Medical intervention without parental consent violated child’s and parents’ Article 8 rights says Strasbourg Court

21 April 2010 by

MAK and RK v United Kingdom (Application Nos 45901/05 and 40146/06) European Court of Human Rights March 23, 2010 – Read judgment

The taking of blood samples and photographs of a child by the medical authorities in the absence of the parents violated the child’s and parents’ rights to respect for their private and family life under Article 8 of the European Convention, and the inability of the parents to take an action for damages at common law against the hospital breached their right to a remedy under Article 13.

The applicant M.A.K was the father of R.K., who was born in 1989. In 1997 and again in 1998 M.A.K. took her to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. This was followed by a visit to a paediatrician who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers.

Shortly after the girl was admitted into hospital, her mother remembered and told the paediatrician that her daughter had complained that she hurt herself when riding her bike. The doctor ignored that information reiterating that there was no doubt the girl had been abused. As a result, the social workers instructed the mother to sleep in the room with her daughter as a precautionary measure against the father.

A few days later, after noticing marks on the girl’s hands, her mother arranged for her to be seen by a dermatologist. Following this, R.K. was diagnosed with a rare skin disease and was discharged from hospital. The paediatrician wrote a letter stating that as there was insufficient evidence to consider that the girl had been abused, her father should no longer be considered to be implicated in the sexual abuse of his daughter.

M.A.K. and R.K. complained before the NHS Trust. An Independent Panel set up by the Trust found that while the paediatrician was not to be blamed for misdiagnosis the bruises, she should have sought a dermatologist’s opinion as a matter of urgency and the girl should have been interviewed about the marks on her skin. The applicants then brought proceedings for negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss. Both M.A.K. and R.K. were legally aided during the first instance proceedings, but R.K. had her legal aid withdrawn during the subsequent appeals. Finally the House of Lords found against the applicants.

Relying on Article 3 (prohibition of inhuman or degrading treatment), M.A.K. alleged that he suffered distress and humiliation as a result of the accusations against him. The applicants also complained, under Article 8, about the visiting restrictions imposed on the father during the time R.K. was in hospital and that a blood sample and photographs were taken without parental consent. Further, R.K. submitted that the withdrawal of legal aid during the appeal proceedings against the local authority and hospital for compensation breached her right of access to court under Article 6(1). Lastly, M.A.K. complained that, in breach of Article 13 (right to an effective remedy), he could not claim compensation for damage caused by the local authority’s handling of his daughter’s case on account of the domestic courts’ finding that there was no common law duty of care owed to parents.

Held:

Article 8

The Court noted that the authorities, both medical and social, had duties to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their family were proved, retrospectively, to have been misguided.

However, in the light of the dermatoligist’s findings, the Court concluded that had such an expert been consulted immediately, as recommended by the Independent Panel, R.K.’s condition could have been diagnosed some days earlier. The Court therefore found that while it had been justified for the authorities to suspect abuse at the time of R.K.’s admission in hospital, the delay in consulting a dermatologist had undermined their efforts to protect R.K. from harm.

In addition, domestic law and practice clearly required the consent of parents or those exercising parental responsibility before any medical intervention could take place. There was no evidence to suggest that R.K.’s condition had been critical or deteriorating before her mother’s arrival, nor had there been any reason to believe that her mother would have withheld consent, and even if she had, the hospital could have applied to the court for an order requiring the tests to be conducted. In the circumstances, the Court found no justification for the decision to take a blood test and intimate photographs of a nine-year old girl, against the express wishes of both her parents, while she had been alone in the hospital.

Accordingly, there had been a violation of the applicants’ right to respect for their family life under Article 8.

Article 13

M.A.K. should have had available to him a means of claiming that the local authority had been responsible for any damage which he had suffered and of obtaining compensation for that damage. As such redress had not been available at the relevant time, the Court held that there had been a violation of Article 13.

All the other complaints were rejected by the Court, which awarded M.A.K. 2.000 euros (EUR) and R.K. EUR 4.500 in respect of non-pecuniary damage, and to both applicants jointly EUR 15.000 for costs and expenses.

Comment (April 2010)

Various aspects of the applicants’ submissions, successful and unsuccessful, are worth considering in the light of the recent spate of cases concerning overzealous assumptions of child abuse by public authorities, be they doctors or social workers.

Article 6

In these kinds of cases claimants have abandoned arguments based on the right of access to court under Article 6(1) since it was ruled out by the Strasbourg Court in Z v UK, recognising that the Caparo test for negligence did not offend the procedural requirements of due process under the Convention.

However, the applicants in this case were clearly advised that this Article was worth a punt in relation to public funding for litigation. There was no doubt that the hospital owed the second applicant a duty of care (unlike the first applicant who was excluded under the principle in X(minors) v Bedfordshire County Council). However, the Legal Services Commission withdrew her legal aid certificate for her damages action on the basis that the likely costs would be disproportionate to the value of the claim. And her submissions under Article 6(1) failed because the Court found that even if the withdrawal of legal aid constituted a restriction on her right of access to court, the reason for the refusal – namely that the cost of funding the case would outweigh any likely award for damages – is expressly contemplated in the Legal Aid Act 1988 and was undoubtedly intended to meet the legitimate concern that, in the absence of any point of public interest, public money should only be made available to applicants whose claims were likely to result in an award of damages that was greater than the cost of funding the case. It was therefore a legitimate and proportionate restriction.

Article 8

The applicants contended that the medical intervention carried out by the hospital in the absence of parental consent was completely contrary to section 8(1) of the Family Law Reform Act 1969 and the guidelines of the General Medical Council. The Court approached this question under Article 8 as a whole, as an alleged interference with the second applicant’s physical and moral integrity. It did not accept the Government’s submissions that the treatment pursued the legitimate aim of seeking to establish with appropriate urgency what had caused R.K.’s “alarming” symptoms. The Court concluded, unanimously, that the decision to take a blood test and photograph the second applicant against her parents’ express instructions gave rise to an interference with her right to respect for her private life and, in particular, her right to physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 63, ECHR 2002-III; Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003-IX. The Court particularly noted that the case of Glass v. the United Kingdom, no. 61827/00, § 70, ECHR 2004-II turned on the question of consent where the patient is a minor, establishing that practice should accord with the Council of Europe’s Convention on Human Rights and Biomedicine: the person with appropriate authorisation to give consent is the person with parental responsibility.

Article 13

The domestic proceedings in this case culminated in the judgment given by the House of Lords in JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373. The question before the House of Lords in JD was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who, discharging professional functions, made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent. The House of Lords concluded that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty.

The incidents in this case of course took place before the Human Rights Act came into force in October 2000, so the first applicant had no enforceable right to compensation that would have been provided by sections 7 and 8 of the HRA. As in OD and AD v United Kingdom, the Court found that this had constituted a violation of Article 13 read together with Article 8.

Two conclusions can be drawn from this and other recent cases involving similar facts. Claimants are becoming increasingly alert, and judges increasingly sympathetic, to the potential for Convention claims against public authorities where children are negligently or wrongfully removed from their parents, both at the domestic and Strasbourg level. And the absence of a common law duty of care in these circumstances is becoming more irrelevant as the possibilities for an action under Sections 7 and 8 the Human Rights Act, or failing that a claim in Strasbourg under Article 13, allow damages to be awarded to parents who have been treated in such a manner. The fact that these damages are ultimately borne by the taxpayer is a reminder that we are all paying the price for what Wall LJ calls the “arrogant and enthusiastic” removal of children from their parents.

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