Wrongful Conception, Wrongful Birth and Wrongful Life

Hello, my name to record Green Street. I was called to the Bar of England and Wales in 2013 and I'm a member of Harvard Chambers. During my time in practice, I was a barrister specialising in clinical negligence and personal injury are now living in Sydney, Australia, and I have recently written a book entitled A Practical Guide to Wrongful Conception. Wrongful Birth and Wrongful Life claims. This webinar covers those same topics. If we move to our first side, we can see what it will call for. First, we're going to look. It's an introduction to each of the different claims. Second, we're going to look at the key cases for these claims and finally will turn to recent significant developments in these areas. We moved to our next side to start this webinar. I want to go over each of the three different claims which can be made at the outset. It is essential to understand the differences between these three types of plane seriously running for life. This type of plane is a case brought by a child. He was alleging that but for the defendant's negligence they would never have been born, and that that would have been a better outcome. English law does not currently recognized This type of case is a viable claim. Next wrongful conception. This is a claim brought where the negligence has resulted in a conception which had claiming that sought to avoid normally this arises out of the negligence sterilization. That's whether it's a failed sterilisation operation. All the incorrect provision of information regarding this operation. Finally, wrongful birth. Such cases a different wrongful conception cases as here. The claimants don't seek to avoid conception itself, but instead the negligence has caused them to lose the opportunity to terminate the pregnancy. And an example of that is through negligent prenatal screening. Interestingly, such claims will often have the exact same factual matrix is wrongful life claims. Despite the fact that English law doesn't recognize wrongful life claims as being viable for wrongful conception of wrongful birth, their culpability of damages has proven controversial in English law. Any claim for the costs of bringing up a child, which is ahead of loss that I'm going to refer to is maintenance costs throughout this weapon on is not currently a recognized head of loss. Damages are restricted to those costs associated on Lee. With the pregnancy and birth on display later, that can be in a war for the extra maintenance costs which relate to a child's disability. Andi, their conventional award. We turned to our first line. This looks a wrongful life. There's only one key case in the United Kingdom in respect to wrongful life actions, and that's McKay and Essex Area Health Authority. The claimant here was a child who had been born disabled. The mother had suffered from an infection of rebel A during her pregnancy, and as a result, the child was born with deformities. During her pregnancy. The mother had sought advice from her doctor, who had sent a blood sample for testing but communicated to the mother that she had no infection. It was alleged that but for the negligence in identifying the rebel a infection the mother would have undergone on abortion and the child would never have been born. The child's claims for distress, loss and damage caused by having been brought into a life in which she suffered from debilitating injuries. The court therefore only had to determine whether the child had a cause of action for being allowed until I've damaged what has been called brothel life or whether her claims in this regard I want to be struck out. The Court of Appeal held that the child's claim was that the defendants had been negligent in allowing her to be born. The court dismissed that claim on the basis that it was country to public policy as a violation of the sounds to give life on that it was not possible to evaluate damages for the denial of nonexistence. The judgment of the Court of Appeal of Mackay was unanimous. Wrongful life claims could not be validly brought under English law. McKay therefore establish that there was no cause of action for wrongful life on the Children suffering from deformities would not be able to bring a claim against the defendant for allowing them to be born Now. The decision and McKay doesn't affect the right of a child to bring a statutory claim for damages where they've been injured in utero due to negligence on where they're born with disabilities that's pursuant to the Congenital Disabilities Civil Liability Act 1976. These claims differ from wrongful life claims as they were concerned disabilities which caused by an act or omission of the defendant, and the pleader claims likely to be that. But for the negligence, they would have bean born normal and healthy, as opposed to a wrongful life plane. Where the pleaded claim is that but for the negligence, the child would not have been born at all. That's wrongful life. If we move on to our next light, we're going to look a recent developments in wrongful life. There's been no challenge to the judgment in Mackay in the 35 years since it was delivered. The law governing wrongful life claims is, therefore remain the same in all that time. There have, however, bean some recent discussions of wrongful life in the courts, and that's interesting because it's after a period of quiet in this area. They're two recent cases where the issue of wrongful life has been raised on again, which was noting the first is criminal injuries, compensation authority and first here tribunal social entitlement chamber. That's on the slide there. Here, a claim was made the criminal injuries compensation by a child born with a genetic disorder. The child's mother had herself received compensation under the scheme, and this was following a protracted period of rate by her father and he had pleaded guilty to incest. Subsequently she had given birth to two Children and one of whom was the child in this action who had been born with a genetic disorder. The claim came before the Court of Appeal after a series of previous decisions before the compensation authority, the first here to write you Know on the upper tribunal. The Court of Appeal upheld the appeal and rejected the