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an unprejudiced fashion and, at the same time, to explain the alternatives
and why he or she is discarding them. This is not paternalism “ the
autonomy of the parents is preserved in that they can accept or refuse
the advice.50 The dark side of the equation is, of course, that we live in the
age of blame and a wrong choice is likely to lead to recrimination. In order
to avoid this, I suggest that, in summary, the counsellor™s duty of care is
satisfied if he or she:
* has ensured that such investigations and specific tests as would be

appropriate in the circumstances have been carried out;

47
Whether such a doctrine exists in English and Scots law, or whether it is a purely
American construct, is a matter for discussion. Whatever the true answer, the phrase is
now a matter of medico-legal lore even if not of medical law. The interested reader may
like to compare Dunn LJ: ˜The concept of informed consent forms no part of English law™
in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
[1984] QB 493, CA at 517 with Lord Steyn in Chester v. Afshar, n. 63 below, at [16].
48
As has been recognised from the outset: Nuffield Council on Bioethics Genetic Screening:
Ethical Issues (1993).
49
See Angus Clarke (ed.), Genetic Counselling: Practice and Principles (London, Routledge,
1994) and, the same author, ˜Is Non-directive Genetic Counselling Possible?™ (1991)
338 Lancet 998“1001.
50
For a very good overview of antenatal counselling, albeit from a transatlantic aspect, see
Sonia Mateu Suter, ˜The Routinization of Prenatal Testing™ (2002) 28 American Journal
of Law and Medicine 233“70.
68 The troubled pregnancy

has considered and interpreted the findings in a reasonable way;
*

* and, finally, has presented the facts in a balanced way such as to enable

the parents to come to a reasoned decision.51
And therein lies the rub. No matter what tests have been done and have
been interpreted in isolation, the end and the end-point of counselling lie
in communication and it is failure in this respect that essentially deprives a
woman carrying a disabled fetus of the opportunity to terminate her
pregnancy. Inevitably, then, a high proportion of actions for wrongful
birth will be based on what is known as ˜information based negligence™.
Equally inevitably, we must consider the principles underlying the ˜duty
to inform™ before we can analyse the relevant cases “ and, unfortunately,
this cannot be done in a few lines.52


Information based negligence

The duty of care. The essential problem can, however, be distilled
into a single question “ is the provision of information to be regarded as an
integral part of medical treatment or is it, rather, the foundation upon
which the patient can build an autonomous therapeutic decision.
The former view, which expresses what is commonly called the pro-
fessional standard, now closely resembles a reliquary tended by a rapidly
diminishing number of medical and legal devotees who are confined to
the United Kingdom. It probably reached its apogee in Gold v. Haringey
Area Health Authority53 in which the Court of Appeal held that the
Bolam54 test of the standard of care not only applied to the provision of
therapeutic advice, but also when assessing the quality of non-therapeutic
advice “ in the instant case, to contraceptive technique. Lloyd LJ quoted
Lord Diplock in the seminal case of Sidaway:


51
In parentheses, I would not regard the offer of a test on condition that the counsellor™s
advice is followed as satisfying these conditions. See the House of Commons Science and
Technology Committee Human Genetics: The Science and its Consequences, Third Report
(1995), para. 90.
52
Whole books “ and large numbers of them “ have been written on the subject. There are
many more recent, but very few better, than the analysis by Sheila A. M. McLean,
A Patient™s Right to Know: Information Disclosure, the Doctor and the Law (Aldershot,
Dartmouth, 1989). Professor McLean expresses her views more recently and succinctly
in S. A. M. McLean and J. K. Mason, Legal and Ethical Aspects of Healthcare (Cambridge:
Cambridge University Press, 2003), chapter 4. Some 200 pages are devoted to the
subject in the major medico-legal work by Kennedy and Grubb, Medical Law, n. 29
above.
53
[1988] QB 481, [1987] 2 All ER 888.
54
Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, (1957) 1 BMLR 1.
See Chapter 1 for explanation.
Antenatal care and the action for wrongful birth 69

The general duty of a doctor [to improve the patient™s health in any particular
respect in which the patient has sought his aid] is not subject to dissection into a
number of component parts to which different criteria of what satisfies the duty of
care apply.55

The current general tenor in the English speaking world, however, is to
see the adequacy of the information provided as a matter for the patient to
decide “ in other words to apply a patient orientated standard which can,
itself, be broken down into, on the one hand, the objective, or reasonable,
patient standard and, on the other, the subjective standard which mea-
sures what the individual patient would require to know. The subjective
patient standard is, to some, the only logical response to the ideal of fully
informed patient choice. Yet it is clearly open to abuse “ a combination of
hindsight and bitterness can, if allowed full rein, expose the doctor to
unjustified accusations of information based negligence. Even today, it is
doubtful if any jurisdictions demand such a test of liability save in the
context of direct questioning; a false or evasive answer to a request for
specific information would be most likely regarded as falling below the
duty of care expected from a competent health carer.56
The construct of the objective patient standard is, however, now widely
established. It was set in the United States in Canterbury v. Spence57 and,
in the Commonwealth, in the very persuasive case of Reibl v. Hughes58 in
which the concept of considering the importance of and the incidence
of risks in relation to the expectation of being given information on
the subject was developed. But by far the most trenchant rejection of
the professional standard of information disclosure was provided in the
Australian case of Rogers v. Whitaker, the gist of which is summed up:

There is a fundamental difference between, on the one hand, diagnosis and
treatment and, on the other hand, the provision of advice or information to the
patient . . . Because the choice to be made calls for a decision by the patient on
information known to the medical practitioner but not to the patient, it would be


55
Sidaway v. The Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985]
AC 871, [1985] 1 All ER 643, at AC 893.
56
See Lord Bridge in Sidaway, n. 55 above, AC 871 at 898. It is possible, even in such an
extreme situation, that the doctor could plead ˜professional privilege™ should he mislead
on the grounds that to be truthful would damage the health of his or her patient “ see the
doubts expressed by Neill LJ in Blyth v. Bloomsbury Health Authority [1993] 4 Med LR
151, CA at 160 “ but I am not convinced that such extenuation would be accepted more
than a decade later.
57
464 F 2d 772 (DC, 1972). Needless to say, with a mix of 51 jurisdictions, there are
differences and the professional standard is maintained, with diminishing authority, in a
number of states.
58
[1980] 2 SCR 880, (1980) 114 DLR (3rd) 1. Relevant UK cases refer repeatedly to Reibl.
70 The troubled pregnancy

illogical to hold that the amount of information to be provided by the medical
practitioner can be determined from the perspective of the practitioner alone or,
for that matter, of the medical profession.59

Meanwhile, as has already been intimated, the toehold that Bolam retains
within the United Kingdom in respect of information disclosure is fast
being loosened. In the House of Lords, Sidaway recognised its continuing
application by a 4 to 1 majority, yet the speeches were scarcely enthu-
siastic, and all their Lordships, other than Lord Diplock, deviated from an
unadulterated professional standard of disclosure to some extent. The
most significant statement, in my opinion, came from Lord Templeman
who said:

If the doctor . . . advises the patient to submit to [an] operation, the patient is
entitled to reject that advice for reasons that are rational or irrational or for no
reason. The duty of the doctor in these circumstances . . . is to provide the patient
with information which will enable the patient to make a balanced judgment if the
patient chooses to make a balanced judgment.60

And that, I believe, still represents the law as it stands today. Moreover, it
is important that the doctor not only provides the necessary information,
but also that the information is provided in a format that is within the
patient™s understanding.61
Since then, the then Master of the Rolls, Lord Woolf, has very signifi-
cantly introduced the concept of the reasonable patient to the Court of
Appeal, where he said:

It seems to me to be the law . . . that if there is a significant risk which would affect
the judgment of a reasonable patient, then in the normal course it is the respon-
sibility of a doctor to inform the patient of that significant risk, if the information is
needed so that the patient can determine for him or herself as to what course he or
she should adopt.62



59
(1992) 175 CLR 479 at 489, (1993) 16 BMLR 148 at 156 per the majority. Gudron J
went so far as to suggest that a subjective patient test might be grafted on to the
reasonable patient™s expectations. For one of many useful reviews of Rogers, see Don
Chalmers and Robert Schwartz, ˜Rogers v. Whittaker and Informed Consent in Australia:
A Fair Dinkum Duty of Disclosure™ (1993) 1 Medical Law Review 139“59. See also the
South African acceptance of Rogers in Castel v. De Greef 1994 (4) SA 408.
60
Sidaway, n. 55 above, at AC 904.
61
Lybert v. Warrington Health Authority [1996] 7 Med LR 71, CA. See also Al Hamwi v.
Johnston, n. 33 above discussed in detail at p. 77 below. It may be that the Bolam test is
merely being modified as the threshold of the duty of the ™responsible doctor™ changes.
See Murray Earle, ˜The Future of Informed Consent in British Common Law™ (1999) 6
European Journal of Health Law 235“48.
62
In Pearce v. United Bristol Healthcare NHS Trust (1999) 48 BMLR 118 at 124.
Antenatal care and the action for wrongful birth 71

And, recently, the House of Lords, in Chester v. Afshar,63 has virtually
ignored Bolam and has accepted that the patient™s expectations define the
standard of information delivery.
Thus, the future may seem clear but, even so, the present is still cloudy.
In Pearce, for example, although Lord Woolf spoke of the reasonable
patient, he nevertheless reverted to Bolam in his analysis and, in a recent
and most useful review of cases post-Bolitho,64 Maclean concluded that
Bolam was by no means dead.65 Nonetheless, the overall, and strong,
impression is that Chester, which is discussed further at p. 76 below,
sends out an unmistakable message that Bolam will assume decreasing
importance in future cases of information based negligence.

