D. AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
The applicants, all United Kingdom nationals, are: D., born in 1954 and living in Slough; RK, born in 1972 and AK born in 1976, husband and wife who live in Oldham. The facts of the cases, as submitted by the applicants, may be summarised as follows. The applicant gave birth to her son M. on 18 November 1988. From birth he suffered from severe allergy problems, including an allergic reaction to bottled milk within a few hours of birth. In August 1989 M. was seen by a consultant paediatrician who diagnosed him as suffering from allergies. At five months and nine months M. reacted to his first and second immunisations. In early 1990, M. was seen by Professor Strobel at Great Ormond Street Hospital. It was noted that he had severe allergic reactions including urticaria, severe reactions after vaccinations and anphylactic reaction to cow’s milk. On 6 June 1990 Professor Strobel reviewed M., confirming the diagnosis of atopy and food allergic disease. On 16 July 1990, M. was admitted as an emergency to hospital having had a convulsion and suffering from pyrexia. On 23 August 1990 M. was admitted to hospital after a febrile convulsion. On 29 October 1990, he was admitted to Great Ormond Street for introduction of foods on an inpatient basis. He was noted to have urticarial reactions and episodes where his behaviour became uncontrollable for half an hour or so after eating. Further admissions to hospital took place on 23 November 1990 (problems in tolerating wheat), on 1 September 1991 (anaphylactic attack after eating chocolate), April 1991 (for treatment for eczema), 26 February 1992 (multi-allergy syndrome and asthma), 3 August 1993 (for his third immunisations, developing urticaria, oedema and itching) and 12 December 1994 (concerns about hypothermia). M. was described by one doctor as the most allergic patient he had had ever known. On 15 December 1994, while M. was still in hospital, he was seen by Professor Southall who made the diagnosis that D. was fabricating M.’s illness. D. was not told this or invited to discuss the possibility. Although M. was discharged from hospital, the social services were contacted and concerns expressed that D. could be exhibiting FII (fabricated or induced illness). It was requested that D. not be told of this. On 6 March 1995 the social services held a strategy meeting attended by Professor Southall, the police, representatives of the hospital and social services. Following the meeting, Professor Southall referred M. to Professor Warner for blood samples and testing, stating that in his view factitious illness was being imposed on top of real illness. Professor Strobel wrote to Professor Southall considering that the wording was too strong and that there was no doubt that M. was atopic and food allergic in general. In June 1995 Professor Southall proposed that M. be admitted to the Burlesdon Unit, going home only on the weekends. D. was given no explanation as to the reasons why this was being suggested and was concerned that M. would be unable to cope. She refused to agree to the admission. Professor Southall contacted the social services suggesting that a child protection conference be convened. On 4 September 1995, with D.’s agreement, M. was admitted to Great Ormond Street on the suggestion of Professor Strobel for food challenges to be undertaken and for treatment of eczema. On 24 October 1995 a meeting was held at the hospital attended by various professionals but not D. Concerns about possible exaggerated reporting by the mother were raised. D. found out about the meeting later and was noted to be upset, believing that she was no longer believed or trusted. Further admissions followed during 1996, following reactions to various foodstuffs. A social work summary dated 3 June 1996 indicated that there were no incidents of fabrication of symptoms but that there were concerns about the mother’s exaggerated or dramatic reporting of symptoms. On 10 December 1996, Dr Whiting took over as community paediatrician for the NHS Trust and she concluded after one meeting with D. and M. that M. had only minor allergies and was at risk from the mother. She contacted Professor Southall, who had not seen M. for two years; they agreed that a professionals’ meeting should be called. On 6 March 1997, a professionals’ meeting took place in hospital, without the parents. There was a conflict of view as to whether the parents should be informed of concerns. A meeting took place on 13 March 1997 with the parents at which concerns were expressed about the degree of M.’s allergies and the need for independent assessment. M.’s parents considered that he was doing well at the moment. While they would not agree to admission to Professor Warner’s unit, D. accepted that he be admitted to Great Ormond Street and that she leave him during the day. Shortly afterwards, on reading a letter in M.’s medical records, D. became aware that she was suspected of FII. On 21 March 1997, D. visited the Burlesdon unit but continued to refuse to agree to M.’ s admission as in her view it did not have facilities to cope with a full anaphylactic reaction and she was concerned for his safety. In April the parents were warned that a care order was being considered. D. at her request was referred to a psychiatrist. This psychiatrist found no indication of any personality disorder but considered that important questions arose, including the extent to which D. misrepresented or colluded in symptoms. A child protection conference was held on 2 June 1997, after which M. was placed on the at risk register under the category of emotional abuse. D. and M.’s father were present at the meeting. On 17 June 1997 D. visited Professor Warner and agreed to medical assessment on an acute ward. Following M.’s admission to hospital, Professor Warner gave his opinion on 16 September 1997 that M. suffered from extensive and severe allergies, including episodes of acute angio oedema urticaria and anaphylaxis. M. was removed from the at risk register on 29 September 1997. On 2 December 1997, Professor Warner confirmed the diagnosis of extreme acute allergies and that the mother had not been fabricating his condition. According to a medical report dated, 28 June 2000, D. had experienced a lengthy period of extreme anxiety and stress concerning her son because of his chronic ill health and life threatening condition, and that in addition she had been subject to the stress of accusations and investigations concerning the causes of his condition. It was noted that D. had been depressed, with loss of weight, sleep disturbance, tearfulness, withdrawal, loss of energy brief suicidal thoughts. Recommendations were made that she be helped by supportive counselling. The applicant claimed that she had also been unable to return to her nursing career due to destroyed confidence and fear that accusations would resurface if anything went wrong. She depended on income support as a result. On 16 March 2000, the applicant issued proceedings in negligence alleging a breach of duty by the various NHS trusts involved in the case and claiming compensation for personal injury and financial loss. On 24 July 2002, the judge struck out the claim finding that public policy militated against any duty of care to D. The applicant appealed to the Court of Appeal. These applicants had a daughter M. born on 24 July 1998. On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M. An x-ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this. The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties. On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns with the family. On 29 September 1998 the police interviewed the parents with an interpreter present. On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called. On 14 October 1998, in light of the doctor’s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998. On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact. The parents obtained legal advice and jointly instructed an expert, with M.’s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage. On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home. On 29 March 1999, M. sustained a second injury in her aunt’s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury. After discharge from hospital, M returned home in April 1999. On 17 June 1999, the care order was discharged and M. returned to her parents. The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours spread to Pakistan that the mother had been put in prison. The parents’ relationship with M. and with the grandmother have been severely affected and disrupted as a result of events. On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician. On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed. Leave to appeal to the Court of Appeal was granted in both cases. On 31 July 2003, concerning the parents’ claims, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments (Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result. After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia: "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 life was disrupted, to a 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 interest 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 the 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. ... 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... 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 standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ... 75. In considering these questions the starting point is to note that in each of these three cases... 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. That is the essential next step in child protection... 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 is that, essentially, the parents’ complaints related 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 realised 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 the 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... 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, the doctor would owe a duty of care to the suspect... 79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals’ duty to exercise due professional skill and care is owed only to the child’s primary carers, usually the parents, as well as the child himself. ... 80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ... 81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent’s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected... ... 85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘conflict of interest’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘quite right’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent. 86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ..."