Developing an ICU Triage Protocol for COVID-19

In this blog, Daniel Sokol of 12KBW talks of his experience as a barrister and medical ethicist developing an ICU triage protocol for COVID-19. Daniel writes for the British Medical Journal on medical ethics and has also written books on the subject. His website can be accessed here.

“Stay home. Protect the NHS. Save lives.” This is the refrain of the daily briefings at No.10 Downing Street. Protecting the NHS really means protecting its intensive care capacity. The government has greatly increased the number of ICU beds, by enlarging existing ICU units and creating new hospitals, as well as reallocating healthcare staff to ICU and medical wards. At the time of writing, there remains ICU capacity and Chris Hopson, the Chief Executive of NHS Providers, told the BBC on 15th April 2020 that it looked “increasingly likely” that the NHS would be able to cope. He added, however, “We cannot relax. We must remain vigilant.”[1]

It is possible, of course, that an unexpected surge may result in ICU capacity being overwhelmed. If that happens, clinicians will have to make difficult decisions about which patients are admitted to ICU and which are not. Those in the latter category will be unlikely to survive.

On 20th March 2020, the National Institute for Health and Care Excellence (NICE) produced guideline NG159, which contained a critical care referral algorithm to support decision making [2]. Within 48 hours, NICE were threatened with judicial review on the basis that their algorithm risked discriminating against disabled people. NICE amended its guidance, but it still lacked sufficient detail to assist with triage decisions.

In early April, the Royal College of Physicians [3] and the British Medical Association [4] produced ethical guidance on ICU triage. The guidance set out the issues and relevant ethical principles but again failed to provide action-guiding recommendations for ICU admission. At that time, I was receiving phone calls and e-mails from clinicians seeking help with developing their local policies on ICU triage. It was apparent that these policies would not be consistent with each other. In the absence of a satisfactory protocol, I decided to create one.

As the protocol may have to be used in a crisis, perhaps in the middle of the night, with a decision to be made in minutes, the aim was to distil everything into a 2-page document, with one page of ‘punchy’ text and one page devoted to an easy-to-read flowchart. I didn’t quite manage to keep it that short.

Developing the protocol

My 6-year-old daughter has online chess lessons. I overheard her coach say that, to capture the enemy king, she should not rely on a single attacker but on several pieces working together, such as the Queen, the bishop and the knight. I heeded the chess master’s advice. Through contacts and social media, I assembled a team of ICU doctors, medical ethicists and lawyers.

The full protocol is available here: http://medicalethicist.net/wp-content/uploads/2016/06/v5-Sokol-ICU-Triage-April-2020.pdf

In short, it contains two criteria:

  1. Clinical suitability for ICU admission (i.e., how likely is the patient to survive to hospital discharge?)
  2. Likely duration of stay in ICU

Clinical suitability is determined by the clinical judgement of at least two ICU doctors. They will allocate patients to a ‘high’, ‘moderate’ or ‘low’ priority group. 

If more than one patient falls into the high priority group, the next criterion is how long each patient is likely to stay in ICU: ‘short’, ‘medium’ or ‘long’. So, if there are two patients deemed ‘high priority’ and one has taken an overdose (sadly, ICU doctors are expecting many of those in the coming months) and is likely to stay for one day in ICU, and the other is a COVID patient who is likely to spend 1-2 weeks in ICU, priority should be given to the overdose patient. The rationale is that this will lead to more lives saved if demand for ICU exceeds supply.

This second criterion is susceptible to suggestions of indirect disability discrimination, under s19 of the Equality Act 2010. Disabled persons are more likely to need longer periods of ICU care by virtue of their disability. Section 19(2)(d) of the Act permits such discrimination if it can be shown that this is a “proportionate means of achieving a legitimate aim.” In this case, the aim is to maximise the efficient use of scarce ICU resources to save as many lives as possible in a situation where many patients are in need of ICU.

Priority treatment for healthcare workers

Another contentious matter was the prioritisation of healthcare workers. My advisers were split on the issue. The British Medical Journal is running an online poll on the question and, unsurprisingly perhaps given the readership, at the time of writing 90% (2,213 votes) were in favour of giving priority care to healthcare workers and 10% were against (239 votes). I suspect the general public would also be in favour.

A real concern, echoed by many clinicians I have spoken to, is that this prioritisation of colleagues would happen “under the radar” even if protocols were silent on the issue. This clandestine approach would be undesirable and probably unlawful.

Although the arguments are finely balanced, I have included priority treatment of healthcare workers in limited circumstances in the Protocol.

The feedback on the Protocol has been positive.

Where we are now

Other lawyers have also called for national guidance on ICU admission and, very recently, two law firms acting on behalf of disabled campaigners have sent letters before action to the Secretary of State for Health and Social Care and NHS England challenging the failure to publish a national policy framework on ICU triage [5,6].

The government doubtless has such a framework up its sleeve. When disclosed, it is likely to attract controversy and perhaps legal challenge. We hope that such a framework will never be implemented but, in chess as in life, you need to think a few moves ahead so you are not taken by surprise. Whatever the government’s strategy on ICU triage, the decision so far not to reveal this is a poor move.


