Megan Griffiths writes about this landmark clinical negligence case on pre-conception advice, where, this week, the High Court handed down judgment in favour of the Claimant on liability.
In 2001, the Claimant’s mother saw her GP (the Defendant), seeking advice on family planning, and she specifically asked about folic acid supplements. The Claimant, who was born with spina bifida, alleged that the Defendant negligently failed to advise her mother of the importance of those supplements, including the risk of spina bifida if not taken and the standard recommended dosage. The Defendant instead advised that, if the Claimant’s mother had a healthy diet, it wasn’t necessary. The Claimant was thereafter conceived. At a later midwifery appointment, her mother was advised to take folic acid, coinciding with anecdotal advice from her recently pregnant sister-in-law. Upon receiving that advice, the Claimant’s mother started taking supplements immediately. The Claimant was then born with spina bifida which was only diagnosable after birth.
The Claimant’s case on causation was that, “but for” the alleged breach of duty, her mother would have taken supplements and waited before trying to conceive, and, that, on balance, the child then born would not have suffered from the Claimant’s condition.
The Defendant accepted that the duty to advise existed at the time, but he denied that there was a breach of that duty, relying on his note of “folate advised” in contemporaneous records and his standard practice at the time. He put the Claimant to proof on when she was conceived in relation to the appointment and on factual causation, i.e. the assertion that, “but for” the alleged negligence, her mother would have taken the supplements and waited to conceive.
The case has attracted publicity for two main reasons: Firstly, the Claimant’s profile as a para-showjumper, which is a credit to her ambition and successes to date, and, secondly, the trial of the preliminary issue in 2020, in which Lambert J found that the Claimant was entitled to bring her claim under the Congenital Disabilities (Civil Liability) Act 1976 (that entitlement having been challenged by the Defendant).
The preliminary issue judgment was itself a landmark one. Thea Wilson of chambers blogged on this when it came out here. In essence, the Defendant had argued that the claim was a “wrongful life” claim and that there was no legal basis for it to be brought by the Claimant as it was: wrongful life claims were barred by policy reasons. The Claimant argued that this was a mis-categorisation, and that, instead, section 1(2) of the Congenital Disabilities (Civil Liability) Act 1976 applied because the alleged negligence occurred before conception. Lambert J found for the Claimant after scrutinising the legislation and finding that the statutory conditions for a claim under section 1(2) had been met. She held that section 1(2)(a) of the Act contained no bar on claims such as the Claimant’s. This was all despite the inevitable reality that later conception would have resulted in a different individual than the Claimant being born.
Therefore, at the recent liability trial, the issues for Coe J to determine were factual rather than legal: what advice was given at the appointment, whether the advice given was negligent, whether the Claimant’s mother may have conceived prior to the appointment, and what she would have done “but for” the negligence? No expert evidence was needed to dispose of the issues in dispute.
In finding for the Claimant, Coe J preferred her parents’ witness evidence as to the contents of the appointment.
The Defendant’s evidence was that his short note of “folate if desired” led him to the assumption that he gave his normal full advice . Coe J did not accept that evidence, finding that the Defendant had “no actual recollection of the consultation and [was] entirely reliant on what he says his usual practice would have been and his note” . The judge described the note as “completely inadequate”, and the assumption as “nothing but speculation after the event” . Importantly, Coe J also found that “[the Defendant’s] evidence was not as reliable as it would have been if the note has been as complete as it should have been” : the inadequacy of the note had a knock-on effect on the Defendant’s evidence as a whole.
The judge instead accepted the Claimant’s mother’s account as more likely to be accurate, which meant that the Defendant’s advice was negligent.
On the issue of whether the Claimant’s mother could have inadvertently been pregnant at the time of the appointment, Coe J accepted the Claimant’s parents’ firm evidence as to abstinence .
The court also accepted that “but for” the advice, the Claimant’s mother would have abstained for longer and conceived at a later date. This was based on an analysis of what the Claimant’s mother, with her mannerisms and characteristics, would have done, rather than a generic person. The court found that the Claimant’s mother was “a very careful person who was very concerned about doing the right thing”, which was supported by the fact that she sought pre-conception advice, which the Defendant accepted was relatively unusual .
The combined effect of the 2020 judgment on the preliminary issue, which confirmed the Claimant’s standing to bring a claim for her own disabilities arising from pre-conception advice to her mother, and the 2021 judgment on liability, by which her claim succeeded, is significant. This decision significantly alters the legal landscape in respect of claims for disabilities from birth. Not only can a child bring a claim in their own name, but they can do so even where the disability arises from negligence that happened before they were conceived. The reality that, “but for” the negligence, a different child would have been born does not bar a claim. However, it would be an overstatement to say that this opens the floodgates for future claims, because, as accepted by the parties in Toombes, the seeking of pre-conception advice tends to be unusual.
In this case, the Claimant’s mother chose not to bring a claim for “wrongful birth” in her name, although it was agreed that she would have been entitled to do so. The benefit of bringing a claim in the Claimant’s name is that the losses are not limited to the lifespan of the mother, and, instead, losses can be claimed for the lifespan of the Claimant.
The recent judgment in Toombes involves a very common evidential issue arising from medical treatment many years ago: that is, the weighing up of the patient’s specific recollection versus the doctor’s contemporaneous notes and “general practice” at the time. This is a common evidential problem for medical practitioners, where an appointment may seem to be a standard one which they are unlikely to be required to revisit years down the line. The significance of those contemporaneous notes cannot be overstated.
As noted above, the situations in which similar claims are likely to arise will probably be limited in number. It is suggested that pre-conception advice claims made by a Claimant child are likely to fall into the following broad categories: a) advice about the mother potentially being a carrier of a heritable disease (see, for example, Meadows v Khan), b) advice about pregnancy nutrition (as in Toombes v Mitchell), c) advice about the effect of taking various medications on pregnancy and d) advice about the effect of/protection from infectious diseases (e.g. Rubella and Zika virus).
The 2020 judgment on the preliminary issue can be found here.
The 2021 judgment on liability can be found here.