Causation. For an action in information based negligence to
succeed, the complainant must prove that the failure in communication
caused a recognisable injury. In the present context, this means that a
woman would have made a different decision had she been better
informed and this, in turn, in the context of the wrongful birth action,
effectively means that she would have elected to terminate her pregnancy.
An analysis of the cases suggests that this is likely to be her stiffest
obstacle “ largely because she not only has to believe that she would have
adopted a certain course but, so far as current cases of wrongful birth
indicate, she also has to prove that she would have done so “ and all this in
face of the fact that the woman in the wrongful birth case was undeniably
seeking motherhood. Hence, she not only has to be an effective witness
but she also has to engage the sympathy of the judge in the face of a
strong, corporate defence. Any assessment of the decision that an indi-
vidual woman would have made in a hypothetical situation is bound to be
subjective and this raises difficulties on both sides. In the first place, it is
inherently unlikely that a woman who has been caused considerable
distress as a result of a decision that was expected to result in much
happiness is unlikely to believe that she would not have decided otherwise



63
Chester v. Afshar [2005] 1 AC134, [2004] 4 All ER 587. I have discussed the case in
Kenyon Mason and Douglas Brodie, ˜Bolam, Bolam . . . Wherefore Art Thou Bolam?™
(2005) 9 Edinburgh Law Review 298“306. For a recent, in depth, analysis, see David
Meyers, ˜Chester v. Afshar: Sayonara, Sub Silentio, Sidaway?™ in Sheila A. M. McLean
(ed.) First Do No Harm (Aldershot: Ashgate, 2006), chapter 16.
64
Bolitho v. City and Hackney Health Authority [1998] AC 232, [1997] 4 All ER 771. Bolitho
has been explored more fully in Chapter 1. For present purposes, it is important to
remember that Bolitho was not concerned with information disclosure.
65
Alasdair Maclean, ˜Beyond Bolam and Bolitho™ (2002) 5 Medical Law International
205“30.
72 The troubled pregnancy

had she received different professional advice.66 Less commonly, the
patient™s state of mind may expose the doctor to her ˜hindsight and
bitterness™67 and the judge may well have this at the back of his or her
mind. Thus, on the other side of the bench, the subjective test depends
not only on the judicial state of mind but also on the judge™s assessment of
the plaintiff™s motivation and credibility “ and these are matters of fact to
be determined by the trial judge which the Court of Appeal cannot
gainsay.68
Old though it is, the case of Mrs Gregory69 still remains the exemplar.
There was a history of Down™s syndrome in Mrs Gregory™s family,
although she herself had already had a normal child, and, as a result,
she was recommended an amniocentesis “ although, since she was aged
only 28, there was little enthusiasm behind the offer. She underwent the
procedure but the specimen was unsatisfactory and, by the time this
became apparent, she was 21 weeks™ pregnant. Her medical advisers
decided against a repeat test70 “ but, unfortunately, she was not informed
of either the complication or the decision. On the birth of an affected
child, she brought what was a relatively novel wrongful birth action
against the Health Authority in which the facts were undisputed and
negligence as to information disclosure was agreed. She failed, however,
on the grounds that she had not shown that she would not have accepted
advice against having a second diagnostic test nor that, as a consequence,
she would have terminated the pregnancy. Rougier J took the view that:
[W]e can only conjecture as to what we would have done had matters turned out
differently, and that conjecture is bound to be influenced, subconsciously, by

66
Having said which, it is a source of comfort to recognise how often disabled infants
rapidly become much loved members of the family. The basis for perhaps the majority of
wrongful birth actions is no more than that to care for such a child often costs more than
the parents can afford.
67
A phrase used by Anonymous, ˜Informed Consent: A Proposed Standard for Medical
Disclosure™ (1973) 48 New York University Law Review 548“63 at 550 which greatly
influenced Laskin CJ and the Court in Reibl at 15.
68
˜It is well-established that [the Court of Appeal] will not interfere with a finding of fact . . .
if a judge has based, in part at any rate, his assessment on seeing and hearing the witness
and on his view of him™: Stuart Smith LJ in Fallows v. Randle [1997] 8 Med LR 160.
Permission to appeal against the trial judge™s decision that a woman would have had a
termination if properly advised was, for example, refused in Wyatt v. Curtis [2003]
EWCA Civ 1779 at [1]. Similar problems of causation were argued in this case which
was eventually settled on grounds of liability.
69
Gregory v. Pembrokeshire Health Authority, n. 2 above.
70
On the grounds that she would have been 24½ weeks™ pregnant by the time the result was
available. The court accepted that, in 1979, 24 weeks represented the threshold for
˜capable of being born alive™ for the purposes of interpreting the Infant Life
(Preservation) Act 1929, s.1(1). In fact, it played no part in the judgment but it would,
very probably, have demonstrated a translocation defect (see p. 61).
Antenatal care and the action for wrongful birth 73

what has happened to us in the meantime. It is not integrity which is in question
but objectivity . . . This [evidence] provides an illustration of how the objectivity of
an honest witness can fail in the circumstances of stress.71
The Court of Appeal unanimously upheld the judge™s interpretation of
the evidence. Nevertheless, Gregory is, I suggest, an unsatisfactory case “
not least because what the trial judge considered to be ˜well-nigh compel-
ling™ medical opinion was, at least, open to question.72 Perhaps more
importantly, one could ask if it is right that a major decision should turn
on the interpretation of a woman™s ˜hypothetical response to hypothetical
advice given at a hypothetical consultation™.73 It seems to this writer that
the effect of this approach to causation is to turn judges into psychologists
rather than triers of fact and that this cannot be conducive to uniformity.
In the light of such subjectivity, there is, thus, much to be said for
adopting the reasonable woman as the benchmark in addressing causa-
tion in this context “ that is, to use an objective test. Insofar as reason-
ableness can be defined “ and there are many who would reject the
possibility as will-o™-the-wisp “ it obviates many of the difficulties out-
lined above. At the same time, it is potentially unfair in that it prohibits
the plea ˜I am not a reasonable woman within your terms™. The issue is
well-balanced and the arguments were particularly well exposed in the
important Canadian case of Arndt v. Smith which, ultimately went to a
nine-judge bench in the Supreme Court.74
Ms Arndt suffered from chicken pox during her pregnancy and was
supplied with what was agreed to be inadequate information as to the
possible effects on her fetus who was born with serious congenital dis-
abilities that were attributable to the infection. The question of liability,
thus, rested entirely on causation and this, in turn, was to be decided on
the basis of the correct test to be applied in assessing Ms Arndt™s likely
reaction to abortion had she been properly advised. At first instance,75
Hutchison J found that she would still have persisted with her pregnancy “
this being based very much on evidence that the parents badly wanted a
child and that Ms Arndt had refused an ultrasound scan.76 In retrospect,

71
Gregory, n. 2 above, at 86.
72
The chances of a woman aged 28 having a Down™s syndrome child were assessed as
between 800:1 and 1000:1; whereas the chances in the case of a female carrier of the
relevant translocation, which one may assume Mrs Gregory to have been, having such a
child are about 10 per cent.
73
The description is that of Nicholls LJ in the Court of Appeal, Gregory, n. 2 above, at 89.
74
The case is also reported as far as the Court of Appeal in [1996] 7 Med LR 108.
75
(1994) 93 BCLR (2d) 220.
76
The Court of Appeal, however, considered that the evidence that Ms Arndt wanted a
child and that she was suspicious of mainstream medicine was ˜subjective™ and inadmis-
sible as to causation; Arndt v. Smith (1995) 126 DLR (4th) 705 at [86].
74 The troubled pregnancy

there is some doubt as to the test he applied and this is understandable in
view of his remark:
If a physician fails to warn his or her patient of all material risks, the issue of
whether that patient would have requested a therapeutic abortion had she been
advised of those risks must be determined objectively by the trier of fact after
taking into account the patient and her particular circumstances77 (my emphasis)

which reads rather like a contradiction in terms.78 Even so, the Court of
Appeal79 itself found very great difficulty in translating the test applied to
the duty of care in respect of information disclosure that was elaborated in
Reibl v. Hughes80 to the issue of causation.81 Lambert JA, for example,
considered the position where some reasonable women would have adop-
ted a different course from that taken by the plaintiff and concluded that,
given that there is a fiduciary relationship between doctor and patient,
which is an uneasy assumption, the court must find in favour of the
plaintiff “ a conclusion which seems to assume causation in any case of
inadequate information disclosure.82 Having set up this challenge, he
then expressed the objective/subjective dilemma succinctly:
[T]he trial judge stated his conclusions in terms of what Ms Arndt herself would
have done. This is not how I understand the modified objective test. It is not
designed to determine what Ms Arndt would have done. It is designed to deter-
mine what a reasonable patient in Ms Arndt™s objectively ascertainable circum-
stances would have done.83
Which, again, seems, at least to this author, to be a very slender distinc-
tion on which to judge the entitlement or non-entitlement of substantial
damages. In the end, however, the court ordered a new trial on the more
substantial grounds that the trial judge™s rejection was wrongly based “
perhaps, in so doing, providing an example of the ˜subjective judge™.

