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JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
JD (FC) (Appellant)
East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)
THURSDAY 21 APRIL 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)
 UKHL 23
LORD BINGHAM OF CORNHILL
1. The question in this appeal is whether the parent of a minor child falsely and negligently said to have abused or harmed the child may recover common law damages for negligence against a doctor or social worker who, discharging professional functions, has made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury has in fact been suffered by the parent.
2. On conventional analysis the answer to that question turns on whether the doctor or social worker owed any duty of care towards the parent, and the answer to that question essentially depends on whether, applying the familiar test laid down in Caparo Industries plc v Dickman  2 AC 605, 618, "the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other".
3. The courts below have concluded that in such a situation no duty of care can be owed by the doctor or the social worker to the parent, that accordingly no claim may lie and that these claims brought by the parents must be dismissed with no evidence called and no detailed examination of the facts. In the second appeal there is also a claim by the child, but that has been treated differently. I understand that a majority of my noble and learned friends agree with this conclusion, for which there is considerable authority in the United Kingdom and abroad. But the law in this area has evolved very markedly over the last decade. What appeared to be hard-edged rules precluding the possibility of any claim by parent or child have been eroded or restricted. And a series of decisions of the European Court of Human Rights has shown that application of an exclusionary rule in this sensitive area may lead to serious breaches of Convention rights for which domestic law affords no remedy and for which, at any rate arguably, the law of tort should afford a remedy if facts of sufficient gravity are shown.
4. I would not, for my part, strike out these claims but would allow them to go to trial. A judgment can then be made on the liability of the respective defendants on facts which have been fully explored. At present, we have only an agreed statement of what is, at this stage and for the purpose of legal argument, to be assumed. I take no account of additional factual allegations made by the appellants in their written case which, if true, may well be significant, but which have not been agreed. The facts which have been agreed are important and must be summarised.
The first appeal
5. JD, the claimant and first appellant, is a registered nurse and registered children's nurse now aged 50. She is the mother of M, who was born on 18 November 1988. M had a history of allergic reactions throughout his life, which were the subject of repeated medical scrutiny. He was treated at Wexham Park Hospital in Berkshire and Great Ormond Street in London. The diagnosis was correctly made that M suffered from multiple severe allergies.
6. In October 1994, at the request of his mother JD, M (aged 5) was referred by his general practitioner to Professor Southall, consultant paediatrician at the North Staffordshire Hospital. M was to be assessed for provision of a breathing monitor to enable him to sleep in his own bedroom. He was admitted to North Staffordshire Hospital from 9-15 December 1994 and assessed by Professor Southall, who formed the opinion that JD was suffering from Munchausen's Syndrome by Proxy, and that M's condition had been fabricated by her. She was unaware of this opinion, and the Professor did not see her or M after December 1994.
7. In March 1995 Professor Southall asked Professor Warner, a consultant paediatrician expert in allergic disorders, to see M at his Burlesden Unit in Southampton without JD being present. She did not consent to this because the Unit had no intensive care or resuscitation facilities.
8. On 10 December 1996 Dr Whiting took over as the community paediatrician in Berkshire. She met JD once in December 1996 and contacted social services, suggesting that M was at risk from his mother JD and requesting urgent action. In early March 1997 Dr Whiting met Professor Southall, other doctors and a social worker. A handwritten minute was made.
9. On 18 March 1997 M was an in-patient at Great Ormond Street and JD chanced to see the handwritten minute, which contained the allegation that she was fabricating M's condition and harming him. She arranged to see a psychiatrist, who found nothing wrong with her. On 2 June 1997 a case conference was held at which it was decided to put M on the "At Risk Register". After this conference, M was assessed by Professor Warner, who confirmed both the extent and the severity of M's allergic problems. Child protection concerns were alleviated, and M was removed from the "At Risk Register" on 29 September 1997. JD claims to have suffered psychiatric injury as a result of the misdiagnosis of her and M's condition. She has not returned to nursing since this negligent misdiagnosis was made.
10. JD issued proceedings in March 2000 claiming damages for negligence. But her claim was struck out and dismissed by His Honour Judge Hale on the ground that public policy considerations militated strongly against the existence of any duty on the facts of the case:  Lloyd's Rep Med 9, 12. The Court of Appeal (Lord Phillips of Worth Matravers MR, Hale and Latham LJJ) dismissed JD's appeal against that decision in a judgment covering all three of the cases now before the House:  EWCA Civ 1151,  QB 558.
The second appeal
11. RK was born on 6 March 1989. She had the misfortune to suffer from Schamberg's disease, which is also known as progressive pigmented purpuric dermatitis or capillaritis and is manifested by the eruption of purple patches on the skin. Her father, the second appellant MAK, took her to her general practitioner in September 1997 with what was described as bruising on the legs. The marks disappeared after treatment and no diagnosis of Schamberg's disease was made. On 15 March 1998 RK, now aged 9, hurt herself in the genital area while riding her bicycle. Two days later her swimming teacher expressed concern about the marks on her legs. She was taken to her general practitioner and was referred to Dr Wilson, a consultant paediatrician at Dewsbury District Hospital, to whom the father took her the same day.
