This is a strange read.

The issue on appeal to the Supreme Court was:

If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?”

The High Court’s answer was that a claim lies for all of the costs. That was reversed on appeal. The Supreme Court upheld the Court of Appeal. For the underlying facts, see the brief account at the end of this blog.

The appellant mother argued two points.

  • First, the principle which says that a defendant is not liable in damages in respect of losses of a kind which fall outside the scope of his duty of care (which we are told to refer to “the scope of duty principle”, not “the SAAMCO principle”) does not apply to clin neg claims.
  • Alternatively, if it does, an exception should be made for clin neg cases.

Both were roundly squashed.

Lord Leggatt said, twice (paras 84 and 98) that although application of the scope of duty principle can be difficult, in this case it was “straightforward”. And all 7 of their lordships had no hesitation in agreeing that the appeal must be dismissed.

So one might have expected – as, in her time, Baroness Hale encouraged - one single judgment. Instead there are 3, none of them is short, and there is, oddly, what reads as some mutual casting of shade.

Who knows why? There is a sense that Lord Hodge and Lord Sales (and, presumably, those in agreement with their joint judgment) were concerned that the role of the scope of duty principle in the tort of negligence is not properly understood by practitioners. Thus it was necessary to provide guidance to the profession, even if providing it exposed some differences in judicial approach at the highest level which did not alter the outcome for the mother.

This is speculation. What is beyond doubt is that 5 out of the panel of 7 agreed on the proper approach that must be taken to all clinical negligence claims.

The proper approach represents something of a departure from the conventional approach. (Oh yes it does! - see below).

Those of us who tend to mutter breach of duty-causation-damage in our sleep need to train ourselves to mutter in a more sophisticated manner. And start muttering in a different place.

The Proper Approach To A Clinical Negligence Claim

At para 28 of their joint judgment, Lords Hodge and Sales (with whom Lord Reed, Lady Black and Lord Kitchin agreed) set out “a helpful model for analysing the place of the scope of duty principle in the tort of negligence”. Though not exclusive or comprehensive, it is intended to bring clarity to analysis of this principle.

The model “consists of asking six questions in sequence”:

  • Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question) 
  • What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)
  • Did the defendant breach his or her duty by his or her act or omission? (the breach question)
  • Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)
  • Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)
  • Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question) 

 

Other Views

Lord Burrows disagreed with the model. He said it was “in some respects, a novel approach” (para 78). He set out what he considered to be “a relatively conventional approach” to the tort of negligence which involves 7 main questions (see paras 78 and 79). His list (which many will find more familiar) starts with duty of care, not scope of duty. Lords Hodge and Sales are clear that his analysis of where the scope of duty fits in is wrong (see para 59). So there is a bit of, “Oh yes it is!”, “Oh no it isn’t!

Lord Leggatt appears to have wanted to call the whole thing off. He describes much of the joint judgment as an “excursus” on the conceptual structure of the whole tort of negligence which was “undesirable as well as unnecessary” (para 96). Of their use of the word “nexus” (which he does not need to describe as posh), he says he understands it to be “another term for a causal connection” (para 97)….

There is a sense that this judge feels that the joint judgment is more prescriptive than was wise, observing that argument had not been heard on some aspects.

Three Thoughts

First, in many cases, the answers to some or most of the model’s 6 questions will be agreed between the parties. Not all skeleton arguments will need to cut and paste the whole list. That said, the model should be referenced in all clin neg cases: see para 63 where Lords Hodge and Sales said:

it is necessary in every case to consider the nature of the service which the medical practitioner is providing in order to determine what are the risk or risks which the law imposes a duty on the medical practitioner to exercise reasonable care to avoid.” (emphasis added). 

Difficult cases of attribution of loss/heads of loss will require application of the full 6 question structure. Here, practitioners will want to focus on Qs 2 and 5 in particular.

Second, we may see greater use of another analytical tool designed to help identify the loss attributable to the giving of wrong advice, the SAAMCO counterfactual (explained in paragraph 53).

The counterfactual assumes that the incorrect advice was in fact correct. It then assumes that the claimant would have behaved as she actually did. We can see how it works at various points in this case, for example para 77(iii)). Had the advice to the mother that she did not carry the haemophilia gene been correct, and had she acted as she did and continued with her pregnancy, her son would been born without haemophilia but with autism. The loss would have been sustained in any event.