child's claim for compensation for three reasons. First, the scheme. They longer assess damages by reference to common law principles, but on a prescribed tariff instead. The only victim of the crime under the terms of the scheme was the mother, and this was for two reasons. The child could not be the victim of a crime committed before he was conceived. And second, paragraph 90 of the scheme provides. The compensation will not be payable in respect of a sexual offence unless the applicant was the non consenting victim of that offense. Third, it was not possible to calculate compensation in any event and to calculate damages on the basis that the child otherwise have been born without a disability won't beyond what the scheme sort to cover. In this sad case, it was also emphasized that acclaim for wrongful life could not be successful in English law and Lord Justice Henderson stated that the claimants real complaint would have to be that he should never have Bean conceived it all. A complaint of that nature is not a claim for personal injury, but a claim for wrongful existence, which has this course explained in Mackay and Essex Area Health Authority is not one which the local recognize or for which compensation could be assessed. So there's an affirmation of Mackay. In that case, there was also a commentary on the decision in Parkinson which will come on to look at shortly with the court holding that it was difficult to see why is a matter of fairness the common law approach to the mother's right to claim damages for the costs of caring for a disabled child, which is what Parkins and illustrates should not be incorporated into the scheme. It's a lot of really interesting commentary in this case in relation to the topic. The reiteration by the Court of Appeal of the principles set out in Mackay is perhaps unsurprising. McKay's a House of Lords decision, and so the Court of Appeal is bound by it. Nonetheless. The fact that the court expressly referenced McKay and appears to be cognisant tweet decision consistent with it is of note. We can also see the same difficulties expressed in Mackay and respective calculating damages were set out in this recent case somewhere relied on in denying the child's play. So all of that suggests that the mood of the court, when presented with a wrongful life plane, remains the same now as 35 years ago, when McKay was hurt. We move on to our next slide. This is the second case of note in which wrongful life is mentioned. This TBS and Commissioner of Police of the Metropolis. This was a strike out application heard in the High Court. The claimant who had being conceived as a result of a forge a lint sexual relationship between his mother, Andan undercover police officer, brought a personal injury claim for damages, alleging that he had suffered from psychiatric injury as a result of learning he being conceived in such a relationship. The claimants mother was a political activist on a police officer had engaged in a relationship with her as part of an undercover operation. As a result, the claim it was conceived and born on the police officer was present in a paternal role of the 1st 3 years of his life before abandoning him with no explanation. Eventually, the police officer's identity and roll was later discovered by the claimant and his mother, and the claim an alleged that because of the deceptive conduct of the police officer, which resulted in his conception, birth and subsequent abandonment he had suffered from psychiatric injury. He brought a claim for damages against the police commissioner, both on the basis of misfeasance in public office on Dittemore interest here. Negligence. He argued that he was owed a duty of care because the defendant and his officers water have known the obvious risks that child would be conceived during that undercover operation and the harm would be caused that child, the defendant applied to strike out this claim. They argued that the claimant's claim was one for wrongful life and that that was country to public policy as it offended the sanctity of life. The strike out application in respect of the claim of negligence was dismissed. It was held that this was not a wrongful life case, and McKay could be distinguished. The judge did not consider that the claim it was seeking compensation for having being born at all, but rather that he was seeking compensation for the damage he suffered as a result of the conduct of the police officer. His claim wasn't that he should never been born, but that he had suffered psychiatric injury due to the circumstances off his father. So I framed in that way, the court didn't consider that the claim offended the sanctity of life, and also, the court found it was far from certain that claim it would fail in that play. So another interesting case, the way McKay was distinguished from these facts provides insight into the way in which some long for lifestyle actions may be capable of succeeding. Though it's quite difficult to imagine a set of facts in a clinical negligence setting which would be distinguishable from McKay in the same way as here, this was a strike house application. Quite recently. It was heard in December 2017 and so it's worth keeping your eye on this and seeing how this case is eventually argued at trial. If it gets that far on what the outcome is, that's wrongful life. We're going to turn to wrongful conception of wonderful birth now, and if we move to the next site, we have their McFarland and Taste I health board. So in this case, the claimants decided they didn't want any more Children, and the husband underwent a vasectomy. Unfortunately, following next season, advice is. Did the success of the operation? The wife became pregnant and the couple became parents to a healthy child. They then brought proceedings. They claim that the damage they had suffered because of the negligence included the maintenance costs of the child who had being conceived. Because of that negligence, the House of Lords held that although damages for the pain and suffering of pregnancy and childbirth could be awarded, the maintenance costs were recoverable. In denying those maintenance costs, the House relied on arguments surrounding proportionality on whether extending the duty to include those losses