Wrongful Birth Revisited: Khan v Meadows [2021] UKSC 21 – a reminder

To get us all up to speed ahead of this Supreme Court judgment, which was due to be handed down on Friday 28 May and has now been postponed, Helen Waller has helpfully set out the background to this case, the decisions of the lower courts, and a summary of the law on wrongful birth claims.

We will update this blog post with the result of the Supreme Court decision when it is handed down, along with our analysis of it.

Law students and clinical negligence practitioners alike will be familiar with the string of jurisprudence dealing with the issue known as “wrongful birth”. These are claims arising on the basis that a pregnancy would either not have occurred or not have been continued, were it not for the negligent medical care (be that advice or treatment) provided by the defendant.

The novel and interesting question raised by the case of Khan v Meadows is, if a child born with two disabilities would not have been born were it not for a doctor’s failure to advise of the risk of being born with one of those disabilities, can the mother recover the cost of both disabilities or is she restricted to those associated with the disability about which the doctor failed to advise? This probes at important questions surrounding the scope of doctors’ duties and the foreseeability of specific harm.

The Factual Background

Ms Meadows’ son suffers from both haemophilia and autism. Ms Meadows had previously consulted the Defendant, Dr Khan, wanting to establish whether she carried the haemophilia gene following her nephew’s diagnosis with the condition.  Following blood tests, Ms Meadows was wrongly led to believe that any child she had would not have haemophilia. The blood tests could only show that Ms Meadows did not herself have haemophilia. They could not show whether or not she was a carrier of the haemophilia gene. For that genetic testing would be needed. It transpired that Ms Meadows did in fact carry that gene.

Had she known that she carried the haemophilia gene, she would have undergone foetal testing for haemophilia when she was pregnant. This would have revealed the foetus was affected. Ms Meadows would then have chosen to terminate her pregnancy, and her child would not have been born.

Ms Meadows claimed for the additional costs of raising her son, specifically those associated with his haemophilia and autism. Dr Khan admitted liability for the consequences of the child’s haemophilia, but denied liability in respect of the autism, contending that the autism fell outside of the scope of her liability, which was limited to the consultation in respect of haemophilia. The child’s haemophilia did not cause his autism, nor made it more likely that he would have autism. However, the management of his haemophilia is made more difficult by his autism.

The Legal Background

The starting point when considering the jurisprudence on wrongful birth is McFarlane v Tayside Health Board [2000] 2 AC 59, a failed sterilisation case. A majority of the House of Lords allowed the mother to recover for the loss and damage associated with the pregnancy but rejected the parents’ claim for the costs of raising the child who was healthy. This marked a milestone in such cases as the previous trend had been towards allowing damages for the full cost of raising a child. Although their Lordships differed in their overall reasoning in McFarlane, they were all agreed that the claim for the cost of raising a healthy child was one for economic loss in respect of which the law of tort would not compensate.

Then in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, a claimant recovered for the additional costs of raising a disabled child, whilst the court confirmed that the costs of raising a healthy child were not recoverable. In Parkinson there was no direct link between the breach and the disability. That case involved a botched sterilisation, but the relevant disabilities were congenital abnormalities unrelated to the sterilisation procedure. Hale LJ held that a mother was entitled to recover for, “any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens” (at [92]). That fitted with the Court of Appeal’s view given in Groom v Selby [201] EWCA Civ 1522, another sterilisation case, but this time where the claimant mother was in fact already pregnant when the sterilisation procedure was carried out, which went negligently undetected. She was successful in claiming for the additional costs associated with her child’s brain damage arising from meningitis contracted during childbirth.

Some doubt was cast on Parkinson by the House of Lords in Rees v Darlington Memorial Hospitals NHS Trust [2003] UKHL 52. The decision was not discredited, but questions were posed over whether the costs of raising a disabled child were recoverable. In Rees itself, the additional costs associated with the mother’s – rather than the child’s – disability were held not to be recoverable, despite the purpose behind her undergoing the (botched) sterilisation procedure being to avoid the impairments to her parenting ability that her disability would generate.

Meadows v Khan at first instance: [2017] EWHC 2990 (QB)

The Parties had agreed all issues except for the key one, as outlined above. Therefore, the first instance judge, Yip J, did not hear any oral evidence, but simply considered legal submissions based on an agreed background.

The Judge found that there was no difficulty in the case in relation to proximity and foreseeability. Defendant’s counsel had conceded that the child’s autism “was a congenital condition and a natural and foreseeable consequence of his birth” (at [22]) and that ‘but for’ causation was made out. However, the Parties disagreed as to the test for the assumption of responsibility, the scope of the duty of care, and the extent to which it would be fair, just and reasonable to hold the Defendant liable for the costs relating to the autism.

A distinction was drawn between Parkinson and the instant case. In Parkinson, the service offered by the defendant, sterilisation, was intended to prevent the mother having any child at all. In the instant case, however, the service offered by Dr Khan was not to prevent Ms Meadows having any child, but rather to prevent her having a child with haemophilia.

