JD V EAST BERKSHIRE COMMUNITY HEALTH NHS TRUST AND OTHERS AND TWO OTHER ACTIONS [2005] UKHL 23

FACTS:-

This judgment concerned three linked cases. D was the mother of a child (M), MAK was the father of a child, RK and another were the mother and father of a child, M. Each case involved accusations of abusing a child made against a parent by the professionals concerned for the welfare of that child and in each case the accusations proved to be unfounded.

D claimed for the acute anxiety and distress that she suffered as a result of being incorrectly accused of suffering Munchausen Syndrome by Proxy. She was not in fact separated from her child, but asserted that she suffered acute anxiety and depression.

MAK was accused of sexually abusing his daughter, which led to his being denied access to her for a short period. The girl suffered from Schamberg’s disease which produces discoloured patches on the skin. This was misdiagnosed as bruising and evidence of sexual abuse.

RK and another were the parents of a child, accused of having inflicted injuries on their daughter, which led to the child being separated from her parents for nearly a year. An X-ray of her left thigh showed an oblique displaced fracture. However she suffered from osteogenesis imperfecta, a bone condition rendering M particularly susceptible to fracture.

The Court of Appeal had decided in D V East Berkshire Community Health NHS Trust, K And Another V Dewsbury Healthcare NHS Trust And Another, K And Another V Oldham NHS Trust And Another [2003] EWCA Civ 1151 that whilst the children could make a claim, no duty of care was owed to the parents. The parents appealed to the House of Lords.

HELD:-

Lord Bingham gave the first judgment, although he dissented from the majority decision of the House of Lords. He went over the facts of each case and commented that in none of the three cases had lack of proximity been relied upon as an independent ground for dismissing the parents’ claims. The issue was whether it was fair, just and reasonable to impose a duty of care on health care and child protection professionals involved in cases such as these. However it was acknowledged by both sides (and in Lord Bingham’s view rightly) that this question could not be divorced from considerations of proximity.

Lord Bingham considered the case of X (Minors) v Bedfordshire County Council where it was held that a local authority’s failure to intervene to protect children from abuse, afforded those children no tortious remedy in negligence against the local authority.

In M (A Minor) v Newham London Borough Council [1995] 2 AC 633 a child was removed from a mother’s care as a result of a mistake on the part of social services. Again the mother and the child’s claims were dismissed by the House of Lords on the same grounds.

The Claimants in these two cases made an application to the European Court of Human Rights. The Claimants in X v Bedfordshire established that there had been a breach of Article 3 of the European Convention (Z v United Kingdom (2001) 34 EHRR 97). In M v Newham, the Claimants succeeded in establishing a violation of Article 8 (TP and KM v United Kingdom (2001) 34 EHRR 42).

Lord Bingham considered the speech of Lord Browne Wilkinson in X v Bedfordshire. Lord Browne Wilkinson had said that the public policy consideration which had first claim on the loyalty of the law was that wrongs should be remedied and that very potent counter considerations were required to override that policy. He then set out those counter considerations, which included the danger that a common law duty would cut across the whole statutory system set up for the protection of children at risk.

Those counter considerations were summarised by May LJ in S v Gloucestershire County Council [2001] 313.

Lord Bingham also considered the European Court decision of 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 a result of a failure to apprehend a suspected criminal. The European Court found a violation of Article 6 of the European Convention because the domestic court’s application of the law had served to confer blanket immunity on the police for their acts and omissions. That resulted in an unjustifiable restriction of a Claimant’s right to have his claim determined on the merits. The decision was criticised by Lord Browne Wilkinson in Barrett v Enfield London Borough Council [2001] AC 550. 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 House of Lords allowed his appeal against dismissal of his claim unanimously and they made four main points:-

• A claim may lie against a local authority arising from child care decisions in certain circumstances.
• The general undesirability of striking out claims arising in uncertain and developing areas of the law without full exploration of the facts was emphasised.
• The notion of an exclusionary rule conferring immunity on particular classes of Defendant was rejected
• The policy factors that had weighed with the House of Lords in X v Bedfordshire and M v Newham did not have the same weight in relation to acts and omissions after a child had been taken into care.

