Liability for Psychiatric Illness

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Allowing claims for psychiatric illness inflicted through negligence, whilst protecting against uncontrolled liability. The government decided not to proceed with our recommendations.

Download the report

The problem

The issue of liability for psychiatric illness following negligence is unsatisfactory. Some argue that that it should have the same principles that apply to physical illness. Others that it should be abandoned all together.

Claims for psychiatric illness brought about through negligence had gained increased exposure following the disaster at Hillsborough Football Stadium where officers received compensation but nearly all of the relatives and survivors failed in their claims.

The injustice of this position has been acknowledged by judges, newspapers, MPs and legal commentators.

The project

This project is concerned with the law relating to liability for negligently inflicted psychiatric illness.

The aim of our recommendations for reform was to remove what we believe to be unnecessary constraints on claims for negligently inflicted psychiatric illness, but without giving rise to fears of uncontrolled liability.

In March 1995 we published a Consultation Paper on this subject. We received a 150 responses and derived enormous assistance from them.

In March 1998 we published our final report.

Recommendations

Our recommendations for legislative reform deal primarily with one particular class of plaintiff: those who suffer psychiatric illness as a result of the death, injury or imperilment of a loved one.

We recommended:

• the law should not be codified but instead amended and otherwise be allowed to develop by judicial decision-making
• that it shall no longer be a condition of liability for a recognisable psychiatric illness that the psychiatric illness was induced by shock
• imposing a statutory duty of care to avoid psychiatric illness for the purposes of the tort of negligence
• two new duties of care, one for the usual situation where the defendant is not the immediate victim. The second for the rarer situation where the defendant is the immediate victim
• laying down a fixed list of relationships where a close tie of love and affection shall be deemed to exist, and they are able to claim

Result

The Government decided not to proceed with our recommendations.