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Cite as: [2004] ScotCS 174
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Fairlie v. Perth and Kinross Healthcare NHS Trust [2004] ScotCS 174 (08 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD KINGARTH in the cause JAMES McGREGOR FAIRLIE Pursuer; against PERTH & KINROSS HEALTHCARE NHS TRUST Defenders:
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Pursuer: Peoples, Q.C.; HBM Sayers (for McNabs, Solicitors, Perth)
Defenders: Caldwell Q.C., Woolman Q.C., Lindsay; R F Macdonald
8 July 2004
[1] In this action the pursuer claims damages from the defenders on the basis that a consultant psychiatrist, Dr Yellowlees, "for whose actings in the course of his employment with them the first defenders are liable", failed in "a duty to the pursuer to act with reasonable care to avoid foreseeable harm to him resulting from treatment and other action taken by the said Doctor, in relation to the pursuer's daughter Katrina". The action came before me on Procedure Roll when the defenders sought dismissal.[2] On Record it is agreed that in about July 1994 the pursuer's youngest daughter Katrina, who was born on 26 October 1969, was admitted to Perth Royal Infirmary complaining of severe abdominal pains. It is also accepted that when her symptoms continued, despite a number of different physical treatments, this gave rise to sufficient concern that she was admitted to a psychiatric unit at the Murray Royal Hospital, Perth ("MRH"), for further care and treatment. It is the pursuer's contention that she underwent there, as a patient of Dr Yellowlees, intensive therapy of a type known as Recovered Memory Therapy ("RMT"). It is said that RMT is a therapy which claims to unlock painful memories (which can it is claimed be retrieved through dreams and hypnosis) which the patient has blocked out of his or her conscious mind. He avers that as a result of such therapy Katrina alleged that her father and others had sexually abused her, in a brutal and sadistic manner, and that said abuse had continued after her admission to MRH. It is the pursuer's position that these allegations were entirely without foundation. It is said that the allegations concerning the pursuer were made from about April 1995 onwards until they were withdrawn by Katrina herself in December 1995.
[3] The pursuer avers (in Condescendence IV) that Dr Yellowlees believed these allegations. He avers that Dr Yellowlees did so without attempting first to discuss the matter with Katrina's parents and further that he made no attempt to investigate the allegations which any consultant psychiatrist exercising proper skill and care would have done (again in Condescendence IV). In Condescendence VII, in particular, he avers that despite being made aware that there were persons who were said to have witnessed the abuse but who were denying having done so, Dr Yellowlees took no steps to investigate or to alter his stated belief. Further, he avers that at the time that Katrina was making the allegations she was, as Dr Yellowlees well knew, in a very disturbed mental state and in receipt of powerful medication. Notwithstanding this knowledge, coupled with the inherent improbability that the more serious allegations had any basis in fact, Dr Yellowlees was not, it is said, prepared to shift from his initial express belief that the pursuer had been guilty of serious sexual and physical abuse of Katrina (Condescendence X).
[4] The pursuer further avers that in about July 1995 during her stay in MRH, Katrina, supported and encouraged by Dr Yellowlees, confided to her older sister Sharon that she had been abused by the pursuer and others. At a number of places on Record he also avers that during the period while Katrina was under treatment Dr Yellowlees, in his dealings with other family members, stated to them that he believed the allegations (see in particular Condescendence IV, pages 16B-17B and in Condescendences VI, VII, VIII, IX and X).
[5] The pursuer avers in a number of places that as a result of his disclosing to members of the pursuer's family his view that the abuse of Katrina by the pursuer had occurred, Dr Yellowlees caused and materially contributed to "serious harm to the pursuer's reputation and to relations between the pursuer and his family" (in Condescendence VI at page 38B, in Condescendence VII at page 41A and in Condescendence XI at page 45E) "for which the pursuer seeks reasonable monetary compensation" (page 45E). In particular, at Condescendence XIV it is averred that:
"Until the admission of Katrina to MRH and the involvement of the Social Work Department, as more fully condescended upon below, Katrina had enjoyed a close and loving relationship with the pursuer, her mother, her three older brothers and her elder sister Sharon. The pursuer enjoyed a close and loving relationship with his wife and all of his children and grandchildren. He enjoyed unrestricted access to his children and grandchildren all of whom he saw regularly. In his community and to those who knew him, he was well liked, well respected and regarded as a man of good character. That previously unblemished reputation in the community and the previously close and loving relations he enjoyed with his family were substantially damaged by the actings complained of in these proceedings. The family relationship was destroyed. The pursuer was denied several of the most important years in his grandchildren's upbringing which can never be returned to him. The pursuer refused to babysit for the children, would not be alone with them, would never take any of them into the toilet or see them in the bath. The previous close, loving and natural relationship became strained and unnatural. Furthermore, Katrina's continued psychological problems meant that the pursuer could not afford to be alone with her for several years. He could not be alone in her room with her or visit her in her flat unless accompanied by another family member. He cannot give her a lift in his car on his own. Katrina has been distressed by this and found it hurtful. The pursuer has had no alternative but to act in this way."
"1. The pursuer having suffered loss, injury and damage as a consequence of the said wrongful actings of the first defenders' employee, for whose actings in the course of his employment the first defenders are liable, is entitled to reparation from them therefor.
