The Supreme Court judgement against the family of a 7-year old girl who claimed that the NHS was responsible for funding their psychiatric care after her tragic death, appears cold. Esmee Polmear collapsed having had episodes of breathlessness and turning blue for some time. In July 2015, her father Mark had just dropped her off at school but was soon called back, and entered to find her collapsed with a teacher giving first aid. ‘He took over and tried to give Esmee mouth-to-mouth resuscitation. She was not breathing. Esmee’s mother ran to the school and saw her lying on the floor with members of staff attempting resuscitation which she could see was not working.’ Both parents became unwell. It transpired that the true diagnosis of veno-occlusive pulmonary hypertension had been missed when she was assessed in the local hospital. If Esmee’s death was avoidable, then so was the parents’ subsequent ill-health. Who is responsible?
There were two other ‘appellants’: the family of a man who witnessed his fatal cardiac arrest, and a mother whose 20-year old daughter developed pneumonia and stopped breathing. The mother ‘opened Evelyn’s mouth to attempt mouth-to-mouth resuscitation, blood and bodily fluids spilled out of the mouth and nose.’ In both these cases it was alleged that doctors had been negligent by missing the underlying diagnoses before the fatal events.
By a majority of 6 to 1, the Supreme Court found that, ‘while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient’s close family to protect them against the risk of illness from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat.’ The basis for this judgement appears to be that although there is precedent in law allowing for relatives or bystanders to be compensated if they have witnessed an accident, a negligent medical action or omission is too difficult to define in terms of time and causation to be encompassed by the same law.
Some of the commentary around this judgement has focused on whether the NHS can even afford to compensate relatives you are affected in this way. In The Times, the over £2 billion per year that the state pays in compensation following negligence claims was equated to the annual running of four hospitals. Many would argue that we cannot afford to increase this ‘bill’ by having to pay for the care of those who become mentally ill when someone dies following mismanagement or misdiagnosis.
When I skimmed through this judgement (it is 77 pages) I began to dwell on the increasing responsibility that medical teams do have for relatives who have died following medical error. It is now routine for us to reach out to families if a patient has died and it becomes clear that their deterioration might have been avoidable. This is part of the Duty of Candour. We have become increasingly comfortable with calling or writing letters to explain that we are conducting investigations into what happened. It is not just a one-way process either. We invite families to ask questions and we write our investigations knowing that families might read them. The way in which families will react to what they read about their loved ones’ care influences our conduct and our language. We are therefore, extending our duty of care to families. It is worth emphasising that in cases where error has not been identified, the NHS has well established after-care arrangements. Palliative care teams are used to meeting with families, and referring them on to psychology services both before and after death, and the NHS signposts families to organisations such as Cruse. However, the Polmear et al case is all about avoidable death.
The tone of the judgement from the Supreme Court, cold in its legalese and analysis, gives the opposite impression that there is no onward duty of care after a patient has died. Therefore, there is no responsibility to support them. In the case of Esmee Polmear, that duty of care would have needed to take the form of financial support so that her parents could obtain the psychiatric support in a timely manner.
None of us can challenge the Supreme Court on its interpretation of the law. The long judgement cites numerous examples and goes down alleys of logic and analysis which don’t seem particularly relevant to the human dilemma. These include questions such as, ‘Must the claimant experience a sudden shock?’ , ‘Must the event be close in time to the negligent act or omission?’, ‘Must the event be the first manifestation of damage to the primary victim?’, What counts as one event?’ and ‘Must there be a “horrifying event”?’ Their answers will pored over by students of the law, no doubt. To healthcare workers, it doesn’t sit well. A diagnosis was missed, a girl died, the parents’ lives were ruined. But, the law is stark: the first line of the judgement sets the tone; ‘We all die and, when we do, the fact or manner of our deaths may cause harm to other people.’
The law is built on precedent, and judges cannot just bring their own emotions, values and instincts to the table. For those of us who work with bereaved families, we will continue to feel an extended form of responsibility that the Duty of Candour has brought about, well knowing that legally, there is no true duty of care.
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