court looked at that case in detail and made clear that the case was wrongly decided on its facts so was not a precedent for such claims.

Other medical malpractice cases of Sion v Hampstead Health Authority [1994] 5 Med LR 170; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614; and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, which had been put to the court for consideration, were also cases which, though dismissed on other grounds, should have been dismissed for the same reason. That reason being there was no “…event in the nature of an accident”, as Lord Justice Auld had put it in the similarly unsuccessful claim by a would-be secondary victim in the case of Taylor v Somerset Health Authority [1993] PIQR P262.


Medical malpractice cases (or, as the NHS refer to them, clinical negligence cases) are not cases that involve accidents as identified in Alcock. Generally there is no accident, instead there is an illness or existing injury which causes suffering or death. The Supreme Court referred to this scenario in a healthcare context as a “medical crisis”. The underlying claims in these appeals were based on the fact that a close relative of the now deceased patient had witnessed a negligently caused medical crisis.

It is important to understand that the integral component of such claims (as the law stands and has stood for some time) is that there is an accident. That is to say, an “event” (the word “event” given its ordinary meaning) which happens at a particular time, at a particular place, in a particular way. If a close relative (the secondary victim) wants to make a claim for damages for the injury they were caused by witnessing such an event, the evidence of the event and them being present at the accident or the immediate aftermath, will be pretty clear – pretty certain.  

We can all suggest hypotheses

Various hypothetical scenarios were put to the Supreme Court to suggest that there might be instances of medical treatment that are events that amount to accidents, and which allow a secondary victim to make a claim. It is not surprising that the Supreme Court made very clear that such issues are best left to be addressed in a case where they actually arise on the facts. The fact that there have been no such cases before the courts, other than the bad precedents referred to above, speaks for itself.

Duty of care?

Of course, even if one can identify an accident and a secondary victim, there has to be a duty of care between the person responsible for the accident (doctor, nurse or hospital, let’s say) and the secondary victim.

Again, the Supreme Court made clear that the common law does not recognise a doctor as having any legal compensable interest in the physical well-being of another – for example, a close relative of their patient, who may have witnessed a serious injury or death, that could have been prevented by competent (that is to say, non-negligent) treatment.

As Lord Nicholls of Birkenhead explained in the case of Stovin v Wise [1996] AC 923: “Proximity is convenient shorthand for a relationship between two parties which make it fair and reasonable [that] one should owe the other a duty of care”.

The Supreme Court were clear that a doctor who treats a patient does not enter into a doctor-patient relationship with any member of the patient’s family. Nor does the doctor assume a responsibility for their health. Nor can it be said that the responsibilities of a medical practitioner, and the purposes for which care is provided to a patient, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or injury to the patient. 

Doctors do not need to reasonably have in mind, when treating their patients, the members of a patient’s close family who might be psychologically affected by witnessing the effects of a disease the doctor ought to have diagnosed and treated. 

In other words, there is no proximity between the close relative and the doctor that supports the existence of a duty of care.

Read the Paul v Wolverhampton NHS Trust decision here.

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