D v East Berkshire Community NHS Trust and Another

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.

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 [1990] 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".

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.

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

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.

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.

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.

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.

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.

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: [2003] 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: [2003] EWCA Civ 1151, [2004] QB 558.

The second appeal

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.

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.

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.

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: [2003] 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

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.

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...