2. The pursuer having suffered loss, injury and damage as a consequence of the breach of duty on the part of the first defenders' said employee, for whose actings in the circumstances condescended on the first defenders are liable, is entitled to reparation from them therefore."
The first of these pleas-in-law appeared on the face of it (as argued by counsel for the defenders) to relate to certain averments (especially in Condescendence VI) about particular statements (which were said to be false and known to be false) made by Dr Yellowlees in relation to a number of matters to do with measures being taken in relation to Katrina's care and in relation to the pursuer's apparent attitude in meetings. In the course of the debate, however, counsel for the pursuer accepted that he did not now seek to make any separate case based on "wrongful actings" and agreed that the first plea-in-law should be repelled of consent. It was his position, as I understood it, that the averments in question could nevertheless be relevant at least as part of the background or context for the specific allegations of negligence made against Dr Yellowlees and potentially of relevance in relation to his credibility at any proof.
[7] The pursuer's specific allegations of negligence are made at Condescendence XVI, in the following terms:
"In the circumstances condescended upon the said Dr Yellowlees, for whose actings in the course of his employment with them the first defenders are liable, owed a duty to the pursuer to act with reasonable care to avoid foreseeable harm to him resulting from treatment and other action taken by the said Doctor, in relation to the pursuer's daughter Katrina. In particular, said duty was owed by the said Doctor where, as a result of the Doctor's treatment regime, his diagnosis was that the father of his female patient had sexually abused or assaulted her. In the exercise of reasonable care, it was his duty in all the circumstances (i) to assess the likely veracity of any allegations of abuse which resulted from RMT, (ii) not to found any belief of sexual abuse solely on interpretation of nightmares and flashbacks recounted by Katrina as part of her treatment regime, (iii) to discuss any alleged abuse in the first instance with Katrina's father before encouraging Katrina to speak to her siblings about the allegations, and (iv) to refrain from indicating, without proper assessment and investigation of the allegations, a belief to members of Katrina's family that the allegations were probably true. Said Doctor knew or ought to have known that, if he embarked on RMT to treat Katrina and if he failed to fulfil the said duties, that the pursuer would suffer serious harm to his reputation and relations with other members of his immediately family including his wife, Katrina and his other children and his grandchildren. In each and all of said duties, Dr Yellowlees failed and by his failure, caused or materially contributed to the harm complained of."
[9] Before detailing the parties' submissions it is right to record, shortly, some further background relating to the history of the action. It is apparent from the pursuer's averments that as a result of the allegations which Katrina made, the Social Work Department of Tayside Regional Council became involved with her and her family from about August 1995 onwards (and indeed that the police became involved after Katrina gave a statement to them in about August 1995). When the action was first raised it was raised also against Perth and Kinross Council as statutory successors to Tayside Regional Council, the Social Work authority concerned, as second defenders. It was averred that the pursuer's loss and damage also flowed from certain alleged false statements made, and breaches of confidence, by employees of the Social Work Department. When the debate before me began, counsel for the second defenders made detailed submissions attacking the relevance and specification of the claim against her clients. Prior to replying, counsel for the pursuer sought, and was granted, leave to lodge a Minute of Abandonment in relation to the second defenders. Further, when the debate began, senior counsel for the defenders (then designed as first defenders), in addition to the three broad heads of argument under which dismissal of the action was sought, sought also to attack the specification and relevance of certain specific averments which, it was argued, should not be admitted to probation. Following an amendment procedure, which took place before counsel for the pursuer's reply - by which amendment it was sought to meet these criticisms - senior counsel then instructed for the defenders made it plain that he no longer sought to make these criticisms of individual averments.
The defenders' submissions
[10] Counsel for the defenders submitted that the action should be dismissed for three broad reasons. First, there were no relevant averments to instruct a duty of care owed by Dr Yellowlees to the pursuer; secondly, in any event, the averments in Condescendence XVI as to the scope of any such duty of care were fundamentally irrelevant and lacking in specification; and thirdly, the pursuer had not averred any relevant loss which would sound in damages in an action of this kind.[11] As to the first of these arguments, counsel submitted that on a fair reading of the pleadings the pursuer's complaints related to matters done or not done by Dr Yellowlees as part of the diagnosis, treatment and management of his patient Katrina's apparent problems. It would need very clear averments to indicate that he was at any time acting outwith the scope of an ordinary doctor-patient relationship. There were none. In these circumstances, applying the tests referred to in Caparo Industries Plc v Dickman &c 1991 All E.R. 568, while it was clear that Dr Yellowlees owed a duty of care to his patient Katrina (and he could not in any sense be said to be immune from legal action if he failed in that duty), he could not be said at the same time to have owed a duty of care to her father, the pursuer - in particular where, in the circumstances alleged, it was he (with others) who was said to have been the cause of the pursuer's problems. In general a doctor could only be said to owe a duty of care to his or her patient. Reference was made to Powell &c v Boladz &c 1998 L.L.R. 116, a case which illustrated that there may be many circumstances where a doctor could come into close contact with third parties without being said to owe a duty of care to them. A doctor or psychiatrist assessing claims made by a child about alleged abuse could not be said to owe a duty of care at the same time both to the child and to the alleged abuser. The potential conflict of interest was such that it would not fair, just and reasonable to do so. Alternatively the child could not be said to be in a proximate relationship to the doctor or therapist. Reference in particular was made to X (Minors) v Bedfordshire C. C. 1995 2 A.C. 634 and to a judgment of the South Australian Supreme Court in Hillman v Tania Leonie Black &c 1996 67 S.A.S.R. 490. Further reference was made to the more recent cases of D. v East Berkshire Community NHS Trust &c 2004 2 WLR 58 and B. v Attorney General of New Zealand 2003 4 All ER 833. All these cases should be regarded as highly persuasive. A psychiatrist's actings could involve a number of different acts bringing him or her into contact with a number of different people, including the relations of his patient. If the law was to impose a duty a care such as claimed by the pursuer, it would be likely substantially to restrict any therapist's ability to act in the interests of his or her patient, and it would be difficult to distinguish those circumstances in which any such duty was said to exist from those in which it plainly would not. The first three of the alleged duties in which Dr Yellowlees is said to have failed illustrated the difficulty and there was a tension between the third and fourth. To suggest that Dr Yellowlees was not acting in the interests of his patient would not sit well with the claim that the defenders were at all times vicariously liable for his actings.
