JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)
47. The appellants, as parents, had parental responsibility for their respective children under section 2(1) of the Children Act 1989, and so were invested, by section 3(1), with all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child. Parental powers of course exist and must be exercised for the benefit of the child (Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, 170) but in most cases the best judges of a child's welfare are the parents (p 173) and it is ordinarily for the parent to give or withhold consent to medical treatment (pp 184, 200). The parent's decision should ordinarily be respected: see In re A (Children) (Conjoined Twins: Surgical Separation)  Fam 147, 178). The younger the child, of course, the greater the role of the parent: with children of the ages of those involved in these cases, the parents inevitably make all the significant decisions in the children's lives. In the present cases, unlike M v Newham, above, the first approach to the healthcare professionals was made by the parent. Had the approach been made pursuant to contract, there could, I think, be no doubt that the healthcare professional would owe the parent a duty to exercise reasonable skill and care in diagnosing the child's condition. Does the payment of a fee make all the difference? Lord Devlin surely answered this question in Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465, 517:
If one thinks in terms of proximity, it is hard to think of a relationship very much more proximate than that between parent and doctor when the parent, concerned about the medical condition of a child, takes the child to see the doctor and seeks the doctor's help. The relationship of the social worker with the parent is different but, as shown in para 42 above, good practice requires that that relationship should be close and co-operative.
48. There is little general guidance to be gained from American authority on the main issue before the House, since in most states those reporting child abuse enjoy immunity from suit, a provision which no doubt reflects the importance attached to child protection but might also reflect some distrust of civil juries. I should however refer to New Zealand authority. In Attorney-General v Prince and Gardner  1 NZLR 262 claims in negligence were made by the natural mother of a child who had been adopted, and also by the child (now adult), complaining of the process followed in the adoption and also of failure to investigate a complaint made about his treatment when the child was still a child. The Court of Appeal of New Zealand struck out the first of these claims as incompatible with the adoption regime laid down by statute in New Zealand, but it also, by a majority, allowed both the claims under the second head to proceed to trial. This case was considered by the Privy Council in B and others v Attorney General of New Zealand  UKPC 61,  4 All ER 833. The claim in that case was made by a father and his two daughters, and was based on the allegedly negligent investigation of a complaint that the father had sexually abused the daughters. At first instance the judge (following X v Bedfordshire and M v Newham, above) had struck out the proceedings on the ground that no duty was owed to father or daughters and so the claims were bound to fail. The Court of Appeal of New Zealand had upheld this decision. The Privy Council allowed the appeal by the daughters but dismissed that of the father, holding that a duty was owed to them but not to him. In delivering the judgment of the Board, my noble and learned friend Lord Nicholls of Birkenhead said, in para 30:
This passage was strongly relied on by the respondents, to whom it is clearly helpful. But there are factual differences between that case and the present cases. The parent had not himself initiated the request for medical advice. There had, it seems, been sexual abuse. The father had not been exonerated from suspicion. No emphasis appears to have been laid on the duty to make disclosure to and cooperate with parents. And there was no discussion of any rights deriving from the New Zealand Bill of Rights Act 1990, since it contains no provision equivalent to article 8 of the European Convention. Since it was the Human Rights Act which led the Court of Appeal in the present case (para 83) to regard X v Bedfordshire, above, as effectively overruled in relation to claims by children, this is a significant distinction. After the New Zealand Court of Appeal's decision in Prince but before its decision in B, a High Court master in Christchurch refused to strike out a claim in negligence by a father against a psychotherapist who had erroneously concluded that he had sexually abused his daughter, holding that a duty of care might, depending on the evidence, be established and that the matter should be resolved at trial: N v D  NZFLR 560.
49. It would seem clear that the appellants' claim would not be summarily dismissed in France, where recovery depends on showing gross fault: see Markesinis, Auby, Coester-Waltjen and Deakin, Tortious Liability of Statutory Bodies (1999), pp 15-20; Fairgrieve, "Child Welfare and State Liability in France", in Child Abuse Tort Claims against Public Bodies: A Comparative Law View, ed Fairgrieve and Green (2004), pp 179-197, Fairgrieve, "Beyond Illegality: Liability for Fault in English and French Law", in State Liability in Tort (2003), chap 4. Nor would they be summarily dismissed in Germany where, it is said, some of the policy considerations which influenced the House in X v Bedfordshire were considered by those who framed §839 of the BGB and were rejected many years ago: see Markesinis et al., op. cit., 58-71; Martina Künnecke, "National Report on Germany", in Fairgrieve and Green, op. cit., pp 199-207. Yet in neither of those countries have the courts been flooded with claims. If, as some respected academic authorities suggested, Barrett v Enfield, above, shifted the emphasis of the English courts from consideration of duty to consideration of breach (see Craig and Fairgrieve, "Barrett, Negligence and Discretionary Powers"  PL 626, Fairgrieve, State Liability in Tort (2003), p 84, para 126.96.36.199), I would for my part regard that shift as welcome, since the concept of duty has proved itself a somewhat blunt instrument for dividing claims which ought reasonably to lead to recovery from claims which ought not. But I should make it plain that if breach rather than duty were to be the touchstone of recovery, no breach could be proved without showing a very clear departure from ordinary standards of skill and care. It should be no easier to succeed here than in France or Germany.