77
n. 75 above, at 222.
78
But one can find the same confusion in the US courts: ˜The objective standard affords the
ease of applying a uniform standard while maintaining the flexibility of allowing the fact
finder to make appropriate adjustments to accommodate the individual characteristics
and idiosyncrasies of an individual patient™: Ashe v. Radiation Oncology Assocs. 9 SW 3d
119 (Tenn., 1999) at 122.
79
(1995) 126 DLR (4th) 705. 80 (1980) 114 DLR (3rd) 1.
81
Indeed, Wood JA went so far as to suggest that to do so was to invite a misappropriation of
the evidence (see n. 79 above, at [92]).
82
Or ˜Once the Court has determined that the non-disclosed acts were material, specula-
tion as to what course the constituent, on disclosure, would have taken is not relevant™
quoted from London Loan & Savings Co of Canada v. Brickenden [1934] 3 DLR 465, PC
per Lord Thankerton at 469: see n. 79 above, at [48].
83
n. 79 above, at [61]. But, to complicate the issue still further, Hollinrake JA thought
that a desire to have a child was evidence that was admissible under the ˜reasonable
patient™ head.
Antenatal care and the action for wrongful birth 75

And so the Supreme Court of Canada84 where the question presented
was seen as how to determine whether the patient would have actually
chosen to decline surgery if he or she had been properly informed of
the risks. Once again, the difficulties involved in answering the question
correctly were rehearsed in the various opinions. Sopinka J and Iacobucci
J believed that the trial judge had applied an objective test but had failed
to consider Ms Arndt™s testimony “ in short he should have adopted the
subjective approach. In contrast, McLachlin J interpreted Hutchison J
as having taken the subjective path and it was, in her view, correct to
have done so: ˜The fundamental principles of negligence law suggest that
the test is what the particular plaintiff before the court would have done™
(at [40]).
The majority, however, held firmly that the correct approach was via
the middle road “ the court should adopt the modified objective test set
out in Reibl v. Hughes, which relies on a combination of objective and
subjective factors in order to determine whether the failure to disclose
actually caused the harm of which the plaintiff complains. It requires that
the court consider what the reasonable patient in the plaintiff™s circum-
stances would have done if faced with the same situation. On the one
hand, the ˜reasonable person™ who sets the standard for the objective test
must be taken to possess the patient™s reasonable beliefs, fears, desires
and expectations; on the other, the trier of fact must take into consider-
ation any ˜particular concerns™ of the patient and any ˜special consider-
ations affecting the particular patient™. The present author has always
regarded the Reibl construct as providing the optimal solution to the
problem of the duty of care as related to information disclosure “ but
this is largely because it represents a common sense approach which is
probably taken, if only subconsciously, by most judges; there seems no
reason why it should not be applied to causation.85
Be that as it may, appeals in ˜wrongful birth™ actions are so rare in the
United Kingdom that it is difficult to assess with certainty what ˜test™ is in
general use. Cory J, speaking for the majority in Arndt,86 hinted that the
subjective test may be the most logical and McLachlin J87 said that it may
be taken as settled that it applies in England. While this may well be so,
there is no real evidence that it operates in favour of the hind-sighted
patient as has been so widely feared “ indeed, the opposing ill-effect may



84
Arndt v. Smith [1997] 2 SCR 539.
85
The English courts have had no difficulty in doing so in respect of the Bolam principle.
See Bolitho v. City and Hackney Health Authority [1998] AC 232, [1997] 4 All ER 771.
86
In Arndt v. Smith, n. 84 above at [17]. 87 ibid., at [46].
76 The troubled pregnancy

be operating88 and there is a general impression that the courts may be
anxious to achieve a fairer balance. For a look into the future, we can
consider the apparently unrelated case of Chester v. Afshar.89
Chester v. Afshar was a classic case of information based negligence in
which causation constituted the central question; the fact that it con-
cerned failure to warn of the inherent risks in an orthopaedic operation
does not foreclose discussion in the present context “ deciding to have or
not to have surgery on the basis of professional advice is on all fours with
opting for or against a termination of pregnancy on similar grounds. In
the instant case, Ms Chester was not informed of a 1 to 2 per cent risk of
severe disability subsequent to the operation no matter how expertly it
was performed; she underwent surgery, the risk materialised and she sued
Mr Afshar in negligence. Mr Afshar™s negligence in failing to warn her
was not disputed. At the same time, however, it was agreed that, while
Ms Chester, had she been warned, would not have had the operation at
the time she did, she was unable to claim that she would never have done
so “ as a result her case would fail on grounds of causation if the conven-
tional principles of tort law were applied. To an extent, then, she was a
victim of her own honesty. This was considered when the case reached
the House of Lords, where Lord Hope said:
To leave the patient who would find the decision [whether to run a risk] difficult
without a remedy, as the normal approach to causation would indicate, would
render the duty [to inform] useless in the cases where it may be needed most. This
would discriminate against those who cannot honestly say that they would have
declined the operation once and for all if they had been warned.
And then, significantly:
The function of the law is to enable rights to be vindicated and to provide
remedies when duties have been breached. Unless this is done, the duty is a
hollow one, stripped of all practical force and devoid of all content.90

And the resultant opinion of a 3 to 2 majority of the House is well-
expressed in the words of Lord Steyn:
I have come to the conclusion that, as a result of the surgeon™s failure to warn the
patient, she cannot be said to have given informed consent to the surgery in the


88
There have been occasional cases of wrongful birth since Gregory in which negligence was
accepted but the woman was unable to convince the judge as to causation “ inter alia,
Deriche v. Ealing Hospital NHS Trust [2003] EWHC 3104 (varicella syndrome). But the
two elements of duty and causation are hard to separate “ in C v. Health Authority [1999]
CLY 4002, C would have terminated had she been given an additional scan; a conserva-
tive attitude to the use of scans was, however, considered justifiable in 1998.
89
[2005] 1 AC 134, (2004) 81 BMLR 1. 90 ibid., AC at [87].
Antenatal care and the action for wrongful birth 77

full legal sense. Her right of autonomy and dignity can and ought to be vindicated
by a narrow and modest departure from traditional causation principles.91
In summary, Chester appears, as we have seen, finally to reject the Bolam
or professional standard of care as related to the provision of information
and to replace it with, at least, that anticipated by the reasonable
patient.92 More importantly in the present context, in allowing full com-
pensation for injury simply for denying the patient the right to choose or
reject a treatment, the decision seems to be introducing a new tort
based on breach of autonomy.93 It will become apparent in the chapters
which follow, that the sacrifice of legal principle in favour of a policy, no
matter how well-intentioned, can result in, at least, a mixed blessing.94
Nevertheless, the House of Lords has spoken and there is little reason why
a similar policy should not be applied in future to actions for wrongful
birth “ and, possibly, for wrongful life95 “ in which case, the balance of
success in such cases may alter markedly.

Epilogue “ the case of Mrs Al Hamwi. As something of an epilogue
to this lengthy review of antenatal care, it will, I think, be appropriate to
visit the case of Mrs Al Hamwi96 which gathers together many of the
several threads we have drawn under that heading. Mrs Al Hamwi already
had one normal child and was aged 29 at the time she sought a second.
Four of her cousins, a niece, a nephew and a half sister all suffered from a
rapidly fatal congenital condition which was considered to be Down™s
syndrome “ and she informed the hospital of this.97 At 11 weeks™ gestation
she was told by her general practitioner that it was ˜too late to have genetic
tests™ “ a rather strange comment that was not followed up in the judgment “
and, owing to the doctor™s failure to write an appointment letter, it was
not until she was 17 weeks pregnant that she was referred for antenatal
care at the hospital, where maternal serum tests were carried out and the
question of amniocentesis was raised. From there on, the evidence of the
claimant and the defendant, inevitably, differed. It is reasonably clear,
however, that, while she originally wanted the invasive investigation, she
had changed her mind at the end of an hour-long consultation.

