Klaudia Wasilewska

It is a well-established principle in the UK’s three legal jurisdictions that a parent can make a claim for the reasonable costs associated with their child’s disability if that child’s birth was due to negligence on the part of a defender (so-called “wrongful birth” and “wrongful conception” cases). The recent decisions of the English High Court in the case of Evie Toombes v Dr Philip Mitchell ([2020] EWHC 3506 (QB) and [2021] EWHC 3234 (QB)) provide some unique perspective on how cases of similar type will be approached south of the border; while the relevance to Scotland is not yet clear, the decision nonetheless poses interesting legal questions.

Overview of the legal principles

Under the common law of Scotland, legal personality manifests at birth. A child (if born alive) can bring a claim for damages in their own right for a pre-birth injury caused by medical negligence. The same principle applies in England & Wales and Northern Ireland, although it was the position there that the common law was too uncertain and the relevant rules had to be put on a statutory footing – the Congenital Disabilities (Civil Liability) Act 1976 applies south of the border. There is no similar legislation in Scotland.

A wrongful birth or wrongful conception claim is quite different. A claim of this type can be made by a parent who alleges that their child should not have been born at all. Many of these cases involve negligent sterilisation procedures that result in pregnancy. The UK courts have consistently rejected a proposition that a parent should be compensated for the costs of raising a healthy child in these circumstances, but it is generally accepted that compensation should be awarded when a child has disabilities. Any such award of damages is for a parent (and not their child) and it is limited to compensating for the financial costs of raising a child with a disability. It has been well established that a child cannot pursue a similar claim, essentially arguing that they should not have been born at all (sometimes referred to as “wrongful life” cases). 

Ms Toombes’ case – brief facts

Ms Toombes was born on 19 November 2001 with a defect causing spinal cord tethering. She alleged that her disability was caused by her mother’s failure to take folic acid before her conception, which was due to negligent advice from the GP. Ms Toombes pursued a claim in her own right on the basis that her disability was caused by the GP’s negligent advice.

On the facts of this case, the inevitable conclusion was that had correct advice been provided by the GP, Ms Toombes’ mother would have delayed getting pregnant until she reached the correct levels of folic acid intake and Ms Toombes would not have been born. The defendant’s case was that Ms Toombes was essentially arguing that she should not have been born and that this was a claim for “wrongful life” which she was not entitled to make. Ms Toombes argued that her claim fell within the terms of the 1976 Act. 

Decision – “issues of law”

The case was first heard in November 2020 ([2020] EWHC 3506 (QB)) when Justice Lambert was asked to decide on a preliminary legal point – what was the correct interpretation of the 1976 Act and did Ms Toombes’ claim fall within its terms?

The relevant provisions of the Act state that if a child is born disabled as a result of an “occurrence” for which a third party is responsible, the child’s disabilities are to be regarded as damage which is actionable by the child. An “occurrence” is defined as something which: a) affected either parent of the child in their ability to have a healthy child, or b) affected the mother during her pregnancy or affected her or her child in the course of the child’s birth.

The defendant argued that an “occurrence” had to be a positive act by the criticised party and that it could not be established in this case, but Justice Lambert disagreed. She decided that the relevant occurrence in this case was sexual intercourse in a folic acid deficient state.

Justice Lambert was of the view that all requisite elements of the 1976 Act have been met: 1) there was a wrongful act (negligent advice); 2) which act led to an occurrence (sexual intercourse in a folic acid deficient state), 3) ultimately resulting in a child born with disabilities due to the deficiency of folic acid. Justice Lambert concluded that as a matter of law, Ms Toombes had a claim for damages for personal injury arising from her disability under the 1976 Act.

Decision – “issues of fact”

Whilst successful on the legal point, Ms Toombes still had to prove the factual issues, including that the GP’s advice to her mother was in fact negligent. The final determination arrived in December 2021 and it was also in Ms Toombes’ favour ([2021] EWHC 3234 (QB)).

The GP had no independent recollection of the consultation (which is not at all unusual) and had to rely on his contemporaneous notes and standard practice. The relevant guidance at the time recommended that all women planning pregnancy take 400 μg of folic acid daily before conception and during the first 12 weeks of pregnancy. The GP’s note of the consultation read ‘preconception counselling. adv. Folate if desired discussed.’ The GP explained in his evidence that at the time his usual advice to patients was to tell them that the relevant guidance recommended folic acid supplementation of 400 μg daily for women preparing for pregnancy and during the first trimester. His position was that he would have followed his standard practice when advising Mrs Toombes. Mrs Toombes’ evidence, in summary, was that the GP had not advised her of the foregoing and that she came away from the consultation under the impression that folic acid supplements were not necessary so long as she had a healthy diet.

Justice Coe who heard the case in 2021 preferred Mrs Toombes’ evidence and found that the GP note was ‘completely inadequate’ – it gave an impression that Mrs Toombes was told to take folic acid if she wanted to, that she was not told about the recommended dose of folic acid and that it should be taken before and after conception, which was against the usual and ordinary practice at the time.

Final comments

The decision has been called ‘ground-breaking’ due to the novel interpretation of the 1976 Act, with some commentators still arguing that Ms Toombes’ claim was effectively a wrongful life claim. Because the legal issues turned on the interpretation of the 1976 Act which does not apply in Scotland, it is not yet clear how the Scottish courts would treat a similar claim relating to pre-conception advice brought by a child (as opposed to a parent).

Klaudia Wasilewska is a solicitor at Balfour and Manson