Judgments - JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)

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    25.  But mention should first be made of the European Court decision in Osman v United Kingdom (1998) 29 EHRR 245. That case concerned the liability in negligence of the police towards a person claiming to have suffered as the result of a failure to apprehend a suspected criminal. To that extent its factual subject matter resembled that of Hill v Chief Constable of West Yorkshire [1989] AC 53, a decision which the domestic court had applied. The Court found a violation of article 6 of the Convention because, as it held in para 151 of its judgment, the domestic court's application of the law had served to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and therefore unjustifiably restricted a claimant's right to have his claim determined on the merits. See also the concurring judgment of Sir John Freeland at pp 321-322. This decision was the subject of compelling criticism by Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [2001] 2 AC 550, 558-560. In that case, the claimant, who had spent his childhood in foster care, claimed damages against a local authority for decisions made and not made during that period. The judge's decision to strike out the claim had been upheld by the Court of Appeal but was unanimously reversed by the House. There are four points worthy of note for present purposes. First, it was accepted that a claim may lie against a local authority arising from child-care decisions in certain circumstances: see pp 557, 573, 575, 587-590. Secondly, the general undesirability of striking out claims arising in uncertain and developing areas of the law without full exploration of the facts was emphasised: pp 557-558, 575. This was a point made in X v Bedfordshire at pp 740-741 and is a point strongly echoed in later cases such as Waters v Commissioner of Metropolitan Police [2000] 1 WLR 1607, 1613; W v Essex County Council [2001] 2 AC 592, 598; Phelps v Hillingdon London Borough Council [2001] 2 AC 619, 659-660; and L (A Child) and another v Reading Borough Council and another [2001] EWCA Civ 346, [2001] 1 WLR 1575, 1587. Thirdly, the notion of an exclusionary rule conferring immunity on particular classes of defendant was rejected: pp 559, 570, 575. This rejection has been echoed with approval in later cases such as Kent v Griffiths [2001] QB 36, para 38; S v Gloucestershire County Council, above, p 338; and E and Others v United Kingdom (2002) 36 EHRR 519. Fourthly, it was not considered that the policy factors which had weighed with the House in X v Bedfordshire and M v Newham had the same weight where complaints related to acts and omissions after a child had been taken into care: [2001] 2 AC 550, 568, 575. The argument that imposition of a duty might lead to defensiveness and excessive caution was discounted, the remedies available to the claimant were not thought to be as efficacious as recognition of a common law duty of care and it was not accepted that imposition of a duty made no contribution to the maintenance of high standards: pp 568, 575. There was nothing to displace the general rule, recognised in X v Bedfordshire and M v Newham at pp 663 and 749, that the public policy consideration which had first claim on the loyalty of the law was that wrongs should be remedied: p 588.

    26.  In S v Gloucestershire County Council [2001] Fam 313 the plaintiff claimed damages in negligence against a local authority for abuse suffered by him during a placement with foster parents. The Court of Appeal allowed the plaintiff's appeal against the striking out of his action while upholding the decision to strike out another action which was also the subject of appeal.

    27.  The claim in W v Essex County Council [2001] 2 AC 592 was made not only by children (or those who had been children when they suffered abuse) but also by parents. The parents had fostered a child on an assurance that he was not a known sexual abuser when, to the knowledge of the local authority, he was, and during his placement with the parents he sexually abused their children. Hooper J struck out the parents' claims but not those of the children: [1997] 2 FLR 535. The Court of Appeal (Stuart-Smith, Judge and Mantell LJJ) unanimously upheld the judge's decision striking out the parents' claim and by a majority (Stuart-Smith LJ dissenting) upheld his decision on the children's claim, which was accordingly allowed to proceed: [1999] Fam 90. The House unanimously allowed the parents' appeal. It could not be said that the claim that there was a duty of care owed to the parents and a breach of that duty by the local authority was unarguable and it was inappropriate to strike out without investigation of the full facts known to, and the factors influencing the decision of, the local authority: p 598. In A and B v Essex County Council [2002] EWHC 2707 (QB), [2003] 1 FLR 615 a claim by adoptive parents for damages against a local authority came to trial on liability before Buckley J and succeeded. An appeal against his decision was dismissed, although on somewhat different grounds: A and another v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881.