In S v Gloucestershire County Council [2001] Fam 313, the Claimant claimed for damages in negligence for abuse suffered by him during a placement with foster parents. The Court of Appeal allowed his appeal against striking out whilst upholding the decision to strike out another action, also the subject of an appeal.

In W v Essex [2001] 2 AC 592 the Claimants were parents who had fostered a child on the assurance that he was not a known sexual abuser, when to the knowledge of the local authority, he was and during his placement he sexually abused their children. The Court of Appeal allowed the children’s claim to proceed but struck out the parents’ claim. The House of Lords unanimously allowed the parents’ appeal against the striking out their claim, saying that it was inappropriate to strike out without investigation of the full facts known to, and the factors influencing the decision of the local authority.

In A and B v Essex County Council [2002] EWHC 2707 (QB) 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)

In Phelps v Hillingdon London Borough Council [2001] 2 AC 619 the Claimants complained of allegedly negligent decision concerning his or her education made by local education authorities. The House of Lords decided that each of the claims should be allowed to proceed. It was clear in principle that a teacher or educational psychologist could owe a duty of care to a child as well as an employing authority. There was no reason to exclude the claims on grounds of public policy alone.

In L (A Child) and another v Reading Borough Council and another [2001] 1 WLR 1575 the Claimants were a daughter and her father. Their complaint 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 father’s claim against the police was struck out at first instance, but the child’s claim was allowed to continue. The Court of Appeal allowed the father’s appeal, holding that it was inappropriate to strike out on the basis of assumed facts.

Lord Bingham said that in light of all this authority, it could not now be plausibly be argued that a common law duty of care was not owed by a publicly employed healthcare professional to a child. That still left the position of the parents. Lord Bingham considered the policy reasons relied upon for excluding a common law duty of care in X v Bedfordshire.

The first policy reason was that such a duty of care 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. However that was not accepted as a reason for excluding liability in Phelps v Hillingdon. In Z v United Kingdon, 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.

The second policy ground was that the task of the local authority was extraordinarily delicate. However that was a standard function for any professional and was not generally treated as a reason for requiring the exercise of reasonable skills and care in the task.

The third policy reason relied on to deny a duty of care was local authorities might adopt a more cautious and defensive approach. That consideration was discounted in Barrett v Enfield and Phelps v Hillingdon. Lord Bingham found it hard to see how imposition of a duty of care towards parents could encourage healthcare professionals either to overlook signs of abuse or to draw inferences of abuse, which the evidence did not justify. Rather it could help instil a due sense of professional responsibility.

The fourth policy reason was the risk of conflict between social worker and parent. Lord Bingham regarded this as the most crucial point in the present appeal, but first he considered the fifth policy reason, that other remedies were available to the Claimants. In Z v United Kingdom the government accepted that in the particular circumstances of the case the available remedies were insufficient and in TP and KM v United Kingdom the Court similarly found a lack of suitable remedies. Furthermore in Barrett v Enfield and Phelps v Hillingdon the court said that common law damages were likely to be more efficacious than other remedies.

Lord Bingham now considered the fourth policy reason. In X v Bedfordshire it was plainly seen as an unjustifiable extension of existing principles to impose a duty of care on a healthcare professional towards a child or a parent. To accept as arguable a claim by parents on facts such as had given rise to these appeals involved no massive extension of a prima facie duty. In legal terms, it was a small, analogical incremental development.

The duty of the healthcare professional was to serve the lawful and not the criminal interests of the parent and in any event, an undetected abuser could never be heard to complain. Lord Bingham also pointed to the devastating consequences that flowed from an incorrect finding that a child has been sexually abused.

There could be no doubt about the supreme importance of identifying child abuse and protecting children against it. The three appeals in this case did not concern the formation or communication of a suspicion of child abuse, but a negligent failure to investigate, test, explore, check and verify.

There might be emergency situations in which a child would have to be taken into care, even though the evidence to make a firm diagnosis was lacking. However the healthcare professionals were still required to exercise reasonable skill and care in taking an accurate history, and then to form a professional opinion.

The Respondents to the appeal had argued that there would be difficulty recruiting and retaining skilled paediatricians and social workers, if a duty of care were owed to the parents. Lord Bingham did not accept that argument. The court should not calibrate duties of care so as to regulate shortages in the professional labour market.

