The justices held by a 6–1 majority, Lord Burrows dissenting, that no duty of care was owed, in three conjoined cases: Paul and another v Royal Wolverhampton NHS Trust; Polmear and another v Royal Cornwall Hospitals NHS Trust; and Purchase v Ahmed [2024] UKSC 1. Each claim concerned allegations of negligently failing to diagnose a life-threatening condition thus later causing the relatives’ psychiatric injuries arising from witnessing the patient’s death or the immediate aftermath.
Jonathan Fuggle, partner at Browne Jacobson, which advised NHS Resolution in Paul and Purchase, said: ‘For many years the law relating to claims for psychiatric harm has developed in a piecemeal way through case law that seemed to conflict.
‘The decision by the Supreme Court provides welcome clarity for lawyers and their clients.’
Delivering the lead judgment, Lord Leggatt and Lady Rose said a duty of care required both reasonable foreseeability of harm and proximity in the relationship. They found insufficient proximity existed.
They highlighted the risk that hospitals treating dying patients might begin to usher relatives out of the room to avoid potential liability. While acknowledging the impact of witnessing a relative’s death, they noted: ‘Such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition.’
Michael Mather-Lees KC, of Church Court Chambers, said: ‘The Supreme Court had to draw a line as to what is or is not a foreseeable event in the context of clinical negligence, and on potential damages for an unrelated third party.
‘While the court was right to limit the possibility of continued satellite litigation from an initial negligent act, time will tell if this was the correct place to draw the line.’
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