The High Court has recently awarded damages for psychiatric harm to a mother whose baby had become stuck in the birth canal and had suffered a hypoxic injury due to lack of oxygen, and the grandmother who witnessed the negligently managed birth (Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017]).
The law of negligence has long recognised that where midwives breach their duty of care by carelessly causing physical harm to the mother or baby, compensation for the harm caused must be paid (Montgomery v Lanarkshire Health Board [2015]). While compensation for physical harm is a well established practice, the courts have been reluctant to allow claims for psychiatric harm, particularly where the claimant is a witness to the incident (Page v Smith [1996]).
Negligence and duty of care
Negligence is best described as actionable harm and, to succeed, a claimant in a midwifery case must show that:
The relationship between a midwife and the mother and baby is recognised in law as giving rise to a legal obligation to be careful (Kent v Griffith & Ors [2001]). A midwife who breaches that duty and causes harm will be liable in negligence.
Care and psychiatric harm
Where the claimant is seeking compensation for psychiatric harm, further restrictions on when a duty of care is owed apply. These restrictions are due to both:
Fear of opening the floodgates is grounded in concern that psychiatric harm might occur not only to the victim of negligence, but also to onlookers who witness the incident, family members who are told of the incident and even members of the health and emergency services (McLoughlin v O'Brian [1982]).
Nevertheless, as medical knowledge of psychiatry and the psychological effects of trauma have increased, judges have gradually become more willing to recognise psychiatric harm in its own right.
Psychiatric harm as a result of negligence
In law no damages are awarded for grief, sorrow or emotional distress caused by injury or death (Hinz v Berry [1970]). To succeed in a claim, the person must show that they have received a shock to the senses that has resulted in a recognised psychiatric condition. It requires an event of a shocking nature, in circumstances that were exceptional in some way so as to horrify the victim (Ward v Leeds Teaching Hospitals NHS Trust [2004]).
In Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017], the mother and grandmother suffered post-traumatic stress disorder (PTSD) after believing that the baby had died as a result of a negligently managed birth.
Primary and secondary victims
The House of Lords, in a review of psychiatric harm, concluded that there were two types of victims and that different rules applied in each case (Page v Smith [1995]).
Primary victims
Primary victims are those who are directly involved in the incident such as the mother and baby. A person will be recognised as a primary victim if they can satisfy one of the following conditions:
For a primary victim it is not necessary to consider whether psychiatric harm was foreseeable; it is enough that an injury of some kind was foreseeable (Page v Smith [1995]). Midwives must ensure that women are reasonably informed of the risks associated with their condition and with the midwifery care that they receive. If a woman suffers shock and psychiatric harm after discovering that their condition is worse than anticipated, or that a catastrophic adverse effect has occurred, she would be entitled to sue. In Rand v East Dorset Health Authority [2000], a woman was not told the results of a test that showed her unborn child had Down's Syndrome. She suffered shock when her baby was born and recovered damages for psychiatric harm.
In Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017], the mother was held to be a primary victim as the baby had become stuck in the birth canal as a result of a shoulder dystocia that should have been foreseen by the midwife.
If a midwife asks a family member to assist by comforting and supporting a relative during a negligently managed labour, the assisting relative would be a primary victim as their close proximity would make them involuntary participants in the negligent act. In Tredegett and Tredegett v Bexley HA [1994], parents who witnessed the negligent birth of their child who died 48 hours later were primary victims because of their involvement in the birth and were entitled to recover damages for the shocking events that left them with pathological grief disorder.
Rescuers can claim as primary victims if they are in danger by participating in the rescue. The law does not want to discourage people from helping victims of accidents (Chadwick v British Railways Board [1967]).
If a primary victim claims psychiatric harm, the case will be treated in the same way as a physical injury.
Midwives owe a duty of care to women and babies and a breach of that duty resulting in foreseeable harm, including psychiatric harm, will result in a claim for compensation.
Secondary victims
Secondary victims are those who are not directly involved in a negligent incident but who are witnesses or bystanders, such as the grandmother in Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017]. The courts seek to control liability by imposing rules that restrict the imposition of a duty of care and so prevent a perceived flood of claims. In order to succeed in their claim, a secondary victim must:
For secondary victims (those who witness the negligent incident), the law continues to control liability through the need to prove the reasonable foreseeability of psychiatric harm and physical proximity to the incident or its immediate aftermath. In Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017], the grandmother succeeded in her claim for psychiatric harm as she witnessed the negligent management of the birth, which resulted in PTSD.
Midwives must be aware that relative present at a birth may suffer psychiatric damage if they observe a negligent act that harms the mother or baby. The law accepts that medical procedures can be traumatic to watch so does not impose a duty of care towards an onlooker when the procedure is carried out safely and competently. However, it can be seen from Re (A minor) v Calderdale and Huddersfield Foundation NHS Trust [2017] that where the psychiatric trauma results from witnessing a negligently managed birth or procedure, a claim for psychiatric harm will succeed for both the mother and her relatives.