The Respondents had also argued that the welfare of the child was paramount and consequently any duty owed to the parent would conflict with it. Lord Bingham said that it was in his opinion clear from all this authority that far from presuming a conflict between the interest of child and parent, the law generally presumed that they were 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 were numerous authorities to show that a local authority must, in reaching decisions on children in care, take account of the views and interests of the natural parents.

There was also caselaw to suggest that the responsibility of other professionals would not be so restricted.

The parents had responsibility for their respective children under section 2(1) of the Children Act 1989 and they were in most cases, the best judges of a child’s welfare. Had there been a contract between the healthcare professional and the parent, then there could be no doubt that a duty was owed to exercise reasonable skill and care. The payment of a fee could make no difference, as was said in Hedley Byrne & Co. Limited v Heller and Partners Limited [1964] AC 465.

Lord Bingham then considered the authorities from other jurisdictions. In most states of the United States, those reporting child abuse enjoyed immunity from suit. In New Zealand, in the case of Attorney General v Prince and Gardner [1998] 1 NZLR 262 an adoptive mother and child were allowed to make a claim for failure to investigate a claim made about his treatment, when he was still a child. However in the case of B and others v Attorney General of New Zealand [2003] UKPC 61 the claim of the child was allowed to proceed but the father’s was dismissed by the Privy Council. Lord Bingham said that there were factual differences between the case of B and others and the instant cases. In B and others the parent had not initiated the request for medical advice and there had, it seems, been sexual abuse and the father had not been exonerated. Furthermore there was no discussion of any rights deriving from the New Zealand Bill of Rights Act 1990, which contained no provision equivalent to Article 8 of the European Convention. Since it was the Human Rights Act that led the Court of Appeal in this case to regard X v Bedfordshire as effectively overruled in relation to claims by children, this was a significant distinction.

In France, the appellants’ claim would not be summarily dismissed where recovery depended on showing gross fault, nor would they be so dismissed in Germany. In neither of these countries, had the courts been flooded with claims. Lord Bingham welcomed the shift in emphasis of the English courts from consideration of duty to consideration of breach, since the concept of duty had proved itself a somewhat blunt instrument for dividing up claims.

Therefore for the reasons above, Lord Bingham would allow the above appeals.

Lord Nicholls said that the primary question before the House was whether doctors and, vicariously or directly, health trusts were liable to a parent in such a case.  He went over the facts of each case.

The liability of the doctors and social workers called 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, as reflected in Article 8 of the European Convention.

Clearly health professionals must act in good faith and they must not act recklessly, that is without caring whether an allegation of abuse is well founded or not. However the question was whether health professionals would be liable if they fell short of the standards of skill and care expected in all the circumstances.

The starting point was to note that in each of the three cases before the House of Lords, the doctors acted properly in considering whether the parents had deliberately inflicted injury on the child in question, and they then referred the matter for child protection.

The essence of the claims was that health professional responsible for protecting a suspected child victim owed a person suspected of having committed a crime against the child, a duty to investigate their suspicions.

Lord Nicholls said that stated in this broad form, this was a surprising proposition. In this area of the law, where crimes were being investigated, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith. A report made to the appropriate authorities, that a person has committed a crime attracted qualified privilege. Misfeasance in public office called for an element of bad faith or recklessness. Malice was an essential ingredient of causes of action for the misuse of criminal or civil proceedings.

Therefore imposing a duty on those responsible for child protection towards suspected perpetrators would fundamentally alter the balance in this area of the law.

Interference with family life

The Appellants’ counsel had contended that the health professionals’ duty was to exercise due professional skill and care only to the child’s primary carers, usually the parents as well as the child himself. Lord Nicholls’ initial difficulty with this submission was the distinction drawn between primary carers (i.e. parents) and other suspects (i.e. teachers). However there was one major difference between the two categories of suspect. In the case of parents, suspicion might disrupt their family life but that would not be so in the case of a teacher or childminder.

It was now the law that local authorities could owe law duties to children in the exercise of their child protection duties.

In L (A Child) v Reading Borough Council [2001] 1 WLR 1575, a police authority sought to strike out a claim in negligence brought by a father wrongly suspected of having sexually abused his daughter. The Court of Appeal said that it was arguable that there was a legal assumption of responsibility when, there being no evidence to support criminal proceedings, the police officer nevertheless came to the conclusion that the daughter was at risk of further abuse. So the striking out application failed but the Court Appeal left open the question as to whether there was a legal assumption of responsibility on the alleged facts.

