Fabricated Illness?
4th May 2004

Frances Swaine

Munchausen Syndrome by Proxy : whose judgment of "significant harm"?

The purpose of this article is to consider the difficulties that can
arise in a legal context when looking at the greater encroachment of
public rights on the private sphere in decision-making when there is a
suspicion that a child may be suffering significant harm (ill treatment
or the impairment of health or development) attributable to his care,
as defined in s.31 Children Act 1989.


Public Rights

We rightly recoil from the stark picture of the forgotten, neglected
and abused child such as Victoria Climbie : her death a product both of
criminal activity on the part of her carers and the failure of
appropriate medical, local authority and education bodies to interact
and recognise her situation in the family home.

In her case we recognize criminal punishment for her carers as
appropriate and welcome an investigation of how she slipped through so
many nets, to ensure such a failure on behalf of our society thus
represented does not happen again. It is easy morally to legally
condone the moves of all those involved in childcare decisions which
result in the removal of the child from the home in such gross
conditions.

In such circumstance one would expect the child to feel protected by
such removal and whatever confusion arose as to ******** as they grew
up, to justify their new situation as a haven from the last.


Legal tests

The burden of proving that a child is suffering (or that it is likely
to suffer) significant harm rests on the local authority; the standard
of proof is the civil test of the balance of probabilities. The
perpetrator of the "significant harm" identified by the local authority
will however, be judged under the criminal test; beyond reasonable
doubt.

Therein lies something of a legal conundrum for those examples of harm
where no prosecution can follow because of insufficient evidence, and
yet the local authority has chosen to pursue child care proceedings to
deprive that child of his family – perhaps indefinitely – and to leave
the family with the social stigma of causing harm – by that child's
very absence from it. At times, as we shall see, the family has not
even had the opportunity to contribute equally to the legal debate, and
as a consequence the balance of probabilities argument as put to the
Court on the part of the local authority, is not part of a fair debate.


Individual legal rights

The Human Rights Act 1988, in incorporating Articles 3 ( not to suffer
degrading treatment) 6 (right to a fair trial) and 8 (right to respect
for private and family life) of the European Convention on Human
Rights, has codified issues of the private and individual rights of the
child and his family which are necessarily set against any legal
interference by a public authority in the social function of that
family. Whilst in child care proceedings the welfare of that child is
always paramount, all legal decisions in those proceedings must now be
taken with an integral consideration of the rights set up by Articles
3, 6 and 8 for both child and family: or those decisions may be legally
flawed.


Medical evidence

In arguments concerning significant harm it may be essential for the
local authority to make use of evidence from the medical profession to
prove that harm. It may in fact be the medical profession whose views
initiate a child care conference. It is for the Courts to weigh that
evidence in the balance when coming to a conclusion about that child's
welfare.

In 1987 Dame Butler-Sloss, when reporting on the Cleveland child sex
abuse scandal, warned of excessive reliance on expert medical opinion
by local authorities in approaching the Courts for a child care Order.
It is, of course, a difficult line to tread when one profession skilled
in a particular area of knowledge, is seeking to influence another in
its decision-making, but it is an ability to look at the family life of
that child "in the round" that the Cleveland report was urging before
any decisions are made about wrenching a child from that family.

The number of ongoing cases before the GMC concerning medical courtroom
experts suggests that the lessons of Cleveland have not been learnt.
At the end of March, one case that had been before the GMC led to a
medical expert on so-called "temporary brittle bone disease" was stuck
off for misleading the courts on the cause of harm to children in
certain cases.

There are many areas of paediatric medicine about which clinicians
themselves are divided in their opinion. Some of these areas involve
illness in the child which is undetectable – or may be seen to have no
physical cause, and which it may be suggested are in reality a
fabricated illness on behalf of the parent/carer or a psychiatric
illness in the child, pandered to by parent/carer whilst treated
physically. Specific examples of this are the divergent views in the
medical profession as to the aetiology of ME/Chronic Fatigue Syndrome
(viral or a psychiatric disorder) and the "diagnosis" of Münchhausen's
Syndrome by Proxy (MSbP) in the parent (almost exclusively the mother)
of a child whose illness is either said to be clinically non-existent
(at least it is not diagnosable) or whose illness has been specifically
caused by the parent.

Both a failure in a child suffering from ME/CFS to recover in a year or
two, and the failure of a paediatrician to find a specific illness in a
child whose parent seems to be over-anxious and is constantly
requesting "tests" for a variety of illnesses have resulted in
referrals under s. 47 Children Act 1989 to make an emergency child
protection order, or failing that to call a child care conference. The
local authority's duty to investigate such a referral is
unquestionable. How that investigation and subsequent decisions about
child care applications are followed through is of paramount importance
both to the child's best interests and the rights of his family – for
the consequences of a mistake could be psychologically traumatic for
all concerned.


