JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC)

Healthcare professionals investigating suspected child abuse generally owe no common law duty of care to a parent suspected of causing the harm. Their duty is to safeguard the child. A concurrent duty to the suspected parent would create potentially conflicting obligations and would not be fair, just and reasonable.

Foreseeable psychiatric injury, and the fact that the parent sought medical advice for the child, do not alone establish sufficient proximity. Investigations must be conducted in good faith, but ordinary professional negligence does not give the suspected parent a claim in damages. Exceptional circumstances may differ. Authorities should still involve parents as fully as is compatible with the child’s best interests.

Three conjoined appeals arose from negligent diagnoses or investigations which, on the assumed facts, wrongly implicated parents in harming their children. The parents alleged recognised psychiatric injury. Their negligence claims were dismissed without trial in the East Berkshire, Dewsbury and Oldham proceedings: [2003] Lloyd's Rep Med 9, [2003] Lloyd's Rep Med 13 and [2003] Lloyd's Rep Med 1.

The Court of Appeal dismissed the parents’ appeals in a composite judgment, [2003] EWCA Civ 1151, [2004] QB 558. The daughter’s claims against the health authority and local authority in the Dewsbury action remained able to proceed and were not before the House. The central issue was whether doctors, social workers and their employing authorities owed a common law duty of care to parents wrongly suspected of child abuse.

1. Disposition. The House dismissed all three appeals by a majority of four to one. Lord Nicholls, Lord Steyn, Lord Rodger and Lord Brown concluded that the parents had no arguable common law negligence claim. Lord Bingham dissented.

2. Conflicting duties. Per Lord Nicholls, Lord Rodger and Lord Brown, the professionals’ primary duty was to safeguard the child. When abuse by a parent was under consideration, the interests of the child and the suspected parent were potentially opposed. A duty requiring the professionals simultaneously to protect the suspected parent from psychiatric injury could inhibit investigation, reporting and protective action. It was therefore not fair, just and reasonable to impose the proposed duty. The reasoning in Sullivan v Moody (2001) 207 CLR 562 and B and others v Attorney General of New Zealand [2003] UKPC 61 was endorsed.

3. Proximity and psychiatric injury. Per Lord Rodger, foreseeability and causation were necessary but insufficient. The law ordinarily compensates the directly injured person, not relatives who suffer consequential psychiatric illness. The fact that a parent took the child for medical advice did not create the necessary proximity. The established rules governing nervous shock and secondary victims did not assist because the parents did not allege psychiatric injury caused by witnessing the injury-producing event or its immediate aftermath.

4. Scope of protection. Per Lord Nicholls, investigations must be conducted in good faith. Bad faith or recklessness fell outside that protection, but mere failure to exercise reasonable professional care did not create liability to a suspected parent. This was the general rule where the doctor-parent relationship arose only because the parent was the parent of the patient. Exceptional circumstances might call for a different conclusion, but initiating an ordinary request for medical advice was insufficient.

5. Family life and human rights. The majority recognised the importance of family life and of involving parents as fully as the child’s interests permit. Those considerations did not justify a conflicting duty sounding in damages. Since the events predated the Human Rights Act 1998, Lord Rodger reserved whether a later claim should be pursued under that Act, including section 8, rather than through modification of negligence law.

6. Dissent. Lord Bingham would have allowed the claims to proceed to trial. He considered that a limited duty to exercise reasonable care in diagnosing the child’s condition was an arguable, incremental development. In his view, that diagnostic duty was consistent with the duty owed to the child, did not inhibit reporting a genuine suspicion and should not have been excluded without examination of the facts.

1. House of Lords: By [2005] UKHL 23, dismissed the three parental appeals by a majority of four to one and affirmed the Court of Appeal’s conclusion that no common law duty of care was owed to the suspected parents.
2. Court of Appeal: By [2003] EWCA Civ 1151, [2004] QB 558, dismissed the parents’ appeals in a composite judgment. It reinstated the Dewsbury child’s claim against the local authority; that ruling was not appealed.
3. Chester County Court: In [2003] Lloyd's Rep Med 9, Judge Hale held that no duty of care was owed to JD and dismissed her claim.
4. Leeds County Court: In [2003] Lloyd's Rep Med 13, Judge Grenfell dismissed the father’s claims but permitted the child’s clinical-negligence claim against the health authority to proceed.
5. High Court: In [2003] Lloyd's Rep Med 1, Simon J dismissed the Oldham parents’ and child’s claims. Only the parents appealed to the Court of Appeal.