In Venema v Netherlands (2002) 39 EHRR 102 a child was removed from parents following a misdiagnosis of Munchausen Syndrome by proxy. The European Court held that there had been a breach of Article 8 because the parents had not been sufficiently involved in the decision-making process.

In Lord Nicholls’ view, the Court of Appeal reached the right conclusion on the issue arising in the present cases. The factor that persuaded him that, at common law, interference with family lie did not justify according a suspected parent a higher level of protection that other suspected perpetrators was the factor conveniently labelled “conflict of interest.” The doctor was charged with the protection of the child, not with the protection of the parent. A doctor must be able to act single-mindedly in the interests of the child, without fear of a claim from the parent.

That was not to say that the parents’ interest should be disregarded or that the parents should be kept in the dark. They should be involved in the decision making process.

The time when the presence or absence of a conflict of interest matters is when the doctor is carrying out his investigation. At that time, the interests of the parent and the child were diametrically opposed.

Lord Nicholls referred to the Australian case of Sullivan v Moody (2001 207 CLR 562 where this was the conclusion reached by the High Court of Australia.

In principle the appropriate level of protection for a parent suspected of abusing his child should be that clinical and other investigations must be conducted in good faith. There might be, exceptionally, be circumstances where this was not so and then different considerations would apply. The fact that the parent took the unexceptional step of initiating recourse to medical advice did not constitute special circumstances.

There had been a suggestion that the concept of “duty of care” be jettisoned in favour of a modulated “standard of care”. This radical idea was not without attraction, particular where public authorities were concerned and analogous to that adopted when considering breaches of human rights under the European Convention. However Lord Nicholls had reservations about attempts to transplant this approach wholesale into the domestic law of negligence where there was no claim for a breach of a Convention right. It would lead to a lengthy and unnecessary period of uncertainty.

Lord Steyn agreed with Lord Nicholls, Lord Rodger and Lord Brown. He dismissed the appeals.

Lord Rodger commented that often the question of liability might depend on nuances of fact which might well only emerge at trial, in which case the matter should proceed to trial. In this case, it was not suggested that there were any unresolved issues of fact that might be decisive in determining the existence of a duty of care.

Lord Rodger said that the common law had developed incrementally on the basis of a consideration of analogous cases where a duty had been recognised or desired (Marc Rich & Co. AG v Bishop Rock Marine Co. Ltd [1996] AC 211). The test to be applied was whether the situation was one in which the court considered it fair, just and reasonable to impose a duty of care (Caparo Industries plc v Dickman [1990] 2 AC 605).  Lord Rodger set out various examples where the law would not impose a duty of care and considered a number of cases on that point. For the most part, the settled policy of the law was opposed to granting remedies to third parties for the effects of injuries to other people.

The Defendants in this case accepted that the doctors owed a duty of care to the children whom they examined and assessed. There was (at first sight) a similarity between the duty of care to the child and the duty of care to the parent. However that similarity was no reason for holding that the duty was owed to the parents. The content of a duty of care and the range of persons to whom it was owed were quite separate matters, the latter raising issues of proximity.

For instance in Bourhill v Young [1943] AC 92 the tortfeasor owed other road users a duty of care to avoid injuring them, but he did not owe that duty to the Claimant alighting on the other side of the tram. There was a similar decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

In McLoughlin v O’Brian [1983] 1 AC 410 it was held that a Defendant may owe a duty of care not only to the person whom he injures but also to that person’s parents or spouse. Lord Rodger also referred to Tredget and Tredget v Bexley Health Authority [1994] 5 Med LR 178 and North Glamorgan NHS Trust v Walter [2003] Lloyd’s Rep Med 49.

However the Appellants in this case were not alleging that they had suffered nervous shock in that way, and so their claims did not come within the reach of that distinct line of authority.

On that basis, there would have to be some factor, over and above the foreseeable harm which the parents suffered, before the law held that doctors and parents were in sufficient proximity to give rise to a duty of care.

