West Law Report

Parents win damages for baby taken into care after medical misdiagnosis

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on October 23, 2008

From The Times
October 13, 2008
Parents win damages for baby taken into care after medical misdiagnosis
European Court of Human Rights

Published October 13, 2008

R. K. and A. K. v United Kingdom (Application No 38000/05)

Before L. Garlicki, President,and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, P. Hirvelä and L. Bianku Section Registrar L.

Early Judgment September 30, 2008

Although the removal of a child from parental care did not amount to a breach of article 8 of the European Convention on Human Rights, guaranteeing the right to respect for private and family life, there was a breach of article 13, guaranteeing an effective remedy.

The European Court of Human Rights so held when awarding the applicants €10,000 having found that there existed no means available to them of claiming that a local authority’s handling of the procedures was inappropriate, permitting them to claim compensation for damage caused.

The applicants, RK and his wife, AK, British nationals, were born in 1972 and 1976 respectively. They lived in Oldham. They have a daughter, M, born in July 1998.

In September 1998, M was taken to hospital with a fractured femur. Doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M was diagnosed with brittle bone disease.

The case concerned the applicants’ complaint that their daughter was placed temporarily in care due to a medical misdiagnosis.

In its judgment, the European Court of Human Rights held:

I Alleged violation of article 8

The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights.

The Court reiterated that mistaken judgments or assessments by professionals did not per se render childcare measures incompatible with the requirements of article 8. The authorities, 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 families were proved, retrospectively, to have been misguided.

In the present case, it was incontrovertible that M, a baby of only a few months, suffered a serious and unexplained fracture. It was not disputed that osteogenesis imperfecta, commonly known as brittle bone disease, was a rare condition and also difficult to diagnose in small infants.

The Court did not consider that the social or medical authorities could be faulted for not reaching an immediate diagnosis of osteogenesis imperfecta, or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents.

No doubt it would have been better if the triage nurse had taken more accurate notes as to the family’s account of what had happened and trouble had been taken to obtain interpretation in medical staff’s conversations with AK who did not understand English.

However, it was not apparent that that would have dissipated concerns at that early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, even when official interpretation was available, in court, the testimony of AK was not found to be convincing.

The applicants’ complaints focused on the manner in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt.

None the less, while an interim care order was issued with a view to protecting M, steps were also taken to place the baby within her extended family and in close proximity to the applicants’ own home so that they could easily and frequently visit.

Crucially, as soon as a further fracture occurred outwith the applicants’ care, further tests were quickly pursued and within weeks M was returned home.

The Court further noted that M was removed from the applicants’ care for a period of some seven months. It was not impressed by the applicants’ complaint that the care order was not removed for some further two months. That was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice.

As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of osteogenesis imperfecta which considered that there was no fault in not reaching that conclusion at the time of the first injury.

The applicants emphasised that one of those doctors was later totally discredited. However, the Court was not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion.

It was satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M and which gave due account and procedural protection to the applicants’ interests, and without any lack of the appropriate expedition.

The Court accordingly held, unanimously, that there had been no violation of article 8 of the Convention.

The applicants also claimed that the events complained of invaded their physical and moral integrity and damaged their reputation in violation of article 8. Having regard to its conclusions as to the lawfulness and necessity of the measures, the Court considered that no separate issue arose.

II Alleged violation of article 13

The applicants complained that they had no effective remedy for their complaints, invoking article 13 which guaranteed an effective remedy before a national authority.

The effect of article 13 was to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although contracting states were afforded some discretion as to the manner in which they conformed to their obligations under this provision.

However, such a remedy was only required in respect of grievances which could be regarded as arguable in terms of the Convention: see Halford v United Kingdom (Application No 20605/92) (The Times July 3, 1997; Reports of Judgments and Decisions 1997-III, p1020, paragraph 64; ((1997) 24 EHRR 523) and Camenzind v Switzerland (Application No 21353/93) (Reports 1997-VIII, pp2896-97, paragraph 53; (1997) 28 EHRR 458).

It was common ground in this case that the applicants’ complaints about the interference with their family life through the care measures were arguable.

The Court therefore considered that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage: see T. P. and K. M. v United Kingdom (Application No 28945/95) (The Times May 31, 2001; ECHR 2001-V paragraphs 108-109; (2001) 34 EHRR 42).

Such redress was not available at the relevant time. Consequently, the Court held, unanimously, that there has been a violation of article 13 of the Convention in that regard.

Application of article 41

The Court awarded the applicants €10,000 in respect of nonpecuniary damage and €18,000, plus any tax that might be chargeable to the applicants, in respect of costs and expenses.

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