[1] https://www.bbc.co.uk/news/health-52293762

[2] https://www.nice.org.uk/guidance/ng159/resources/critical-care-admission-algorithm-pdf-8708948893

[3] https://www.rcplondon.ac.uk/file/20551/download

[4] https://www.bma.org.uk/media/2226/bma-covid-19-ethics-guidance.pdf

[5] https://1f2ca7mxjow42e65q49871m1-wpengine.netdna-ssl.com/wp-content/uploads/2020/04/Press-Release-NHS-treatment-prioritisation-Rook-Irwin-Sweeney_6.pdf

[6] https://www.bindmans.com/news/challenge-made-to-failure-to-put-in-place-national-policy-framework-covid-19-pandemic

NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB)

In this blog post, Helen Waller of 12KBW discusses the case of NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB), regarding brain damage at birth due to clinical negligence. Although it is a case largely based on its own facts, it is nonetheless an example of careful judicial analysis of complex and detailed expert evidence. It demonstrates the importance of the parties and the court having a full understanding of the medical issues in order to properly address both breach and causation.

Background

This case concerned an expectant mother who, having given birth by caesarean section to her first child, was advised to and intended to have a natural birth for a second child (vaginal birth after caesarean section, “VBAC”). During labour, she developed a uterine rupture along the caesarean scar. As a result of this, her baby, the Claimant, suffered acute profound hypoxia resulting in permanent, significant brain damage, which left him with cerebral palsy, microcephaly, and cognitive impairment.

The case pivoted on the monitoring of the foetus during labour. The two options were continuous foetal monitoring (“CFM”) or monitoring by intermittent auscultation (“IA”). In accordance with the mother’s birth plan, delivery was to take place in a birthing centre, where, on the day, CFM was not an option and so IA was undertaken. The Claimant’s case was that CFM would have detected foetal heart rate abnormalities earlier and that, as a consequence, the uterine rupture would have been detected and delivery achieved sooner, thus avoiding some of the hypoxia and resultant brain damage. The Claimant’s secondary case was that IA should have been performed more frequently from the point at which his mother was known or assumed to be in the second stage of labour, which would have again resulted in earlier detection of the uterine rupture.

The Claimant alleged that the Defendant’s midwifery staff had not taken reasonable steps, either in advance of or during labour, to inform her that monitoring by IA rather than CFM would risk slower detection of a uterine rupture putting the baby at greater risk of sustaining permanent brain damage. Both factual and medical causation were in issue.

Expert evidence was provided orally in the fields of midwifery, obstetrics, neonatology and paediatric neonatology. There was, additionally, written neuroradiology evidence, which was essentially agreed.

The Law

The legal position was uncontroversial. The parties were agreed that Montgomery v Lanarkshire Health Board [2015] UKSC 1 makes clear that medical professionals owe a duty to take reasonable care to ensure that a patient is informed of any material risks and that a patient has understood what they have been told. Further, Bolam v Friern Hospital Management Committee [1957] gave the standard of reasonable care in this case as being that of a midwife of ordinary skill and care.

The Judgment

The matter was heard by Simeon Maskrey QC sitting as a Deputy High Court Judge for a determination on liability alone.

He gave judgment for the Claimant “on the basis that but for the breaches of duty that occurred …  he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability” [123]. The parties were agreed as to what constituted mild as opposed to severe neurodisability and so no definition of those terms by the Court was necessary.

Antenatal Counselling

No breaches were found in respect of the antenatal counselling.

It was accepted that VBAC is considered to be high risk, because there is a small but real risk of a uterine rupture through the caesarean scar during labour. The Claimant’s mother had expressed an interest in having a water birth at the midwifery-led birthing centre. It was found that she had not been led to believe that this was a higher risk option, nor was she discouraged from it. Rather, she was led to understand that her birth plan would be subject to review upon her admission when she went into labour. This was relevant because it was possible – as indeed eventuated – that CFM would not be available on the day in the birthing centre, leaving only IA monitoring.

The midwife who had summarised the Claimant’s mother’s birth plan in writing had briefly noted “aware of RCOG guideline” in respect of monitoring. The midwife had in fact changed her notation practice since the index birth incident as a result of this case. Nonetheless, the Judge did not find that her approach at the time fell below a reasonable standard. He found, on the evidence, that the absence of specific reference to the risks and consequences of IA did not cause him “to doubt that the risks and consequences were discussed” (at [34(viii)]). It was found that the mother was aware of the risk of scar rupture and appreciated that there would be close monitoring of that.

Care and Counselling During Labour

The Defendant was found to be in breach of duty on this issue.

The Judge found that the Claimant’s mother was not wedded to a water birth; however, the triage and delivery suite were so busy at the relevant time that the midwives on shift “did not have the time or the incentive to discuss with the Claimant’s mother her birth plan and … they did not do so” (at [57]). The mother was not, therefore, given the chance to review or reconsider her birth plan.