91
ibid., AC at [24]. 92 See Mason and Brodie; Meyers, n. 63 above.
93
See also Sarah Devaney, ˜Autonomy Rules OK™ (2005) 13 Medical Law Review 102“7.
A comparison with the case of Rees v. Darlington Memorial NHS Trust [2004] AC 309,
discussed below in Chapter 5 is an interesting exercise.
94
Lord Bingham, for example, pointed out that, if failure to warn was, of itself, sufficient to
found a successful claim, the patient would succeed even if he or she would have opted for
surgery in any event (see n. 90 above, AC at [9]).
95
See Chapter 6 below. 96 n. 33 above.
97
In fact, it later turned out to be a much rarer, and unusual, translocation abnormality.
78 The troubled pregnancy

She had been provided with an amniocentesis information leaflet which
stated that the risk of miscarriage following the procedure was 1:100;
nonetheless, she believed adamantly that the risk was 75 per cent. She was
also informed that her blood tests indicated the risk of her carrying a
disabled child as being 1:8396 “ though it has to be recognised that the
hospital was working on the assumption that the family history was one
of Down™s syndrome, the true nature of the very unusual translocation
having been discovered only in the postnatal follow-up. In addition,
however, the case illustrates some of the general subjective difficulties in
counselling “ in this case, we have a devout Muslim98 being counselled by
an equally devout Christian who would no longer perform amniocenteses
herself, having been once involved in the miscarriage of a normal fetus.99
Mrs Al Hamwi eventually refused amniocentesis and, in due course,
gave birth to a child suffering from the familial condition. She sued the
practitioner on account of the delay involved in referring her for antenatal
screening and the hospital for misinforming her of the hazards of amnio-
centesis, the combined effect of which was to deny her proper diagnostic
facilities and, hence, the opportunity to terminate her pregnancy which
she would have done given the right information at the right time.
In the event, Simon J dismissed the case against the general practitioner
on the factual evidence that the amniocentesis “ or the alternative of
chorionic villus sampling at another hospital “ was not, in practice,
delayed or voided by her admitted negligence; accordingly, the breach
of duty had caused no damage. As to the hospital, he found that Mrs Al
Hamwi had been given appropriate counselling by way of the information
leaflet and, again factually, by what had been said during her interview
with the obstetrician.100 Even so, he conceded that she may have been
confused “ and it must be said that a full reading of the case indicates that
all the elements of confusion were there in abundance. In this respect, the
judge made some interesting observations. In answer to a specific com-
ment by counsel, he took the view that to hold that it is the clinician™s duty
to ensure that the information given to the patient is understood is ˜to place
too onerous an obligation on the clinician™. He continued:

98
The expert evidence was that the majority of Muslim jurists hold that ensoulment occurs
120 days after conception. Termination after this would be sinful but within the con-
science of the woman who could, therefore, consent to a late termination if the fetus was
known to be at risk of abnormality. The doctrine of ˜darura™ “˜necessity permits pro-
hibited things™ “ adds even more flexibility to the rule.
99
The judge found no evidence of bias but such situations must often be difficult for both
sides. In contrast, Morland J, in Enright v. Kwun, n. 41 above at [30], found that the
defendant doctor™s approach to counselling had been coloured by his religious beliefs.
100
The Trust used a ˜check-list™ system by which to ensure that the patient was adequately
informed.
Antenatal care and the action for wrongful birth 79

Clinicians should take reasonable and appropriate steps to satisfy themselves that
the patient has understood the information which has been provided; but the
obligation does not extend to ensuring that the patient has understood.101
Which, when all is said and done, seems to move the goal-posts only
marginally in favour of the patient and actually perpetuates the applica-
tion of the Bolam test to the provision of information102 “ and the
hospital™s practice of suggesting that patients in Mrs Al Hamwi™s position
should go away and think about the decision with the aid of an informa-
tion leaflet103 survived peer review at the trial.
It may be that ensurance of success in achieving ˜understanding con-
sent™ is an impossible goal in the circumstances. But one still wonders if
Simon J™s dictum is strictly in accord with modern medical practice “
and the pursuit of that question is implicit in the remainder of the
chapter.104

The development of the wrongful birth action
The application of the law of negligence to antenatal management is
comparatively new. There can be no doubt that the doctor/patient rela-
tionship is one of proximity in which the former clearly owes the latter a
duty of care. Thus, insofar as he or she is able, the obstetrician has a duty
to ensure the successful birth of a healthy child to his or her pregnant
patient. The obstetrician/patient relationship is, however, of a very special
nature. As in any health caring situation, it is now, to a very large extent,
governed at common law by the principle of patient autonomy.
Moreover, as we have already seen, while the obstetrician certainly has
a duty to the fetus, this duty is exercised through, and as an integral part
of, his or her duty to the mother; given a conflict of interests, those of
the mother must prevail “ and, save in quite exceptional circumstances,
the courts will support this principle.105 Additionally, however, the


101
n. 33 above, at [69].
102
For explanation of the Bolam test, see Chapter 1. The propriety of applying it to
information disclosure has been discussed already at p. 68.
103
Paraphrased from n. 33 above, at [72].
104
Jose Miola, ˜Autonomy Rued OK?™ (2006) 14 Medical Law Review 108“14 considered
´
that, in giving preference to informing over understanding, Mrs Al Hamwi was denied
an autonomous choice.
105
This has been seen in the dramatic extinction of the enforced caesarean delivery “
for which, see, for example, Re S (adult: refusal of medical treatment) [1992] 4 All ER
671, (1992) 9 BMLR 69 and Tameside and Glossop Acute Services Trust v. CH (a
patient) [1996] 1 FLR 762, (1996) 31 BMLR 93 “ by way of Re MB (an adult: medical
treatment) [1997] 2 FLR 426, (1997) 38 BMLR 175 and St George™s Healthcare NHS
Trust v. S [1998] 3 All ER 673, (1998) 44 BMLR 160, CA.
80 The troubled pregnancy

relationship in the United Kingdom is bound not only by common law
but also by statute in the form of the Abortion Act 1967 “ indeed, it has
been said that the mere existence of the Act establishes a duty to warn of
possible fetal disability.106
On the face of things, it seems almost self-evident that a woman who
did not want to rear a disabled child, who has sought help that was
specifically designed to prevent that happening and, yet, has been placed
unwittingly in that position, will have a sustainable case against the
individual or health authority that was responsible for her predicament “
or, in popular usage, can reasonably bring an action for ˜wrongful birth™.
The problem then lies in whether or not the courts will, in such circum-
stances, consider that the cost of raising an unhealthy child is a compen-
satable legal harm. Why should they not do so? There are at least two
possible answers. First, given that the issue of life or death arises, the law
will generally decide in favour of the preservation of life “ and the only
relief for the affected woman in the circumstances outlined lies in feti-
cide.107 Second, all the arguments surrounding discrimination against
disability that have been aired in Chapter 2 now reappear in even starker
form as we are dealing, here, not with a theoretical possibility but with the
actual destruction of an individual, and possibly viable, fetus. As a result,
actions for wrongful birth have had something of a turbulent history in the
courts and, as so often happens when novel tort actions are involved, we
must turn to the United States for a lead.

Early experience in the United States
The first recognisable US case is that of Becker v. Schwartz,108 in which
the New York Court of Appeals allowed the now almost standard paren-
tal claim for damages to offset the cost of the institutional care of a child
suffering from Down™s syndrome. ˜Birth actions™ are a matter of state law
in the USA and it is unsurprising that the relevant jurisprudence has
developed in different ways “ indeed, such actions are statute barred in
some states109 where denial is presumably predicated on the assumption


106
Per Newman J in Rand v. East Dorset Health Authority (2000) 56 BMLR 39 at 57; per
Henriques J in Hardman v. Amin (2000) 59 BMLR 58 at 72.
107
But this argument has been used in the main to counter claims for wrongful life which
are discussed in Chapter 6.
108
386 NE 2d 807 (N.Y., 1978).
109
As an example, the Utah Code Ann para. 78-11-24 provides: ˜[a] cause of action shall not
arise, and damages shall not be awarded, on behalf of any person, based on a claim that
but for the act or omission of another, a person would not have been permitted to have
been born alive but would have been aborted™. Other states imposing some limitation
Antenatal care and the action for wrongful birth 81

that abortion is to be discouraged.110 Analysis of this and later cases is
complicated by the fact that actions for wrongful birth, such as we discuss
here, are often confused with those for wrongful pregnancy, which will be
considered in Chapter 4.111 In general, claims in the United States are
based, first, on the emotional distress resulting from the birth of a dis-
abled child and, second, on the actual or additional costs of rearing such a
child. Emotional distress is a difficult concept which would almost
cetainly have no place in United Kingdom jurisprudence;112 we return
to the question of compensation later in this chapter.
The general rule that has now emerged is that claims for wrongful birth
will succeed.113 There is, however, considerable opposition. It is hard to
find two cases with such different results “ despite occurring in the same
relatively recent year “ as, on the one hand, Schirmer v. Mt. Auburn
Obstetrics and Gynecologic Associates, Inc.114 in which it was held that ˜a
claim for wrongful birth remains, at its core, a medical negligence claim
that is to be determined by application of common-law principles™ and,
on the other, Grubbs v. Barbourville Family Health Center, PSC where a
wrongful birth action was described as:



