Why the law on psychiatric harm must change

Earlier this month I went to a parliamentary reception hosted by Lord Wigley, which was all about the law of psychiatric injury.

The reception was held on behalf of the Association of Personal Injury Lawyers, which is calling for a major change of the law in this area.

APIL believes a new bill is needed to make sure that those who suffer real psychiatric harm from the death or serious injury of a loved one – which was caused through someone else’s negligence – can get the financial help they need to put their life back on track.

The law as it stands comes from the legal case that arose from the Hillsborough disaster, some 25 years ago. So much has changed since then in terms of the understanding of psychiatric injury, and the recognition of personal relationships – but the law itself has stood still.

APIL president Matthew Stockwell was growing up in Liverpool when the Hillsborough tragedy unfolded on his television screen. At the reception this month, he made a heartfelt case for reform. APIL is seeking three key changes in the law.

Firstly, the current law requires anyone who is not a parent, child, spouse, or fiancé of the deceased or injured person to actively prove that they had a ‘close tie of love and affection’ with them. This means that, for example, unmarried cohabiting couples and same-sex partners must go through the intrusive ordeal of proving their relationship, to the person responsible for the accident.

APIL proposes a statutory list of extra relationships in which the close tie will be presumed (including grandparents, siblings, and colleagues) – but it will still be open to the defendant to challenge this presumption.

The second area ripe for reform is the current requirement for there to be a ‘shocking’ event before a claim can be made. APIL wants this changed to a ‘distressing event’, or series of events. This would then encompass events that might take place over a period of time, but are no less horrific – for example, the parent who has to watch their child die slowly as a result of medical negligence. Surely it cannot be right for this to be excluded?

The third aspect where there is a strong case for change is the requirement for the claimant to be ‘close in time or space’ to the incident, and to have perceived the death or injury through their own senses. It is hard to see the justification for this, and APIL wants it scrapped.

Personally, I think the case for reform is a very powerful one, with the current rules harsh, arbitrary and outdated. Psychiatric harm can be equally – if not more – debilitating than physical harm, and it is time that were recognised. There was certainly a lot of interest in the issue at the reception this month, which was well attended by MPs, lawyers and journalists.

Two MPs offered to put forward early day motions to raise the profile of the subject, and APIL is hoping to get a private members’ bill off the ground in the next parliamentary year.

But what are the chances of any bill succeeding? Let’s face it, the political winds are blowing very firmly in the direction of reducing compensation claims, not making them easier to bring. And of course the fundamental problem with psychiatric injury is that you can’t actually see it – leading to a fear that it might be easy to fake.

On that point, it is worth noting that the claimant would need evidence from a highly qualified psychiatric expert to support their claim. The process of assessment would be far more rigorous than has been seen in relation to whiplash claims, for example.

This issue has been looked at before, with the Law Commission making recommendations for change in this area back in 1998, which were never taken up. Perhaps this time, those lobbying for change will have more luck. But I wouldn’t hold your breath.

Rachel Rothwell is the editor of Litigation Funding magazine