Damned – If You do

The first of these two articles (“Damned if you don’t”, 22
January) discussed the current case law where damages are claimed
against public authorities for not doing enough in child protection
cases. Here, I examine courts’ recent decisions where the authority
is accused of doing too much in such situations.

The leading case is now the three appeals (East Berkshire, Dewsbury
& Oldham) known as JD & Others v East Berkshire Community
Health & Others, where judgment was given by the Court of
Appeal on 31 July 2003.

In East Berkshire, the claimant was the mother of a boy diagnosed
with allergies and suffering from asthma. He was hospitalised on
nine occasions with breathing problems. However, a second medical
opinion suggested that the boy’s condition could be exaggerated or
fabricated by the mother; possible Munchausen’s syndrome by proxy
was mentioned. The mother discovered this opinion by chance a few
months later. A third medical opinion eventually confirmed the
original allergy diagnosis. However, the mother said she had
suffered acute anxiety and depression as a result of the
accusations made against her.

The claim was brought as if it were a clinical negligence matter,
where the patient (the mother) had been misdiagnosed. The Court of
Appeal rejected this, saying the boy alone was the patient.

In Dewsbury, a girl suffered from a disease that produced
discoloured patches on her skin. This was not initially diagnosed.
When she suffered an injury in the genital area while riding her
bicycle, the consultant paediatrician at the hospital said the
marks on the girl’s legs, and an examination, confirmed sexual
abuse. The girl’s parents were prevented, in front of other
patients and visitors (including members of the family’s Gujerati
community) from seeing her at the hospital. The girl’s father and
brother were also told they should not sleep at home when the girl
was released from hospital.

Thankfully, within a few days, the correct diagnosis was made. The
girl, however, claimed psychiatric injury resulting from the
misdiagnosis, as did her father, who also claimed financial loss.
Particular emphasis was laid on the relevance of his community,
which had effectively been informed of the allegation of sexual
abuse. The Court of Appeal allowed the girl’s case to proceed, but
refused the father’s case. Again, as in East Berkshire, the reason
given was simply one of public policy, that owing a duty of care to
the girl, and at the same time to the father, was an unacceptable
conflict.

The third case, Oldham, was similar to East Berkshire in that it
involved a hidden bone condition that rendered the girl involved
susceptible to fractures, but which initially led to a misdiagnosis
of non-accidental injury when she broke her thigh. The girl was
taken into care. Around nine months later, the family was reunited
when the correct diagnosis was made. The parents claimed damages
for psychological distress resulting from the misdiagnosis and
consequent separation from their daughter.

Again, the Court of Appeal threw out the claim saying that it
simply would not be fair, just and reasonable to impose such a duty
of care on the doctors concerned, given their undoubted duty to the
child.

Practitioners will no doubt breathe a sigh of relief that the
claims by parents were refused. But how can a health authority or
social services department reduce the risk of a claim from the
child in these circumstances, when all that has been done is to
follow the procedures and put the interests of the child first? I
suggest there are two key lessons from this group of cases:

• Give proper consideration to the possibility of an alternative,
  innocent explanation. This was particularly so in East Berkshire,
  where the innocent explanation was already known. Perhaps there
  should be two independent opinions from medics of equal seniority
  and standing before any potentially traumatic action is taken, such
  as separation from parents.
• Look at the child’s interests and the relevant evidence to
  date, in the round. In each of the cases examined by the Court of
  Appeal, there were at least three possibilities:

a The current diagnosis (abuse) is correct, and
the evidence points towards the parents.

b The current diagnosis is correct, but the
evidence does not, on the balance of probabilities, point towards
the parents.

c The current diagnosis is incorrect.

Only in the first instance is it reasonable to separate and/or
record a diagnosis that implies abuse.

Some may argue that there may not be time to obtain a second
medical opinion – the child may be hurt again if there is any
delay. But these cases show that there may also be harm, albeit of
a different kind, if there is too much haste. In the historical
development of the law of negligence, there is a strand known as
“social utility”. Judge Hilbery put it well in a 1938 case against
Rotherham Grammar School where a schoolboy was accidentally injured
when playing with a cricket pitch roller: “If [children] were kept
in cotton wool, some of them would choke themselves with it.”

Or, in 1946, Lord Asquith made the point (rather prophetically,
some would say) that “if all the trains in this country were
restricted to a speed of five miles per hour, there would be fewer
accidents but our national life would be intolerably slowed
down.”

This is not to argue that some degree of child abuse is acceptable.
The point is that abuse is but one kind of harm, and children may
be harmed in a number of different ways, including by those
intended to protect them. I suggest that child protection is not so
much about protecting children from harm per se, but about risk
assessment and management.

For those still feeling relieved that the tide of potential claims
from parents has been stemmed, I have bad news. I do not see the
Court of Appeal’s reasoning as sustainable in the long term. It is
not part of English law that, just because a duty may overlap or
conflict with another, it does not exist. In health and safety, for
example, a carer in a children’s home has a duty to protect herself
and others around from obvious harm. So, when one child attacks
another with a knife, there is a duty to the child being attacked
and to the member of staff herself. Does she intervene or not? The
answer is a mixture of a risk assessment and free choice, but that
does not negate the “conflicting” underlying duties.

I see no legal difficulty with a duty of care owed to parents,
schools and children’s homes (whether public or independent) by
statutory parents and the inspection and regulation agencies. This
duty may well have different elements (for example, a general duty
promptly to inform parents of all relevant evidence) compared with
the duty owed to the child. However, such a duty would help redress
the current power imbalance between those who can authoritatively
and publicly accuse and those who are labelled. A wrongful
allegation of abuse against a school or children’s home can easily
cause its closure, and so cause distress and harm to many children
and their families.

Section 1 of the Children Act 1989 has been much misunderstood, not
least because it speaks of the court’s duty, not anyone else’s.
Also, it says that the child’s welfare is “paramount”; it does not
say that it should be the sole consideration. If the development I
predict occurs, in the short term it may lead to more court cases
and a greater feeling of vulnerability for practitioners.

In the longer term, however, I suggest it will lead to:

• Clearer principles for everyone involved.
• The welfare of all who are vulnerable being held
  paramount.
• A proper recognition that some mistakes are inevitable, by
  natural parents, statutory parents, schools, children’s homes, or
  investigative or regulatory authorities.
• A recognition that all owe some form of duty to others,
  including the duty to make good where mistakes have been made.

That, surely, is what we want our children to learn from us,
before they themselves become parents, social carers, child
protection practitioners, legislators or judges.

Alison Castrey is a solicitor and care standards
consultant,
www.castrey.com
telephone
0117 962 2356.