Given the agreement between the midwifery experts that the birth plan required reconsideration when the mother went into labour, the Judge concluded that there was a breach of duty at that stage. He found that, with further counselling and a re-assessment of the risks, there was a very real possibility that the Claimant’s mother would have changed her mind on a water birth and IA given how busy the maternity unit was, and that there had been no assessment as to whether the relevant midwife was capable of managing a VBAC labour with IA (see [74]-[75]).

Management of Labour

The Defendant was also found to be in breach of duty in respect of the management of the index labour.

It was the Claimant’s case that his mother had entered the second stage of labour at 00:20 on the relevant day and that, thereafter, IA should have been carried out every 5 minutes. IA was in fact carried out every 15 – 20 minutes. The Judge found that the midwifery staff “should have either confirmed that the Claimant’s mother was in the second stage of labour before she entered the birthing pool or should have made that assumption and performed IA every 5 minutes thereafter” (at [79]). He found as a fact that, on the balance of probabilities, the Claimant’s mother was in the second stage of labour from 00:35.

The Judge further found that the Claimant’s mother was in continuous pain at or around 01:00. He held that it was a breach of duty not to have recognised that this was a sign of uterine rupture and called for obstetric assistance (at [82]).

The Decision Making

The Judge held the following counter-factual of what, on balance, would have occurred had the breaches not taken place [88]:

I thus find that there should have been a re-statement of the risks to the Claimant’s parents on admission on the 23rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM. Accordingly, I find that in such circumstances there would probably have been continuous CTG monitoring.”

The Judge held that if there had been a vaginal examination at 00:45, as he found there should have been, it would have been appreciated that the Claimant’s mother was in the second stage of labour. Therefore, if he was wrong on his previous findings, there should instead have been IA monitoring every 5 minutes from 00:45.

The Judge then turned to consider whether continuous CTG monitoring, or IA every 5 minutes from 00:45 would, on the balance of probabilities, have resulted in the abnormal foetal heart rate being appreciated before 01:15 (when it in fact was). He then had to decide what the probable consequences of that would have been. This involved a careful consideration of conflicting expert obstetric evidence as to the nature, timing and duration of foetal heart rate abnormalities.

The Judge held that the uterine rupture probably occurred between 00:45 and 01:00, which would explain why the IAs were normal before 00:45 and why the Claimant’s mother came to be in continuous pain consequent upon the rupture by about 01:00. Although there was a normal IA recorded at 01:00, the Judge found that, despite that recording, there was in fact an atypical deceleration of foetal heartrate that was not detected. However, he held that it was not necessary to determine whether that failure in detection was itself a breach (at [101]). Accordingly, he found that, if the Claimant’s mother had been subject to CFM, it would have been apparent by 01:00 that there was a potential obstetric emergency, for which all reasonably competent midwives would have sought emergency assistance (at [103]).

The Judge did not criticise the reaction of obstetric staff that in fact took place at 01:15, and it was found that the same reaction would have taken place at 01:00, had the assistance been sought. He found that, with CFM, delivery would have been achieved at 01:31 and resuscitation by or about 01:32, and, with IA every 5 minutes, delivery would have been achieved at 01:36 and resuscitation by or about 01:37.

Causation

The Judge found that the Claimant would have sustained mild, rather than severe brain damage, if delivery and resuscitation had taken place by 01:32.

The Claimant’s experts, Dr Dear, expert neonatologist, and Dr Thomas, expert paediatric neurologist, were of the opinion that the Claimant had sustained 25 minutes of acute, profound hypoxia, following the method in the Myers at al paper (1971). Accordingly, they concluded that if delivery and resuscitation had occurred before 01:34, the Claimant would have avoided all permanent brain damage.

Dr Emmerson, expert neonatologist, and Dr Smith, paediatric neurologist, both for the Defendant, rejected that model. They opined that the Claimant sustained 35 minutes of acute, profound hypoxia, postulating that there must have been some oxygenation of the brain after 01:14 and therefore the Myers model could only be applied with an extension. Following this approach, they said that the Claimant needed to have been delivered by 01:28 to avoid all damage.

The Judge undertook a close and careful analysis of the competing opinions at [107] to [122]. On his analysis of the facts, the Judge preferred the extended Myers model, finding that the continuation of some oxygenation meant that the period before which foetal reserves were exhausted was extended (at [120]). He concluded [at 122]:

It follows that if the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case.”

Comment

This was a technically involved case necessitating a close analysis of the facts and competing expert evidence. It is another reminder of the value of the legal team being on top of the fields of expertise and taking the time to get to grips with the literature upon which the experts relied. When medical causation pivots on action or inaction over just minutes and seconds, the expert and legal arguments are likely to be equally finely balanced.

Who to sue? Doctor held to be an independent contractor in Barclays Bank plc v Various Claimants [2020] UKSC 13

In this blog post, pupils Cressida Mawdesley-Thomas and Tim Goodwin discuss the recent case of Barclays Bank plc v Various Claimants [2020] UKSC 13. Whilst this might more appropriately fall under the definition of an employer’s liability case, it is worth noting that this case centred on the activities of a doctor, and therefore it provides useful guidance on who might be the correct defendant in a case relating to medical professionals who appear to be acting as “independent contractors”.

