Forensic paediatrics and the law

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19.2 Forensic paediatrics and the law

Maree Crawford, Natalie Phillips

Essentials

1 Emergency physicians will frequently be involved in the area of forensic medicine and hence require skills and knowledge of their responsibilities with regard to the legal system.
2 Thorough history, examination and documentation provide the basis for well-prepared legal reports. This, in turn, greatly assists in the presentation of evidence to courts.
3 Emergency physicians who deal with children must be aware of their legal obligations with regards to reporting of child abuse, reporting of criminal matters and management of deaths.
4 Doctors providing evidence in court must be seen to be independent, and competent within their level of expertise.

Introduction

The emergency department (ED) is the initial point of contact for many children presenting with acute injuries. While the majority of injuries are accidental, within this large group will be a number of children with inflicted injury or with findings resulting from abuse or neglect, on whose behalf legal proceedings may be initiated in a variety of legal jurisdictions. Hence ED staff require some expertise in forensic medicine or medicine as it relates to the law.

The role of medical staff in the ED is to carefully assess and treat children with such injuries. A number will present with a clear history or findings to indicate that injury or abuse has been inflicted. Many others will present with non-specific injuries or findings that will not be flagged as abusive, but at a later date may evolve to require legal involvement. It is therefore essential that doctors in the front line adopt high standards of history, examination and documentation for all cases of injury, both to allow detection of abuse and also to meet the standards required should a matter progress into the legal system.

Medical staff have a number of legal obligations in such matters. These include mandatory notification of suspected abuse or neglect, a need to advise the police of a potential criminal matter and to assist police in their investigation of such an event. There are also obligations with regard to the management and notification of deaths to the state coroner.

By virtue of this front-line contact, emergency physicians will at times be required to provide evidence in a variety of legal jurisdictions. Familiarity with these systems, good preparation, and a neutral unbiased approach will allow doctors to discharge their duty to provide the courts with accurate representation of facts and balanced expert opinion.

Forensic medical assessment

Forensic medicine, also known as medical jurisprudence, deals with the interaction of medicine and the law. All specialities or areas of medicine will have overlap with forensic matters at some time, and this is particularly so in paediatric emergency medicine. The aims of a forensic medical assessment are diagnosis and management that incorporates the requirements of the legal system. The qualities required include precision and thoroughness, objectivity, neutrality, clarity of thought and expression, and logical formulation of opinion.

Forensic paediatric medicine largely revolves around the assessment of trauma to develop an understanding of the mechanism of an injury, and the nature of the forces required. This then allows consideration and evaluation of the provided history to determine whether it adequately and plausibly accounts for the injuries seen. An opinion can then be formulated that an injury is truly accidental, resulting from an unpredictable or unavoidable event; that it has been inflicted or imposed on the child; or that it is accidental but involves caregiver neglect, or failure to protect from harm.

As in all areas of medicine, a forensic medical opinion must be based on the information available to the clinician. This is obtained using standard clinical tools of history, examination and investigation, but also incorporates additional standards and procedures and may require more expansive investigations to consider all differential diagnoses.

Accurate history and examination and appropriate investigation

The following points may assist in forensic matters.

Physical injuries

Key questions that should be asked and recorded in all cases of injury include:

• Who was present at the time of injury?
• When and where did it occur?
• How did it occur?
• What happened after the injury?

It is important to document from whom each part of the history is obtained and any differing accounts. Any explanation that the child gives for the injury should be recorded.
A child’s developmental abilities should be evaluated to ensure that any actions the child has allegedly taken are within their developmental ability, e.g. standing and turning on hot-water taps.
Any injury must be accurately described including site, colour, size and pattern.
Accurate terminology for injuries should be used e.g.:

• Abrasion – superficial denuding of the skin confined to the epidermis, often called a graze or scratch
• Bruise or contusion – extravasation of blood into surrounding tissue caused by blunt trauma
• Laceration – tearing wound through the full thickness of the skin, or through other tissues and organs caused by blunt trauma
• Incised wounds – sharply cut injuries from any object with a cutting edge, e.g. stab or slash wounds.