    28.  Phelps v Hillingdon London Borough Council [2001] 2 AC 619 was one of four appeals heard together by an enlarged committee of the House. In each case the plaintiff complained of allegedly negligent decisions concerning his or her education made by the defendant local authorities. The procedural histories of the four cases were different, but in three of them the Court of Appeal had struck out the plaintiff's claim and in only one had it been allowed to proceed. The House unanimously dismissed the local authority's appeal in that last case but allowed the plaintiff's appeal in the other three. It was held to be clear in principle that a teacher or educational psychologist could in principle owe a duty of care to a child as well as an employing authority: pp 654, 665, 667, 670, 676. Valid claims in negligence were not to be excluded because claims which were without foundation or exaggerated might be made: pp 655, 665, 676. There was no reason to exclude the claims on grounds of public policy alone: pp 665, 672, 677. As my noble and learned friend Lord Nicholls of Birkenhead perceptively observed, "'Never' is an unattractive absolute in this context": p 667.

    29.  The plaintiffs in L (A Child) and another v Reading Borough Council and another [2001] 1 WLR 1575 were a daughter and her father. The proceedings arose out of a fabricated complaint made by the mother of the child to a local authority and police authority that he had sexually abused the child. The authorities had erroneously accepted the complaint as true, and the plaintiffs claimed damages for negligence against both authorities. The local authority did not apply to strike out either claim, but the police authority applied to strike out both claims against it. Goldring J struck out the father's claim against the police but allowed the child's negligence claim to proceed. The Court of Appeal allowed the father's appeal, holding that it was inappropriate to strike out on the basis of assumed facts: p 1587.

    30.  In the light of all this authority, coupled with Z v United Kingdom and TP and KM v United Kingdom, above, it could not now be plausibly argued that a common law duty of care may not be owed by a publicly-employed healthcare professional to a child with whom the professional is dealing. In E and others v United Kingdom (2002) 36 EHRR 519, a case in which four children complained of a local authority's failure to protect them from abuse by their stepfather, the European Court noted (in para 114 of its judgment):

    "The Government submitted that it was not correct to assert that this House of Lords decision [in X v Bedfordshire, M v Newham, et al] prevented all claims in negligence against local authorities in the exercise of their child protection duties, and argued that it could not be regarded as beyond doubt that these applicants would have failed as, in the case of these applicants, the social services arguably were negligent in the way they approached operational, as well as policy, matters."

Thus the respondents' reaction to the claims of the child RK in the second appeal is in no way surprising. But nor is it without significance. For in X v Bedfordshire itself the only claim was by the children, and in M v Newham the parent's claims were a very secondary issue: see my definition of the question at p 651, Peter Gibson LJ's reference to the "primary question" at p 676 and Staughton LJ's omission of any express reference to the parent save when holding, at p 676, that money would not be an appropriate remedy. In the House, the parent's entitlement was not separately addressed. Thus the policy considerations on which the decision of the House rested were primarily directed to justifying the exclusion of a class of claim which, it is accepted, can no longer be excluded on application of a simple exclusionary rule. That conclusion makes it necessary to examine those considerations to ascertain how much force they retain if they no longer automatically exclude claims by children.

    31.  The first policy reason relied on for excluding a common law duty of care (pp 749-750) was that it would cut across the whole statutory and inter-disciplinary system for protecting children at risk and raise almost impossible problems of ascertaining and allocating responsibility. But this was not accepted as a reason for excluding liability in Phelps v Hillingdon, above, pp 655-656, 665-666, 674. In Z v United Kingdom, above, para 109, the European Court held that article 13 of the Convention required "a thorough and effective investigation capable of leading to the identification and punishment of those responsible". If this consideration does not preclude a claim by the child it is hard to see why it should preclude a claim by the parent.

    32.  The second policy ground relied on was (p 750) that the task of a local authority and its servants in dealing with children at risk is extraordinarily delicate. There is a difficult line to tread between taking action too soon and not taking it soon enough. The truth of this may be readily accepted. It is however a standard function for any professional to assess what may be a fraught and difficult situation. That is not generally treated as a reason for not requiring the exercise of reasonable skill and care in the task. The professional is not required to be right, but only to be reasonably skilful and careful. If such skill and care are required in relation to the child, there is no reason why this consideration should preclude a duty to the parent.

