Parents cannot sue

Clare Dyer, legal correspondent BMJ

Parents who have been wrongly accused of harming their children cannot sue doctors or social workers for negligence in carrying out investigations into child abuse, the United Kingdom's highest court ruled last week. The law lords dismissed appeals by parents in three test cases from earlier judgments that had struck out their claims.

In a judgment anxiously awaited by paediatricians, the lords ruled by a majority of four to one that child protection professionals owe a duty of care to the child alone and not to the parents who may suffer as a result of an investigation that is negligent.

The senior law lord, Lord Bingham, was the sole dissenter. He said he would have allowed the three test cases to go to trial so the facts could be fully explored.

He believed that the law should evolve and that a total ban on suing "in this sensitive area" could lead to serious breaches of the European Convention on Human Rights, for which the law should afford a remedy if the facts were grave enough, he said.

Professor Alan Craft said that a doctor must be allowed to raise a suspicion with the relevant authorities without fear of litigation

But the majority ruled that parents should be owed no duty of care, because such a duty could conflict with the duty to the child.

Lord Nicholls said that when the doctor was considering the possibility of abuse the interests of parent and child were "diametrically opposed."

He added: "The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parents do not favour either of these steps."

Lord Brown said that if the parents' allegations were well founded "the doctors appear to have displayed an egregious overconfidence in their own opinions and a marked reluctance to test them."

But he cited evidence from Alan Craft, president of the Royal College of Paediatrics and Child Health, who argued, "In order to discharge their obligations to the child, to protect it from further harm, and to protect siblings, a doctor must be allowed to raise what sometimes may be no more than a suspicion with the relevant authorities without fear of litigation from the child's parents."

The three test cases involved allegations of Munchausen syndrome by proxy in the case of a 5 year old boy, sex abuse of a 9 year old girl by her father, and an inflicted injury on a 2 month old baby. All were named in the judgment only by their initials.

The boy was eventually found to be severely allergic, the girl to have the skin condition Schamberg's disease and injuries from her bicycle, and the baby to have brittle bone disease.

The boy's mother, the girl's father, and the parents of the baby, who was taken into care and only reunited with them eight months later, sued for damages for psychiatric injury. But the NHS trusts and local authorities applied to strike out the claims, arguing that they owed the parents no duty of care.

The law firm Hempsons, which acted for the NHS trusts, said: "This is a vital and timely decision for the medical profession, which has faced a systematic campaign of criticism and complaint to the General Medical Council, which has driven many paediatricians from the field of child protection."