In the recent case of Morde v Royal Berkshire Foundation Trust[2019] EWHC 2591 (QB), the Claimant successfully sued the Trust for failing to obtain her informed consent in relation to pre-natal testing for Down’s Syndrome.
The claim for damages was pursued based on the principles explained in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266. Where the Court of Appeal reiterated that the costs of rearing a healthy child must fail but allowed recovery of the extra costs associated with rearing a child with disabilities.
The Claimant was pregnant with her first child and was seen by a midwife at her GP surgery in June 2014 for her booking appointment and accepted all six of the standard screening tests, including combined screening (the Down’s syndrome two-part combined test). The Claimant was supplied with a NHS screening booklet, which she admitted she had never read, instead preferring to watch a YouTube video on the topic.
However, at her 12 week scan appointment in July 2014, the sonographer recorded, “Down’s screening declined,” and the combined testing was never carried out. The Claimant alleged that she read her medical notes after her appointment and read this to mean that her baby did not have Down’s syndrome, she had been sure the testing was being carried out. The Claimant had not submitted this in her written statement. It was the Trust’s case, as was recorded in the contemporaneous medical records, that the Claimant was offered and had declined the test.
On 11th August, at the 16 week screening, the Claimant returned to see the same midwife and it was common ground that the quadruple test was not offered. The Claimant did undergo a foetal abnormality scan at around 20 weeks gestation but this was unremarkable. The Claimant’s baby was born on 25 January 2015 with Down’s syndrome. The Trust argued that it was not required to offer further testing at the 16 week scan and that the Claimant’s previous declinature was enough, it was also argued that neither the NICE guidelines nor local policy guidelines advised that any further testing was necessary.
The Court held that the sonographers questioning was too abrupt and that she should have explored the issue further. In a case where the Claimant had provisionally accepted screening for Down’s syndrome, she should have asked whether she still wanted it; and in a case where she had rejected it, the sonographer should have sought confirmation that this was so.
The Court also held that at the 16 week screening, the midwife failed in her duty to explore why the initial screening had not gone ahead when the Claimant had agreed to it. The Court felt the midwife ought to have obtained informed consent and checked that what had occurred was in accordance with the Claimant’s wishes i.e. taking reasonable steps to ensure that everything had and was continuing to proceed according to plan.
The Claimant successfully established that, on balance, she would have had amniocentesis or chorionic villus sampling if the results had shown a high risk and would then have had a termination if it was confirmed that the fetus had had Down’s syndrome,
The Judge expressed that he had difficulty in reaching his judgment, in no small part troubled by the case revolving on a factual discrepancy and what he deemed to be a communication failing between the sonographer and the Claimant.
The case of ARB v IVF Hammersmith [2019] 2 WLR 1094 was relied upon. It had similar circumstances where the Court of Appeal had actually overturned the same Judges finding stating that a system which does not entail the taking of reasonable steps to ensure that relevant consent is informed may be regarded – subject always to a host of other considerations – as irresponsible, unreasonable and unrespectable even if there may exist expert evidence to support it.
There are a number of interesting points in this judgment. The Claimant actually failed on her primary case, being that the sonographer failed to discuss the Down’s testing with her at the 12 week scan. It is also, surprising that the Claimant’s contention that she read her notes after the scan and interpreted them as the Down’s testing being carried out, but was never included in her witness statement, was accepted. And finally, that, the Claimant admitted to never reading the NHS booklet she was given and being aware that the Down’s test results would be sent to her.
The case highlights for clinicians that the informed consent process is ongoing, and must be properly documented, not merely the presence of a decision. This is particularly applicable when the treatment is for elective treatment where informed consent will be a two step process.
To read the full judgment in Mordel v Royal Berkshire Foundation Trust please click here.
To view/download this article as a PDF please click here.
If you would like to know more about this matter, please speak to your contact at Plexus Law:
Lesley Deane, Solicitor
T: 020 7220 5912 | E: lesley.deane@plexuslaw.co.uk
