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QLD Is Child Safety at Fault?

Discussion in 'Family Law Forum' started by jasol, 31 July 2016.

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  1. jasol

    jasol Member

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    Hi,

    Just want help on a child safety matter, wherein the department had been advised of a problem of our child in foster care at 1-month-old of flat head syndrome (documented in an affidavit) but failed to do anything until our child was 4 months old (also documented in an affidavit).

    Now our child has had 12 months of physio therapy to correct the problem, only to be told the problem is permanent (the doctor's words were if we caught it earlier, it could have been corrected), even though a child's head is still soft enough to correct the flatness until 6 months old. We've been told so many different things about it, but the hospital did not place our child in a helmet and we have been involved with them since our child was 4 months old.

    As our case plan manager said to us, the department placings are sh#t!!! that's exactly what was said In our family group meeting. Is that the department admitting they caused harm to our child by not acting according to our child's best interest or is it the hospital who is at fault because 1 doctor said no to a helmet when others think it would have definitely helped? Do I proceed with the original carer for neglect or all three?

    As my younger child does not have a voice of her own yet, it's up to me to make sure this sort of stuff doesn't happen to others caught in the system.

    Need help with this one
     
  2. AllForHer

    AllForHer Well-Known Member

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    Sorry, just to clarify, are you the foster carer, or are you the parent of the child who was placed into foster care?
     
  3. jasol

    jasol Member

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    I am the Parent of the child who was placed into foster care
     
  4. AllForHer

    AllForHer Well-Known Member

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    Cheers.

    What you're proposing here is a claim in negligence, rather than a matter in family law.

    The three main elements that must be proven for a successful claim in negligence is that the defendant owed the plaintiff a duty of care; that duty of care was breached; and the breach caused harm to the plaintiff.

    Doctors have some special protections against negligence claims, such as the test of reasonable foreseeability being held to the standard of reasonability within their profession, rather than what a reasonable person of average intelligence would foresee as a risk of harm.

    I think this is where you'll struggle with a claim of this nature. Given that 48% of newborns now experience plagiocephaly as a result of best practice being amended to recommend that babies sleep on their backs, rather than their sides, it will be difficult to show that your child suffered plagiocephaly as a direct result of the doctor's or the carer's actions - there is nothing to show that plagiocephaly would not have occurred, regardless.

    The doctor's treatment plan not matching your treatment plan does not a negligent doctor make - he's the trained and qualified expert, and it may be a common recommendation that plagiocephaly will correct itself from six months of age and onward because that's when the child starts to crawl, so if it's standard practice for doctors not to recommend helmets for kids with plagiocephaly, then it's unlikely to be considered a breach of duty of care.

    Finally, my understanding is that there are no long-term medical impacts of plagiocephaly, other than perhaps self-esteem issues, but I'm inclined to wonder if you could establish that harm was caused to the child as a result of the alleged breach.
     

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