[12] In support of the defenders' second broad proposition, counsel submitted that the averments in Condescendence XVI were fundamentally irrelevant and lacking in specification, for a number of reasons. In the first place, it was argued that it could not be said that the alleged failures of Dr Yellowlees were failures to meet the standards appropriate in cases of alleged professional negligence - in particular that in the respects averred he did what no professional man of ordinary skill would have done if acting with ordinary care. Reference was made to Hunter v Hanley 1955 SC 200. Further, in relation to each of the particular duties, it was not made sufficiently clear what he should have done (or what a psychiatrist of ordinary competence would have done). It was, in particular, not clear what further "assessment" or "investigation" he should have made. It was to be noticed that it was not suggested, as part of the case of fault, that Dr Yellowlees should not have attempted RMT at all, despite certain criticisms of that therapy made earlier on Record.
[13] In the third place, the pursuer had not averred any relevant loss which would sound in damages in an action of this kind. At earlier hearings in respect of Minutes of Amendment counsel for the pursuer had accepted that his claim was a claim for personal injury said to have been caused by negligence. What the pursuer was claiming was monetary compensation in respect of loss reputation and interference with family relations. As to the first of these, the appropriate claim was an action of defamation. Reference was made to Spring v Guardian Assurance Plc &c 1994 3 All ER 129. Had the claim been made as a claim for defamation, questions would have arisen in relation to the defence of qualified privilege and in relation to time bar. It would be wrong to allow the pursuer to advance a claim for defamation in the guise of a claim for damages based on negligent statements. Interference with family relations was not, of itself, an appropriate head of claim in an action of this type. Damages were not being claimed for alleged interference with the pursuer's rights under Article 8 of the Human Rights Convention. Although at one point in the pleadings (in Condescendence XII at page 48) the pursuer referred to his "upset, distress, shock and anger" when confronted with the allegations, these averments were, it seemed, made as part of the narrative and did not form the basis for any particular claimed head of loss. Further they appeared to relate to a transitory, emotional reaction. In any event they were not averments of any identifiable psychiatric or psychological illness or condition such as would be necessary in an action of this kind. Reference was made to Simpson v Imperial Chemical Industries Limited 1983 S.L.T. 601. It was noticeable that in all the cases referred to in support of the first broad submission, the parents who claimed damages claimed to have suffered psychiatric illness - although the matter was perhaps not wholly clear in relation to the mother's claim in the "East Berkshire case", being one of the three appeals considered in D. v East Berkshire Community NHS Trust &c.