include Idaho, Minnesota, Missouri, North Dakota, Pennsylvania, Kentucky and
Georgia. For the constitutionality of such statutes, see Hickman v. Group Health Plan,
Inc. 369 NW 2d 10 (Minn., 1986) and more recently Wood v. University of Utah Med Ctr
67 P 3d 436 (Utah, 2002). Maine appears unique in having legislated so as to ensure that
the action is available.
110
Thus, in Molloy v. Meier 679 NW 2d 711 (Minn., 2004), the statute was overruled
because the claimant would not have conceived if her genetic disorder had been diagnosed.
111
The same difficulty arises in a comprehensive review of the ˜birth cases™ by Dean
Stretton, ˜The Birth Torts: Damages for Wrongful Birth and Wrongful Life™ (2005)
10 Deakin Law Review 310“64. My own classification, which follows that which is
widely used, has been explained in J. K. Mason, ˜Wrongful Pregnancy, Wrongful Birth
and Wrongful Terminology™ (2002) 6 Edinburgh Law Review 46“66. As has been
discussed in Chapter 1, it is arguable that all are misnomers: ˜Any ˜˜wrongfulness™™ lies
not in the life, the birth, the conception, or the pregnancy but in the negligence of the
physician™: Viccaro v. Milunsky 551 NE 2d 8 (Mass., 1990) at 9.
112
Compensatable and non-compensatable actions are distributed about evenly across the
United States.
113
For a major list of the early cases, see Siemieniec v. Lutheran General Hospital 512 NE 2d
691 (Ill., 1987). These are discussed in Jeffrey R. Rotkin and Maxwell J. Mehlman,
˜Wrongful Birth: Medical, Legal and Philosophical Issues™ (1994) 22 Journal of Law,
Medicine and Ethics 21“8 and, nearer to home, Patricia M. A. Beaumont, ˜Wrongful Life
and Wrongful Birth™ in S. A. M. McLean (ed.), Contemporary Issues in Law, Medicine and
Ethics (Aldershot, Dartmouth Publishing, 1996), chapter 6. Occasional cases, as will
appear, deny liability on the grounds that the clinician has not caused the genetic defect:
Wilson v. Knezi 751 SW 2d 741 (Mo., 1988) (for further discussion, see Chapter 6). This
form of reasoning was specifically rejected in McKenney ex rel McKenney 771 A 2d 1153
(NJ., 2001) but it still persists.
114
802 NE 2d 723 (Ohio, 2003).
82 The troubled pregnancy

[A] tort without precedent, and at variance with existing precedents old and new.
Indeed the [majority of the Supreme Court of Kentucky] are divided among them-
selves as to what principle of law requires the doctor to pay damages in this case.115
Thus it will be seen that the minority of American litigants are disadvan-
taged insofar as they may have no cognisable case should the court hold
that the injury sustained lies in the existence of a living, but disabled, child;
in such circumstances, the court may well maintain that the antenatal
carers did not cause the defect and cannot, therefore be responsible for
its existence.116 The majority, however, are relatively well-placed in that
the ˜wrong™ to be compensated will be seen as being deprived of a constitu-
tional right to choose between termination and parturition. The advantage
to the complainer is, then, that she has no need to face the second causation
hurdle “ that, given the necessary information, she would have elected for
termination; and we have already seen how important this may be.

Developments in the Commonwealth
Claims for wrongful birth seem to have been accepted as actionable
without major debate in Canada. Indeed, it has been authoritatively
stated that: ˜Although there may have been earlier claims for wrongful
birth, it is Arndt v. Smith that established this claim in Canadian tort
law™117 “ and Arndt, based at first instance on the US case of Becker,118
was settled only in 1997. The decision in Arndt,119 as we have seen, rested
on the fulcrum of Reibl v. Hughes120 and Zuber J continued: ˜Thus, the
claim for wrongful birth slipped quietly into Canadian tort law as a type of
medical malpractice case without any fundamental analysis or delinea-
tion of such a claim.™121
One suspects that much the same could be said about other
Commonwealth jurisdictions although, in fact, truly apposite cases are
very hard to find in Australia. Costs for the rearing and support of a
disabled child for 30 years were awarded in Veivers v. Connolly122 in which
there was a failure to identify a case of the congenital rubella syndrome.

115
120 SW 3d 682 (Ky., 2003) per Lambert CJ at 689. Other cases in which the claim has
been rejected include: Azzolino v. Dingfelder 337 SE 2d 528 (N.C., 1985) and Atlanta
Obstetrics and Gynecology Group v. Abelson 398 SE 2d 557 (Ga., 1990).
116
The court may, however, be selective. In the early case of Noccash v. Burger 290 2d 825
(Va., 1982), for example, widely based damages were awarded for the birth of an infant
with Tay-Sachs disease but costs concerned with the child™s funeral were disallowed on
the grounds that the fatality was the result of hereditary factors rather than of the
defendant™s negligence.
117
In Mickle v. Salvation Army Grace Hospital (1998) 166 DLR 743 per Zuber J at 747.
118
n. 108 above. 119 n. 84 above. 120 n. 58 above. 121 n. 117 above, at 748.
122
[1995] 2 Qd R 326.
Antenatal care and the action for wrongful birth 83

By contrast, in McMahon v. South Eastern Sydney Area Health Service,123 a
couple whose child was found to be suffering from Down™s syndrome
were advised by the Legal Aid Board that ˜there is no clear legal solution
and any legal action is likely to be novel and fiercely contested™.124 The
case is still ongoing at the time of writing. Once again, part of the difficulty
in case discovery may lie in the fact that wrongful birth and wrongful
pregnancy actions are not distinguished in Australia.125

The development of ˜wrongful birth™ in the United Kingdom
In the absence of a constitutional background, the relevant law in the
United Kingdom has also developed in a fairly straight line “ indeed, as in
the rest of the Commonwealth, there seems never to have been any doubt
that inadequate antenatal care is to be dealt with within the tort of
negligence. Occasional cases reported as news items are to be found
before 1990 but the first case to reach the legal press appears to have
been that of Salih v. Enfield Health Authority126 in which, despite her
obvious anxiety, the mother had been declared free from viral infection
yet was delivered of a child suffering from the rubella syndrome. The
words of Butler-Sloss LJ speak for themselves:
This is a sad case of an intelligent little boy, born into this world with major
physical handicaps . . . who would not have been born at all if the defendants had
properly carried out their duty of care towards the plaintiffs [the parents of the
child] . . . It is difficult, and some might say invidious, to try to translate the
consequences of the defendants™ negligence into financial terms. But this is
what the courts have to do and, in this type of case, with little assistance from
earlier cases.127
And, later:
The child was born as a direct result of the lack of advice which, if given, would
have resulted in a termination of pregnancy.
Thus, in the typical case, there is no doubt as to the fact of or the nature
of a wrong, there is no doubt that the counsellors caused that wrong and,
given the fact that the claim was made by the parents rather than by the
child, the wrong was the imposition on their shoulders of a major burden
of care for a disabled child which was not of their choosing “ and this


123
[2004] NSWSC 442. 124 ibid., at [14].
125
See Kirby J in CES v. Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at [106].
126
[1990] 1 Med L R 333; on appeal (1991) 7 BMLR 1. The only cases referred to are
essentially of ˜wrongful pregnancy™ type, for which see Chapter 4.
127
ibid., at BMLR 1, 4.
84 The troubled pregnancy

assessment, including recognition of the difficulties of quantification of
damages has governed the law in both England and Scotland ever
since.128 The question of compensation in such cases has, however, had
to undergo radical rethinking following the very important decision in
McFarlane v. Tayside Health Board129 which is discussed in detail in
Chapter 4.