    33.  The third policy reason relied on to deny a duty of care (p 750) was that local authorities might adopt a more cautious and defensive approach. As already noted, this consideration was discounted in Barrett v Enfield, above, at p 568, as it had been by the Court of Appeal in that case: [1998] QB 367, 380. It was discounted by Lord Clyde in Phelps v Hillingdon, above, at p 672. A similar argument, based on very different facts, was rejected in Spring v Guardian Assurance plc [1995] 2 AC 296, 326, 336. It is hard to see how, in the present context, imposition of a duty of care towards parents could encourage healthcare professionals either to overlook signs of abuse which they should recognise or to draw inferences of abuse which the evidence did not justify. But it could help to instil a due sense of professional responsibility, and I see no reason for distinguishing between the child and the parent. To describe awareness of a legal duty as having an "insidious effect" on the mind of a potential defendant is to undermine the foundation of the law of professional negligence.

    34.  The next policy consideration relied on (pp 750-751) was the risk of conflict between social worker and parent. This is perhaps the most crucial point in this appeal, and I must address it in some detail below.

    35.  The fifth policy reason relied on (p 751) was that other remedies were available to the child under the legislation. The House did not explain how the grossly abused children in X v Bedfordshire were to avail themselves of the available procedures, which could not in any event yield any compensation to child or parent. But this point need not be pursued, since in Z v United Kingdom, above, Her Majesty's Government accepted that in the particular circumstances of the case the available remedies were insufficient alone or cumulatively to satisfy the requirement of article 13 of the Convention: para 107. In TP and KM v United Kingdom, above, the Court similarly found a lack of suitable remedies: paras 107-110. Both Lord Slynn in Barrett v Enfield, above, p 568, and Lord Clyde in Phelps v Hillingdon, above, p 672, recognised imposition of a duty of care and a claim for common law damages as likely to be more efficacious than other remedies and as perhaps the only efficacious remedy.

    36.  The last policy consideration relied on in X v Bedfordshire was the accepted principle, adopted by the House in Caparo v Dickman, above, p 618, based on the opinion of Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 481, that

    "the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed'."

In X v Bedfordshire it was plainly seen as an unjustifiable extension of existing principle to impose a duty of care on a healthcare professional towards a child or a parent. But it is now accepted that a duty may be owed to a child, and in certain decided cases a duty to the parent has been accepted as arguable. To accept as arguable a claim by parents on facts such as give rise to these appeals involves no massive extension of a prima facie duty. It is not unimportant, for it accommodates what Lord Goff of Chieveley in White v Jones [1995] 2 AC 207, 260, called "the strong impulse for practical justice". But in legal terms it is a small, analogical, incremental development.

    37.  It is important to be clear on the scope of the duty which the appellants seek to be allowed to try and establish as owed by the healthcare professionals. It is a duty not to cause harm to a parent foreseeably at risk of suffering harm by failing to exercise reasonable and proper care in the making of a diagnosis of child abuse. This is in substance, the appellants contend, the same duty as the healthcare professionals already owe to the child. The duty to the child is breached if signs of abuse are overlooked which a careful and thorough examination would identify, and the obvious risk then is that abuse which would otherwise be stopped is allowed to continue. But this would be a breach of the duty if owed to a normal parent, whose interest would be the same. It would be no different if a parent were the abuser, since the duty of the healthcare professional is to serve the lawful and not the criminal interests of the parent; in any event, an undetected abuser could never be heard to complain. If a diagnosis of child abuse were made when the evidence did not warrant it (which is the factual premise of all three appeals) there would be a breach of duty to the child, with separation or disruption of the family as possible or likely consequences. But this would be a breach of the duty owed to the parents also, and the consequences are not suffered by the child alone. In Hungerford v Jones 722 A. 2d 478, 480 (1998) the US District Court for New Hampshire referred to "the potentially devastating consequences stemming from misdiagnosis", and Gray J in the Supreme Court of South Australia spoke to similar effect in CLT v Connon [2000] SASC 223, (2000) 77 SASR 449, 459:

    "Devastating consequences can follow an incorrect finding that a child has been sexually abused. Those consequences flow not only to the person against whom the findings are made, but also to the child and the family."

The appellants do not argue for a duty to serve any interest of the parents save their interest in a skilful and careful diagnosis of the medical condition of their child.

    38.  In contending that a healthcare professional cannot, even arguably, owe to a parent the duty postulated the respondents rely, first, on the disturbing prevalence of child abuse and on the high importance attached by successive governments and society as a whole to early identification of abuse and effective protection of children against it. This concern is evidenced by primary and subordinate legislation, ministerial guidance and independent reports. Maria Colwell, Janice Beckford and Victoria Climbié are perhaps the most horrifying examples of the tragedies which can occur when signs of abuse are not recognised and addressed when they should be. It is important that signs which, viewed in isolation, may be very inconclusive are observed and noted and information shared with other appropriate bodies engaged in child protection. And it may be necessary to take action which is deeply unwelcome to the parents and strongly resisted by them. I summarise this point very briefly, not because it is unimportant but because it is uncontroversial. Nothing in the appellants' argument or in my opinion throws any doubt on the supreme importance of identifying child abuse and protecting children against it.

