07 December, 2021
In the case of Toombes v Mitchell, the High Court explained the correct interpretation of the Congenital Disabilities (Civil Liability) Act 1976 s.1 when determining whether a clinical negligence claim brought by a woman who was born disabled amounted to a "wrongful life" claim.
In this case, the claimant, Evie Toombes, was born with a neural tube defect causing spinal cord tethering. Her mobility was limited, and she suffered from double incontinence and often spends up to 24 hours a day connected to tubes, but has forged a career in showjumping, competing against both disabled and able-bodied riders. She alleged that the cause of her disability was her mother's failure to take folic acid before her conception, which was caused by the defendant's negligent advice.
The claimant claimed her mother's GP, Dr Mitchell, failed to advise her on vital supplements to take pre-pregnancy. She claimed that if her mother had been told that she needed to take folic acid supplements to minimise the risk of spina bifida affecting her baby, she would have avoided getting pregnant until she had increased her intake of folic acid, and as a result the claimant would never have been born.
The claimant argued that on a proper reading of the Act, the Law Commission's Report which preceded it (Law Com.No.60), and the judgment in McKay v Essex AHA, the label of "wrongful life" was restricted to tortious acts or omissions following conception but for which the pregnancy would have been terminated. She further argued that her claim fell within the terms of s.1(2)(a) of the Act which related to liability to a child born disabled because of an occurrence before their birth.
Causes of action under s.1 involved three components:
The word "occurrence" meant that something happened, but the Act did not require that the occurrence involved a change or alteration in the mother's physiological state.
There was no reason why the claimant's mother's reliance on the negligent advice she was given and having sexual intercourse in a folic-acid deficient state resulting in pregnancy, could not be a relevant occurrence. It therefore satisfied the three components outlined above.
The claimant's mother would have had a valid claim for damages for wrongful birth, encompassing the reasonable costs associated with the claimant's disability. However, she had chosen not to bring such a claim.
All three elements required under the Act were present in the claimant's case: a wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic-acid deficient state) which resulted in a child born with disabilities due to that deficiency of folic acid.
Judge Rosalind Coe QC backed the claimant's case and awarded her the right to a huge compensation payout. The judge ruled that had the claimant's mother been provided with the correct recommended advice, she would have delayed attempts to conceive. In the circumstances, there would have been a later conception, which would have resulted in a normal healthy child.
The ground-breaking ruling means that a healthcare professional can now be found liable for negligent pre-conception advice which results in the birth of a child with a serious health condition.
For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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