would be fair, just unreasonable. There was also some discussion surrounding distributive justice on defining that an award of Nathan's cost was not consistent with that despite the majority denouncing public policy is a Turk determining factor. In such cases, policy concerns can be seen to operate throughout the judgments. Some of these are the sanctity of life, which is an obvious part of the judgments. There's much discussion regarding the blessing of child brings. There's also a careful examination of offset calculations now under normal torches principles. Where has proven negligence No break in the chain of causation and damage, which is not too remote recovered fully. So it's quite difficult to reconcile a finding that the inclusion of maintenance costs would not be fair, just or reasonable with the fact that the medical procedures, which are the subject of these claims, are undertaking for the sole purpose of avoiding further Children on the financial costs of rearing a child is the ordinary consequence of a child being born to these parents. This is very interesting case. Our House of Lords only dealt with the case of a healthy baby and did not provide guidance on whether the principles set down in relation to maintenance cross would apply to all Children, regardless of health. The question of maintenance costs in wrongful conception of wrongful birth claims Waas, therefore left open on, was to come before the courts again. As we're about to see, we move on to our nets like this is our next case, Parkinson, and sent James and see Craft University Hospitals. NHS Trust. Now, as we've just said, the lack of any determination by the House of Lords in McFarland on what would happen where a disabled baby board led to the Court of appeal reexamining that question in Parkinson. So this case presented effectual variation to McFarlane. A child has been conceived and born Geeta negligent sterilization. But the child was born disabled, not healthy like him a fallen, although those disabilities weren't connected to the negligence. Now, in this case, the Court of Appeal reiterated that any claim to the maintenance costs of a healthy baby must fail. But they did allow recovery of the extra cross, associate it with rearing a child with disabilities. Parkinson Onley dealt with the situation where a child was disabled but didn't address or even appear to consider what the outcome would be. Where one of the parents disabled so again. Although we have development here, it's not the end of the development surrounding mournful conception, wrongful birth claims. And if we moved to our nets line, you can see our final key case. Reason. Darling to Memorial Hospital NHS Trust. Is that case on? Once again, the House of Lords were presented with a factual variation on the preceding cases and here the claim. It was a disabled woman, and she had elected to have a sterilisation operation because of the difficulties. Her disability with calls that sterilization was unfortunate, performed negligently, and it resulted in the birth of a healthy child. So she brought a claim for maintenance costs, which included the extra costs associated with her own disability. The House of Lords then had to determine whether we use presented an extension of Parkinson in the disability of the mother, altered the circumstances so as to allow recovery for additional maintenance costs or whether it was simply a straightforward application of fallen being a case concerning a healthy child and thereby falling outside of recovery. The House of Lords, determined by a narrow majority that Rees was more in line with fallen than Parkinson, I would say the cost of raising the child wherever comfortable. The minority judgments are interesting. They consider disability to be a distinguishing factor, and they would have permitted an award of damages to reflect the extra maintenance costs occasioned by that disability. Curiously, in this case, despite denying the claim and Rees, the majority did still modify the principle set down in the fallen through the creation of a conventional award of £15,000. And this was to reflect the legal wrong suffered by the claimant in these cases and described as a gloss on what fallen the support of the House of Lords for this conventional award, which was developed from Lord Millets. Initial suggestion in McFarlane itself demonstrates the unwillingness of the majority to leave the claimant who has suffered illegal wrong without remedy, particularly since the conventional award appears to be intended regardless of the health of the parents with a child. The result of both Parkinson Aries was that the decision in McFarlane was modified to afford claimants, a limited work offer in my offer conception claims. Since these cases, there's been little if any disruption to that status quo on. It's clear, however, that there do remain some unanswered questions as to the scope of recovery, and there has been recent discussion off this area of law. That's what we're going to go on to look at net. So if we move to our next slide, we have our first recent wrongful conception case, which attracted a lot of media interest, and that was due to its controversial fax. This case explored, amongst other interesting aspects, the extent to which the principles in relation to the recovery bility of damages in wrongful conception claims brought in taught applied to claims brought under contract. That case is A or B and IVF, Hammersmith and oh. This involved a claim which was brought against IVF clinic by a father following an alleged forgery of a consent form which led to the implantation of an embryo without his consent and then the subsequent birth of an unwanted child. The course of action here was in contract Onda. Although successful on liability, the claim was refused damages on the grounds that policy considerations precluded on award of damages for the maintenance costs of the child. The evidence of the claimant was preferred by the court and it was found that are had forged the claimant signature as alleged and since he haven't provided his signature he couldn't have, Bean said. Toe have provided informed consent, so ultimately it was found that there had been a breach of contract, but that did not automatically entitle the claimant