Recompense for wrongful birth in the United Kingdom
McFarlane was concerned with the uncovenanted birth of a normal child
as a result of faulty advice as to sterilisation; it, therefore, falls strictly
within my definition of a case of wrongful pregnancy. We will see that it
is a ground-breaking case which merits “ and has received “ extended
analysis. For present purposes, however, it will be sufficient to state baldly
that the House of Lords laid down a rigid rule that the birth of a child in
such circumstances is not a compensatable harm “ and this applies no
matter what is the origin of the fault nor how the action for recovery is
structured.130 But, at the same time, the House left open the possibility of
an exception in the event that the child resulting from a failed sterilisation
procedure was disabled. The proposition was, however, couched in such
indefinite terms that the extent of the exception “ if one existed “ was
uncertain. Was it, for example, confined to the disabled child born only as
a result of a negligently managed sterilisation or did it include “ or
exclude? “ one born following negligent antenatal care?
Whether or not the House had both these possibilities in mind, I believe
it is the former which most accurately reflects their Lordships™ intentions
and, in that case, as we will see, it can be cogently argued that the nature
of the negligence that results in an uncovenanted child is the same
irrespective of the health of that child. Why, then, should we differentiate
in respect of liability according to the outcome? This very specific prob-
lem is addressed in depth in Chapter 5. As to the latter, we have already
acknowledged the probable liability of the health carers given the appli-
cation of the normal principles of tort law. At least a proportion of the


128
For England and Wales and Northern Ireland, see Gregory v. Pembrokeshire Health Authority
(1989) 1 Med LR 81 (chromosomal disorder), Rance v. Mid-Downs Health Authority
[1991] 1 QB 587, [1991] 1 All ER 801 (neural tube defect). For Scotland Anderson v.
Forth Valley Health Board (1998) 44 BMLR 108, 1998 SLT 588 (X-linked disorder),
McLelland v. Greater Glasgow Health Board 1999 SC 305, on appeal 2001 SLT 446.
129
[2000] 2 AC 59, 2000 SC 1.
130
In Richardson v. LRC Products Ltd (2000) 59 BMLR 185, a case involving a burst condom
was brought under the Consumer Protection Act 1987, s.3; the principle was said to apply
equally whether the claim was laid in negligence or in breach of statutory duty.
Antenatal care and the action for wrongful birth 85

purpose of antenatal care is, in modern terms, devoted to the prevention
of the birth of a disabled neonate; the pregnant woman is aware of this
and the mere offering of the service carries with it the acceptance of a duty
of care. Failure in that duty constitutes a harm “ and yet, the precise
nature of that harm is not as certain as may appear at first sight. The
pregnancy is voluntary; there should, therefore, be no compensation for
the pain, suffering and inconvenience of childbirth per se. The woman
wanted a child but she did not want a disabled child. Bearing in mind that
strong policy arguments can be deployed against accepting the birth of a
disabled child as something to be deprecated, can her distress as a result
of giving birth to such a child be regarded as a compensatable injury?
True, she may be prepared to love such child and to provide for its special
needs, but love of this type costs money “ money which she may not have
or, at least, intended to spend in other ways. Can the upkeep of that child,
then, be rightly regarded as the responsibility of another?
The legal situation post-McFarlane “ which was, itself, a classic legal
roller-coaster “ was, therefore, not only unsettled but its resolution was
urgent. As a consequence, a flurry of interrelated cases soon found their
way to the courts.131

Wrongful birth during and after McFarlane
At this point, it will be useful to recapitulate the ways in which negligence
could be claimed under the rubric of wrongful birth. Liability might be
claimed in terms of failure to exercise a duty that arises from the mere
existence of the Abortion Act.132 Alternatively, it might be argued that
responsibility arises under the rules of information disclosure which
impose a duty on the health authority to inform a woman of a significant
risk such as would affect the judgment of a reasonable patient.133 The
distinction is significant in that there are more justifications for termina-
tion of pregnancy than that of fetal disability. A woman who is unexpect-
edly pregnant following sterilisation almost certainly qualifies for
termination under section 1(1)(a) of the 1967 Act “ indeed, subject to
the gestational time limits, it is difficult to see how one could be refused in
the circumstances.134 Such equiparation of the wrongful birth action with

131
In discussion of these cases, I am drawing on my paper of 2002, n. 111 above.
132
See n. 106 above.
133
Pearce v. United Bristol NHS Healthcare Trust (1998) 48 BMLR 118 per Lord Woolf MR
at 124.
134
For reasons which we have discussed above in Chapter 2. I have enlarged on this in
J. K. Mason, Medico-Legal Aspects of Reproduction and Parenthood (Aldershot: Ashgate,
2nd edn 1998).
86 The troubled pregnancy

the availability of lawful abortion as a whole may well seem to impose an
unreasonably wide-ranging duty of care “ indeed, it comes close to
imposing an obligation to read its terms to a pregnant woman, something
of a volte-face for a department of obstetrics. Perhaps more importantly
in the present context, it also serves to explain the apparent anomaly of a
potential action for wrongful birth in the face of a normal neonate.135 In
this author™s view, the ratio of the wrongful birth action is summed up
simply in the words of Toulson J:
If the mother was entitled . . . to have her pregnancy terminated, and if she would
have exercised that right, but was deprived of the opportunity to do so as a result of
clinical negligence, those facts should found a sufficient foundation for her claim.136
The basis for this approach is, perhaps, best appreciated through the
Scots legal concept of damnum “ that is, the deprivation of an interest
that the law recognises as a legal interest. Injuria means the invasion of a
legal right and a loss that attracts reparation arises when injuria and
damnum coincide.137 In present terms, the injuria is the failure to advise
that the fetus is unhealthy and, by extension, to imply that termination is
not indicated; the damnum lies in being deprived of a legal right “ that is, a
statutory opportunity for termination of a pregnancy. There is, currently,
no English equivalent of this concept. Nevertheless, as already intimated,
I have a strong impression that the English courts are moving towards a
tort of interference with a woman™s autonomy or her right to a choice of
what is done to her body.138 That being the case, the two jurisdictions are
moving ever closer together and provide a suitable platform on which to
found the action for wrongful birth. This comparative approach serves to
provide an opportunity to consider the contribution of the Scottish juris-
diction to the wrongful birth debate.

The Scottish cases. Strangely, actions for wrongful birth provide
a relatively new experience for the Scottish courts. Indeed, the only
nearly appropriate Scottish case cited in what I see as the index case of
Anderson v. Forth Valley Health Board139 was Allan v. Greater Glasgow

135
A possibility discussed in Chapter 4 in relation to Greenfield v. Irwin (a firm) and ors
[2001] 1 FLR. 899. It is also noteworthy that the important Australian case of CES v.
Superclinics, n. 125 above, also involved the birth of a normal child following obstetric
negligence. New South Wales has no Act comparable to the Abortion Act 1967. Kirby
J™s discussion of the interplay between negligence and legality makes interesting reading.
136
In Lee v. Taunton and Somerset NHS Trust [2001] 1 FLR 419 at 431.
137
Explained by Lord McCluskey in McFarlane v. Tayside Health Board 1998 SLT 307 at
313, (1998) 44 BMLR 140 at 152, IH.
138
See, in particular, Chester v. Afshar, n. 63 above.
139
1998 SLT 588, (1997) 44 BMLR 108, OH.
Antenatal care and the action for wrongful birth 87

Health Board140 which was an instance of failed sterilisation or wrongful
pregnancy to which we will return in Chapter 4. Anderson was decided
between the Outer and Inner House hearings of McFarlane “ i.e. when it
had been heard at first instance only “ and, as a result, Lord Nimmo
Smith was governed by no compelling precedent.
Despite his Lordship™s reluctance to distinguish between actions for
wrongful conception (or pregnancy) and wrongful birth, Anderson
remains one of the best analyses of the wrongful birth action as it was
accepted in the United Kingdom at the time. The case concerned two
children who, as they got older, were found to be suffering from muscular
dystrophy “ an X-linked genetic disease. A strong family history indicated
that the mother should have been offered genetic counselling and had this
been done, she would have terminated all male pregnancies or, at least, all
male pregnancies once the diagnosis had been confirmed in her first son.
The Lord Ordinary concluded that an action was available in the follow-
ing terms:
While the [Abortion] Act does not expressly say so, it may, I think, be taken from
its provisions that the birth of a child so handicapped may be regarded as a
harmful event for those most immediately affected by his existence, who would
in the ordinary course be his parents. That being so, I can see no reason why the
course of action desiderated by the pursuers, which according to them would have
resulted in the abortion of two foetuses, should not be regarded as having as its
purpose, inter alia, the prevention of events harmful to the pursuers which were or
ought to have been within the contemplation of the defenders . . .141
At the same time, he confirmed his belief that the parents had sustained
personal injury142 and, importantly, concluded that the ˜fair, just and
reasonable™ test established in Caparo143 was not compromised if the
parents were recompensed. After deprecating the need to value a child
in monetary terms, Lord Nimmo Smith concluded that a claim of this
kind was governed by the straightforward Scots legal principles of delict


