Law November 8, 2018
Top tips: Addressing allegations against staff in child care proceedings

By Daniel Male - Accountable Care Journal

Clinical professionals will be used to looking out for and making appropriate referrals when they spot signs of child abuse and neglect. Naomi De Silva, Solicitor at Browne Jacobson, focusses on what medical professionals should do if allegations are made against them.

If a child presents to hospital with an apparent non-accidental injury, this can lead to an intervention by the Safeguarding team, and eventually to Care Proceedings. We are increasingly seeing clinical professionals being drawn into Care Proceedings as parents allege that injuries have been caused by treating clinicians. Usually, this happens in hospital settings and that’s what this article focusses on but it can happen in community and other settings.

So what should medical professionals do if allegations are made against them?

In the first instance, the hospital should determine whether they consider that there is any merit in the allegations. From there they can decide whether to extend their own legal advice and provide support to their staff against whom allegations have been made, or if separate legal representation should be advised. Either way, the key staff should be encouraged to seek legal advice from a family practitioner who has experience of the Family Court and Care Proceedings. This is because there is the potential that they and the hospital may be subject to adverse judicial findings/criticism.

A finding of fact in Care Proceedings that a clinician did cause or contribute to an injury as alleged by the parents will certainly raise questions of negligence, for which the hospital Trust may be sued or find that they are drawn into a criminal investigation. These can be harder to defend, even though those findings may have been made without the Trust having an opportunity to fully defend the allegations, if they are not joined as a party to the Care Proceedings (as below). The insurer / NHS Resolution should be alerted at an early stage. A clinician could also be investigated by the police and in the very worst scenario prosecuted and jailed.

The Trust should always seek detailed legal advice promptly in this situation, but as a first port of call, bear in mind these top tips:

  • Be careful about what is shared and with whom. Care Proceedings documents prepared for the Court are not disclosable to anyone who is not a party to proceedings and certainly not without an Order from the Family Court.
  • A member of staff may be asked to prepare a statement but can often be left in the dark as to the allegations that have been made against them. It is good practice for the Local Authority to ask for limited disclosure to be provided in an Order so the maker of that statement knows what issues the court wants to hear about and can see the documents that are relevant to those issues.
  • If an order has not been made to that effect then an application can be made to the Court for disclosure of relevant evidence to enable the witness to prepare a statement. The Court will be willing to hear applications for disclosure that will enable them to resolve live issues in the case before it. In cases concerning non-accidental injury, the Court will almost always order independent medical evidence to review the injuries and consider them in light of the accounts provided by the all those in the “pool of perpetrators” (i.e. everyone who is alleged to have had the potential to cause the injury/injuries under scrutiny). This evidence can rule out the medical professionals under the spotlight. However, parties in the case can, and sometimes do, reject the medical evidence and choose to pursue allegations against medical professionals nonetheless.
  • If allegations are no longer pursued part way through the proceedings, then the Trust/alleged perpetrator can make an application to be discharged as a party from the proceedings. This may not necessarily be the end of the Trust’s involvement in the care proceedings, as medical professionals may still be asked to provide evidence in the context of their professional role in the child/children’s life.
  • If allegations are pursued to what is known as a fact finding hearing, then the staff member or, more frequently, the Trust, may make an application to be made a party to proceedings as an “intervenor. ” Where a contested hearing is likely it is good practice to get involved at the earliest opportunity so that the strict timetable for Care Proceedings is not delayed.

The benefit of intervening is that of the Trust and witnesses are entitled to see documents from the Court or even the full Court Bundle. Furthermore, the Trust will be able to attend hearings, hear the case against their staff and have representation in place should allegations against the Trust be pursued to trial. The response to allegations against medical professionals should be determined on its individual circumstances.

It will benefit clinical professionals and the Trust to seek legal guidance in each case on whether any intervention is necessary – whether that be light touch - through liaison with the Local Authority or more focussed - with application for papers or through seeking party status.

Find out more, here.

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