Children can sue the healthcare trusts and local authorities that wrongly conclude that they have been the victims of abuse, the Court of Appeal for England and Wales ruled last week, in a judgment with far reaching consequences.
Three judges, headed by the master of the rolls, Lord Phillips, held that the public policy considerations barring claims of wrongful diagnosis have been swept away by the Human Rights Act, which came into force in October 2000. But the court ruled that it would be against public policy for parents to be able to sue for the harm they suffered as a result of their child's mistaken diagnosis.
The judges decided that authorities have a common law duty of care towards the children, even where the events predated the Human Rights Act. The ruling will lay local councils and NHS trusts open to negligence claims dating back as far as 21 years, because the three year time limit for launching action starts to run only when a child reaches 18.
The ruling came in three test cases in which parents claimed they suffered psychiatric harm from incorrect diagnoses that their children had been abused. In one of the cases a girl who was nine years old when her father was wrongly suspected of sexually abusing her also sued for psychiatric damage.
The girl was kept in hospital for 10 days after a consultant paediatrician at Dewsbury District Hospital decided she had been sexually abused. She had hurt herself in the genital area while riding her bicycle and had marks on her legs that were later realised to be caused by an unusual skin condition, Schamberg's disease. Social services were involved, and the girl's father was stopped from seeing her.
The appeal court judges allowed the girl's appeal against a ruling by a county court judge, Judge Grenfell, who had struck out her claim against Kirklees Metropolitan Council. Judge Grenfell had already ruled that her claim against Dewsbury Healthcare NHS Trust could go ahead, and the trust did not appeal.
But the judges ruled that it would not be “fair, just, and reasonable” to allow claims by her father to proceed, nor those by parents in the other two cases.
In the first of these, a 6 year old boy was said by Professor David Southall of North Staffordshire Hospital to be a victim of fabricated illness. The boy's mother claimed that she suffered acute anxiety and depression as a result of the stress of dealing with the accusations against her. Her son was removed from the at-risk register after three months, when his condition was diagnosed as extensive and severe allergies.
In the other case the judges barred a claim by the parents of a baby girl who had a broken leg and was taken into care. She was returned to them nine months later after she was given a diagnosis of osteogenesis imperfecta.
The judges said that children's interests were in potential conflict with the interests of their parents. “In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents.”