140
1998 SLT 580, (1993) 17 BMLR 135, OH. Possibly the nearest example is Millar
(P™s Curator Bonis) v. Criminal Injuries Compensation Board 1997 SLT 1180, (1996)
44 BMLR 70 “ a case of incestuous rape though, if there is a parallel, it is more
with wrongful life (see Chapter 6) and was argued as such. In fact, the question of
termination does not seem to have arisen.
141
n. 139 above, at BMLR 136“7.
142
Following the Court of Appeal in Walkin v. South Manchester Health Authority [1995] 4
All ER 132, (1995) 25 BMLR 108. It will be seen later, however, that this is open to
dispute.
143
Caparo Industries plc v. Dickman [1990] 2 AC 605, [1990] 1 All ER 568. The significance
of Caparo is addressed more fully in the chapter following. Essentially, it states that a
tortfeasor will be held liable for damages only if it is ˜fair, just and reasonable™ to do so.
The range of the test has been extended beyond its original application.
88 The troubled pregnancy

and conceded the pursuers™ claim for the additional costs arising from the
children™s disabilities; these, he thought, arose from ˜the natural bond
between parent and child, an aspect of which is the parents™ desire to care
for the child™.144
The only other strictly relevant Scottish case is McLelland145 which
is also interesting in that its stages interweaved with those of McFarlane;
in its way, it was, in my view, clearly seeking to maintain a Scottish
dimension based on legal principle but was, ultimately, caught in the
McFarlane net.
The case followed the familiar story of wrongful birth “ the antenatal
clinic failed to perform an amniocentesis and a child was born suffering
from Down™s syndrome.146 In the Outer House, Lord Macfadyen
awarded damages, inter alia, for both ordinary maintenance and for the
costs of special care resulting from the disability. Interestingly, he also
awarded solatium not only to Mrs McLelland but also to her husband,
which, one feels can only be right “ the husband™s role and sensibilities as
a parent are too often forgotten in the medico-legal ambience of repro-
duction. Beyond this, however, the Lord Ordinary was following the
standard line established in Anderson and which was acceptable within
the terms of the Inner House decision in McFarlane.147
By the time McLelland came to appeal, however, McFarlane had been
debated in the House of Lords and the goal-posts had been shifted so far
that the arguments were radically changed. The defenders (or reclaimers)
could now maintain that, since the admitted negligence in both cases
resulted in the birth of a child that would not have occurred in the absence
of such negligence, there was no basis for saying that it was fair, just and
reasonable to hold them liable for the costs of the ordinary maintenance
of Gary McLelland when it was held not to be fair to do so in the case of
Catherine McFarlane148 “ in short, as I have intimated above (at p. 84),
that there was no distinction to be drawn between actions for wrongful
pregnancy and wrongful birth. The pursuers, however, argued “ as

144
It is to be noted that the parents never claimed for expenses other than those arising from
the extra costs involved in caring for two disabled children. Significantly, the judge
decided that the recompense should be such as to allow for their care ˜throughout the
children™s lives™.
145
McLelland v. Greater Glasgow Health Board 1999 SLT 543, OH; 2001 SLT 446, IH.
146
The negligence, which was admitted, was especially clear as it was yet another instance
of a translocation chromosomal abnormality which is transmissible “ and there was a
positive family history.
147
McLelland was contested in the Outer House largely on the ˜offset™ of the saving from not
having another child which was allowed in Salih v. Enfield Health Authority [1991] 3 All
ER 400. This line of argument was not pursued in the Inner House.
148
Caparo, n. 143 above.
Antenatal care and the action for wrongful birth 89

I would contend, rightly “ that they were different. In particular, an action
for wrongful pregnancy is, as we will see, essentially a matter of negligent
family planning and, in those circumstances, the doctors concerned owe
no more than a general duty of care to prevent future pregnancies; in a
case based on wrongful birth, however, the medical team are under a
specific responsibility to discover whether an unborn child is disabled
and, in the case of Gary McLelland, they had the even more specific duty
of excluding the possibility of Down™s syndrome “ indeed it was suggested
that the conditions approximated to a contractual duty.
This was accepted in the leading speech by Lord Prosser, who was
concerned to judge whether or not liability was fairly attributed according
to what the doctors regarded as the extent of their duty. Here, he held that
the responsibility of the doctors in McLelland was to avert the consequen-
ces of the child having Down™s syndrome and this dictated liability in
respect of the child™s special needs.149 Lord Prosser was not, however,
prepared to go further. In fact, he found that, if anything, the ˜possibility
of an unwanted birth would be even less directly in [the McLellands™
doctors™] contemplation [in a case of wrongful birth] than in a case like
McFarlane [of wrongful pregnancy]™.150 Accordingly, there was no proper
basis for holding that it would be fair, just and reasonable for the defend-
ers to be held liable in respect of the child™s basic maintenance costs.
Lord Marnoch took his own path to a similar conclusion. His short
speech implied that he was predominantly guided by the subjective
reaction of the parents to the birth of an unexpected child.151 The fact
that the McLellands took pleasure in their child put them in the same
position as the parents of a healthy child in respect of maintenance costs;
accordingly, the claim for these was not made out.152
In a dissenting opinion, Lord Morison drew particular attention to the
differences between actions for wrongful pregnancy and wrongful
birth153 and concluded that the former, as represented by McFarlane,
had no direct application to McLelland. He rejected the ˜moral™ implica-
tions of the fair, just and reasonable test and argued that, if, as was agreed,
the doctors were liable for the costs arising from the disabled state of

149
2001 SLT 446, at 454 F“G. 150 2001 SLT 446, at 454 L.
151
In so saying, he relied on Lord Nimmo Smith in Anderson v. Forth Valley Health Board
1998 SLT 588, 605, which seems a doubtful interpretation as Lord Nimmo Smith™s
exact words were: [T]he fact that one set of parents reacts to a birth in a way in which
others might not should not be determinative either way of an entitlement to damages.™
152
Lord Prosser specifically rejected this approach at 2001 SLT 446, 455 C. Many years,
and cases, earlier, Jupp J had pointed to the potential inequity of involving parental
feelings in the decision-making process: Udale v. Bloomsbury Area Health Authority
[1983] 2 All ER 522.
153
For which, see also p. 85 above.
90 The troubled pregnancy

the child, it was illogical to hold that they were not also liable for his
basic maintenance costs “ the whole purpose of testing for Down™s
syndrome was to prevent the birth to a woman of a child suffering from
the condition.
It will become clear in the next chapter that the present writer prefers
the dissenting opinion in McLelland, and this is mainly because, in con-
trast to the majority, it appreciates the many differences between actions
for wrongful pregnancy and wrongful birth. Nevertheless, the same error
pervades the later English cases, the great majority of which were also
argued in McFarlane terms.

The English cases after McFarlane. And this is the probable source
of much unnecessary medico-legal argument in the reproductive field.
We have seen above that, prior to 2000, United Kingdom medical
jurisprudence accepted the action for wrongful birth virtually without
demur “ the only contentious elements concerned the scope and the basis
for payment of compensation.154 This relatively happy situation was
seriously disturbed by concerns that it would be affected by the ruling
in McFarlane which seem to the writer to have been founded upon a
misconception. Given that wrongful pregnancy and wrongful birth are
distinct legal entities, the jurisprudence of each should be allowed to
develop independently. Conflating the two serves only to complicate
the issues and to confuse the reader. Nonetheless, this was the path
taken in a series of English cases which have some important inherent,
as well as consequential, implications.
The first of these was Rand v. East Dorset Health Authority155 which
involved the negligent misreading of an untrasound scan which, in fact,
indicated the presence of Down™s syndrome in the fetus. The importance
of Rand lies not in its facts “ it was a fairly routine scenario. What made it
different was that Newman J now thought it important to argue every
aspect of the case through the medium of McFarlane, this being predi-
cated on the belief that the two cases were on a par as to the claim for the
costs of upbringing.
It is unnecessary at this point to consider Newman J™s analysis of the
McFarlane case in detail. It is sufficient to note that, at virtually every
point, he was able to discern a reason for holding that the House of Lords™


154
In Salih v. Enfield Health Authority, n. 126 above, legal principle dictated that damages
for the basic upkeep of a disabled child were refused on the grounds that the parents had
decided against having another child and were, accordingly, spared that expense. Small
wonder that the reasoning was disapproved in McLelland, n. 145 above.
155
(2000) 56 BMLR 39, [2000] Lloyd™s Rep Med 181.
Antenatal care and the action for wrongful birth 91

decision in what was a case of wrongful pregnancy was not binding in one
of wrongful birth. In particular, he noted that a claim focused on the
consequences of disability “ as opposed to one focusing on the disability
itself “ requires a comparison between a normal healthy child and a
disabled one which is something that everyone can understand and is,
consequently, inoffensive. On much the same line, he found that costs, so
far as they are consequent upon the disability, are recoverable as a head of
economic loss156 because such a calculation does not require assessing
the benefits of having a child “ in short, he circumvented his obvious
reluctance to become involved in ˜an invidious and morally offensive
valuation™ of an individual child™s life by concentrating only on the costs
derived from the degree of disability per se157 and, accordingly, setting
the pattern by awarding damages to cover the extra costs associated with
the upkeep of a disabled child.
Perhaps of more significance to a medical observer, he further refined
the distinction between wrongful pregnancy and wrongful birth actions in
holding, as has already been noted, that the mere existence of the
Abortion Act 1967 establishes a relationship between the medical advis-
ers and the patient that is sufficient of itself to impose a liability for the
financial consequences flowing from a negligent failure to warn of fetal
disability. At the same time, he considered that the parents™ means, rather
than the needs of the child, determined the extent of the damages to be
awarded “ a somewhat surprising conclusion in that he had already
observed that it was the actual disability that determined the result.158
The case of Hardman v. Amin,159 this time an instance of the congenital
rubella syndrome, was heard some eight months later. Liability for failure

