In order to establish whether Lord Steyn’s statement is accurate the justifications of the current laws regarding negligently caused psychiatric harm must be assessed. This area of law can be particularly emotive, with criticism aimed at the current categorisation of victims which cause many cases to fail. Through the examination of current judicial approaches to the categorisation of victims and the implementation of various controls and restrictions this essay will assess whether Lord Steyn’s criticism is justified and whether reform is necessary.
The first point to consider is how ‘pure psychiatric harm’ is defined in law. Firstly, in order for an injury to be actionable, the harm must be medically recognised (Hinz v. Berry [1970] 1 All
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Whilst the judiciary repeatedly reaffirms the need for control measures, it is argued that the law in its current state is unfair as it limits claims for harm that occurs gradually (Alcock). It also questionable whether the restrictions on claims which require greater analysis into the illness is justifiable. Lord Denning stated in White v. Chief Constable of South Yorkshire [1999] 2 AC 45 that such claims are restricted due to the cost and time requirement of expert opinion in establishing whether a condition is considered medically …show more content…
It was held in Page that there is no distinction between psychiatric and physical harm in the case of a primary victim, and providing that the risk of physical injury was reasonably foreseeable a duty would be owed. It is not necessary for the risk of psychiatric harm to be foreseeable as demonstrated in Dulieu v. White & Sons [1901] 2 KB 669. Due to the nature of the circumstances this is generally accepted as a suitable way of dealing with primary victim claims. If a person fails to satisfy the criteria of a primary victim they are deemed a secondary victim. Here, it is likely that the victim has witnessed the event or feared for the safety of another but was not in any danger themselves. As with primary victims, there must be a medically recognised condition induced by shock. The test to establish whether a duty is owed to secondary victims was set out in Alcock. It is much more stringent than the test for primary victims and greatly restricts potential claims. The judiciary impose these restrictions in order to prevent limitless claims, establish genuine psychiatric illness and restrict liability for
Medical malpractice cases are difficult for the families who have lost their loved one or have suffered from severe injuries. No one truly wins in complicated court hearings that consist of a team of litigation attorneys for both the defendant and plaintiff(s). During the trial, evidence supporting malpractice allegations have to be presented so that the court can make a decision if the physician was negligent resulting in malpractice, or if the injury was unavoidable due to the circumstances. In these types of tort cases, the physician is usually a defendant on trial trying to prove that he or she is innocent of the medical error, delay of treatment or procedure that caused the injury. The perfect example of being at fault for medical malpractice as a result of delaying a procedure is the case of Waverly family versus John Hopkins Health System Corporation. The victims were not compensated enough for the loss of their child’s normal life. Pozgar (2012) explained….
Along with this the question is raised about the morality of this new law. Many mental health professionals raise the question of whether or not they should be required to report the m...
Seltzer, T., 2005, ‘Mental health courts – A misguided attempt to address the criminal justice system’s unfair treatment of people with mental illnesses’, Psychology, Public Policy and Law, vol. 11, no. 4, pp. 570-586.
Corrigan, Watson and Ottati (2003) argue this strong stigma has legitimized a historically inequitable system of treatment for those with mental illness. As far back as the Middle Ages, the mentally ill were sent to prisons because they were perceived as dangerous. Beginning in the 19th century, they were transitioned to asylums and hospitals due to the widely held belief that they were not only dangerous, but also i...
... G. (2007). Overview of psychiatric ethics V: Utilitarianism and the ethics of duty. Australasian Psychiatry, 15950, 402-410. Doi:10.1080/10398560701439640. Retrieved from the EBSCOhost database.