Background

The claims arose from a series of alleged sexual assaults committed between 1968 and 1984 by the late Dr Gordon Bates. It was said that Dr Bates sexually assaulted the 126 Claimants, some as young as 16, during medical examinations that Barclays required them to undergo as a precondition of their employment. Dr Bates’ estate had been dispersed, so the only means of redress was through the mechanism of vicariously liability against Barclays.

Although Barclays made the arrangements for the examinations and sent Dr Bates the forms to fill in, the examinations were conducted in Dr Bates’ home. Dr Bates was not paid a retainer but instead charged a fee for each report he completed and he was free to refuse to undertake an examination. Furthermore, he was a part-time employee of the health service and it was presumed that he carried his own medical liability insurance. As the Supreme Court observed, Dr Bates “was in business on his own account as a medical practitioner, with a portfolio of patients and clients”. Put another way, it was found that Dr Bates was, on the facts, a truly independent contractor. This is key to the decision.

Vicarious liability was tried as a preliminary issue. Both the High Court and the Court of Appeal held that Barclays was vicariously liable for Dr Bates’ actions. This was overturned by the Supreme Court.

The legal test

Lady Hale, delivering the unanimous judgment of the court, set out the two requirements for vicarious liability to be imposed:

  • There must be a relationship between two parties which makes it proper for the law to make one pay for the fault of the other. In the case of a classic employment situation, this will be the relationship between employee and employer.
  • There must be a connection between that relationship and the wrongdoer’s negligent acts or omissions. Again, in a classic employment relationship the courts are commonly concerned with whether the negligent acts are carried out in the course of the employee’s employment (although that has been given a wide interpretation).  

The appeal before the Supreme Court concerned only the first requirement. Was the relationship between Barclays and Dr Bates such that it would be proper for the law to impose a burden on the bank to bear responsibility for the doctor’s acts?

For a discussion of the second limb of the test, see our related article discussing the case of WM Morrisons Supermarkets plc v Various Claimants [2020] UKSC 12, handed down on the same day as the decision in Barclays Bank.

The “relationship akin to employment” test

In Woodland v Swimming Teachers Association [2014] AC 537, Lord Sumption stated at paragraph 3 of his judgment that whilst recent cases had expanded the scope of vicarious liability to “embrace tortfeasors who are not employees of the defendant”, the concept of vicarious liability “has never extended to the negligence of those who are truly independent contractors”. The issue is where that line should be drawn.

The Supreme Court, borrowing from earlier decisions, held, at paragraph 27, that the appropriate question to ask is whether the relationship was one that was sufficiently analogous to employment. In doing so, it referred in particular to the Supreme Court’s decision in the Christian Brothers case.

In that case, Lord Phillips enumerated five “incidents” of employment relationships “that make it fair, just and reasonable to impose vicarious liability”. The five principles are:

  • The employer is usually more able to compensate (especially as it will likely be insured);
  • the wrongdoing usually arises from activity done on behalf of the employer;
  • the employee’s activity is likely to be part of the business activity of the employer;
  • the employer created the risk by employing the tortfeasor to carry out tasks that gave rise to the risk;
  • employers generally have control of their employees.

Lord Philips went on to say, at paragraph 47, that, provided they share those five factors, non-employment relationships may give rise to vicarious liability on the basis that the relationship is“akin to that between an employer and an employee”.

That was the approach adopted in a number of subsequent appellate decisions. For example, in Cox v Ministry of Justice [2016] AC 660 and Armes v Nottinghamshire County Council [2018] AC 855, Lord Phillips’ five factors were considered. However, Lord Reed, giving the lead judgment on both cases, was clear that (a) not all factors carried the same weight; and (b) that it was open to the court to give different weight to each incident depending on the case. Furthermore, the Supreme Court in both Cox and Armes held that vicarious liability does not extend to those running recognisably independent businesses of their own.

The Supreme Court in Barclays Bank held, at paragraph 27, that, whilst an analysis of Lord Philips’ five factors will be helpful in “doubtful” cases, they need not be considered “where it is clear that the tortfeasor is carrying on his own independent business.” The Supreme Court emphasised that what is required is a careful consideration of the details of the relationship.

Who is a truly an independent contractor?

The distinction between activities integrated into the business and the activities of recognisably independent contractors may not always be clearly delineated, particularly in the advent of the gig economy.  There have been various debates concerning the definition of individuals as self-employed contractors, workers or employees, many of which focus on the degree of integration. In recent years, the line between employees and mere workers has become increasingly blurred, particularly following the Court of Appeal’s decision in Windle v Secretary of State for Justice [2016] EWCA Civ 459.