50. In dismissing a claim by a father against a health authority for negligent treatment of his daughter by a psychiatrist in Fairlie v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200, para 36, Lord Kingarth suggested that a claim might perhaps have been pleaded under article 8 of the European Convention. Since the pursuer's claim was in effect for loss of reputation (paras 34-35), the claim in negligence was bound to fail even if the judge had not held, as he did in para 30 of his judgment, that no duty of care was owed to the father. But the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution.
51. For all these reasons I would allow these appeals.
LORD NICHOLLS OF BIRKENHEAD
52. It must be every parent's nightmare to be suspected of deliberately injuring his or her own child. In the three cases before your Lordships' House doctors suspected a child had been the subject of non-accidental injury by a parent or, in one case, false reporting carrying a future risk of non-accidental injury. In each case after further investigation it turned out this was not so. In each case the parent then brought proceedings against the hospital trust and, in one instance, the doctor personally claiming damages for negligence in the clinical investigation, diagnosis and reporting of the child's condition.
53. The primary question before the House is whether doctors and, vicariously or directly, health trusts are liable in damages to a parent in such a case. Hand-in-hand with this is a parallel question concerning the liability of a local authority in respect of its investigation of suspected child abuse.
54. None of these cases has proceeded beyond the pleadings stage. In each case the outcome at first instance of preliminary issues of law or the equivalent was that the parent's claim was bound to fail. So a trial would serve no useful purpose. The parents appealed from these decisions. The appeals were dismissed by the Court of Appeal, comprising Lord Phillips of Worth Matravers MR, Hale and Latham LJJ:  QB 558. The parents have now appealed to your Lordships' House.
55. The three cases raise an important issue of principle. But the facts alleged by the claimant parents exemplify how this problem may arise in practice. So a brief summary is called for. For present purposes it is to be assumed in favour of the claimants that at trial they might be able to prove the facts they have alleged, but in each case negligence is denied by the defendants.
The East Berkshire case
56. In the East Berkshire case the claimant JD is the mother of a boy M born in November 1988. She is suing two NHS trusts, East Berkshire Community Health NHS Trust and North Staffordshire Hospital NHS Trust. She claims that in December 1994 doctors employed by these Trusts negligently misdiagnosed her as suffering from Munchausen's syndrome by proxy and that they negligently maintained this misdiagnosis until September 1997. In consequence she suffered a reaction of acute anxiety and depression. She claims damages for psychiatric injury.
57. The boy M has had a history of allergic reactions throughout his life. These have been the subject of repeated medical scrutiny. He suffered from asthma attacks and as a result slept in the same bedroom as his mother. He was admitted to the North Staffordshire hospital in December 1994 to see if it would be possible to provide a monitor for his breathing so he could sleep in his own bedroom. The opinion of Professor Southall, a consultant paediatrician at the hospital, was that the mother was suffering from Munchausen's syndrome by proxy and that she had fabricated M's condition.
58. The consultant community paediatrician for Berkshire responsible for M did not share this view. At this stage the social services were not involved. In December 1996 Dr Whiting took over responsibility for the care of M. Dr Whiting considered the boy might be at risk from his mother. In March 1997 the mother chanced to learn, for the first time, of concern that she might be fabricating M's condition. At her request her general practitioner referred her to a psychiatrist who found nothing wrong with her. Between March and June 1997 there was much discussion between doctors and the social services, culminating in a case conference in June 1997. A decision was made to put M on the 'at risk' register. M was also referred to an expert on allergic conditions. He concluded that M was indeed suffering from extensive and severe allergies. M was removed from the 'at risk' register in September 1997.
59. Thus in this case the mother was not separated from her child. But for a period of about six months she knew she was under suspicion. Presumably for part of that time she also knew the child was on the 'at risk' register.
60. On 6 September 2002 Judge Hale, sitting in the Chester County Court, held on a preliminary issue that neither East Berkshire Community Health NHS Trust nor North Staffordshire Hospital NHS Trust, nor any of the other defendants then being sued, owed a duty of care to the mother:  Lloyd's Rep Med 9.
The Dewsbury case
61. The claimants in the Dewsbury case are a father M A K and his daughter R. They have brought proceedings against Dewsbury Healthcare NHS Trust and Kirklees Metropolitan Council. The council is responsible for the provision of social services in the Dewsbury area. M A K and R claim damages in negligence for psychiatric injury and financial loss resulting from a clinical misdiagnosis that R had been subject to sexual abuse and from the consequential investigatory steps taken by the social services.
62. At the relevant time R was nine years old. She suffered from Schamberg's disease, which produces discoloured patches on the skin. In March 1998 she hurt herself in the genital area while riding her bicycle. On 17 March her mother took her to a general practitioner who referred her to Dr Wilson, a consultant paediatrician at Dewsbury District Hospital. Her father took R to see Dr Wilson on the same day. Dr Wilson's provisional diagnosis was that the marks on R's legs were suggestive of abuse. She informed the social services. R was admitted to hospital at once and examined further. Dr Wilson concluded R had been sexually abused. Her mother was so informed.