    39.  In their valuable Report on the Victoria Climbié Inquiry (CM 5730), January 2003, Lord Laming and his colleagues emphasised the importance of communication and sharing of information between healthcare professionals, even where the evidence justified no more than a suspicion. The duty for which the appellants contend does not conflict with or undermine this desirable practice. The third appeal provides a good illustration. The appellants in that appeal accept that non-accidental injury was one explanation of the child's condition which a competent healthcare professional would have entertained, and indeed the most likely explanation (even if the history had been accurately recorded). Thus they do not complain that this differential diagnosis was entertained. What they complain of is the absolute terms of the diagnosis and its firm acceptance, upon which action was based, even when ample time had passed during which further investigation could and should have been made which would have revealed its unreliability. The same complaint lies at the heart of the other two appeals. Thus it is not the formation or communication of a suspicion which is complained of, but a negligent failure to investigate, test, explore, check and verify. It is clear that emergencies may arise in which it may be necessary to take action to remove a child from the care of a parent even though the evidence to make a firm diagnosis is lacking. The European Court judged TP and KM v United Kingdom, above, to be such a case. What the healthcare professionals are required to do is exercise reasonable skill and care in taking an accurate history and then to form such professional opinion as, subject to further investigation, may be appropriate. My noble and learned friend Lord Brown of Eaton-under-Heywood makes reference to evidence submitted 18 months after the Court of Appeal judgment by Professor Sir Alan Craft and Miss Mary Marsh. But it is plain that what they respectively call "The easy option" and "the line of least resistance" is as much a breach of the professional duty admittedly owed to the child as it would be of a duty owed to the parent. The difference is that a child is much less likely to complain.

    40.  The respondents also draw attention to the difficulty of recruiting and retaining skilled paediatricians and social workers to work in the child protection field. The problem would be exacerbated, it is said, if they were to be held to owe a duty of care to parents. I cannot for my part accept that this problem - if it exists, as it may - would be exacerbated by imposition of a responsibility which, in most contexts, is a badge of professional status. But I would not in any event accept that the courts should calibrate duties of care so as to regulate shortages in the professional labour market.

    41.  Thirdly, the respondents submit that for healthcare professionals working in this field the welfare of the child is paramount and any duty owed to the parent would conflict with it. The first of these points is correct and not open to doubt. The second point is an important one and, if correct, a strong and even conclusive argument against imposition of such a duty. It was the possibility or likelihood of conflict which led me, in M v Newham, above, pp 665, 667, to dismiss the mother's claims against the psychiatrist and the local authority, although my observations were directed to action rather than diagnosis. The Court of Appeal found a risk of conflict in the present cases also: see [2004] QB 558, paras 95-96, 112 and 123-124 of the judgment. Some foreign courts have taken the same view: eg, Bird v WCW 868 SW 2d 767 (1994). The appellants advance two main answers to this contention. The first is that on the duty for which they contend, limited to diagnosis, there can be no conflict, for reasons summarised in para 37 above.

    42.  The appellants' second main answer is to criticise, as a general proposition pertaining to diagnosis, the supposed dichotomy between the child and the parents. Domestic authority, ministerial guidance and Strasbourg authority all encourage, they argue, a general practice which, subject to necessary exceptions, envisages co-operative partnership between healthcare professionals and parents in the interests of the child, and a sharing of information, as early as may be, by healthcare professionals with parents. In Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, para 151, Munby J emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents. In "Working Together", ministerial guidance issued in 1991, the possibility of conflict with parents was recognised, and it was clearly stated that in cases of conflict the interests of the child must prevail: eg, paras 4.28, 6.12. But the document laid heavy emphasis on involving the parents (para 1.1), on partnership with the parents (paras 1.4, 5.4), on the wishes of the parents (para 1.6), on the need for a high degree of co-operation with parents (para 1.8). In "Working Together to Safeguard Children", ministerial guidance issued in 1999, professionals were encouraged to do more to work in partnership with parents (para 2.25) and to involve parents as fully as practicable (para 2.26).

