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Court stops parents suing over false abuse claims

Independant - 1st August 2003

Parents from three families wrongly accused of abusing their children were yesterday refused the right to sue the doctors who made the allegations.

But the Court of Appeal confirmed that children subject to such misdiagnoses can sue doctors.

They allowed an appeal by a child in the case who was taken into care aged nine after a mistaken diagnosis of sex abuse against her father.

The abuse allegation began when the girl, who suffered a rare skin condition, was injured while riding a bicycle. She has already been allowed to take action against Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council by a county court judge.

The other test cases involved a mother who claimed against East Berkshire Community NHS Trust for the distress she suffered after being diagnosed with Munchausen by Proxy, and a couple who claimed against Oldham NHS Trust after being accused of injuring their daughter, which led to them being separated from her for almost a year.

Dismissing the appeals by the parents, Lord Phillips, Master of the Rolls, said that it was reasonable for the children to sue where they had suffered harm as a result of negligence but the position of the parents was different.

"We consider there are cogent reasons of public policy for concluding that, where childcare decisions are being taken, no common-law duty of care should be owed to the parents."

The ruling was based on the fact that in child abuse cases, the interests of the children and the parents may be poles apart.

Doctors have a statutory duty to report suspected cases of child abuse and the judges said it would be wrong to allow the common law of negligence to trump that duty.

In the Oldham case, the mother of a boy with a range of illnesses was accused by doctors of exaggerating and fabricating them over several years, before he was diagnosed with severe allergies and the allegations withdrawn.

The judges said: "The moment it was suspected that his injuries might be deliberately exaggerated by his mother, the duty owed to M [the boy] was in potential conflict with the interests of his mother. "It was essential that the professionals should not be inhibited in acting in the best interests of M by concern that they might be held in breach of a duty owed to his mother." Doctors and parents both claimed the verdict was a victory for children.

Harvey Marcovitch, consultant paediatrician and spokesman for the Royal College of Paediatrics and Child Health, said: "If a doctor falls below acceptable standards, patients are entitled to seek recompense - that is entirely reasonable.

"What paediatricians are relieved about is that the judgment does not extend the legal duty of care to the parents. That might have inhibited [the doctors' investigations] and potentially protected abusers."

Penny Mellor, a campaigner on behalf of parents who claim they have been wrongly accused of abuse, said: "Doctors and social workers have been able to behave with impunity for years. If they suspected abuse they could rip children away and that was outrageous."

Jennifer Barnard, director of children's services at the National Society for the Prevention of Cruelty to Children, said: "Although we realise it is very distressing for parents and carers involved in these cases, childcare professionals must be allowed to carry out investigations without fear of reprisals or of being sued."

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