12. Dr Wilson's provisional diagnosis was that the marks did not appear to be the result of skin disease but were suggestive of abuse. She informed social services and RK was examined by Dr Wilson and a police surgeon at the hospital. Her mother was told that RK had been sexually abused, and as a result her father and elder brother were told that they should not sleep at home when RK was released from hospital. In the hospital that evening, in front of other patients and visitors to the ward, the father was told that he was not allowed to see her.
13. RK remained in hospital until 27 March 1998 and the father did not visit her during that time. By 27 March a correct diagnosis of Schamberg's disease had been made. No further steps were taken by social services, and it was accepted by the Dewsbury Healthcare NHS Trust, the third respondent, in a letter of 15 April 1999, that there was no question of abuse.
14. The father and RK issued proceedings against the health authority and the local authority involved in the case, the third and fourth respondents, in March 2001, pleading several causes of action including negligence. The father claimed that he had suffered psychiatric injury and financial loss resulting from the third respondents' misdiagnosis and the steps taken by the fourth respondents. Following the decision of Judge Hale in JD's case, His Honour Judge Grenfell gave judgment for both defendants (now respondents) on the father's claims and on RK's claim against the local authority, but allowed her claim against the health authority to proceed:  Lloyd's Rep Med 13, paras 15, 20, 26, 29, 31. The Court of Appeal upheld that decision in the composite judgment already referred to, save that it reinstated RK's claim against the local authority: para 109. She is accordingly free to prosecute her claims against the health authority and the local authority. There has been no appeal by the health authority or the local authority against the rulings of the judge and the Court of Appeal respectively on RK's claims against them.The third appeal
15. MK was born on 24 July 1998. She suffered from brittle bone disease, or osteogenesis imperfecta. Aged 2 months, she was in the care of her grandmother and, when picked up from a sofa, started to scream and appeared to be in pain. Her parents and grandmother took her to the Royal Oldham Hospital, where she was seen in the Accident and Emergency Department and admitted. On admission, the medical personnel failed to take an accurate history from the parents and the grandmother: the notes referred to the mother rather than the grandmother having picked MK up, and to her having been "yanked" up, neither of which statements recorded what the family had said.
16. MK was diagnosed by the sixth respondent, Dr Blumenthal, a consultant paediatrician, as having an "inflicted injury", namely a spiral fracture of the femur. The police and social services were informed. Thereafter, Dr Blumenthal did not pursue other investigations for osteogenesis imperfecta. This was despite two letters which he received. The first, dated 19 October 1998, was from the Solicitor to the Oldham Metropolitan Borough Council, writing to note that Dr Blumenthal had discounted a diagnosis of brittle bone disease on the basis of observation and asking whether any further tests could be conducted to indicate a cause for MK's injuries other than inflicted injury. The second was a letter from the Council dated 8 December 1998, asking the doctor to address his mind to the possibility of a urine test to determine the existence of osteogenesis imperfecta.
17. An interim care order was made on 16 October 1998, and on 23 October 1998 MK was discharged into the care of her aunt. On 22 December 1998, in the Manchester County Court, the judge heard evidence and accepted the diagnosis of non-accidental injury. MK remained in the care of her aunt. The judge referred to the particular expertise of Dr Blumenthal as a specialist in child abuse cases and his conclusions that the mechanism by which the injury had been caused had been a violent twisting of the leg and that an inflicted injury was the only explanation of the fracture. This evidence led the judge in his judgment to describe both the mother and the grandmother as liars.
18. In March 1999, while in the care of her aunt, MK suffered bilateral femoral fractures. Further investigations were then carried out, including biochemical and metabolic tests on blood and urine. Experts in paediatric bone disease were of opinion that the history and injuries were consistent with osteogenesis imperfecta. The interim care order was discharged on 17 June 1999, after 8 months. The separation from their firstborn child MK, and the misdiagnosis of non-accidental injury made and maintained, caused the parents a recognised psychiatric disorder, namely an adjustment disorder with a mixed anxiety and depressive reaction.
19. The father issued proceedings claiming damages for negligence on behalf of himself, the mother and MK. On 18 December 2002 Simon J granted the application of the fifth and sixth respondents, the health authority and the doctor, and dismissed the action:  Lloyd's Rep Med 1. He concluded that it was not fair, just and reasonable to impose any duty of care to the parents in the circumstances and that MK had no valid claim: paras 21, 34. MK did not appeal against the dismissal of her claim and the Court of Appeal upheld Simon J's decision in relation to the parents: para 124 of its judgment.