The final point concerns what is said about “information” and “advice”. This issue comes up in all three judgments.

All of their lordships agreed that information and advice are not “distinct or mutually exclusive categories” and that “there is in reality a spectrum” (para 41).

Lord Burrows (para 71(v) and Lord Leggatt (para 97) reminded themselves that Lord Hoffman confined the use of the SAAMCO counterfactual to “information” cases. They make clear that cases can rarely be divided up in that way. Lord Leggatt says that there will be cases (inaptly referred to as advice cases) where the defendant’s duty encompasses all foreseeable loss. And circumstances where (as in this appeal) the loss was wholly outside the scope of the defendant’s duty.

The joint judgment says that it matters not whether the GP’s task was described as the provision of information or advice because “The important point is that the service was concerned with a specific risk, that is the risk of giving birth to a child with haemophilia.” (para 67)

Lord Burrows tells us that

the more limited the advice or information being provided - in the sense that the more the claimant has to decide on - the more appropriate the counterfactual test is likely to be.”

Claimants, will be keen persuade the court that the service sought by the patient was broad and not specific. Defendants will want to argue the contrary.

An interesting feature of the decision is that although the facts come under the broad heading of “informed consent”, Montgomery v Lanarkshire Health Board [2015] UKSC 11) is nowhere mentioned. That is because on the facts of this case the sole service required by the mother of her GP was the answer to a yes/no question. Fulfilment of the GP’s duty of care did not require that he engage her in any discussion or dialogue (which she may have experienced as unwanted) about any other risk or issue. However inapt the language, this case was that very rare thing: a pure medical information case. 

Montgomery made clear that the Bolam  test does not apply to matters of advice given by doctors to their patients (see paras 85-86). And in her judgment, Lady Hale said this (para 108):

Thus, as Jonathan Herring puts it in Medical Law and Ethics (2012), 4th ed, p 170), “the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient’s right of autonomy”.

A duty on the defendant to protect the claimant from the risk of harm to her right to autonomy will never be a magic wand that brings all losses into scope, no matter how remote. At the same time, consent cases which can be properly analysed without reference to the patient’s right to protection of their autonomy will be as rare as hen’s teeth.

It is currently settled law that there is no free standing cause of action for infringement of right to autonomy, and damages for that head of loss are not recoverable in a clinical negligence consent case (Shaw v Kovac [2017] EWCA Civ 1028). At the same time, every claim for damages for clinical negligence involving consent will also involve an allegation that the patient’s right to protection of their autonomy has been infringed.

Whether, how, and where (Q1?, Q2? both? all Qs?) a patient’s right to have their autonomy protected by the healthcare provider they consult factors into the 6 question model that must be applied, remains to be seen.

Brief Note On The Facts

Ms Meadows was concerned that she might be a carrier of a hereditary disease, haemophilia. She asked for tests to be performed to determine whether or not she was a carrier. Instead of performing the test to determine if she was a carrier, a test was performed to determine if she had a bleeding disorder. The GP, Dr Khan, did not notice that the wrong test had been performed and told her that the test was normal thereby giving her to understand that she was not a carrier. Believing that any child she conceived would not have haemophilia, four years later she gave birth to a son. He had both severe haemophilia and autism, which conditions were unrelated. The correct tests revealed she was a carrier.

Had she known she was a carrier, she would have had fetal testing which would have identified that her baby was affected by haemophilia and she would have terminated the pregnancy.

Damages for the additional cost of caring for a son with haemophilia were agreed at £1.4 million. Damages in respect of the additional costs of both autism and haemophilia were agreed in the sum of £9 million.

Further, the parties agreed that: Dr Khan owed Ms Meadows a duty of care, he breached that duty, both autism and haemophilia were foreseeable consequences of bringing the pregnancy to term, but for the negligent information the baby would not have been born, and the Defendant was liable to the Claimant for the £1.4 million associated with haemophilia.

The parties did not agree that the Defendant was liable for the additional costs associated with raising a child with autism. The Claimant claimed she was entitled to damages for all the consequences of continuing her pregnancy. The Defendant contended that autism fell outside the scope of his duty of care.

 

See the judgment here.

Neil Davy acted alone for the Defendant at first instance and as junior before the Court of Appeal and the Supreme Court. He was instructed by Greg McEwen of BLM.