The blurring of these lines has not stopped with the Supreme Court’s decision in Barclays Bank. At paragraph 27 of the judgment, Lady Hale makes explicit reference to individuals who are “technically self-employed” contractors or agency workers, and suggested that an examination would have to be undertaken to establish whether they are “effectively part and parcel of the employer’s business”. It follows that there is no technical impediment to businesses being held vicariously liable for the acts of such individuals, notwithstanding that they are not employees. Certainly, this decision does not leave us with a clear, bright line delineating where various categories of working people sit on the spectrum of vicarious liability.

Lady Hale provides further guidance in her obiter comments at paragraph 29 of her judgment.

  1. Recent cases have broken the assumption of one status in all circumstances. An individual found to be an employee for employment law purposes will not necessarily be one for tax, or even vicarious liability, purposes.
  • It is clear that vicarious liability will extend beyond employees to encompass, in some cases, mere workers (i.e. those who fall within the definition of section 230(3)(b) Employment Rights Act 1996). But that is not a universal rule and the contracting business will not always be vicariously liable for the acts of workers. Rather, the courts will have to consider on the facts whether the relationship warrants the imposition of vicarious liability.
  • Whilst it is tempting to align employment status with the principle of vicarious liability, “it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of ‘worker’, developed for a quite different set of reasons”.

Conclusion and practical considerations

Pulling the various cases and principles together, Lady Hale stated that “the question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant.” It is clear from the Supreme Court’s judgment in this case that there are few, if any, hard-and-fast rules that will identify whether a business will be held vicariously liable for the acts of its contractors. Instead, a thorough examination of the true nature of the relationship will be required.

Certainly, Lord Philips five incidents continue to be helpful, although they have been relegated to ‘doubtful’ cases only. Lawyers should therefore be careful when pleading and running vicarious liability cases to establish at an early stage what they consider to be the true nature of the relationship between the tortfeasor and ‘employer’ and build a case around that. It will also be important, in less clear-cut cases, to identify at an early stage what incidents should carry the most weight and plead accordingly.

Whilst vicarious liability is often not an issue where the treatment was performed within the NHS it is often the case that when a doctor is undertaking work privately he is treated as an independent contractor working within the physical confines of a private hospital. Whether that analysis will hold true when considering whether the private hospital is liable for his/her negligence will depend on whether, on an analysis of all of the facts of the relationship, he/she was really carrying on a business on his/her own account or whether the relationship is more truly akin to employment. In those circumstances, Lord Philips’ five instances may be of particular assistance in reaching a conclusion. One can imagine such questions being particularly pertinent in case where the doctor, for whatever reason, does not have a relevant policy of insurance.

Equally, in cases involving the wave of new health start-ups, such as those providing health services remotely via apps, there will need to careful consideration of whether the service provider is the health start-up or whether the medical professionals acting under that umbrella are in fact independent contractors. Again, an analysis of the relationship between the start-up and the medical professional will be key to establishing whether the start-up can be held vicariously liable, even where the professional is in fact a self-employed contractor.

Public policy shift in the court’s approach to surrogacy arrangements: Whittington Hospital NHS Trust v XX [2020] UKSC 14

In this blog post, 12KBW pupils Samuel Cuthbert and Megan Griffiths discuss the recent case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, in which the Supreme Court allowed the Claimant in a clinical negligence claim damages for the cost of foreign commercial surrogacy and donor egg surrogacy arrangements.

Charley Turton has previously written a post on the Court of Appeal decision in this case, which can be viewed here.

Background

From 2008 onwards, the Claimant had a number of smear tests that showed early signs of cancer. The Trust admitted that they negligently failed to detect these signs in the results. The result of the delay in diagnosis was that the Claimant’s cancer was much more advanced when it was eventually detected some years later. She required chemo-radiotherapy treatment which would make her infertile (she also suffered significant other injuries with life-changing impacts, but these were not the subject of the appeals). If she had been diagnosed earlier she could have had surgery to save her fertility.

The Claimant delayed her cancer treatment to seek further medical opinion on whether she could have fertility saving treatment (which she could not) and to harvest twelve of her eggs before she lost her fertility, in the hope of using them to have children at a later date.

The court accepted the evidence of the Claimant and her partner that they wanted to have 4 children. They wished to do so using a commercial surrogacy arrangement in California – both the arrangement and their parenthood would be legal there from the outset, and they could choose their surrogate. If they could not recover the cost of this, they would instead reluctantly use a surrogate in the UK, where commercial surrogacy is unlawful and surrogacy generally does not have the same advantages as in California. The Claimant wished to use her own cryopreserved eggs, but, if the attempts to have four children using her own eggs were unsuccessful, she sought an award to fund  donor eggs instead.

The First Instance Decision

There were three points of law for the trial judge (and subsequently the Court of Appeal and Supreme Court) to consider in the surrogacy claim:

(i) Could the Claimant recover the cost of surrogacy using her own eggs?

(ii) Could the Claimant recover the cost of surrogacy using donor eggs?

(iii) Could the Claimant recover the cost of commercial surrogacy in California?