    43.  A long stream of Strasbourg authority is to somewhat similar effect. In W v United Kingdom (1987) 10 EHRR 29 the Court ruled that a local authority must, in reaching decisions on children in care, take account of the views and interests of the natural parents, which called for a degree of protection: paras 63-64. The same view was taken in B v United Kingdom (1987) 10 EHRR 87. In McMichael v United Kingdom (1995) 20 EHRR 205, both the Commission (pp 227-228, paras 102-106) and the Court (p 241, paras 92-93) found a breach of article 8 because the parents had not been adequately consulted and informed. The Court repeated (para 86) its well-established case law that "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life." In Elsholz v Germany (2000) 34 EHRR 1412 a violation of article 8 was found when access to his child was denied to an innocent father. In TP and KM v United Kingdom, above, the Court did not criticise the emergency action to remove the child from the mother's care but found that failure to disclose the transcript and video did not afford due respect to the parents' interests safeguarded by article 8: paras 74, 82-83. Many of the same points were repeated by the Court in P, C and S v United Kingdom (2002) 35 EHRR 1075, paras 113, 119, 120 and again in Venema v Netherlands (2002) 39 EHRR 102, paras 71, 91-93.

    44.  It is in my opinion clear from all this authority that far from presuming a conflict between the interests of child and parent the law generally presumes that they are consonant with each other or at any rate, if not consonant, not so dissonant that healthcare professionals should proceed without fully informing and consulting the parents. There are of course occasions when emergency action must be taken without informing the parents, and when information must for a time be withheld. But there is no reason why the occasional need for healthcare professionals to act in this way should displace a general rule that they should have close regard to the interests of the parents as people with, in the ordinary way, the closest concern for the welfare of their children.

    45.  The respondents relied on the statement of Lord Diplock in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 890, that

    "a doctor's duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all."

In M v Newham, above, pp 673-674, Staughton LJ concluded that the child was not in law and for all purposes the patient of the psychiatrist, and observed:

    "The child was no more the patient than an applicant for life insurance who is examined by the company's doctor, or the errant motorist who is deprived of a small quantity of blood by the police surgeon."

Peter Gibson LJ, at p 684, and Lord Browne-Wilkinson, speaking for the House, at pp 752-753, adopted a similar line of reasoning. It has been applied by the Court of Appeal in cases such as Powell v Boladz [1998] Lloyd's Rep Med 116 and Kapfunde v Abbey National plc and Daniel [1999] ICR 1.

    46.  Lord Diplock's statement was, however, an obiter dictum, and one with which no other member of the House expressed agreement. The responsibility of other professionals has not been so restricted. One may instance Ross v Caunters [1980] Ch 297, followed in New Zealand in Gartside v Sheffield, Young & Ellis [1983] NZLR 37 even before its approval by the House in White v Jones [1995] 2 AC 207. Or Smith v Eric S Bush [1990] 1 AC 831. Or Spring v Guardian Assurance plc, above. Even in the medical sphere the law is much less clear than Lord Diplock's dictum might suggest: see Grubb, Principles of Medical Law, 2nd ed (2004), chap 5, para 5.48. In Everett v Griffiths, Atkin LJ in the Court of Appeal ([1920] 3 KB 163, 216-217) and Viscount Haldane and Viscount Cave in the House of Lords ([1921] 1 AC 631, 657-658, 680) were inclined to the view that a workhouse doctor owed a duty of care to a person whom he certified to be insane. In Re N [1999] Lloyd's Rep Med 257, 263, Clarke LJ thought it at least arguable that where a forensic medical examiner carries out an examination and discovers that the person being examined has a serious condition which needs immediate treatment, a duty is owed to the examinee to disclose those facts. In some American jurisdictions it has been accepted that a doctor may owe a duty to a person who is not his patient: see, for example, Tarasoff v Regents of the University of California 551 P 2d 334 (1976) (California), Wilkinson v Balsam 885 F Supp 651 (1995) (Vermont), Hungerford v Jones, above, (New Hampshire), Sawyer v Midelfort and Lausted (Case No 97-1969, 29 June 1999, Supreme Court of Wisconsin), Stanley v McCarver 430 Ariz Adv Rep 3, 92 P 3d 849 (2004) (Arizona). The High Court of Australia, while rejecting an argument to the same effect as the appellants', has accepted that a medical practitioner who examines and reports on the condition of an individual may owe a duty to more than one person: Sullivan v Moody (2001) 207 CLR 562, para 60. In the present case acceptance of that proposition is implicit in acceptance of a potential duty to the child. So the question is whether, in diagnosing the child's condition in a case of possible abuse, the position of the child is so different from that of the parent that a duty may sensibly be owed to the one but not to the other.

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