The pursuer's submissions
[14] On the question of duty of care counsel stressed at the outset the importance of the claim to the pursuer. False claims of abuse were, and had been recognised in numbers of cases to be, highly damaging. Reference was made to Lillie & Reed v Newcastle City Council &c 2002 EWHC 1600 (QB) and also to the decision of the Supreme Court of New Hampshire in Hungerford v Susan L. Jones dated 18 December 1998. The law should be slow to refuse a remedy for a wrong. Although the pursuer was content to justify his claim by reference to the tests laid down in Caparo Industries Plc v Dickman &c (and did not dispute, at least in general, the approach of the court in Powell &c v Boladz &c), the question in this case should be approached with caution. This was an area of law which was developing. The court should be slow to dismiss the action without a full hearing of the facts. Reference was made to X (Minors) v Bedfordshire C. C., and in particular pages 741 and 749. That case could not be regarded as the last word in relation to a number of matters. Much of it was concerned with whether a local authority exercising statutory duties could be said directly to owe a duty of care to a child whose alleged abuse by another was being considered, along with potential compulsory measures of care. Since then it had been held in other cases that local authorities exercising statutory duties could be said to owe duties of care to children at common law. Reference was made to W. &c v Essex County Council &c 2001 2 AC 592, Barrett v Enfield London Borough Council 2001 2 AC 550 and Phelps v Hillingdon London Borough Council 2001 2 AC 619. It had been recognised since, in particular in D. v East Berkshire Community NHS Trust &c, that the decision in X (Minors) v Bedfordshire C. C. in relation to whether local authorities cold be said to owe a duty of care to children could be seen as restricted to cases where decisions were being taken as to whether to take the children in question into care. It was a decision informed by the particular statutory background in question - as was the decision in B. &c v Attorney General of New Zealand. Further, since it was recognised that local authorities could be subject to claims for damages for breach of rights under Article 8 of the Human Rights Convention (and the mother and daughter in "the Newham case", considered in X (Minors) v Bedfordshire C.C., had been awarded damages in the European Court of Human Rights in T.P. and K.M. v United Kingdom 2001 2 FLR 549) the reasons of public policy which had persuaded the Court in X (Minors) v Bedfordshire C.C. that the local authorities in question did not owe a duty of care to the children could no longer be said to have force. These reasons of policy had in part persuaded the Court that individual psychiatrists could not be said to have owed a duty of care to the children or their parents. Another reason was that they owed a primary duty to advise the local authorities in question. Neither of these features applied in the present case. Insofar as it was decided in the cases considered in D. v East Berkshire Community NHS Trust &c that no duty of care was owed by the individual therapists to the parents, these cases could be distinguished. The relevant therapists had come to act along with agencies having statutory duties in relation to the children. This was also a significant factor in the decision in B. &c v Attorney General of New Zealand.[15] Notwithstanding these differences, however, it was accepted that in the cases referred to on behalf of the defenders there had been emphasised the difficulties - arising from potential conflict of interest - of imposing on a doctor or psychiatrist at any one time a duty of care owed to a child under investigation and at the same time a duty to an alleged abuser of that child. As a result - notwithstanding the approach apparently adopted in the New Hampshire case referred to - it was accepted that insofar as Dr Yellowlees was acting in the diagnosis, treatment and management of Katrina, it would be difficult to suggest that he also owed a duty of care to the pursuer at the same time. It was also accepted that if Dr Yellowlees, acting in pursuit of what he believed to be his public duty, had informed the relevant authorities (e.g. the police or the social work department) it would be difficult to say - for similar reasons - that at the same time he owed a duty of care to the alleged abuser. That a doctor could inform appropriate authorities in the execution of a public duty notwithstanding a duty of confidence to a patient was clear. Reference was made W. v Egdell &c 1989 1 All E.R. 1089 and 1990 1 All ER 835.
[16] In the present case, however, it was clear from the averments that the pursuer was offering to prove that Dr Yellowlees had, in the actings complained of, stepped outside the treatment and management of Katrina. The averments were such as to indicate that in encouraging Katrina to confide in her relations and in having personal dealings with those relations Dr Yellowlees had voluntarily assumed a responsibility to her relatives, in which it could not be said that it would not be fair, just and reasonable to impose a liability to the pursuer. Although there could be circumstances in which a doctor could legitimately have dealings with a third party as part of the treatment and management of his patient, there were a number of averments which clearly indicated that that was not what Dr Yellowlees was doing. In particular it was averred that in his dealings with the pursuer's family Dr Yellowlees had maintained his position "forcibly and vigorously" (page 39). Further there were averments that Dr Yellowlees had sought to persuade Katrina's sister Sharon that Katrina had been abused, notwithstanding that she, Sharon, maintained that she had not been (page 16). Further there was an averment that Dr Yellowlees had falsely said to Sharon that her father had been intimidating and imposing when he had met Dr Yellowlees for the first time in April 1995 and that he, the pursuer, was, suspiciously, opposed to disclosure work, and that thereby he had deliberately sought to portray the pursuer to members of his family in a false and damaging light (Condescendence VI at page 35). In these circumstances there was nothing to suggest that Dr Yellowlees could not be said to have owed a duty of care to Katrina and the pursuer at the same time. The critical duty owed to the pursuer was that enumerated at (iv) (in Condescendence XVI), namely the duty to refrain from indicating, without proper assessment and investigation of the allegations, the belief to members of Katrina's family that the allegations were probably true. In the circumstances there could be said to be a close analogy with the case of Spring v Guardian Assurance plc &c, where a duty not to make false statements in relation to a former employee was held to be owed both to those asking for a reference and the former employee himself.
[17] As to the relevance and specification of the particular duties alleged in Condescendence XVI, counsel submitted that it was clear from the Record as a whole that the pursuer was seeking to suggest that Dr Yellowlees had fallen below the standards of an ordinary competent psychiatrist in the circumstances. The defenders' averments in answer to that Condescendence to the effect that "At all times Dr Yellowlees acted in the manner to be expected of a consultant psychiatrist of ordinary skill and experience exercising reasonable care" were denied. As to the rest, the pursuer had averred sufficient, looking at the Record as a whole, to indicate what assessment and investigation could and should have been carried out.
[18] In relation to the question of the losses claimed, counsel argued that the pursuer was seeking to recover - as respects loss of reputation and interference with family relations - monetary compensation for interference with rights and interests recognised by law. Reference was made to McFarlane v Tayside Health Board 1998 S.C. 289 and in particular to the Opinion of Lord McCluskey at page 400. A negligent representation damaging to a person's reputation could be made the subject of an action for negligence, as in the case of Spring v Guardian Assurance plc &c. Although it was accepted that the pursuer was not seeking to prove any recognised psychiatric or psychological illness it was clear from Fleming v Strathclyde Regional Council 1992 S.L.T. 161 that solatium for distress could be claimed in an action of damages for personal injury.