MSbP

MSbP is a condition in which mothers induce fabricated illness in their
children – a lay person's understanding of the "syndrome" being that
the sick child allows the parent to assume the sick role by proxy, so
that in the attention shown to the child in investigation of the
illness the mother gains sympathy and attention which is what she
craves. One might well ask who is the medical patient in this
scenario. Recent law has set out that it is the child but where does
that leave the rights of the parent1?

The first MSbP case was documented by Professor Sir Roy Meadows in
1977, and as definitions of the syndrome have developed the adopted
view is that MSbP is a form of child abuse. Although accusatory of the
"harming" parent it is a diagnosis to be made by a paediatrician in
examination of his patient (the child) and not by a psychiatrist in
examination of his patient (the adult). We therefore have a parent
accused of a criminal act – harming or intending to harm their child as
a result of an imprecise psychological disorder but for the purposes of
child care proceedings there is no onus on the local authority to
investigate the psychological state of the parent nor to prove whether
or not that parent is suffering from the disorder.

There has been no legal argument in criminal trials that MSbP is in
itself any form of Defence to criminal acts (as insanity, or other
mental disorder might be), nor that those who are sufficiently ill to
be separated from their children (possibly permanently) should only
have this happen to them if there is incontrovertible evidence that
they are suffering from such an illness. The problem for the local
authority, the medical profession and ultimately the Family Courts is
to ensure that the rights of those mothers under Articles 3, 6 and 8
Human Rights Act 1998 are not flagrantly trampled in acting upon the
paediatrician's "diagnosis".

Once s.47 Children's Act has triggered the gateway to action by the
local authority under s.31, attributing harm to the parents, it is for
the local authority to produce the balancing act of rights within the
family. With MSbP this has proved difficult – but those rights all
remain to be protected. Even if the child is the patient of the
clinician, it is the whole family's rights with which the local
authority must be legally concerned albeit with the overriding
objective of ensuring the child's safety.

D-v- East Berkshire Community Health Trust [2003 EWCA Civ 1151]

Public policy was cited in this case as the reason for there being no
common law duty of care to parents where consideration was given to
whether suspicion of abuse could result in the removal of children from
their family home. An acceptance of the encroachment of public rights
on those of the individual. But they did not close the door on
violations of Articles 3 or 8, nor could they.


Unfair trial : Article 6 for parent and child

It may be that the doctor has himself made a mistake in failing to
recognise in a child some of the more difficult illnesses to diagnose,
such as Asperger's Syndrome, Dyslexia/Dyspraxia, Brittle Bone Disease,
Hyper-acuity and Asthma. Yet, once child care proceedings have
commenced the very nature of the MSbP diagnosis prevents a parent from
providing evidence against such diagnosis. For, a crucial element of
the diagnosis is that she will deny harming her child. There are
circumstances where mothers are told that they have to "confess" to
harming their child before they can have any form of treatment, and if
they do not confess they are unlikely to have their children back. If
they do then confess, such confession may be used as evidence against
access to seeing their children or even to their children being placed
for adoption. Such confession - which might of course lead in due
course to criminal prosecution, is therefore, as the Countess of Mar
declared in a debate in the House of Lords in December 2003 (following
Angela Cannings' successful appeal against conviction in a case
concerning MSbP) 2, " equivalent to the stigma of
witchcraft in the Middle Ages; there is no trial, and no one is guilty
until one can prove one is not guilty, and one has no way in which to
prove one is not guilty".


Conclusion
Complication again arises from the fact that these are civil cases and
neither the guilt nor innocence of the mother is what the Family Court
need consider in care proceedings. However, and particularly before
acceding to any sort of Final Order or to adoption proceedings the
context of the accusations is such that the Court must ensure that the
family itself has had sufficient representation and evidence laid on
their behalf. For it is as important not to harm the child by falsely
accusing his mother of MSbP, thereby breaking up the family home, as it
is to protect him from harm

In seeking to encroach still further on family life in an effort to
provide each child with a life free from ill-treatment, it will be
important to consider the Human Rights Act and its implications at all
steps of decision-making – for the child as well as the parent and
close consideration should be given to medical evidence where there is
a severe imbalance between the voice allowed to the local authority and
that allowed to the parent.

Frances Swaine is a Head of the Human Rights Department at Leigh Day &
Co. She specialises in cases involving medical ethics and the impact
of the Human Rights Act on health and community care services

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