The law of negligence is a bit of a bludgeon. Prove duty, breach, damage and causation and you have your remedy. Since the Human Rights Act put restrictions based on public policy at a discount in the market, it has become a bit like Lord Melbourne’s view of the Most Noble Order of the Garter: “I like the Garter – No damned merit in it.”
The duties imposed upon us continue to increase. Breach, at least in the context of professional negligence, is likely to be equated with getting it wrong. The doctors speak of sub-optimal treatment as though it were synonymous with unacceptable treatment. The notion of damage has expanded exponentially, as Post-Traumatic Stress Disorder (PTSD) has given way to stress as the fashionable malaise. Expansion of risk may be taken for causation.
The retreat from the notion associated with the decision in Anns v London Borough of Merton (1978), that insurers must shoulder the burden of providing a remedy for every wrong, may never be complete. In X v Bedfordshire (1995), which provided immunity for social workers investigation abuse, Lord Bingham identified: “The rule of public policy, which has first claim on the loyalty of the law: that wrongs should be remedied.”
Last term in the Court of Appeal, the immunity for social workers conferred by the House of Lords decision in X v Bedfordshire was challenged on the grounds that it was inconsistent with the Human Rights Act 1998. The issue concerned a group of cases in which it was variously alleged that doctors had wrongly diagnosed sexual abuse, non accidental injury and Munchausen’s Syndrome by Proxy. In these cases, doctors suspected that the actions of parents were leading to harm in the children. The parents claimed to have suffered damage as a result of the diagnosis and sought compensation.
Claims were brought by both children and the parents. Kirklees Social Services sought to argue that there was no duty owed to either, and the Court of Appeal found that the protection conferred by X v Bedfordshire could not survive the Human Rights Act. There may be factual situations where it will not be fair, just and reasonable to impose a duty, but each case will have to be argued on its facts and there is no blanket immunity.
The NHS accepted that it owed a duty of care to the children, but argued that precisely because of this duty, there was no duty to the parents.
In between the hearing of the Court of Appeal case and judgment being given, the Privy Council gave judgment in a New Zealand case in which the same issue was raised. The Privy Council rejected the parental claims on the grounds that there was a conflict between the duty of care owed to the child and the duty of care owed to the parent. In discharging the duty to the child, the doctor must be aware of the damage that will follow if the diagnosis is wrongly missed, as well as the damage that will befall the child if the diagnosis is made. The doctor must balance the damage that will befall the child in whichever direction they jump. By contrast, the interests of the parents will always demand, at least in the short-term,
that the diagnosis be rejected. A balance that should be struck dispassionately and neutrally will be tilted. The Privy Council found that the interests of the parents and the child will be “poles apart” and that it would be unreasonable of the law to impose a duty to both at the same time.
The Court of Appeal accepted this point. However, the court made another point. It noted that what the parents were complaining about was a species of defamation. The law of defamation has evolved safeguards in the rules surrounding qualified privilege and “It cannot be open to a claimant to by-pass these defences by advancing a claim for defamation in the guise of a claim for negligence.”
There used to be a rule that where a complaint is of defamation, people should not plead other torts to avoid these restrictions. The House of Lords put it to the sword as far as job references are concerned in Spring v Guardian Assurance Plc (1995) (where an employer that issued an innacurate reference was found negligent, but not guilty of defamation), preferring to put its faith in public policy to protect useful communications. Given the demise of public policy in the face of Strasbourg, it is good to see the old idea given another puff now and it may be that more will be made of this in the future.
The protections of qualified privilege do look to be useful and appropriate in abuse cases. Publication should only be acceptable if it is limited to occasions when there is a reciprocal obligation to utter and receive the information, such as where a paediatrician communicates a suspicion of abuse to the social services. The speaker must not be activated by any improper motive. Given those limitations, we need to protect communication. The lesson of the Laming Inquiry into the death of Victoria Climbié, the eight-year-old from Ivory Coast who was murdered by her carers, in the same way as the 35 other inquiries that have taken place since Maria Colwell died 30 years ago, is that each professional only sees a small part of the jigsaw. If children are to be saved, professionals must pool their information. This requires them to start investigations when the information available falls well short of that necessary to bring care proceedings.
This is particularly true of the medical profession, because under the Children Act 1989, the lead profession for the investigation of these cases and the bringing of proceedings is social services. If the doctor has a duty to the child to act at a time when the diagnosis cannot be proved, there will be a number of occasions when investigations will take place only to refute the hypothesis. The medical profession and the society it serves have to accept that there are sometimes worse things than getting it wrong.
Bertie Leigh is senior partner at Hempsons