Discussion
[19] By the end of the debate it was clear that the issues between the parties on the question of whether the pursuer's averments instructed a relevant duty of care owed by Dr Yellowlees to the pursuer had narrowed. There was, it seemed to me, general agreement in relation to certain broad propositions which could be drawn from recent authorities.[20] First it was not disputed - without prejudice to the question of whether there might be other circumstances in which a doctor owed a duty of care to third parties - that, in general, a doctor, engaged in the treatment and management of his or her patient, owed a duty of care only to that patient. In Powell &c v Boladz &c, the parents of a deceased child, who had been a patient of certain general practitioners, sought damages for alleged failures by the doctors in duties said to be owed to them (in circumstances which arose after the child's death). Lord Justice Stuart-Smith, giving the leading judgment of the Court of Appeal, said (at page 123):
"I propose to consider first whether a sufficient relationship of proximity existed. It must be appreciated that prior to April 17 1990 although the plaintiffs were patients of the defenders in the sense that they were on their register, the only patient who was seeking medical advice and treatment was Robert. It was to him that the defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice the doctor obviously owes a duty to be careful. The duty is owed to the child, not to the parents.
As Lord Diplock said in Sidaway v Governors of Bethlem Royal Hospital 1985 AC 871 page 890:
'... a doctor's duty of care, whether he be a general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all.'"
[22] In the Court of Appeal in X (Minors) v Bedfordshire C.C. Sir Thomas Bingham M.R. decided in "the Newham case" that the psychiatrist in question did owe a duty of care to the child whom she was assessing notwithstanding that she had been engaged to advise a local authority charged with statutory responsibilities. Nevertheless, he held that it could not be said that the psychiatrist owed any duty of care to the child's mother. At page 665 he said:
"The psychiatrist would in my view have recognised the mother as someone foreseeably likely to be injured if, as a result of her advice, the child were to be taken away from the mother. But the mother was not in any meaningful sense the psychiatrist's patient. The psychiatrist's duty was to act in the interests of the child, and that might very well mean acting in a way that would be adverse to the personal interests of the mother; she was concerned with those interests only to the extent that they could have an impact on the interests of the child. In this situation of potential conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the mother, whose claim it was accordingly right to strike out."
Although in the House of Lords it was decided inter alia that the psychiatrist's duty in the circumstances did not extend even to the child (because like a doctor engaged by an insurance company to examine a patient for life insurance the psychiatrist was engaged to advise the local authority, who themselves owed no duty directly to the child - see in particular Lord Browne Wilkinson at pages 751-754), there is nothing in the speeches of their Lordships to indicate that if the matter in relation to the mother had had to be considered separately there would have been any disagreement with the views expressed by Sir Thomas Bingham. It was for similar reasons relating to conflict of interest that the Australian Supreme Court decided in Hillman v Tania Leonie Black &c that medical practitioners who examined a child could not be said to have owed a duty of care to her father who, it was alleged, had sexually abused her.
[23] In D. v East Berkshire NHS Trust &c, whereas it was stressed that it was no longer legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected abuse and the initiation and pursuit of care proceedings (see in particular paragraph 84) it was made clear that the same could not be said in relation to the parents in question. It is significant that in each of the three cases which were considered it was clearly held that the practitioners or therapists in question owed no duty of care to the parents, not only after and when other authorities were involved but also beforehand, at a time when there existed what could be said to be a straightforward doctor patient relationship between them and the children in question.[24] In the "East Berkshire case" a mother claimed damages in respect of an alleged misdiagnosis of "Munchausen by proxy" by doctors employed by an NHS Trust. Lord Phillips of Worth Matravers M.R., delivering the Opinion of the Court, said in a passage, beginning at para. 96:
"M., and not his mother, was the patient. The moment that it was suspected that his injuries might be deliberately exaggerated by his mother, the duty owed to him 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 duty owed to his mother:
97. The judge accepted as correct submissions advanced on the part of the defence, which he summarised as follows ...
'I should be slow to impose any duty that could cut across public policy considerations relating to the care of children. The son, M., was a patient; to impose a concurrent duty in whatever terms in respect of the mother would lead to conflict with their duties towards her son. The conflict here is identical with sex abuse cases. The possibility that somebody who may be subjected to Munchausen's by proxy endangering her son is one which the doctor must concern himself about in the context of his care for the patient, the son. Once a suspicion arises about someone who is the mother of a patient, there was a clear duty to investigate in the interests of M, even if initiating the process might damage the mother. In fact they could be negligent in certain circumstances to the child if they did not do so. The defendants add that the interests of the child are paramount and the questions of child protection override the possibility of the duty that the claimant asserts, however it is expressed ...'
98. The judge observed that these submissions received powerful support from the Bedfordshire cases.
99. We consider that the judge was correct to accept these submissions. The reasoning in the Bedfordshire cases plainly applies to the facts of this case and does so in a manner which, for the reasons that we have given, remains valid. The judge was correct to rule that no duty of care was owed to the claimant."
"The reason why we have held that no duty of care is owed to the father is, essentially, that it would conflict with the duty owed to a person more proximate than he, namely his daughter".
