JD v East Berkshire Community Health NHS Trust & Ors

The House considered whether parents wrongly and negligently said to have abused or harmed their child can recover common law damages for psychiatric injury against doctors or social workers who negligently made or maintained that misdiagnosis. The court applied the Caparo test for duty of care and analysed policy, proximity and the potential for conflict between duties owed to the child and to the parent. The majority concluded that, on the facts and in public policy terms, it was not fair, just and reasonable to impose a general duty of care to parents in such cases; the paramountcy of the child’s welfare and the risk of conflicting duties were decisive. One Law Lord (Lord Bingham) would have allowed the parents' claims to proceed to trial so that breach and causation could be examined on the facts.

This appeal arose from three related sets of proceedings in which parents alleged negligent misdiagnosis by doctors (and in one case social workers) that their children had been abused. The parents claimed damages for psychiatric injury said to have been caused by the negligent diagnosis and its consequences (investigation, removal from home or restriction of access).

Background and procedural posture:

• JD (East Berkshire): mother alleged misdiagnosis of Munchausen's syndrome by proxy and that her child was wrongly placed on an at-risk register. Her claim was struck out at first instance; the Court of Appeal dismissed her appeal.
• RK (Dewsbury): father and child sued after a provisional diagnosis of sexual abuse was made then reversed; the judge dismissed the father's claim but allowed the child's claim to proceed; the Court of Appeal reinstated the child's claim against the local authority; no appeal to the House by the authorities on the child's claim.
• MK (Oldham): parents alleged a consultant's misdiagnosis of non-accidental injury where the child in fact had brittle bone disease; an interim care order followed; the parents' claims were struck out at first instance and their appeals were dismissed by the Court of Appeal.

Relief sought: Damages in negligence for psychiatric injury and associated losses.

Issues framed:

• Whether healthcare professionals (doctors and social workers) owe a common law duty of care to parents wrongly suspected of child abuse such that parents may recover for foreseeable psychiatric injury caused by negligent misdiagnosis.
• How policy considerations (the statutory and multidisciplinary child-protection framework, the paramount interest of the child, risk of defensive practice and conflict of duties) affect the imposition of such a duty.
• What effect Strasbourg authority and the Human Rights Act 1998 have on the availability of tortious remedies in this field.

Court’s reasoning (concise):

• The Caparo tripartite test governs novel duty questions; foreseeability alone is not decisive. The court must consider fairness, justice and reasonableness in light of proximity and policy.
• The majority held that imposing a general duty to parents in these circumstances would create a conflict with the established duty to protect the child, risk inhibiting prompt and candid reporting and investigation, and cut across the statutory, interdisciplinary child-protection framework. Good faith reporting and statutory and administrative remedies (and, where appropriate, Convention remedies) provide the appropriate protections in general. Policy considerations and the risk of conflicting obligations mean it is not fair, just and reasonable to impose the pleaded duty to parents.
• The majority relied on authority (including X v Bedfordshire and subsequent decisions), on comparative and domestic decisions such as Sullivan v Moody and the Privy Council in B v Attorney General of New Zealand, and on the risk that litigation would encourage defensive practice and hinder child protection. They distinguished claims properly brought by children and accepted that a duty to a child may exist in appropriate cases.
• Dissent (Lord Bingham): he would not strike out the parents' claims and would allow them to proceed to trial to determine breach and causation because exclusionary rules should not preclude meritorious claims and Strasbourg jurisprudence had shown blanket immunities can breach Convention rights.

Wider context noted: the House stressed the sensitivity of child-protection decisions, the need for interdisciplinary cooperation, and the importance of not chilling appropriate professional suspicion and reporting.

Appeals dismissed (majority). The majority held that it was not fair, just and reasonable to impose a general common law duty of care to parents in respect of negligent misdiagnosis of child abuse because of the paramount duty to protect the child, the real risk of conflict between duties to child and parent, and broader public policy consequences for child-protection practice. Lord Bingham dissented, preferring that the parents' claims proceed to trial so that breach and causation might be determined on full evidence.

Appeal to the House of Lords from the Court of Appeal decision: [2003] EWCA Civ 1151; reported at [2004] QB 558. Underlying preliminary rulings striking out or dismissing claims were made at first instance (e.g. judgments cited at Lloyd's Rep Med 1, 9, 13).