Lord Rodger then considered the potential conflict of interest between the child and the parents in a case of alleged child abuse. What had caused the Appellants distress in this case was the suggestion that they themselves had been responsible for the abuse or harm. It was precisely this very personal defamatory wound which distinguished their claims from, say the claims of parents who came ill due to the strain of caring for a child after a surgeon’s negligence. When deciding how to proceed, where there was a suspicion of child abuse, the doctors would have to take account of the very real risk of harming the parents in this way.

The guidance in Working Together 1991 issued under the Local Authority Social Services Act 1970 made it very clear indeed that the interests of the child came first. There was evidence from two social care experts, Professor Sir Alan Craft and Mary Marsh to the effect that there were real dangers in such a conflict. Lord Rodger could see no basis whatever for brushing them aside.

Lord Rodger also referred to the case of Sullivan v Moody (2001) 207 CLR 562 where parents had been suspected of abusing their children. The court held that if a suggested duty of care would give rise to inconsistent obligations that would ordinarily be a reason for denying that the duty exists. He also referred to B and Others v Attorney General of New Zealand [2003] 4 All ER where Lord Nicholls had said that to impose a common law duty of care in favour of the alleged victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory.

Lord Rodger made two further points. Firstly if a duty of care were to be imposed in favour of the parents in these cases, he could see no proper basis for not extending the duty to other members of the family and friends. Secondly since the relevant events had occurred before the Human Rights Act 1998, the Appellants could not obtain damages for any possible breach of their rights under Article 8(1). However Lord Rodger would wish to reserve his opinion as to whether it would be appropriate to modify the common law of negligence, rather than to found any action on these provisions.

Lord Rodger would dismiss the appeal.

Lord Brown said the public policy consideration having first claim on the loyalty of the law was that wrongs should be remedied. The first difficulty with this argument was its apparent irreconcilability with a consistent stream of authority from X v Bedfordshire onwards holding that no duty of care was owed in these circumstances to parents. That was the opinion of the Privy Council in B and Other v Attorney General of New Zealand.

He also referred to the Court of Appeal’s decision in the present case, which had said that the child’s interests were in potential conflict with the interests of the parents, since it would always be in the parents’ interests that the child should not be removed.

Finally there was the judgment of Hale LJ in A v Essex County Council [2004] 1 WLR 1881 where it was said that a balance had to be struck between the interests of all three parties to the adoption triangle, the prospective adopters, the birth parents and the child.

Lord Brown said that if the doctor, in fulfilling his primary duty to safeguard the child against abuse, also owed the parent a separate duty to take account of his, the parent’s interest in not being unreasonably suspected of child abuse, it would be impossible to see how such a duty could fail to impact upon the doctor’s approach to his task and create a conflict of interest.

He referred to evidence from Professor Sir Alan Craft of the Department of Child Health at Newcastle University and Mary Marsh of the NSPCC. Professor Craft had explained that if a duty of care was imposed in relation to the parent, then the risk to the child might increase. A doctor should be allowed to raise what sometimes might be no more than a suspicion with the relevant authorities without fear of litigation from the child’s parents.

Mary Marsh had said that no-one should be sued for raising the possibility of abuse if they are acting bona fide in the interests of the child as they see it. The welfare needs and interests of the child should be paramount.

Lord Brown said that there were other powerful considerations militating against the imposition of a duty of care to parents arising out of the doctor’s discharge of his role in combating child abuse. The law had already placed strict limitations upon the right to recover for psychiatric injury. If the parent suspected of abuse said that his reputation had been defamed, the law’s response should be that such a defamatory communication in the context of reporting suspicions of child abuse would inevitably attract the defence of qualified privilege.

He referred to a case involving an employer’s reference Spring v Guardian Assurance plc [1995] 2 AC 296 where it was held that there was a duty of care, but the employer/employee relationship was important to that decision. In White v Jones [1995] 2 AC 207 a solicitor preparing a will was held to have a duty of care to an intended beneficiary. However there was no conflict of interest between the solicitor/testator/beneficiary.

It would be wrong to try and focus on an appropriate standard of care in such cases. That would be to overlook two fundamental considerations, first the insidious effect that the awareness of the duty would have on the doctor’s mind and the need to protect the doctor from vexatious and insidious litigation.

Lord Brown would dismiss the appeal.