"Once again Mr Levy argued that the reasoning in the Bedfordshire cases did not apply to the facts of this case. He submitted that at the start of the story there was a duty of care owed by Dr Blumenthal both to M. and M.'s parents. He emphasised that M. was taken to the hospital by her parents. At that point there was no question of Dr Blumenthal's duty to the child conflicting with his duty to the parents. Conflict only arose after he had negligently involved the social services and the police. It was not open to Dr Blumenthal to argue that the consequences of his negligence absolved him from any duty of care.
123. This argument was advanced before Simon J. and rejected by him. He held ... 'In my view this approach is unrealistic since inevitably the initial diagnosis will be refined as further information becomes available. Indeed, the claimants themselves allege that there was an obligation to refine and develop an initial diagnosis. Furthermore, the diagnosis that was reached necessarily involved an obligation owed to the child and to the Oldham Metropolitan Borough Council and there is no room for an additional duty owed to the parents, see Powell v Boladz and X. v Bedfordshire County Council ("the Newham case"): the observations of Sir Thomas Bingham M.R. at page 665G "the mother was not in any meaningful sense the psychiatrist's patient. The psychiatrist's duty was to act in the interests of the child, and that may very well mean acting in a way that would be adverse to the interests of the mother ...". Once there is material on which the doctor can properly initiate the multi-disciplinary investigation, the doctor cannot owe a duty to the parents in relation of the diagnosis which commences the process. In the present case the claimants do not contend that there was no material upon which the doctor could act; and there is no point which they can identify when a special relationship with the parents can be said to exist, which is not in conflict with the duty to the child and the Oldham Metropolitan Borough Council.'
...
124. We agree with this analysis. The moment that Dr Blumenthal suspected that M. had been abused, and before he took any action in consequence of his suspicion, his duty to M. was in potential conflict with the interests of her parents. The judge was right to find that the case was covered by the Bedfordshire cases and that no duty of care was owed to the parents."
"To whom is the duty of care owed? Clearly the duty is owed to the child or young person in respect of whom the statutory duty to arrange for a prompt enquiry exists in the particular case. ... but their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an enquiry into an abuse allegation in the interests of the alleged perpetrator of the children that the alleged victims are poles apart. Those conducting the enquiry must act in good faith throughout. To impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory."
[29] Against that background the question in the present action is whether the pursuer has averred sufficient to entitle him to proof of his contention that Dr Yellowlees - when in particular he allegedly reported to members of the pursuer's family his assessment that Katrina had been abused by him - stepped outside the management and treatment of Katrina into a context where he could be said to have owed a duty of care to the pursuer. I have come to the view that that cannot be said.
[30] There is no doubt that initially Dr Yellowlees' contact with Katrina was in the context of a doctor/patient relationship. Such a relationship, however, can, as is well recognised, involve a doctor coming into contact with others as part of the treatment and management of the patient (see in particular the observations made in Powell &c v Boladz &c referred to at para. 20 above). This, on the face of it, would be particularly true for a consultant psychiatrist engaged in the assessment, management and treatment of a patient in relation to what was thought to be - in accordance with the pursuer's averments - symptoms which were "psychosomatic and might be a response to something traumatic that had happened to her". It would seem clear that the ambit of a psychiatrist's duty to act in the patient's interests in such cases could be wide. It might involve a number of different acts potentially involving - subject to questions of confidence - discussion with members of the patient's wider family, particularly those having her care both present and, potentially, in the future. This could be, as the pursuer would seem to accept, for assistance in the making of a diagnosis or in order to report a diagnosis once made, particularly, but perhaps not only, for the purpose of the family's engagement and help in the present or future management of the patient - especially perhaps where the diagnosis was made of abuse - including continuing abuse - of the patient by a third party. It could even, as was accepted, involve, in the execution of a public duty, the reporting of a diagnosis to authorities. In circumstances where the primary duty was owed to the patient (and could not at the same time be owed to the alleged abuser) there would, in my view, need to be very clear circumstances to indicate that at any particular time a consultant psychiatrist was no longer acting as part of the management and treatment of his patient or in the exercise, as he saw it, of a public duty; anything else tending to restrict the ability of the consultant to act in the best interests of his or her patient and leave him uncertain as to the boundaries between the duty of care to the patient (and potentially to the public) and any duty to a third party. In short I agree with counsel for the defenders that there would need to be very clear averments of fact to support the inference that Dr Yellowlees at any stage was acting outwith the ordinary doctor/patient relationship (or indeed outwith any perceived public duty to inform).
