If someone is informed of a serious health condition in an inappropriate manner and, as a result, suffers some form or distress as a direct result then they may be able to claim for damages as a result of being caused a psychiatric injury (also sometimes known as nervous shock). In this context, not all “distress” will support a successful claim for damages and there are other legal criteria which must be present as follows:

• Breach of Duty of Care:

Hospitals, medical practitioners, clinicians etc all owe a duty of care to patients, meaning that they should inform of diagnoses in a manner which is appropriate to the condition. A failure to provide an adequately sensitive and appropriate communication of (for example) a cancer diagnosis could represent a breach of that duty. If such a diagnosis was given in a manner which is impersonal, abrupt, or emotionally damaging (e.g., through a letter instead of in person), this could (but not definitely will) be in breach of the standard usually expected.

• Causation of Psychiatric Injury:

Any distress caused by the way a diagnosis is given must be sufficiently severe to constitute a recognised psychiatric injury (as opposed to normal emotional distress). For a psychiatric injury to be recognised legally, it must usually be diagnosed by a medical professional. This could include conditions like post-traumatic stress disorder (PTSD), severe anxiety, or depression that result from the way a diagnosis has been communicated. Normal distress or shock experienced when being diagnosed with cancer is not usually enough on its own; the distress must be out of the ordinary and lead to a diagnosable mental health condition.

• Recognised Psychiatric Illness:

It must be proved that the distress caused by the way the diagnosis was communicated led to a recognisable psychiatric illness. For example, a doctor or psychologist might diagnose conditions such as generalised anxiety disorder, depression, or acute stress disorder resulting from the improper communication of the cancer diagnosis.

• Proximity and Foreseeability:

In cases of psychiatric injury, courts typically consider whether the claimant was directly affected by the incident and whether it was foreseeable that communicating the diagnosis in such a manner would cause serious distress. See for example Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 and Sion v Hampstead Health Authority [1994] EWCA Civ 26.

M&P Legal have advocates on hand who are used to dealing with sensitive and complex medical negligence cases.

Damian Molyneux is a director of M&P Legal specialising in, amongst other things, medical law, liquidations and debt recovery. He can be contacted on dpm@mplegal.im This article does not constitute legal advice and specific advice should be sought for individual circumstances.

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