If an injury or injuries are present, there must be careful examination for other abnormalities that might not be immediately obvious, e.g. a child with facial bruising should have careful examination of mouth and ears.
In addition to a child’s injuries, notice should also be taken of their general presentation, appearance and demeanour, and of any non-concerning injuries or skin markings.
When ED medical staff encounter injuries or findings that are suspicious of abuse or neglect they should, in the first instance, involve more senior staff, either a senior paediatric emergency physician, or a child protection paediatrician, for guidance.
In consultation with senior staff, further testing for occult injury may be required when injuries or findings are suspicious for abuse or neglect e.g. skeletal survey in infants with bruising to look for occult fractures, or funduscopy with dilated pupils in infants with rib fractures, looking for retinal haemorrhages (see Table 19.2.1).
Additional testing may also be indicated to exclude differential diagnoses and to assess for other factors that may impact on the extent of any injuries for a given history e.g. testing for bleeding tendency (Table 19.2.1).
image Specific forensic sampling may be required in some instances, e.g. toxicology, swabbing for DNA in suspected bites, or specimen collection in sexual abuse. Child protection or forensic physicians should be involved, and a clear ‘chain of evidence’ must be maintained from clinician to police to forensic pathologist.
Table 19.2.1 Further investigations

I. For occult injury Skeletal survey: to examine for occult fractures. Generally indicated in any child under 2 years of age where inflicted physical injury is suspected. This may be done at older ages in specific cases. A second skeletal survey, 11–14 days after the original, may be helpful in detecting healing fractures not easily visible in the very acute phase. Funduscopy with dilated pupils: to examine for retinal haemorrhage and define nature and extent. Generally indicated if suspected shaking, or concerns for inflicted head and neck trauma. Neuroimaging: CT is generally indicated in the acute and hyperacute settings, with MRI preferred in the subacute and chronic phases, after suspected injury. MRI is increasingly sensitive for intraparenchymal injury and often allows more accurate delineation of subacute and chronic haemorrhage. Bone scan: may be indicated to examine for acute fractures (prior to callus formation). Any positive findings still require confirmatory X-rays at a later date. II. For underlying medical conditions: Full blood count and film, coagulation screen Extended coagulation screen: may include von Willebrand’s factor testing, factor assays, platelet function tests. These tests should be discussed with a haematologist prior to collection. Further testing as advised and according to injury e.g. calcium, phosphate, PTH, vitamin D, urine metabolic screen including organic acids, copper, ceruloplasmin, bone mineral density imaging, skull X-ray for wormian bones.

CT, computerised tomography; MRI, magnetic resonance imaging; PTH, parathyroid hormone.

Other circumstances

Sexual abuse allegations should be discussed with a child protection paediatrician as soon as possible and generally prior to any further assessment and physical examination.
Child protection concerns not specifically related to injury may arise in an ED context. These may include concerns of suspected emotional/psychological abuse, factitious illness and neglect e.g. non-organic failure to thrive, significant hygiene concerns, failure to attend to medical needs, concerning parent–child interactions.

Documentation

Both history and examination findings should be recorded clearly, and in detail. Accurate printed diagrams of body parts are an excellent aid and should be used. Any injury thought to be suspicious of being inflicted or of being caused by abuse should be photographed. This can be done using hospital photographic services or ED photographic equipment if available. However, if there are suspicions of abuse, staff will be notifying child protection agencies and the resources of the police may be used for photography. These are usually of higher quality, and police involvement overcomes problems of confirming a chain of evidence if the material is later used in a legal setting.

Notes made at the time of consultation will provide the doctor with information from which to prepare a statement or report for a court if this is required at a later time (sometimes years later). They also will assist the doctor in providing evidence if asked to appear in court proceedings. For this reason documentation must be detailed and accurate.

Opinion formulation

The next step is to infer the mechanism of the injury, if possible, from the clinical findings, e.g. a patterned bruise is due to blunt trauma from contact with a specific object, and posterior rib fractures are due to chest compression. Frequently there are no discriminating features to assist with determining the mechanism, e.g. a child with multiple non-specific bruises. In all cases the adequacy of the parent or carer’s explanation of the injury must be considered.

Any opinions as to causation and mechanism must be based on the medical findings and their compatibility with the history, and not on extraneous factors, e.g. adverse psychosocial history. Additional information from site visits may be provided by Police investigators and should be incorporated in formulating an opinion. Opinions must be logical and not based on speculation. An attempt should be made to differentiate whether injuries are truly accidental, accidental but with a component of neglect, or inflicted. In many cases, no definite conclusion can be drawn.

Legal obligations

Mandatory reporting of child abuse

Medical practitioners in all states and territories of Australia are now mandated to notify suspicions of abuse and/or neglect to the relevant statutory authority in their state, although the forms of abuse/neglect to which mandatory reporting applies vary between states e.g. only sexual abuse in Western Australia, sexual/emotional/physical abuse and neglect in New South Wales (Table 19.2.2). Definitions of abuse commonly relate to the concept of harm, which, for example, under the Queensland Child Protection Act 1999, is defined as ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’. In many states, it is mandatory to report not only actual suspected harm but also significant risk of harm. Practitioners should be familiar with the requirements and mechanisms for notification within their state and locality. Doctors are free of any liability if such reports are made in good faith.