20. For purposes of these appeals it must be assumed that the cause of each child's medical condition was misdiagnosed and that such misdiagnosis was the result of a failure to exercise the standard of professional skill and care to be reasonably expected of a doctor or a social worker in the circumstances. No issue arises on the vicarious liability of the various employing authorities involved. It is to be assumed that each of the appellant parents suffered a recognised form of psychiatric injury as the result of the making or maintenance of the negligent misdiagnosis in each particular case. It was not contended before the House that such injury was not a foreseeable result of making or maintaining a negligent misdiagnosis in the circumstances. In none of the three cases has lack of proximity been relied on as an independent ground for dismissing the parents' claims in limine. The focus of debate is on whether it is fair, just and reasonable to impose a duty of care on health care and child protection professionals involved in cases such as these. But it is acknowledged - I think by both sides, and in my view rightly - that this question cannot be divorced from consideration of proximity.
21. There are, broadly speaking, three theoretical answers which may be given to the question whether doctors and social workers (to whom I shall refer compendiously as "healthcare professionals") owe any common law duty of care other than to their employer, and if so what, in a case of potential child abuse. The first is that they owe no such duty. The second is that they may on appropriate facts owe a duty to the child, but owe no duty to the parent. The third is that they may on appropriate facts owe a limited duty to the parent as well as the child. The appellants contend that this third answer is the correct one. The respondents, by not challenging the continuance of the child's claim against the health authority and the local authority in the second appeal, effectively contend for the second answer. The first answer was that given by a majority of the Court of Appeal and a unanimous House of Lords in X (Minors) v Bedfordshire County Council and M (A Minor) v Newham London Borough Council  2 AC 633. In para 83 of its judgment under appeal the Court of Appeal boldly, and in the view of some commentators impermissibly (see Wright: " 'Immunity' no more: Child abuse cases and public authority liability in negligence after D v East Berkshire Community Health NHS Trust " (2004) 20 PN 58, 63), held that that decision of the House, in its relation to claims by children, could not survive the Human Rights Act 1998, and before the House no party sought to maintain the full breadth of the decision. But much of the reasoning supporting the decision is relied on, and it has been followed in other jurisdictions. It is where examination of the authorities must begin.
22. In X v Bedfordshire itself, five child plaintiffs complained that they had been the victims of maltreatment and neglect which had been brought to the notice of the defendant council but on which, for a long time, the council had failed to act. The facts, only assumed when the strike-out application was heard in this country but established or accepted when the claimants took their complaint to Strasbourg, were very strong. An experienced and highly respected child psychiatrist described the children's experiences as "to put it bluntly, 'horrific'" and added that it was the worst case of neglect and emotional abuse that she had seen in her professional career: Z v United Kingdom (2001) 34 EHRR 97, para 40. It was accepted in Strasbourg that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment (para 74) and a violation of article 3 of the European Convention was found, arising from the failure of the system to protect the child applicants from serious, long-term neglect and abuse (paras 74-75). The Court awarded compensation amounting to £320,000, a substantial figure by Strasbourg standards. Yet the local authority's failure to intervene, which had permitted the abuse and neglect to continue, was held by the Court of Appeal and the House of Lords to afford the children no tortious remedy in negligence against the local authority in English law.
23. The facts of M v Newham London Borough Council, above, were less stark than in X v Bedfordshire, but they were disturbing enough. There was reason to believe that M, aged about 4, had been sexually abused. In the course of interview by healthcare professionals the child was thought to identify her mother's current partner as the abuser. In fact, it seems, the child identified a cousin who had earlier lived in the house and who had the same first name. The child was removed from the mother's care for a period of almost a year, during which time the mother was refused sight of the video and transcript made of the child's earlier interview. It was only when the video and transcript were seen by the mother's solicitors that it became clear that the healthcare professional had mistaken the identity of the alleged abuser. Both the mother and the child claimed damages for negligence against the employers of the healthcare professionals involved, but in the domestic proceedings the mother's claim was unanimously dismissed by the Court of Appeal and the House of Lords and the child's claim by a majority of the Court of Appeal and a unanimous House. At Strasbourg, both succeeded in establishing a violation of article 8, a finding based not on the decision to remove the child from the mother's care but on a failure to disclose to the mother immediately thereafter the matters relied on as showing that the child could not be returned safely to her care: if this had been done, it would have avoided the period of separation which followed and was said to have caused psychiatric disorder to both mother and child: TP and KM v United Kingdom (2001) 34 EHRR 42, paras 30, 80-83, 115-117. This was, again, a violation for which the English law of tort afforded no remedy.
24. In holding that it was not fair, just and reasonable to impose a duty of care on the healthcare professionals towards the claimants in X v Bedfordshire and M v Newham the House of Lords was strongly influenced by policy considerations identified in the opinion of Lord Browne-Wilkinson which, although much quoted, it is necessary for present purposes to repeat (pp 749-750):
These six considerations were very helpfully and succinctly summarised by May LJ in S v Gloucestershire County Council  Fam 313, 329-330. It will be necessary to return to these considerations, some at least of which are relied on to support the decision under appeal.