healthcare update - issue 14
Child protection - can parents claim when you get it wrong?
Mak and RK v United Kingdom (European Court of Human Rights, March 2010)
RK (a 9 year old girl) was taken to see a paediatrician by her
father (MAK) because he and his wife had concerns about marks on
her legs. The hospital performed blood samples and took intimate
photographs of RK in the absence of either parent because they
suspected she had been sexually abused. When these tests were
carried out, MAK had left the hospital, but RK’s mother was on her
way to hospital and was expected in around 1 hour’s time. The
hospital also informed social services. RK was then admitted to
hospital.
MAK was (incorrectly) prevented from visiting his daughter later
that day, and only allowed supervised visits during the rest of her
admission. Four days later, RK’s mother requested a dermatology
referral because of marks on her daughter’s hands. She was
diagnosed with a rare skin condition and discharged from
hospital.
Domestic remedies
An independent review panel at the Trust found that the
paediatrician’s suspicions were reasonable and it was acceptable to
inform social services. However, she had been too hasty in carrying
out further tests without parental consent. She should also have
arranged for urgent review by a dermatologist.
Claims for compensation (against the hospital trust and the
local authority) in the UK courts were unsuccessful. In the case of
the father, this was largely because it was held that the
defendants did not owe a duty of care to the parents of a child for
whom they were caring.
European decision
The applicants’ appeal to the ECHR included claims under:
- Article 8 (respect for family life)
- Article 13 (right to a remedy before a national court)
The court was keen to emphasise that mistaken judgements by
professionals do not, per se, mean that childcare measures will
breach Article 8. Authorities should not be held liable every time
a reasonably held concern about a child turns out to be wrong.
However, the court held:
- Although it was reasonable to suspect abuse and report the
matter to social services, the paediatrician should have arranged
urgent review by a dermatologist. This would have reduced the
period of interference with the father and daughter’s Article 8
rights.
- Tests carried out without parental consent were a further
breach of RK’s Article 8 rights. There was no evidence that her
condition was critical or that it would deteriorate before her
mother arrived.
- The father had no remedy in a domestic court because it had
been held in the House of Lords that the defendants did not owe him
a common law duty of care. This was in breach of Article 13.
- The applicants were awarded minimal amounts (€2,000 to the
father and €4,500 to the daughter, together with costs of €15,000
(around half of the costs claimed)).
Why is this case important?
- In cases where children have been wrongfully removed from their
parents, hospitals and local authorities often argue that they owe
no common law duty of care to parents. Parents may however succeed
in an Article 13 claim
- Unjustified restriction of access to a child may result in a
successful claim under Article 8
How can you reduce your exposure?
Trusts should have clear written guidance and adequate training
in this highly sensitive area. We suggest the guidance should
cover:
- The importance of obtaining appropriate parental consent for
investigations. It should be borne in mind here that if parents
refuse such consent, authority can be obtained via the courts.
- In cases of genuine urgency where parental consent cannot be
awaited, a second opinion should be sought from a senior colleague
where possible, and the reasons for the decision clearly documented
in the records.
- If further investigations are required to confirm/rule out
suspicions, these should be arranged as a matter of urgency.
- Clinicians are unlikely to be held to account by the courts if
tests are carried out in cases where there is a genuine child
protection concern. Clinicians should however obtain appropriate
parental consent (or consent through the court), or have clear (and
documented) reasons for deviating from this.
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The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.