Table 19.2.2 Mandatory reporting requirements for medical professionals (2009) in children and young people by state

image

Notification of suspected criminal matters

If a medical officer considers that an injury is not accidentally caused or that a crime has been attempted or completed, there is also an obligation to notify the police. All involved individuals, including medical practitioners, are required to assist police in their investigations.

Notification to the coroner of deaths under certain circumstances

Medical practitioners are required to notify the coroner’s office of deaths that occur in a variety of circumstances. These include, in broad terms, situations of any sudden, unexplained death, situations where cause of death is unknown, and situations where there are any suspicious circumstances surrounding the death. The coroner has the responsibility to investigate and report on these matters.

Legal jurisdictions

At times, emergency physicians will be involved with children whose injuries or other findings will result from physical assault or abuse, sexual assault or abuse, or emotional abuse or neglect. Some of these cases will end with involvement in the legal system in various jurisdictions.

Inflicted injury in which there is a single alleged offender may lead to criminal charges of assault or of torture. The child protection statutory agency may look to provide safety for a child and their siblings via a range of orders in the Children’s Court or information may be sought regarding a child’s well-being by the Family Law Court in matters of contested custody or residency between parents.

To assist medical practitioners in their interaction with the legal system a brief outline of the different court systems follows.

Criminal court

In a criminal matter, a person is charged with committing an offence under the criminal code of the state in which the offence occurred. Criminal courts are adversarial systems where the Crown must prove that the accused is guilty of the offence with which they have been charged. The level of proof required is beyond reasonable doubt.

Police are responsible for investigating any alleged crime and for laying charges against an individual if grounds exist. They are also responsible for assisting the Director of Prosecutions in obtaining witness statements. Initial evidence is heard in a committal proceeding before a magistrate. In this court, the evidence is tested to ensure that there is sufficient for the matter to proceed to a higher court.

Whether the matter is heard in a higher court is determined by the nature of the offence. Summary offences (usually relatively minor offences, e.g. traffic offences, some assaults) are dealt with solely in the Magistrate’s Court. Indictable offences proceed to a higher court before judge and jury in either District or Supreme Courts.

Doctors may be called to provide evidence either as a professional witness providing factual evidence of something that occurred in the clinical setting, or as an expert witness, that is, a specialist or senior doctor who can provide expert opinion on certain facts.

The first involvement that a doctor may have with the proceedings is via a request from police for a statement of witness. This statement, which must be in a format acceptable to the court, will provide the basis for oral evidence to be provided. The report must be clear, truthful and unambiguous, should avoid the use of medical jargon and should clearly describe terminology in such a way that it may be understood by a lay person.

The statement should include details of professional qualifications and experience, a brief history provided to the doctor, and an accurate description of clinical findings. Reference should be made to any other documentation or investigation, e.g. photographs, so that they can be admitted as evidence. It is important to address whether the injuries found could produce effects consistent with the definition of the charges (Table 19.2.3). This usually requires comments as to effects on the child with regards to pain and suffering, and prognosis assuming medical intervention had not occurred. It is not appropriate to describe injuries as, for example, constituting ‘grievous bodily harm’ as this is for the court to determine.

Table 19.2.3 Terminology of criminal charges

• Bodily harm – an injury which interferes with health or comfort (e.g. causes moderate pain or discomfort) but does not endanger life or cause permanent disability
• Grievous bodily harm – any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health if left untreated
• Unlawful wounding – an injury in which the true skin has been broken, e.g. laceration or incised wound
• Torture – an intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more than one occasion

Source: Derived from Queensland Criminal Code Act 1899.

Children’s court – child protection proceedings

Children’s courts deal with criminal charges brought against children up to 17 or 18 years. They also handle matters related to children’s welfare.

An ED medical officer who provides assessment and treatment of a child with inflicted injury or abuse may be required to provide information and expertise to assist this court in making decisions regarding a child’s need for care and protection by the state or the need for other protective orders. This court is conducted before a magistrate and is adversarial; however, it requires a lower standard of proof than criminal court, i.e. on the balance of probability. The nature of evidence that can be admitted is more lenient than in criminal proceedings, allowing hearsay (second hand) information. As in criminal proceedings, a sworn report or affidavit will often be sought prior to appearance in court, and should follow the general principles for statements for criminal court.