[31] Having read the pleadings in this case with care there is nothing in my view to suggest - at least with sufficient clarity to entitle the pursuer to a proof - that when Dr Yellowlees allegedly told members of the pursuer's family of his belief in the history of abuse this no longer formed part of his management and treatment of his patient (and in particular to help her for the present and future) or part, at least as he saw it, of the exercise of a perceived public duty to protect her from further potential harm. I listened to him with care, but senior counsel for the pursuer, in an otherwise measured and careful submission, did not suggest what other purpose or purposes Dr Yellowlees could be said (in his dealings with the pursuer's family) to have had. There is nothing in my view clearly to indicate circumstances in which it could be said that Dr Yellowlees came at any stage into a special relationship with the pursuer such that he owed a duty to him as well as to Katrina. The action is based on the alleged negligence of Dr Yellowlees while acting in the course of his employment with the defenders as a consultant psychiatrist "to avoid foreseeable harm to" the pursuer "resulting from treatment and other action taken ... in relation to the pursuer's daughter Katrina". The first three duties enumerated in Condescendence XVI were clearly duties owed to Katrina herself as part of the management and treatment of her care and illustrate the tension which could exist between co-existent duties both to her and to the pursuer. It was this in particular which seemed to me to lead senior counsel for the pursuer to accept in the course of the debate that perhaps the kernel of the pursuer's case and the point where, according to him, Dr Yellowlees could be said to have stepped outside his duties to Katrina was to be found in enumerated duty (iv). In this connection at the end of the day counsel did not, it seemed to me, seek to found simply on averments to the effect that Dr Yellowlees had had dealings with his patient's family "to discuss Katrina's treatment". He accepted, in my view rightly, that he could not seek to found on that alone as an indicator that Dr Yellowlees had strayed outwith the management and treatment of his patient. Nor did he at the end of the day seek to found simply on averments that Dr Yellowlees had chosen to inform members of the family of his diagnosis or indeed that he had encouraged Katrina to tell other members of her family of what she maintained had happened. And, of course, it is not a ground of fault alleged against him that he should not have done these things; rather, it is said that he should not have done them without having exercised reasonable care.
[32] Instead, counsel relied on the pursuer's offer to prove a number of particular facts. The first of these was that the pursuer was offering to prove that Dr Yellowlees not merely told members of the pursuer's family of his assessment but that he told them of that with particular conviction - "forcibly and vigorously". That - if the diagnosis was carelessly made - may reflect badly on Dr Yellowlees, but it is not in my view, of itself, indicative that he was no longer acting, in the circumstances as he saw it, in the treatment and management of his patient's problems. Next, particular weight was placed on averments that Dr Yellowlees had refused to change his diagnosis when Sharon informed him that she herself had not been abused. Again, in my view, it is difficult to see how that could be said to indicate, of itself, anything other than a strongly-held conviction in relation to the management and treatment of Katrina. Finally, emphasis was placed on the offer to prove that Dr Yellowlees misrepresented the pursuer's attitude to the therapy which it was said Katrina was undergoing. Again, however reprehensible that may have been (if true), it would, on the face of it, be illustrative, at best, simply of the length to which he was prepared to go to confirm or support his views otherwise formed. It would not, of itself, in my view, mean that when he reported his assessment of Katrina to members of her family he could not be said to have been acting in the management and treatment of his patient. It is also worth stressing that the so-called false statements apparently intended to be the foundation of a case against Dr Yellowlees of "wrongful actings" are not now insisted on in that context. The sole case against him is not that he deliberately conveyed a belief that he did not have (or that in any other way he deliberately sought to harm the pursuer) but rather that he passed on a belief which he did have, albeit one reached without the exercise of reasonable care.
[33] Turning to the second of the defenders' broad criticisms of the pursuer's pleadings, I am less impressed with these. It seems to me reasonably clear that on a consideration of the pleadings as a whole the pursuer is offering to prove that Dr Yellowlees fell below the standard of a reasonably competent professional. I refer for example to the references in Condescendence IV to investigation such as would have been carried out by a reasonably competent consultant. Further as to the question of what further assessment or investigation should have been made there are in the pleadings sufficient averments, in my view, to give fair notice of the case the pursuer is seeking to make. In particular there are averments in Condescendence VII of the fact that Dr Yellowlees was, it is said, made aware of certain witnesses who denied having seen any abuse but who were prepared to speak to him but whose assistance he did not seek - all this against a background in which it is averred that Dr Yellowlees was prepared to proceed notwithstanding the apparently bizarre nature of the allegations made by Katrina while she was in a disturbed state and in receipt of powerful medication (Condescendence X). In short - subject to the question of the averments of loss which I deal with below - had I been in favour of the pursuer in relation to the broader question of duty of care I would have allowed a proof before answer in relation to the case made at Condescendence XVI.
[34] In relation to the question of loss it seems clear from a number of places on Record that what the pursuer is seeking to claim is compensation for harm to his reputation and to his relations with his family (see in particular pages 39, 41 and 45). Putting it another way these are the losses which he claims Dr Yellowlees (and the defenders vicariously) had a duty of care to avoid causing.
[35] In relation to loss of reputation, however, there can be little doubt that the appropriate means of redress where mere damage to reputation is caused by a statement or statements is an action of defamation. In such an action special considerations will apply. Damages may be due (so-called Aquilian damages) for loss of reputation without the need for a pursuer to prove any specific loss. Liability will not depend on proof of lack of reasonable care and the defence of qualified privilege may be open. The provisions relating to time limits for raising such an action are different. It was, no doubt, bearing in mind such considerations that Lord Goff of Chieveley in Spring v Guardian Assurance Plc &c said (at page 150):
"Now I for my part accept that as stated by Halkett J. in Foaminol Laboratories Ltd v British Artid Plastic Ltd 1941 2 All E.R. 393 at 399 a claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action."
