Second victim

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

It is not uncommon to encounter a bystander who having witnessed a shocking injury to another person, suffers as a consequence. To distinguish the onlooker from the injured individual, the notion of ‘second victim’ emerged. It may be helpful to reflect on the common law’s approach to the second victim.

The courts have had many years’ experience of bystanders suffering psychiatric injury as a result of what they saw, seeking financial compensation for the harm that they have endured. In Ronayne, a Court of Appeal case in 2015, a woman had developed peritonitis after her hysterectomy wound closure inadvertently incorporated and perforated her colon. When her husband saw her immediately prior to and after her emergency laparotomy, he suffered a ‘psychiatric injury’. The Ronayne judgment summarised the conditions that a claimant should satisfy to succeed in persuading a court that the threshold for second victim was crossed. These included that he had to have a close tie of love and affection with the person killed, injured or imperilled and had been close to the incident in time and space. He must have directly perceived the incident; and his psychiatric illness must have been induced by the sudden shocking event.

The ‘event’ must be one that would be recognised as ‘horrifying’ by a person of ordinary susceptibility: This requirement brings an objective measure to the test of what ‘horrifying’ means.

Even if these conditions are satisfied, the court made it clear that money damages would be limited to the loss arising from the injury itself. As opposed to the grief, sorrow, and deprivation that must be considered as ordinary and inevitable incidents of life; these, regardless of individual susceptibilities, must be sustained without compensation.

The principles in Ronayne were relied on in the 2021 case of King where a father suffered post-traumatic stress disorder and pathological grief caused by the psychological impact of his first visit to the neonatal unit after his son’s birth.

The court found that the father, through prior discussion with clinicians, was fully prepared for all the interventions and equipment he would see in the NICU before he entered the unit: And that he saw his son as a sleeping newborn baby, amidst the tubes and wires. His baby was paralysed, intubated, ventilated. There was no suggestion that the baby was distressed; on the contrary, he was eerily peaceful. There was no sense of panic surrounding his cot.

It was common ground that the PTSD was caused by the claimant father witnessing his son critically ill on NICU, and his belief that his baby was going to die. The claimant and defendant psychiatrists also agreed that the pathological grief was caused by the circumstances of his son’s death, and the knowledge that his death was avoidable. (The baby’s viability was severely compromised by meconium aspiration; the Trust had previously accepted that an earlier delivery would have led to the avoidance of injury and the baby’s survival).

The judge noted that the notion of a ‘horrifying event’ should be viewed in the context of daily life on intensive care, reflecting on another court’s words; ‘An event outside the range of human experience’… does not encompass the death of a loved one in hospital unless also accompanied by circumstances which were so wholly exceptional in some way as to shock or horrify. A visitor to a hospital is necessarily to some extent conditioned as to what to expect when they see their friend or relative. It is also likely that due warning will be given by clinical staff if what the visitor will see may be more than ordinarily distressing.

Taken all together, it is perhaps not surprising that the father in King was unsuccessful in seeking compensation. However, the law has no monopoly on good sense, nor can it prescribe how much grief and despair any person can be expected to bear.

Clinicians’ mental and moral exhaustion or despair does not fall easily into the Ronayne conditions, making the term ‘second victim’ inappropriate for legal purposes to describe the burden they carry.

But make no mistake. The burden some of our colleagues have endured and continue to carry is grave.

Robert Wheeler
Department of clinical law