Family law court

This is a federal court created to administer the Family Law Act 1975. In this jurisdiction, medical practitioners may be required to provide evidence on behalf of children in contested matters between parents, related to guardianship and residency of involved children. Again, the system is adversarial, with legal representatives for both parental parties, and often an independent representative for the child or children, outlining a case before a judge for ruling. Proof is on the basis of the balance of probability.

Coroner’s inquest

The coroner’s role is to investigate and report on the circumstances surrounding a person’s death. The coroner’s powers are defined by state or territory legislation. This legislation also defines a medical practitioner’s obligations to notify reportable deaths and to co-operate in any inquiry. The precise definition of reportable death varies between states but, in general, includes any death for which the cause is unknown or where the cause of death appears to be by violent, unnatural or accidental means, or where there are suspicious circumstances.

Emergency physicians will sometimes encounter children dying or presenting dead to the ED and must be familiar with their state or territory requirements. The death should be notified to the coroner’s office and also to the police. Police will assist the coroner in the investigation, and a forensic pathologist will conduct an autopsy and report back to the coroner.

At times doctors will be called to provide a statement and may be required to give evidence at a coronial inquest. This is not a trial but a fact-finding inquiry. A mix of inquisitorial and adversarial procedures is used and hearsay evidence can be accepted.

The coroner will make public the findings of the inquest and may comment on inadequacies in systems and management. The coroner does not directly recommend criminal proceedings.

Providing evidence in court

Doctors may be called to give evidence in any of the courts outlined. This will be either as a professional witness providing evidence in fact, related to what they saw or did as part of their work, or, alternatively, to provide an expert opinion on a matter.

Prior to attendance at court, the doctor may have been requested to provide a statement of witness, affidavit, or medical report that is composed from the doctor’s notes. The statement must include professional qualifications and, in the case of an expert witness, must establish that they have specialised skills and knowledge in their area of expertise.

The report should include a brief history of the reasons for seeing the child, the date, time and place the child was seen, and the person accompanying the child. Any spontaneous disclosures that the child has made to the doctor should be included. The general state and demeanour of the child, and detailed specific findings are important. Lastly, an opinion regarding the mechanism of any injury, and the effects on the child of that injury with regards to pain and disability, are important.

Court appearances can be stressful for doctors. However, it is important to remember that an individual’s evidence is but a small part of any case. The doctor is there to assist the court in its deliberations and is not personally on trial. The doctor must adopt an independent neutral role and be prepared to consider objectively any statements put to them. Doctors are not there to support a particular ‘side’.

When appearing as an expert witness, a doctor will be asked initially to describe their qualifications and expertise. They will then be questioned by one counsel and cross-examined by the other. They should listen carefully to all questions and answer as accurately as possible. They should have their notes of the consultation available and ask leave of the court to refer to them. It is important to remain calm and professional in all ways and never be tempted to outsmart the lawyers in their domain. Careful preparation and a sound knowledge of the relevant medical problems will assist the doctor greatly in this whole process. If questioned about a matter outside their level of experience or expertise, a doctor should indicate that this is the case and not attempt to speculate.

Doctors providing evidence to a coronial inquest will normally be independent parties. However, if there are issues of possible medical negligence involved, prior contact with their medical indemnity organisation should be made.

Further reading

Breen K., Plueckhahn V., Cordner S. Ethics, law and medical practice. Allen & Unwin, St. Leonards: NSW; 1997.

Dix A., Errington M., Nicholson K., Powe R. Law for the medical profession in Australia, 2nd ed. Port Melbourne: Butterworth-Heinemann; 1996.

Higgins D., Bromfield L., Richardson N., et al. National Child Protection Clearinghouse(NCPC) Resource Sheet No 3. Mandatory reporting of Child Abuse and Neglect. Australian Institute of Family Studies, Australian Government; 2009.

. Queensland Child Protection Act. 1999.

. Queensland Criminal Code Act. 1899.

Royal College of Paediatrics & Child Health (RCPCH). Child Protection Companion. 2006.

Royal College of Paediatrics & Child Health (RCPCH). Child Protection Reader. 2007.

Royal College of Paediatrics & Child Health (RCPCH). Standards for Radiological Investigation in Suspected Non-Accidental Injury. Intercollegiate Guideline RCPCH and Royal College of Pathologists; 2008.

Shepherd R. Simpson’s forensic medicine, 12th ed. London & Baltimore MD, USA: Hodder Arnold; 2003.

References available online (2010)

RCPCH guidelines. http://www.rcpch.ac.uk/Publications/Publications-list-by-title

NCPC resource sheet. http://www.aifs.gov.au/nch/pubs/sheets/rs3/rs3.pdf

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