Liability for psychological and psychiatric harm: the road to recovery

Abstract

This article examines the judicial approach to emotional harm claims from a medical perspective. Legal rules in this area are already recognised as being illogical and incoherent. Psychological and psychiatric research illustrate that they also conflict with empirical findings. By basing claims on erroneous criteria, courts may deny liability in meritorious cases, and impose liability in possibly less deserving claims. This not only brings the law into disrepute, but also reinforces the stigma that surrounds mental illness, and does disservice to an already misunderstood and vulnerable section of people in society. The article examines the evidence for the threshold requirement that distress must qualify for a psychiatric diagnosis to be actionable, and for the Alcock secondary victim criteria. It contends that these legal rules are based in misconceptions about mental illness and trauma, and suggests an alternative approach that is more principled, yet also addresses policy concerns about excessive liability.

Keywords: Alcock; emotional; psychiatric; psychological; secondary; trauma.