156
The significance of economic loss in the context of negligence cases was well explained
by Toulson J in Lee, n. 176 below: ˜[E]conomic loss, unless consequent upon personal
injury or damage to property . . . is normally regarded for the purposes of the law of
negligence as an accident of life which must lie where it falls, regardless of the fact that
some other human being has been the instrument of the misfortune . . . Every day
countless people suffer economic loss of one kind or another through acts or omissions
of others, and to seek to apportion blame and redistribute such losses would involve
massively cumbersome and expensive legal machinery. However, the courts have
departed from that general approach in certain cases where such a special relationship
exists between the injured party and the party who has caused the injury . . . that to refuse
recovery would seem a denial of justice™ ([2001] 1 FLR 419 at 422).
157
Newman J referred with marked approval to the suggestion made by Swinton Thomas J
that the easiest way of dealing with the problem was ˜to make an assessment of the
difference between the cost and time and trouble expended on a normal child and [that]
expended on the damaged child™; the learned judge had, however, been persuaded by
counsel to adopt a different ratio: Fish v. Wilcox and Gwent Health Authority (1992,
unreported), on appeal (1993) 13 BMLR 134.
158
n. 155 above, at BMLR 52, Lloyd™s Rep Med 194.
159
[2000] Lloyd™s Rep Med 498, (2000) 59 BMLR 58.
92 The troubled pregnancy

to undertake serological tests was admitted. Although the court recog-
nised immediately that this was a case of wrongful birth, once again, the
greater part of the argument was taken up with analyses of cases of
wrongful pregnancy. Nonetheless, Henriques J™s obvious concern was
to decide whether the principles established in these could be extrapo-
lated to the wrongful birth situation. He considered these under three
main headings:
* were damages available for the pain and discomfort of pregnancy and

childbirth;
* was this an action for damages for personal injuries; and

* were damages available for the cost of providing for the child™s special

needs?
and, in the event, the court delivered what, in this writer™s view, is a model
judgment.
It will be clear from what has already been said that the first of these
questions is not easy to resolve. Certainly, the woman concerned has gone
through the ordeal of pregnancy but, in contrast to the position in cases of
wrongful pregnancy, she has chosen to do so willingly, and it is difficult to
see how she has suffered damage as a result of the consequences of that
choice. Nonetheless, it was held in Hardman that harm will derive from
the realisation and continued knowledge that she has given birth to a
disabled child “ a concept that comes close to acknowledging a distinct
injury due to ˜nervous shock™. The difficulties in satisfactorily demon-
strating the significance of this somewhat ephemeral condition are well
known,160 but the requirements of proximity as to cause and effect can
hardly be denied and, given the occurrence of a ˜recognised psychiatric
illness™, there seems little reason why damages should not be available.161
While this wide view of pregnancy and its effects may be a little difficult to
accept, it accords with the natural sympathy that women in such circum-
stances will evoke and, in fact, the parties in Hardman agreed to a modest
recovery under this head.
Somewhat similar concerns surround the second issue insofar as it
was agreed that such special damages were available only if the harm
could be identified as a personal injury. Although, as we will see in the
next chapter, it is possible to take the opposite view, few will doubt that

160
See, for example, Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310,
[1991] 4 All ER 907.
161
For a good recent analysis in the present context, see Farrell v. Merton, Sutton and
Wandsworth Health Authority (2001) 57 BMLR 158. The circumstances here, involving
a negligently performed caesarean section, were rather more traumatic than in the
standard wrongful birth case “ being due to negligent operation rather than advice “
but the underlying principles would be the same.
Antenatal care and the action for wrongful birth 93

to inflict pregnancy and labour “ or caesarean section “ on a woman is to
inflict a personal injury. This was accepted in the Court of Appeal in
Walkin v. South Manchester Health Authority162 and, of course, in McFarlane
itself by way of what was known as the mother™s claim. But these were,
again, wrongful pregnancy cases in which the reasoning is easy to under-
stand “ the woman did not want the pregnancy but she was made
pregnant and suffered as a result. On the other hand, it is, again, hard
to dismiss an element of volenti non fit injuria as to the pain and discomfort
of pregnancy involved in the wrongful birth situation. To circumvent this,
the court in Hardman held that:
It would be an anomaly for a wrongful conception claim to be an action for
damages for personal injuries whilst a wrongful birth case was not.163

But is this so, given the arguments already outlined? Unfortunately,
although the proposition was accepted by both counsel, the court™s
reasoning was not explained further. Most will applaud the sympathetic
outcome but it will be seen, especially in the next chapter, that the
question raises considerable jurisprudential debate. I think, therefore,
that it merits a brief diversion from the main line of discussion “ and it
will be convenient to undertake this by way of the comparatively recent
case of Godfrey v. Gloucestershire Royal Infirmary NHS Trust.164
Godfrey, which concerned the birth of a seriously disabled child follow-
ing negligent ultrasonography and was, therefore, another classic exam-
ple of a wrongful birth action, revisited the Limitation Act 1980, most
famously first involved in Walkin.165 The problem was the intensely
practical one of deciding whether the claim for the cost of supporting
the child was a pure economic loss (and, therefore, subject to a six-year
time limit under s.2 of the 1980 Act) or was one for personal injury which
carries an expiry time of three years (s.11).
Leveson J pointed to the fact that the possibility of separating a claim
for wrongful pregnancy into, on the one hand, personal injury sustained
˜in the period leading up to the delivery of the child™, which is comparable
to ˜personal injuries resulting from the infliction of a traumatic injury™
and, on the other, ˜the totally different type of claim™ for economic loss
was first elaborated, at least in the United Kingdom, by Brooke J in
Allen v. Bloomsbury Health Authority.166 Allen was, however, followed by
the very comparable case of Walkin in which the Court of Appeal rejected



162
[1995] 4 All ER 132, [1995] 1 WLR 1543.
163
n. 159 above, at BMLR 64, Lloyds Rep Med 501. 164 [2003] Lloyd™s Rep Med 398.
165
n. 162 above. 166 [1993] 1 All ER 651 at 658, (1993) 13 BMLR 47 at 54.
94 The troubled pregnancy

that argument, believing it to be unsupported by the authorities. Auld LJ
went on to say:
Post-natal economic loss may be unassociated with ˜physical injury™ in the sense
that it stems from the cost of rearing a child rather than any disability in pregnancy
or birth, but it is not unassociated with the cause of both, namely the unwanted
pregnancy giving rise to the birth of a child.167

And he went on to say:
Here, the question is . . . whether . . . the negligence causing the unwanted preg-
nancy gave rise to a claim for damages, in this instance, the costs of rearing the
child. In my view, it clearly did.168
A problem arose in Godfrey, however, in that, meantime, McFarlane had
been decided and, as we will see in the next chapter, the opinions were by
no means uniform. Even within the individual speeches, one can pick out
phrases to support one™s case almost at will. In the result, however, it
seems, at least to this writer, that the argument in McFarlane was not so
much concerned with the distinction between personal injury and eco-
nomic loss but, rather, that between pure and consequential economic
loss “ and this impression is supported by the conduct of later cases
derived from McFarlane. Granted this distinction, there is no reason to
insist that McFarlane overturns Walkin169 and, consequently, Leveson J
was able to consider the latter decision still binding and to apply it to
Godfrey.170
We are left, then, in a very unsatisfactory situation. In the first place,
Walkin remains the theoretical authority, while there is good reason to
suppose that, in practice, it has been conveniently forgotten. Secondly, in
allying his case with Walkin, Leveson J perpetuates the confusion of
claims for wrongful pregnancy (Walkin) with those for wrongful birth
(Godfrey)171 and, as I argue at several points in this book, whereas the
former actions are clearly being based on personal injury, the grounds for


167
[1995] 4 All ER 132 at 139, [1995] 1 WLR 1543 at 1549.
168
ibid., at All ER 141, WLR 1552. The Court relied heavily on the widely quoted
American case of Sherlock v. Stillwater Clinic 260 NW 3d 169 (Min., 1977) and also
on Kerr LJ in Thake v. Maurice [1986] 1 QB 644, [1986] 1 All ER 497 at 509.
169
As suggested by Laws J in Greenfield, n. 135 above sub nom. Greenfield v. Flather [2001]
Lloyd™s Rep Med 143 at [53]. Laws LJ was, however, influenced by the fact that he
thought the existence of a healthy child could never be regarded as a detriment.
Greenfield is discussed in detail in the next chapter.
170
For the benefit of the reader who is concerned for justice for Mrs Godfrey, the judge was
able to apply s.33 of the 1980 Act which gives the court discretion to disallow the
strictures imposed by s.11 if it causes injustice.
171
See also Anderson v. Greater Glasgow Health Board, n. 139 above, discussed at p. 87.
Antenatal care and the action for wrongful birth 95

so viewing the latter are, at best, tenuous. This seems to be an issue that is
crying out for consideration at the highest level.
That diversion having been navigated, we can return to Hardman
where the greater part of the judgment centred on the third question “
that of the availability of damages for the child™s upkeep. In much the
same way as did Newman J in Rand, Henriques J reviewed the previous
precedents in the United Kingdom172 and found that the courts had had

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