63. The father and his son, R's elder brother, were told they should not sleep at home when R was released from hospital. In the hospital, in front of other patients and visitors to the ward, M A K was told he was not allowed to see R. R remained in hospital for ten days. By 27 March the correct diagnosis of Schamberg's disease was made. The social services took no further steps, and it was accepted there was no question of abuse.
64. Thus in this case the father was under suspicion for a period of days while his daughter was in hospital. During that time he was unable to see her.
65. Judge Grenfell, sitting in the Leeds County Court, dismissed the father's claim against both defendants:  Lloyd's Rep Med 13. As to the child's claim, the judge held R has an arguable claim for clinical negligence against Dr Wilson and, accordingly, against Dewsbury Healthcare NHS Trust. So the judge permitted that claim to proceed. The Trust did not appeal against that order. The judge dismissed R's claim against Kirklees Metropolitan Council. R appealed against that order, and the Court of Appeal allowed the child's appeal. The local authority has not appealed against that order. So the claim by R is proceeding against both defendants
The Oldham case
66. The claimants in the Oldham case are RK and his wife AK. They are the parents of a girl M born in July 1998. On 26 September 1998, when she was two months old and in the care of her grandmother, M started to scream when her grandmother lifted her from a settee. Her parents and grandmother took her to the Royal Oldham Hospital. On admission the medical staff failed to take an accurate history from them and the grandmother. Dr Blumenthal, a consultant paediatrician, diagnosed the baby as having an 'inflicted injury', a spiral fracture of the femur. The police and social services were informed. Dr Blumenthal did not investigate further the possibility of a diagnosis of osteogenesis imperfecta ('brittle bones').
67. Oldham Metropolitan Borough Council applied for an interim care order. The order was made on 16 October 1998. On 23 October M was discharged from hospital into the care of an aunt, with supervised access for the parents. At a hearing on 23 December the court decided M's injuries were non-accidental and care was given to the aunt. In March 1999 M sustained further fractures. More tests were carried out, and the revised medical opinion was that the history and injuries were consistent with brittle bone disease. On 17 June 1999, nearly nine months after being admitted to hospital, M was returned to the care of her parents. It is now accepted that the initial diagnosis of non-accidental injury was wrong.
68. Thus in this case the mother was separated from her young baby for a period of eight months, being permitted only supervised access.
69. The parents claim damages in negligence from Oldham NHS Trust and Dr Blumenthal for psychiatric injury resulting from their separation from M. On the hearing of preliminary issues Simon J held that neither defendant owed a duty of care to the parents:  Lloyd's Rep Med 1. The daughter M was herself a claimant in the proceedings, but Simon J held that the evidence produced for the preliminary issues disclosed no injury for which the law provided a remedy: M had suffered no physical harm or recognisable psychiatric disorder. She did not appeal against that part of the judge's order.
70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child's medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent's family life was disrupted, to greater or lesser extent, and the suspected parent suffered psychiatric injury.
71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interests of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.
72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is a parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child's history.
73. The other, countervailing interest is the deep interest of the parent in his or her family life. Society sets much store by family life. Family life is to be guarded jealously. This is reflected in article 8 of the European Convention on Human Rights. Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.
74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm: see the Preface to 'Working Together', (1991). Clearly, health professionals must act in good faith. They must not act recklessly, that is, without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standards of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? Put differently and more widely, what is the appropriate level of protection for a person erroneously suspected of child abuse? Should he be protected against professional negligence by those charged with protecting the child? Or only against lack of good faith?
75. In considering these questions the starting point is to note that in each of the three cases before the House the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound, to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. This is the essential next step in child protection: see, for instance, 'Working Together', para 4.32.
76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note therefore is that, essentially, the parents' complaints relate to the periods for which they remained under suspicion. In each case the parent's complaint concerns the conduct of the clinical investigation during these periods: the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been exercised from the outset, the doctors' suspicions would have been allayed at once or much more speedily than occurred and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.
77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith. Good faith is required but not more. A report, made to the appropriate authorities, that a person has or may have committed a crime attracts qualified privilege. A false statement ('malicious falsehood') attracts a remedy if made maliciously. Misfeasance in public office calls for an element of bad faith or recklessness. Malice is an essential ingredient of causes of action for the misuse of criminal or civil proceedings. In Calveley v Chief Constable of the Merseyside Police  1 AC 1228, 1238, Lord Bridge of Harwich observed that 'where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation'. This must be equally true of a person who has been suspected but not prosecuted.
78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, and the parent took the child to a general practitioner or consultant, the doctor would owe a duty of care to the suspect. The law of negligence has of course developed much in recent years, reflecting the higher standards increasingly expected in many areas of life. But there seems no warrant for such a fundamental shift in the long established balance in this area of the law.
Interference with family life