UKSC: Doctor who negligently advised mother over genetic condition not liable for costs associated with child’s unrelated diagnosis

The appellant, Ms Meadows, gave birth to a child with haemophilia in 2011, who was subsequently diagnosed with autism. She argued that Dr Hafshah Khan, who had previously discussed the results of a haemophilia test with her, ought to be held liable in negligence for all the additional costs incurred in raising her child.

The appeal was heard by Lord Reed, Lord Hodge, Lady Black, Lord Kitchin, Lord Sales, Lord Leggatt and Lord Burrows. The appellant’s legal team was fronted by Philip Havers QC, and the respondent’s by Simeon Maskrey QC.

Informed decision

The appellant was alerted to the possibility she was a carrier of the haemophilia gene in 2006. As a result, she arranged to have blood tests with her GP practice. In August 2006, she discussed the results of those blood tests, which could establish whether she had haemophilia but not if she was a carrier of the gene, with the respondent, who told her that the results were normal. As a result of this, the appellant was led to believe that any child she might have would not suffer from haemophilia.

In 2011 the appellant gave birth to a son who was diagnosed with severe haemophilia shortly after birth. The appellant was then sent for genetic testing which revealed she was a carrier of the haemophilia gene. The appellant’s position was that had she obtained genetic testing earlier in her pregnancy, she would have chosen to terminate it.

The child was diagnosed with autism in December 2015. Although unrelated to his haemophilia, it made the management of his treatment more complicated as he was incapable of understanding the benefits of the treatment and was likely to prevent him from living independently or being in paid employment as an adult. As a consequence of this, if the appellant were entitled to the costs from both conditions, it was agreed that the financial award would be over six times greater than the costs associated with the haemophilia alone.

The High Court judge who first heard the case found the respondent liable for the costs associated with both conditions. She appealed to the Court of Appeal, which held that she was only liable for the costs associated with the child’s haemophilia, taking into account the scope of duty test from South Australia Asset Management Corp v York Montague Ltd (1997) (SAAMCO) and determining that the purpose of the consultation was to allow the appellant to make a decision relating to the possibility her child could have haemophilia only.

It was submitted for the appellant that the SAAMCO approach was not suited to cases of clinical negligence where there was an imbalance of power between clinician and patient. The respondent’s failure to provide the appellant with the necessary knowledge to enable her to make an informed decision to terminate a future pregnancy affected by the haemophilia gene was the feature which made her conduct wrongful and Ms Meadows’ whole loss flowed from that feature.

Absence of foreseeability

The lead judgment, with which Lord Reed, Lady Black, and Lord Kitchin agreed, was delivered by Lord Hodge and Lord Sales. They noted: “There is no principled basis for excluding clinical negligence from the ambit of the scope of duty principle. Nor is there any principled basis for confining the principle to pure economic loss arising in commercial transactions.”

Addressing the appellant’s submissions in more detail, they went on to say: “The foreseeability of the possibility of a boy being born with both haemophilia and an unrelated disability, such as autism, which is a risk in any pregnancy, is a relevant consideration when addressing the scope of the duty of care undertaken by a defendant. That is because the absence of foreseeability would militate against there being a duty of care in relation to such a risk.”

However, they continued: “The foreseeability of such unrelated disability is in no sense determinative of the question of the scope of the duty of care. That is because the scope of duty question depends principally upon the nature of the service which the defendant has undertaken to provide to the claimant.”

Lord Hodge and Lord Sales said of the respondent’s duty of care: “Dr Khan owed [the appellant] a duty to take reasonable care to give accurate information or advice when advising her whether or not she was a carrier of [the haemophilia] gene. In this context it matters not whether one describes her task as the provision of information or of advice. 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.”

They continued: “The law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy. It follows that Dr Khan is liable only for the costs associated with the care of A insofar as they are caused by his haemophilia.”

In his own judgment, Lord Burrows added: “Applying the SAAMCO counterfactual test as a cross-check, it supports a decision that the autism losses were outside the scope of the doctor’s duty of care. If we ask the question, would the claimant have suffered the same loss had the information/advice been true, the answer is ‘yes’ as regards the autism losses but ‘no’ as regards the haemophiliac losses. This is because had the information/advice that the claimant was not a carrier of haemophilia been correct, the claimant would still have given birth to an autistic child but would not have given birth to a child with haemophilia.”

For these reasons, the appeal was refused. A further judgment was given by Lord Leggatt, who also agreed that the appeal should be dismissed.