Sir Robert Nelson, sitting as a judge in the Queen’s Bench Division, allowed the Claimant’s claim for the cost of two surrogacies in the UK using her own eggs, based on the expert evidence that, on the balance of probabilities, her twelve eggs would produce two live births. The judge concluded that the court was bound by Briody v St Helens and Knowsley Area Health Authority [2002] QB 856 to dismiss the claims for commercial and donor egg surrogacy. In Briody, the Court of Appeal held that commercial surrogacy was contrary to public policy since it was unlawful in the UK and thus not a recoverable head of loss. It also held that surrogacy with donor eggs was not restorative of the claimant’s loss since the loss was the ability to have her child, not a child [Briody; 25]; surrogacy with donor eggs would not be restorative of the Claimant’s fertility. However, as Sir Robert Nelson had dismissed the claim for commercial surrogacy, he uplifted the PSLA award to reflect this.

The Court of Appeal Decision

The Claimant appealed against the refusal of her claims for (1) commercial surrogacy in California and (2) surrogacy in the UK using donor eggs. The Defendant cross-appealed against the award for surrogacy in the UK using the Claimant’s own eggs.

The Court of Appeal allowed the Claimant’s appeal on both points and dismissed the Trust’s cross-appeal.  

In allowing the claim for the cost of commercial surrogacy, the Court of Appeal carried out a detailed analysis of Briody, the public policy background and subsequent case law, including the Supreme Court’s decision in Patel v Mirza [2017] AC 467. The Court of Appeal found that the UK public policy on commercial surrogacy arrangements was the crucial issue, in particular whether the perception of public policy should be the same today as it was in 2001.

McCombe LJ’s interpretation of the extent of the UK’s law against commercial surrogacy was as follows [70]: “the underlying purpose of the prohibition [of commercial surrogacy in domestic law] is to render acts of commercial surrogacy unlawful in the UK. It does not purport to legislate for any country other than the UK and does not prohibit Ms X from doing what she proposes. Her intended action is not the target of the current legislation (as amended) at all.” He therefore considered that the law no longer required a bar to recovery of the damages sought on the grounds of public policy.

However, the Court of Appeal adjusted the general damages downwards to reflect the new addition of special damages in respect of commercial surrogacy.

The parties’ submissions on the recoverability of surrogacy using donor eggs focused on the restitution principle. Counsel for the Claimant submitted that the principle required the Claimant to be put in the pre-negligence position “as nearly as possible”, whereas counsel for the Trust submitted that it required her to be put in “the same position” [87]. The Trust submitted that, in accordance with Briody, using donor eggs would not satisfy this requirement.

The Court of Appeal allowed the Claimant’s appeal on this point, finding that “the distinction between ‘own egg’ surrogacy and ‘donor egg’ surrogacy, employing the partner’s sperm, would be entirely artificial”. The Court, having regard to the development of social attitudes, was thus able to depart from the dicta in Briody.

The Court of Appeal dealt with the cross-appeal against the award for surrogacy using the Claimant’s own eggs swiftly, and upheld the trial judge’s decision that this was a recoverable head of loss, whether used in California or in the UK [84].

The Supreme Court Decision

The Defendant appealed all three aspects of the Court of Appeal’s decision on the surrogacy claim and the Supreme Court heard the appeal in December 2019.

The issues for the Supreme Court to consider were the same as those before the High Court and Court of Appeal, as set out below:

(i)  Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?

(ii)  If so, are damages to fund surrogacy arrangements using donor eggs recoverable? and

(iii) In either event, are damages to fund commercial surrogacy arrangements abroad, in a country where this is not unlawful, recoverable?

Lady Hale first gave a review of how attitudes to surrogacy had changed since the decision in Briody.

Lady Hale then referred to the basic tortious principle raised in the Court of Appeal, namely that damages for an injury should, as far as possible, place the injured party in the position they would have been in but for the negligence. The qualifications to that are twofold. Firstly, some heads of loss are irrecoverable because they would be contrary to legal or public policy. Secondly, in seeking to restore the injured party to their pre-injury position, the steps taken and the costs thereby incurred must be reasonable.

Looking at the first issue of whether damages to fund surrogacy arrangements using the claimant’s own eggs were recoverable, Lady Hale referred to her views in Briody. There, she had made the consideration of whether it was reasonable to seek to remedy the loss of a womb through surrogacy; she had not considered that such an arrangement conforming to English law would be contrary to public policy. The reasonableness of such an arrangement would depend on the chances of a successful outcome, and, in Briody, they were “vanishingly small”. Lady Hale had expressed tentatively that, had the prospects of a successful outcome been higher, it would still have been a “step too far” to allow recovery; however, she had accepted the force of the contrary argument that, given the right evidence of the reasonableness of the procedure and the prospects of success, an award may be made. In the Whittington judgment, Lady Hale eschewed her former tentativeness and agreed with Sir Robert Nelson that it was difficult to see why the claim should not succeed, where the prospects of success were reasonable and where the claimant had postponed cancer treatment to have her eggs harvested.

In respect of the second question of whether damages to fund surrogacy arrangements using donor eggs were recoverable, Lady Hale again referred to her view in Briody. There, she opined that such recovery was not truly restorative of what the Claimant had lost, rather it sought to compensate the loss with something different. However, in Whittington, Lady Hale changed her view, stating that this view was “probably wrong then and is certainly wrong now” [45]. She held that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.