Against that background it would, in my view, be wrong - as counsel for the defenders argued - to allow the pursuer to advance what is essentially a claim for defamation in the guise of a claim of damages for losses caused by negligence. It is, of course, true that the majority of their Lordships in Spring v Guardian Assurance Plc &c decided that the plaintiff did have a claim in negligence against his former employers who provided a critical and apparently defamatory reference to new prospective employers (and this notwithstanding an argument that this would undermine the policy underlying the defence qualified privilege), but not only were the circumstances of that case very far removed from the pursuer's present claim but in addition - perhaps more pertinent in the present context - it is clear that a significant factor in the decision was that the plaintiff's claim was capable of being characterised as a claim of damages for economic loss resulting from a negligent mis-statement. It was for this reason that Lord Goff considered the defendants could be said to have owed a duty of care, the legal basis for which could be found in Hedley Byrne & Co. Limited v Heller & Partners 1963 2 All ER 575 (see, in particular, pages 143-146). Lord Slynn distinguished the claim based on negligence from one of defamation inter alia on the basis that in the latter it was not necessary to prove economic loss (see, in particular, pages 160 and 161). Further, Lord Woolf appeared to put particular emphasis on the fact that the claim was for economic loss (see, in particular, pages 168 and 176). It thus seems clear that the decision of the Court would have been different if the plaintiff's claim had been restricted to damage to his reputation.
[36] The pursuer of course does not restrict his claim to loss of reputation, but adds a claim for "interference with his family relations". I am not persuaded, however, that in an action of damages of this kind - based on a failure to fulfil a common law duty of care - that this of itself (and without averment of any relevant consequential personal injury) is a relevant head of loss. Counsel for the pursuer was not able to refer me to any authority in which such a claim had been successfully made. Matters might, perhaps, be different if this was a claim for damages for alleged interference by the defenders with the pursuer's rights under Article 8, but it is not. The pursuer sought to rely heavily on passages in the judgments of members of the Second Division in McFarlane v Tayside Health Board - in particular a passage in the Opinion of Lord McCluskey at page 400 - but I am not persuaded that such reliance is justified. What the court was there concerned to assess was a very different problem, namely whether the second pursuer's unlooked for pregnancy could be said to have amounted to damnum. In the passage in question the view was reached that the apparent prejudice to the second pursuer's physical integrity and well-being could be regarded as damnum. No attempt was made to describe all those interests the interference with which would be recognised, as a matter of law, as damnum giving rise to a claim for damages. Further, although the court's support for the second pursuer's claim in that respect at least (although not in relation to claims for loss of extra expenditure for the care of the child) was upheld in the House of Lords, the reasoning of their Lordships was, it seems, different, the majority clearly holding that the pursuer's claim could be regarded essentially as a straightforward claim for damages for pain and suffering arising from the physical changes brought about by the negligence in question. As Lord Clyde said (2000 SC (HL) 1 at page 34): "It seems to me to be a clear example of pain and suffering such as could qualify as a potential head of damage" (and see also Lord Hope at page 21).[37] As to the pursuer's averments of "distress" etc. at page 14, these, it appears, are apparently narrative, and not, on the face of it, intended to form the basis of any claim. If that is wrong, and these averments are designed to support a specific head of loss, they are, in my view, irrelevant. In general, as was confirmed in Simpson v Imperial Chemical Industries Limited (a decision which was founded inter alia on the well-known speech of Lord Bridge of Harwich in McLoughlin v O'Brian 1982 2 WLR 982) damages cannot be claimed ex delicto when a person suffers only what could be described as an ordinary emotional reaction to events. There must be something in the nature of an identifiable psychiatric or psychological condition or illness. Counsel did not seek to suggest that the case of Simpson v Imperial Chemical Industries Limited was wrongly decided, and the proposition vouched has been generally thought to be sound both north and south of the border (see e.g. McEwan & Paton on Damages for Personal Injury (Scotland) 2nd Ed. at paragraph 9-03 and McGregor on Damages, 17th Ed. at paragraph 3-011). It is perhaps not surprising that, as counsel for the defenders pointed out, all (or nearly all) the parents who claimed damages from allegedly negligent doctors etc. in the cases to which I was referred (and whose claims failed for other reasons), claimed apparently some form of such psychiatric or psychological condition or illness. It may be that in the "Berkshire case" in B. v East Berkshire C.C. the matter is less clear - although the claim was reportedly for "acute anxiety and depression". While counsel for the pursuer sought support from the case of Fleming v Strathclyde Regional Council, I am not persuaded that it is of particular assistance. In the first place, the decision proceeded on the basis of a concession that the pursuer's averments of "inconvenience and distress" could be said to form a relevant basis for a claim for solatium. Secondly, the action was one essentially for damages arising from physical damage (flood damage) caused to the pursuer's heritable property and the claim for inconvenience etc. could perhaps properly be seen as subsidiary to that.
[38] In all these circumstances I am persuaded that the first and third broad heads of argument advanced by the defenders are sound and that the action falls to be dismissed, as a matter of law. I stress "as a matter of law" because it goes without saying that if, as the pursuer claims, Dr Yellowlees' made the diagnosis which it is said he did, and it was one reached carelessly and without proper investigation, the pursuer's concern to seek redress is wholly understandable. I am nevertheless required to decide this case within the boundaries of the law as it has recently developed.