Editorials

Medical law and protection of children

BMJ 2008; 337 doi: https://doi.org/10.1136/bmj.a1380 (Published 04 September 2008) Cite this as: BMJ 2008;337:a1380
  1. David M Foreman, consultant and visiting senior lecturer to the Isle of Man government 1,
  2. Juliet Williams, barrister2
  1. 1Child and Adolescent Mental Health Service, Noble’s Hospital, Strang, Braddan, Isle of Man IM4 4RJ
  2. 2Southampton SO17 3SE
  1. David_Foreman{at}doctors.net.uk

    Better guidance is needed on how doctors working in child protection should manage their conflicting professional duties

    A crisis of confidence is developing between the General Medical Council (GMC) and paediatricians. Some assert that the GMC does not adequately understand the unique nature of child protection work,1 which the GMC refutes.2 We argue that this reflects a fundamental confusion in doctors’ duties regarding child protection, the consequences of which are exacerbated by the GMC’s fitness to practise procedures.

    Child protection guidance in the United Kingdom is underpinned by the 1989 Children Act. It introduced the “principle of paramountcy” of the child’s welfare over all other competing considerations, to which UK child protection and paediatric guidance now refers. However, this principle only applies to the courts’ criteria for deciding the outcome of cases under that act,3 not to doctors, whose medical and legal duties in child protection are governed by the usual body of medical law.

    Medical law states that a doctor’s duty to the (non-competent) child is owed to the parent, whose consent is required for the doctor to treat.4 This is supported by article 8 of the European Convention on Human Rights, as a consequence of both children’s and parents’ rights to family and private life. Thus, doctors have a duty of care to both, as recognised by the guidance of the GMC and Royal College of Paediatrics and Child Health. In child protection cases, these duties are likely to conflict But although such differences should be resolved in the child’s favour, little guidance is available on how the duty of care to the parent should be compromised beyond maintaining an aspiration to “partnership” with the suspected carer in caring for the child.5 This fits ill with practice,6 and may also conflict with the subsequent duty to the court should the doctor be required to act as an expert witness later.7

    Thus, in many if not all child protection investigations there will be prima facie evidence that the doctor acted contrary to the usual duty of care expected towards the child’s parents, as fluctuating suspicion pushes the paediatrician uncertainly from role to role. Because child protection should be preventive, in many cases no abuse will be detected retrospectively to justify this breach of care.

    Although the GMC’s latest guidance is silent on this,8 it states publicly that it appreciates such dilemmas and asserts that few doctors working in child protection have been subject to fitness to practise procedures. However, should a case become “high profile”—either because of media coverage or the reputation of the doctor—additional concerns arise.

    In fitness to practise proceedings, the current term, “misconduct,” subsumes the old term, “infamous conduct in a professional respect”—behaviour by a doctor that brings the profession into disrepute.4 9 Thus, a skilful and hostile media campaign is a salient additional factor that the GMC must consider in its deliberations. If the doctor claims to be specially skilled, the standard set needs to be based on reasonable practice of that level of skill, which may be judged by a court independent of customary practice by colleagues.10

    The purpose of any GMC sanction is not only to protect the public but to maintain public confidence in the profession—something that again must be considered in the light of media coverage. These pressures converge to make it less likely for the GMC to dismiss cases related to a media campaign and, especially if the doctor is claiming special skills, to assess the case more stringently. It is easy to see how an ordinary child protection doctor could interpret the GMC’s response to high profile cases as “appeasing the media” and become concerned by criticisms of lapses in care to the parent, which the doctor understands as unavoidable consequences of ordinary child protection practice. The GMC can equally claim that it is correctly following its procedures to protect both the public and the reputation of medicine.

    The number of complaints against paediatricians related to child abuse work increased by more than 500% between 1995 and 2003, with 61% of currently active complaints being made after 2003.11 Since 2003, registrations for emotional abuse and neglect have increased, but those for physical or sexual abuse have declined.12 This suggests that paediatricians may be avoiding work related to abuse, for which more detailed physical examinations are needed. If so, this is bad for children.

    Three interventions are urgently needed. Firstly, the GMC should collaborate with other professional bodies to issue more specific guidance about how doctors should manage these conflicting duties of care in child protection cases. Such guidance—to which doctors could work, and against which they could be judged—would do much to restore confidence in child protection processes. Secondly, complaints about professionals in child protection cases should be subject to independent scrutiny before they are referred to their professional bodies. This process could separate matters of poor professional practice from those of public confidence, but at present no body exists that can do this. Finally, the general public needs to be better informed about the reality of everyday child protection work, so that the necessary compromises implicit in such procedures are better understood.

    Notes

    Cite this as: BMJ 2008;337:a1380

    Footnotes

    • Competing interests: None declared.

    • Provenance and peer review: Not commissioned; externally peer reviewed.

    References

    View Abstract

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