Hector Stamboulieh, in-house counsel at ARAG, examines birth injuries, paternal depression and secondary victim claims
I read a very interesting article by Chantelle Bacchus in the PI Brief Update Law Journal on postnatal depression and how it affects fathers, which I will refer to and summarise below.
When we talk about postnatal depression, we often think of mothers. This is a fair assumption as apparently one in five women develop mental health problems during pregnancy or in the first year after childbirth. However, we know that dads can suffer from postnatal depression, too. Mental health does not discriminate and all members of a family can be affected by a psychologically harmful event.
- In the 2013/2014 National Childbirth Trust research, a staggering 38% of first-time fathers in the UK said that they were concerned about their mental health. This includes 10% of first-time fathers that experienced postnatal depression, sometimes called ‘paternal depression’
- Fathers appear to be more likely to suffer from depression three to six months after their baby is born as opposed to immediately after birth
- In the UK, all women are screened for depression in their early antenatal check-ups and post-natal visits. There is no corresponding NICE guideline for men
Paternal depression following a birth injury
In negligent child birth injuries, parents often suffer some form of emotional trauma which could have been avoidable in any case. However, poor treatment for the mother and a lack of information and influence for the father can lead to or worsen a psychiatric injury. Experiences like this can trigger depression, anxiety, PTSD, adjustment disorder, etc.
It is reported that some dads can feel ‘helpless’ and ‘powerless’. They witness every moment of a horrifying event and they are unable to influence the outcome. They rely on medical staff to keep them involved and updated. However, when things go wrong and emergency care needs to be administered to their partner, fathers can feel invisible during the birth of their own child.
The law: Secondary victim claims
When a father experiences psychiatric injury, he can potentially bring a claim as a ‘secondary victim’. By definition, a secondary victim is someone who, when witnessing an incident, suffers injury consequential upon the injury, or fear of injury, to a ‘primary victim’. A primary victim will often be the mother and the child.
- In order to succeed in a claim as a secondary victim, these fathers need to prove that:
- The primary victim suffered negligence;
- That there is a relationship of love and affection with the primary victim;
- That they (the secondary victim) have come across the ‘immediate aftermath’ of the event;
- That the event was (a) exceptional; (b) sudden; and (c) horrifying;
- That they have experienced the harm to the primary victim with their own unaided senses; and
- That the psychiatric illness suffered by the secondary victim was reasonably foreseeable, ie, that the secondary victim was not more prone to harm than the next person
Examples of traumatic events might include:
- Sudden change in condition of mother, eg, pain, bleeding, consciousness;
- Baby being born in poor condition, eg, injured, not breathing, floppy, blue;
- Baby requiring resuscitation;
- Panic/hysteria by medical staff; and
- Death of mother or child
Of course, this list is not exhaustive and witnessing these events may affect each person differently.
As you can see from the criteria above, the bar is high, with a number of hoops for the father to jump through. This has been reinforced by recent cases. Accordingly, the number of successful claims for such secondary victims is low as these claims can be difficult to win.
When things go wrong, ARAG can provide after-the-event legal expenses insurance to support such secondary victim claims, where there are reasonable prospects of success. Ideally though, what we would hope to see are hospitals providing proper support to all, not just strict care for the patient. More needs to be done to try to prevent people from suffering more harm than necessary on hospital wards. Keeping them sensitively managed and fully briefed and informed before, during and after the birth is a good start. This should be within the capabilities of the NHS and if not, required funds should be provided, as the alternative benefits neither the victim or the NHS.