In making her judgment, Lady Hale referred to the Claimant’s (albeit inexact) analogy of this situation being no different from fitting a prosthesis to an amputee. Whilst a claimant is not being supplied with an actual replacement womb, in many ways she is being provided with a temporary womb through the generosity of a surrogate mother. Lady Hale also accepted the argument put forward by the claimant’s counsel in Briody that a woman can hope for four things from having a child: (i) the experience of carrying the child and giving birth; (ii) the perpetuation of one’s own genes; (iii) the perpetuation of one’s partner’s own genes; and (iv) the pleasure of bringing up a child as one’s own. Donor egg surrogacy would provide two of these, including number four, which, for many women, would be the most important. Lady Hale therefore questioned why this should be denied if it was the best that could be achieved to make good the injured party’s loss. Lady Hale held that the argument was reinforced by the ongoing changes in the idea of what constitutes a family, neatly captured by King LJ in the Court of Appeal at [103]: “psychologically and emotionally the baby who is born is just as much ‘their’ child as if one of them had carried and given birth to him or her”.

Turning to the final issue of whether damages to fund the cost of commercial surrogacy arrangements abroad were recoverable, Lady Hale held that it was no longer contrary to public policy for such an award to be made. However, she begun by acknowledging that surrogacy contracts are unenforceable in the UK and she cited the well-established principle that the courts will not enforce a foreign contract which would be contrary to public policy in the UK. The question was therefore why UK courts should enable the payment of fees under such contracts by making an award of damages to reflect them.

In the judgment, Lady Hale noted that many of the costs involved in the surrogacy process would be claimable if the surrogacy took place in the UK (although might be lower in amount): (i) the cost of the fertility treatment and egg donation; (ii) the payment to the surrogate mother (which would, in any event, be likely to be retrospectively authorised by a court); and (iii) fees paid to UK lawyers. The items that would be unlawful in the UK, but not the US, were the fees paid to the surrogacy agency and the fees paid to US lawyers. However, Lady Hale queried the extent to which these should taint the other items on the bill.

Lady Hale further noted that the recipient of damages would be the Claimant, who is the commissioning parent, and that it was not against the law for either a commissioning or surrogate parent to do those things prohibited by s2(1) Surrogacy Arrangement Act 1985. The only deterrent for commissioning or surrogate parents is that the court hearing an application for a parental order might refuse to retrospectively authorise payments. However, Lady Hale pointed out that there is no evidence of that ever having been done. She also referred to the court’s paramount consideration as being the welfare of the child, which was almost certainly best served by cementing the child’s home and family links with the commissioning parents.

Lady Hale again drew attention to the post-Briody position. She noted that assisted reproduction techniques are now widespread and socially acceptable, that there are exerted attempts by the courts to recognise relationships created by surrogacy, and that surrogacy is now accepted by the government as a valid way of creating family relationships. She stated that, whilst the risks of exploitation and commodification are heightened in commercial surrogacy, they were not thought an insuperable ethical barrier to properly regulated arrangements.

However, importantly, Lady Hale applied the following limiting factors to any such awards [53]:

  • The proposed programme of treatment must be reasonable;
  • It must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK (and arrangements are unlikely to be reasonable unless the foreign country has a well-established surrogacy system protecting the interests of all parties); and
  • The costs involved must be reasonable.

Dissenting Judgment

Lord Carnwath (with whom Lord Reed agreed) dissented solely on the third issue. In the dissenting judgment, he opined that the issue was one of “legal policy”, for which the objective would be consistency or coherence between civil and criminal law. He considered it would be contrary to that principle for the civil courts to award damages for conduct which would be a criminal offence if undertaken in the UK. Moreover, he stated that there had been no change to the critical laws affecting commercial surrogacy in the UK since Briody, and that the Law Commission had not proposed any material change in that respect. Without such change to the critical laws, allowing damages for commercial surrogacy would not be consistent with legal coherence.

Comment

This decision gives judicial recognition to the fact that social attitudes to surrogacy have changed significantly since the Court of Appeal’s decision in Briody. A claimant who becomes infertile as a result of negligent treatment can now, subject to the limiting factors set out above by Lady Hale, recover the cost of commercial surrogacy and/or surrogacy using donor eggs. Prima facie, these limiting factors now provide judicial discretion to decide such claims on the basis of reasonableness and their particular facts. Whilst this is good news for claimants intending to bring such claims, there are several elements in these claims which defendants will be able to challenge.

Falling outside the principles of “pure diagnosis” cases: Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)

In this post, Henry King of 12KBW examines the limited application of so-called “pure diagnosis” cases in the context of a case where failure to diagnose a patient’s abdominal mass as an actinomycosis infection was found to be non-negligent on traditional Bolam / Bolitho principles.

