Justice for bereaved people and victims of psychiatric harm

A new private members bill, introduced in parliament by Andy McDonald MP, aims to tackle some of the injustices for bereaved people and those who witness the death of a loved one.

The Negligence and Damages Bill, aims to clarify and extend the law, relating not only to bereavement damages, for those who lose a loved one, but also define and clarify in what circumstances, and by whom, a claim my be brought for psychiatric illness, as a result of witnessing the harm or death of a loved one.

Part one of the Bill, aims to define the circumstances in which a person can bring a claim for psychiatric harm. Classification and diagnosis of mental illnesses has strengthened over the years and with the advent of greater social media and live coverage, the possibility of witnessing the death of a loved one becomes ever more likely.

Debates continue as to the role of media, but multi platform viewing, allows people to stream live situations around the world, sometimes without regulation or censorship. Whether a good or bad thing, the arguments focus on whether showing death or injury in the media ought to be transmitted. One of the first national tragedies to start this debate was the suffering and death of those present at the Hillsborough disaster in 1989. It is this event that started to see the development of case law, in England and Wales, for those psychologically injured through witnessing the death and injury of a family members.

Part 1 of the Bill sets out the following:
• The new circumstances under which a defendant owes a duty of care
• That the injury sustained by the witness must be a recognisable psychiatric illness
• Expands on the categories of people who can bring a claim. This is currently limited to parents, children, spouses and fiancées. Any other person has to show close tie of love and affection. The new provision would expand the list of eligible people.
• A removal of the legal requirement for the event to be “shocking” and immediate. This change would result in people being able to claim for nervous shock for events which take place over a period of time, a particularly significant factor when dealing with clinical negligence claims in which a person dies over a period of time, such a parent watching their child die slowly.
• A removal of the need for the witness to be sufficiently close in time and space. This change recognises the advances in technology and media platforms, which means that a witness does not have to be physically close to witness a death.

Interestingly, the Bill also allows for an award of compensation that recognises that a dying or terminally ill patient knows they are going to die prematurely.

Part two and three of the Bill aims to repeal the current Fatal Accidents Act 1976 and fundamentally change the way that families seek damages when they have lost a loved one, through someone else’s negligence. Ironically, the new Bill would seek to reflect an approach that has been adopted in Scotland since the mid 1970’s.

“Essentially this part of the Bill is designed to change the very unjust effect which currently exists, namely that a wrongdoer pays less for the death of a person than in circumstances where someone has been maimed or seriously injured, says Carlos Lopez, Head of Clinical negligence at Vincents Solicitors.
“The Bill aims to change not only the way that damages are assessed but the types of family members who can make a claim”, added Carlos. “Currently I act for many families who have lost a close family member through clinical negligence. It is often disheartening to have to tell bereaved relatives that the law only awards £12,980 for the loss of a loved one and I welcome the fact that the new Bill would increase that amount, but also more significantly, allows civil partners and children over 18, to claim this award”.

In addition to introducing an award for grief and sorrow, the Bill streamlines the classification of how a dependency claim (the fact that the deceased person can no longer contribute to the family purse) is calculated, as well as what happens if the family member who brings the claim also later dies.
The Bill is supported by the Association of Personal Injury Lawyers (APIL), a non profit organisation, which supports families and victims affected by personal Injury.

“People claiming compensation simply want their lives back on track….These events should never happen…but when they do, they should be treated with fairness and understanding by the justice system”, said Jonathan Wheeler, head of APIL.

Andy McDonald MP, who brings the Bill, commented “ Some aspects of the law affecting people who have been injured or bereaved through no fault of their own, are out of date and unjust. This Bill aims to redress that”.

Further Reading :
BBC Article : How is a life worth £12,980?
http://www.bbc.co.uk/news/magazine-33325688

APIL Press statement :
http://www.apil.org.uk/press-release/MP-Bill-seeks-fairness-for-families