Law Commission, 'Criminal Liability: Insanity and Automatism', (Discussion Paper) para 1.61, citing/referring to; N Sartorius, “Stigma of Mental Illness: A Global View” in L B Cottler (ed), 'Mental Health in Public Health: the Next 100 Years' (2011) p 213-222 & H Schulze, 'Reducing the Stigma of Mental Illness: A Report from a Global Programme of the World Psychiatric Association' (2005)
The crucial issue will be in finding out whether the criminal act committed was a result of a mental disorder or immoral behaviour. If an accused goes into an automatic state and assaults or kills another person due to ordinary teasing or nagging, the accused is more likely to be categorized as having a disease of the mind because it can be argued that the accused was incapable of appreciating the nature and quality of their action whereas, a person who goes into an automatic state after a rare event such as seeing a loved one assaulted or killed and does the same would be convicted of murder (Roach 220). The legislation fails to incorporate erratic circumstances such as the example given above, and leaves it in a grey area because the situation can be debated as an automatic reaction where the person did not actually have the mens rea nor the actus rea of committing the crime but was a sudden
This offence has now been extended, which creates two new criminal offences of ill health or purposefully neglecting an individual, who is not able to make their own relevant decisions. This applies to all individuals who are not able to make decisions due to them being mentally unstable, no matter what setting they are in. The act that has been put in place offers individuals protection, especially for those that
Teff, H. (1998) Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries, The Cambridge Law Journal 57,1, 92
In an article I found in the French newspaper (24heures/24h), which addressed an issue suffered by a lot of people in Montreal; A woman by the name of Nadya Mirarchi who fell and badly broke her ankle, underwent an operation, and is now suing the city of Montreal who are responsible for the incident. This incident has caused serious problems to a lot of people a relevant example being Mirarchi's inflammation and formation of clogs in her ankle as well as having to wait until the inflammation wares off so she could restore her ankle`s natural state and carry-on with her daily life routine.
The current law on non-fatal offences is contained in the Offences Against the Persons Act 1861 (OAPA). The Offences Against the Persons Act 1861has been deemed unsatisfactory, and in 1998, the law commission issued a draft bill suggesting reforms to both structural and specific aspects of the offences. In the 1998 draft Bill, however, injury is defined as excluding “anything caused by disease”, except for the purposes of the offence of deliberately causing serious injury. The Offences Against the Persons Act 1861 was one of many pieces of legislation to consolidate numerous areas of the law into single pieces of legislation within the same year. Beside from purely consolidating the existing law, the Act reveals a lot about the political and
It was inconceivable that the complainant would have consented to the injuries which were infect inflicted on her. Consent must be freely given and fully
First it is necessary to establish whether PC McGarry was in the "zone of danger". As he tended to the injured Wormold it is likely that he was very close to the accident, especially as he is a police offer, rather than a medic. As was the case with Guinness, it is unlikely that he would be found to be in the "zone of danger" because he was not, as far as we know, on board the balloon. He also cannot be described as a secondary victim as he does not fulfil the requirements as set out in Alcock. As far as the facts of the case that we know, PC McGarry does not have a close tie of love and affection with the victim, therefore he does not satisfy the
Insanity, automatism and diminished responsibility all play a significant role in cases where the defendant’s mind is abnormal while committing a crime. The definition of abnormal will be reviewed in relationship to each defence. In order to identify how these three defences compare and contrast, it is first important to understand their definition and application. The appropriate defence will be used once the facts of the cases have been distinguished and they meet the legal tests. The legal test of insanity is set out in M’Naghten’s Case: “to establish a defence…of insanity it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.” To be specific, the defect of reason arises when the defendant is incapable of exercising normal reasoning. The defect of reason requires instability in reasoning rather than a failure to exercise it at a time when exercise of reason is possible. In the case of R v Clarke, the defendant was clinically depressed and in a moment of absent-mindedness, stole items from a supermarket...
This entails the courts fear of receiving an increase of claims regarding psychiatric injury since the symptoms of psychiatric injuries are wide ranged and it is capable to affect a wide range of people. This issue of ‘floodgate’ is mainly apprehension that this rapid increase of the same claim could obstruct the court system by spending too much compensating all victims of psychiatric injury . An example of the ‘floodgate’ policy being the one of the reasons not to compensate the victims could be seen in the case of Alcock v Chief Constable of South Yorkshire [1992] . This case included victims who witnessed the Hillsborough disaster and claimed to suffer from ‘nervous shock’ due to witnessing the event, therefore, since there were a large amount of victims and most of the victims were not primary victims and that by accepting the claims would only increase the amount of potential claims since the disaster was broadcasted on national TV thus, a larger number of potential victims. Therefore this ensures that there are lower ricks of economical loss since claims of psychiatric injury are more difficult to diagnose than physical injuries.