The cases of Bolam v Friern Hospital Management Committee [1957] 1 W.L.R 582 and Bolitho v City and Hackney Health Authority [1997] UKHL 46 concerned treatment and whether the doctor has acted within a reasonable, respectable and responsible range of medical opinion. As such, there is room for a genuine difference of opinion. There are, however, cases in (say) radiology or histology where a diagnosis is likely right or wrong. This is termed a “pure diagnosis” case. 

Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)  was a case where the alleged negligence was a failure to perform a biopsy to confirm a specific diagnosis given that, on the Claimant’s case, there were a range of diagnoses. As such, Andrew Lewis QC found that consideration of the claim as a “pure diagnosis” case was of limited effect, preferring to categorise it as follows:

  • First, to find as a fact what the correct diagnosis at the time was likely to have been;
  • Second, and despite any confliction with the Court’s finding, whether the treating team’s assessments were negligent or not in accordance with the principles of Bolam, Bolitho, and Penney v East Kent HA [2000] Lloyds Rep Med 41,. 

The Facts and the Parties’ Respective Cases

The Claimant presented to her GP and then to the Defendant’s trust complaining of central abdominal pain and in the upper left quadrant following an appendectomy that had taken place some months previous. 

The First Scan

On 05.08.13, The Claimant underwent a CT scan (“the First Scan”). Dr Tam reported a mass in the upper right quadrant consistent with an omental infarction. Given the Claimant’s recent appendectomy, this made the diagnosis of omental infarction “most likely”. This diagnosis was accepted and the Claimant was therefore discharged. 

The Claimant’s case was that this should have been diagnosed either as a malignancy or an infective process and that these matters should not have been ruled out. The Defendant’s case was that this was a reasonable diagnosis in all the circumstances. 

The Second Scan / Failure to Biopsy

On 20.09.13, following two presentations to outpatients, a second CT scan was performed (“the Second Scan”). It was agreed that this scan showed that the mass had “grown considerably”. The treating radiologist was uncertain as to the diagnosis but kept open the options of omental infarction, malignancy and infection. The treating team recommended further urgent evaluation. In evidence, the treating doctor stated that she would have recommended surgery or a biopsy in discussion with her superior, but that the diagnosis was uncertain. On the basis of the uncertainty, a secondary specialist opinion was obtained from a tertiary care unit. 

On 25.09.13, the specialist stated that it looked like an omental infarction and therefore urgent gastroscopy was not required. 

Again, the Claimant’s case was that this was not an omental infarction and should have been diagnosed as a malignancy or infective process, whilst the Defendant’s case was that the course of action taken was reasonable and in line with Royal College of Radiologists (“RCR”) best practice. 

Issues for the Court to Decide

The Judge found there to be five issues to be resolved:

  • Was the First Scan reported in a reasonable manner?
  • If the First Scan was incorrectly reported, had it been correctly reported – would this have lead to a biopsy? 
  • Was the Second Scan reported in a reasonable manner? 
  • Was it mandatory to perform a biopsy in September 2013 to investigate the mass?
  • Would said biopsy have confirmed actinomycosis? 

The Judge’s Application

In respect of the first scan, whilst the diagnosis was wrong, it was not negligent. This is because it accorded with a myriad of other factors (see [36]) and RCR guidance. As such, it was reasonable in all the circumstances. Further, the judge concluded that had a malignancy or infection been reported, a biopsy was unlikely to have been taken at that stage (at [44]).

In respect of the second scan, the treating team recommended “further urgent evaluation” in line with RCR guidance. Thus, and despite being labelled at “sub-optimal” in the joint statement between the radiological experts, Andrew Lewis QC did not find that this was negligent, and indeed pointed to what the Claimant wanted, further differential diagnoses. At this point, the treating team did not biopsy and the judge found this to be in accordance with a reasonable body of medical opinion. Whilst the Claimant’s expert in this matter gave “refreshingly honest” evidence that a surgeon who is uncertain of a diagnosis should biopsy, this was rejected by the Court. This was on the basis that a biopsy is an invasive procedure with extremely rare but potentially catastrophic complications and seeking a second opinion when in doubt of a diagnosis is a reasonable course of action. 

Analysis

This was a case that largely turned on a mixed question of law and fact, given that the judge held that it was a partial pure diagnosis case. 

Had this been a pure diagnosis case (and indeed should the pure diagnosis dictum be applicable) this is a case in which breach and causation would likely have been established on the Judge’s findings of fact. However, the Claimant encountered stumbling blocks in that two of her experts were not preferred, and the current law adopts a Bolam / Bolitho approach to this kind of case. As such, whilst it was expressly held as a fact that an earlier diagnosis and biopsy would have made all the difference, on the law as it stands this was not negligent. 

Of note is the judge’s extensive quotation from the dictum of Kerr J in Muller v Kings College Hospitals NHS Foundation Trust [2017] EWHC 218 cited at paras [26]. The judge neither endorsed nor disavowed Kerr J’s reservations in Muller, yet set them out at length. As such, this takes practitioners no further forwards in respect of pure diagnosis cases, save to serve as a warning that such cases may well be characterised entirely otherwise by the Court.