Child abuse: When the professionals get it wrong

Medical Law Review

Volumn 14, Issue 2, 2006, Pages 264-276

  Jones, Michael A ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CHILD ABUSE; CLINICAL COMPETENCE; DIAGNOSTIC ERROR; HUMAN; HYPERSENSITIVITY; LEGAL ASPECT; LEGAL LIABILITY; MALPRACTICE; MUNCHAUSEN SYNDROME BY PROXY; NATIONAL HEALTH SERVICE; NOTE; PARENT; PEDIATRICS; PRESCHOOL CHILD; UNITED KINGDOM;

CHILD ABUSE; CHILD, PRESCHOOL; CLINICAL COMPETENCE; DIAGNOSTIC ERRORS; GREAT BRITAIN; HUMANS; HYPERSENSITIVITY; LIABILITY, LEGAL; MALPRACTICE; MUNCHAUSEN SYNDROME BY PROXY; PARENTS; PEDIATRICS; STATE MEDICINE;

EID: 33746036071     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwl008     Document Type: Note

References (50)

1. [1995] 2 A.C. 633.
2. Ibid. at 749-750.
3. See the comment of Lord Bingham [2005] UKHL 23 at para 40 referring to the imposition of legal responsibility as 'a badge of professional status'.
4. See the comments of Sir Thomas Bingham in his dissenting judgment in the Court of Appeal in M (a minor) v. Newham London Borough Council [1995] 2 A.C. 633, 662 (which was conjoined with X v. Bedfordshire County Council on appeal to the House of Lords): 'I do not think [the doctor] would be deterred from prompt action where the facts appeared to warrant it, since he would be as vulnerable to criticism for failing to advise urgent action when the facts appeared to call for it as for acting precipitately when the facts did not. The doctor's only certain protection would be sound performance of his professional duty, and that is how it should be'.
5. Ibid. at 667.
6. Z v. United Kingdom [2001] 2 F.L.R. 612.
7. TP and KM v. United Kingdom [2001] 2 F.L.R. 549. This was the application by the mother and child whose claims for negligence were rejected in M (a minor) v. Newham London Borough Council. The local authority had failed to disclose to the mother a video of an interview with the child, which would have revealed the authority's mistake.
8. The judge at first instance having struck out the child's claim against the local authority but allowed the claim against the health authority to proceed.
9. [2003] E.W.C.A. Civ 1151;
10. [2004] Q.B. 558. What was novel about the ruling was not so much the view that X v. Bedfordshire was inconsistent with the Convention, but that the Court of Appeal then took the step of declining to follow X v. Bedfordshire rather than applying the rules of precedent and leaving it to the House of Lords to rectify the position.
11. For discussion of the Court of Appeal ruling, see J. Wright, '"Immunity" no more: Child Abuse Cases and Public Authority Liability in Negligence after D v. East Berkshire Community Health NHS Trust' (2004) 20 Professional Negligence 58.
12. Ibid. at para 84.
13. Per Lord Bingham [2005] UKHL 23 at para 30; per Lord Nicholls at para 82; per Lord Rodger at para 110 (where his Lordship refers to 'the doctors' admitted duty to the children). There was remarkably little comment from their Lordships on the Court of Appeal's radical approach to the doctrine of precedent, though Lord Bingham, at para 21, acknowledged that it had been a bold decision.
14. Supra n. 9 at para 96.
15. See B v. Attorney General of New Zealand [2003] U.K.P.C. 61;
16. [2003] 4 All E.R. 833, where Lord Nicholls (in the majority in JD v. East Berkshire Community Health NHS Trust) delivered the opinion of Privy Council.
17. See also Sullivan v. Moody (2001) 207 C.L.R. 562 (High Court of Australia).
18. It was also the basis for the Court of Appeal's decision refusing the parents' claim in JD v. East Berkshire.
19. See further D v. Bury Metropolitan Borough Council [2006] E.W.C.A. Civ 1;
20. [2006] 1 F.C.R. 148, where JD v. East Berkshire Community Health NHS Trust was applied.
21. At para 85. See also per Lord Rodger at para 110 and Lord Brown at para 129.
22. At para 86.
23. At para 129.
24. At para 137, per Lord Brown. Cf. the observations of Lord Bingham at para 33: 'To describe awareness of a legal duty as having an "insidious effect" on the mind of a potential defendant is to undermine the foundation of the law of professional negligence'.
25. Bear in mind that parents do not want their children to be physically or sexually abused by others and may suffer psychiatric harm as result of believing that they are responsible for abuse committed by others: See W v. Essex County Council [2001] 2 A.C. 592.
26. At para 37.
27. At para 88.
28. For example, in respect of the negligent infliction of psychiatric harm, see Walters v. North Glamorgan NHS Trust [2002] E.W.C.A. Civ 1792;
29. [2003] Lloyd's Rep. Med. 49.
30. So, the hospital doctor who observes a family member visiting a patient in the hospital with symptoms of illness would not be required to advise that family member to seek medical advice, though he may in fact give such advice.
31. At para 39. See also per Lord Nicholls at para 76.
32. At para 122.
33. At para 102.
34. At para 133.
35. At para 80.
36. See Lord Bingham at para 46;
37. see, e.g., White v. Jones [1995] 2 A.C. 207;
38. Spring v. Guardian Assurance plc [1995] 2 A.C. 296.
39. Walters v. North Glamorgan NHS Trust supra n. 21.
40. W v. Essex County Council, supra n. 18.
41. See also A and B v. Essex County Council [2002] E.W.H.C. 2707 (QB);
42. [2003] 1 F.L.R. 615.
43. White v. Jones [1995] 2 A.C. 207.
44. Although in the case of very young children, proving that psychiatric harm has actually occurred may be difficult (as in the Oldham case; see also D v. Bury Metropolitan Borough Council, supra n. 13).
45. Bolam v. Friern Hospital Management Committee [1957] 2 All E.R. 118.
46. and KM v. United Kingdom, supra n. 7;
47. Z v. United Kingdom, supra n. 6.
48. TP and KM v. United Kingdom, ibid.
49. Paul Lewis, The Guardian, 12 January 2006: '"Satanic abuse" case families sue council for negligence'.
50. [2005] UKHL 23 At para 138.