Campbell Fitzpatrick Solicitors acted on behalf of a Lisburn mother in relation to a claim she advanced against Royal Victoria Hospital (Belfast Health & Social Care Trust) arising out of the treatment of her son. Her son, then aged approximately 6 months old, was referred by his GP to the Lagan Valley Hospital and, in turn, to the Royal Belfast Hospital for Sick Children. There he was treated for suspected fractures. As a consequence of a concern on the part of the treating medical personnel, a child protection protocol was initiated. The medical personnel at the Royal Belfast Hospital for Sick Children believed that the Plaintiff’s son had sustained injury by non-accidental means. In other words someone was suspected of assaulting the child. The result was that the child was removed from the care of the Plaintiff until 2nd December 2004. By that time independent medical evidence had been obtained, at the behest of the mother, which indicated that the changes displayed on the child’s x-rays were not in fact indicative of fractures. In April 2005 following an appointment with another orthopaedic surgeon in Edinburgh, a diagnosis was made of an underlying genetic abnormality. That disorder, of early infancy, produced symptoms which mimicked those seen in cases of fractures. It was the Plaintiff’s case that her son was removed from her care for a period of two months as a result of systemic failures in the operation of the child protection protocols in the Royal Belfast Hospital for Sick Children.
As a consequence of the removal of the child, the Plaintiff suffered acute distress and anxiety. The removal of the child to the care of a relative fractured the bond between mother and child which was thereafter irrevocably damaged, it was alleged, by the actions of the Trust.
The Plaintiff instructed Patrick Mullarkey of Campbell Fitzpatrick Solicitors to investigate and prosecute this case. After investigation of the matter, we initiated proceedings pursuant to Section 6 (1) of the Human Rights Act 1998. We argued that the Trust had breached the mother’s substantive right to respect for her private and family life pursuant to Article 8 of the European Convention in Human Rights. We argued that the removal of the Plaintiff’s son from her care in 2004 constituted a franked breach of her Article 8 (1) right. It is important to note that during the course of the investigation of this matter a complaint was raised by the mother of the child with the hospital. That report identified several problems leading to a series of recommendations and actions to be taken. Such recommendations included advices that a second opinion should be sought where medical evidence is inconsistent with other opinion and is critical to the outcome of a child protection decision. It was also noted that the continuing professional development needs of clinicians regarding uncommon paediatric conditions should be reviewed and training provided as appropriate. The report also conceded that it was important that when differences or uncertainties of medical opinion occur in relation to the diagnosis of possible deliberate harm to a child, a recorded discussion must take place between the persons holding the different views. That discussion must occur before attendance at a case conference.
Ultimately, after the issue of proceedings in association with this matter the Belfast Health & Social Services Trust agreed to consult with a view to disposing of the action. Happily this led to settlement of the action for a payment to the mother in the sum of £17,500 by way of damages. The Trust also agreed to discharge the mother’s costs incurred in the prosecution of the case.
The successful resolution of this case represents something of a novel development in litigation in this jurisdiction. Unusually, in a case of alleged “negligence” in clinical care, we proceeded purely on a case founded on breach of the Human Rights Act 1998. The Human Rights Act makes it unlawful for a public authority to act in a manner which is incompatible with the rights guaranteed to an individual by the European Convention on Human Rights. The Article 8 right, in respect of a right to a family life, is not absolute and any breach of Article 8 requires to be balanced against the countervailing factors identified in the legislation. In essence therefore a breach of the right to family life can be justified in certain circumstances. The Humans Rights Act itself provides that there will be no interference by a public authority with the exercise of the right to family life except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. In this case we were persuaded that the Court would have little difficulty in finding that the placement of the child on the child protection register constituted a breach of the Article 8 right. We also were satisfied that removal of the child from his mother would also constitute a breach of the right. The true area of controversy in this case was whether the public authority could justify their actions in accordance with the second part of Article 8 (2). Ultimately, on the basis of the evidence in this case, we considered that there was a reasonable prospect of establishing that the system failures in this case were such that the public authority would not be able to make good the Article 8 (2) justification. The resolution of this case in favour of the mother vindicated her decision to proceed.