The Defendant sought to rely on what is known as the SAAMCO principle, derived from the case of South Australia Asset Management Corporation v York Montague [1997] AC 191, in which the house of Lords emphasised the need to consider the scope of the duty owed in order to establish the kind of loss for which compensation is recoverable. The Defendant said that the child’s autism simply was not the kind of loss in respect of which the doctor owed a duty. The Judge summarised it thus:

“When a parent has sought to avoid having any child, there can be no question of that parent being willing to accept the normal risks that may lead to having a disabled child. However, a parent who is seeking to protect against a particular disability is otherwise quite happy to run the usual risks associated with any pregnancy. It is not fair, just and reasonable to transfer those risks from parent to doctor.” (at [50])

The Claimant, in contrast, presented the issue as being one of simple ‘but for’ causation: once established that but for the Defendant’s negligence, the pregnancy would not have continued, the Defendant is liable for all the consequences of that pregnancy except for those not recoverable in law (i.e. the cost of raising a healthy child). It was argued that “no rational distinction may be drawn between a woman who did not want any pregnancy and one who did not want a particular pregnancy” (at [49]).

Mrs Justice Yip, in reaching her conclusion, drew an analogy between the instant case and that of Chester v Afshar [2004] UKHL 41 and the risks inherent in the surgery in that case:

“It is right that the claimant would have gone on to have another pregnancy at another time and involving, necessarily, a different combination of genes. Although any pregnancy would have carried the same risk of autism, on the balance of probabilities, the subsequent pregnancy would not have been affected by autism” (at [54]).

She concluded that, “The pregnancy is indivisible” (at [56]).

Further, the judge drew on the jurisprudence, following Parkinson, to conclude that,

“The courts have already determined that damages may be recovered for the costs of raising a disabled child born as a result of a doctor’s negligence even though there is no direct link between the negligence and the disability. In my judgment, it would not be fair, just and reasonable to draw a distinction between the mother in this case who would have wanted to terminate this pregnancy and the mother who would have wanted to terminate any pregnancy.” (at 68)

Khan v Meadows in the Court of Appeal: [2019] EWCA Civ 152

Dr Khan appealed against Yip J’s decision that she was responsible for the child’s autism as well as the haemophilia. The doctor submitted that the first instance court had misapplied the “scope of the duty” test as articulated in SAAMCO. The Respondent, Ms Meadows, accepted that the test in SAAMCO would apply to this case.

On behalf of the Appellant doctor, three questions arising from the SAAMCO test were identified (at [18]):

• What was the purpose of the advice/procedure/information which is alleged to have been negligent?
• What was the appropriate apportionment of risk, taking account of the nature of the advice/procedure/information?
• What losses would in any event have occurred if the defendant’s advice/information was correct or the procedure had been performed?

Lady Justice Nicola Davies gave the judgment, with which the rest of the Court agreed. She began her discussion by focussing on this point raised by the Appellant doctor that “The focus of the consultation, advice and appropriate testing was directed at the haemophilia issue and not the wider issue of whether, generally, the respondent should become pregnant” (at [23]). She went on to discuss what risks remained Ms Meadows’ following that consultation, concluding that the risk of having a child born with autism was one that Ms Meadows was willing to accept. This was contrasted with the risk of having a child born with haemophilia, that being a risk addressed by the Appellant doctor.

Accordingly, the Court found that SAAMCO was “not only relevant but determinative of the issues which have to be addressed by a court”. In answering the three questions posed on behalf of the Appellant, Davies LJ concluded (at [26]):

1. The purpose of the consultation was to put Ms Meadows in a position to make an informed decision about any future child that she conceived who was discovered to carry the haemophilia gene.
2. The doctor would be liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and, consequently, no termination of the pregnancy. All other risks of pregnancy and birth would be borne by the mother.
3. “The loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism”.

Ultimately, the Court found that “In the context of this case the development of autism was a coincidental injury and not one within the scope of the appellant’s duty”.

There is an attractive logic in the simplicity of this conclusion and in particular the answers to questions (1) and (2). Although the Court declined to enter into a “fair, just and reasonable” analysis, it could be said that it would not be fair to hold the doctor liable for a risk about which he was not consulted, i.e. the autism.

However, the answer given by the Court to question (3) is open to criticism. If the foetus had been tested for haemophilia, the test would have been returned positive and the mother’s case was that she would have terminated the pregnancy. Therefore, it is not correct to say that the child would have been born with autism, because in fact the child would not have been born at all. Another child, who did not test positive for haemophilia, might have been born at another time, but there is no certainty that that child would have been born with autism. That falls into the realms of the reasoning given in Chester v Afshar. From the wording of the answer to the third question, it appears that the Court may have slightly confused issues. The question is what would have happened if the doctor’s advice had been correct? In other words, if it were true that Ms Meadows did not have haemophilia and was not a carrier of the gene, what would have occurred? Then the answer could be that she would have fallen pregnant with this child who would have been born with autism. That, however, is genetically unknowable. If the mother didn’t in fact have the haemophilia gene, then the mix of genes that her child ended up with would necessarily be different to the mix that he in fact got and therefore it can’t be said that he would have been born with autism, neither in absolute terms nor on balance.

The Decision of the Supreme Court: [2021] UKSC 21

We eagerly await the Supreme Court decision on Ms Meadows’ appeal, due to be handed down on Friday 28 May 2021, but now postponed. The page on Supreme Court website regarding this case can be accessed here.