award of damages. Mr Justice J considered my violin res in determining whether or not damages should be awarded. First, he had to consider whether there was a difference whether the claim was brought in contract or talked. And he held that in these circumstances, the assessment of damages ought to be dealt with in the same way that was on the basis that first, the measure of damages is the same which have away the claims brought. Second, the test for remoteness doesn't turn on any distinction which relates to the underlying obligation, and third, that there's no material difference for the purposes of legal policy between contractual duties of those two times. He also found that there were clear legal policy objections to permitting an award of damages for the maintenance costs of a healthy child. He gave these as the inherent difficulty, if not impossibility, of measuring the loss unwillingness to regard a healthy baby a solely of financial liability, a refusal to offset the benefits which accrue from parenthood from any financial liabilities, a feeling that acclaimed for such damages was morally unacceptable. Andi that it was not fair, just reasonable to allow this sort of plane. He found that most of the policy considerations applied even where the contract due to strict, and that he had difficulty with the notion that private patient could succeed where any chest patient could not. So he was not persuaded the res could be distinguished on the present fax, and he left open the question as to whether the claim would be successful in the claim for a conventional war. Now on appeal is outstanding on the decision. In this interesting case, it means that the Court of Appeal will be revisiting the question of the recover ability of damages and Montel Conception wrongful birth cases. And that's something which hasn't leaned on for over 15 years. So any practitioner should watch this case with keen interest really interesting to see the way the Court of Appeal is going to approach this issue, we move on to the next line. We have Whitehead and so So this is a case which came before the Court of Appeal less recently and just addressed the extent to which a claim may survive following her mother's death on the rights of a father to bring a standalone plane. White had involved a professional negligence action brought by the ex partner of the deceased mother primarily on behalf of her estate, but also in his personal capacity. And he had been bringing a wrongful birth plane for mentions costs against the deceased solicitors. The ex partner was also the father of the child who was the subject of that plane. In the mother's original action. She was likely to have been successful, and that was because her child had been born with a disability and so fell within Parkinson. The solicitors, who had been acting on behalf of the mother, had not completed the matter before she died, and so the right to recover the additional maintenance costs had died with her. I had the matter being concluded before she died in those losses would have extended to cover the additional maintenance costs, so the action against the mother solicitors was for those lost recoverable costs. The Court of Appeal found that in respect of the claim by the father in his representative capacity went to award damages would present uncover minted windfall. So it went too far. And this was because the mother's claim for the future mentions costs of the child, died with her claim in his personal capacity was also dismissed. And this was because he was owed no duty by the defendants listers, so he couldn't be successful. In a professional negligence section, the Court of Appeal also addressed the extent to which the claim and had a claim on his own right against the health authority. And the majority of the judgment suggests that although fathers might have a cause of action in their own right and month of birth claims, this was by no means an established right on the extent of it was also on certain. That's very interesting commentary there, and all of that men that there was no successful claim for mentions costs it all. So although the child would have benefited from that award of damages had his mother been alive, there was nothing to be done when the child was left with no damage is a tool. We move on to our next line were at meadows and con here So here the claimant water claim for damages. They start wrongful birth following the birth of a child with hemophilia prior to the conception of a child to claiming that consulted a doctor to establish whether she was a carrier for the G. So her sibling had previously given birth to a child who suffered from hemophilia, and she sought to avoid that the doctor arranged a blood test. But that test unfortunately only confirmed the claim and did not have hemophilia, and it didn't confirm whether or not she was a carrier. She was, however, led to believe that the blood test had confirmed that she was not a carrier of the human feel. Eugene and she subsequently fell pregnant. Unfortunately, her child suffered from hemophilia on genetic testing revealed that, yes, she was a carrier of the gene. But she being aware of that during a pregnancy, she said she would have undergone fetal testing and had she learned her child suffered from hemophilia, she would have terminated the pregnancy. Interestingly, they're claiming Child also suffered from autism that was totally unrelated to the hemophilia. But she claimed damages in relation to the extra costs associated with the autism as well. So is undisputed that as a result of the negligence, she was entitled to damages, including the hemophilia related costs. The key she was whether the autism related costs were comfortable. Mrs. Justice, here delivering the judgment, held that the scope of the defendants duty did extend to prevent this child's birth, and that included a love the consequences of that. So although the defendant did not seem any particular responsibility in relation to autism, they did a share a responsibility which, if properly fulfilled, would have avoided the birth of the child in question. And that was the same as had occurred in Parkinson. So Mrs Justice, yet found there was no difficulty with proximity or foreseeability on the child's autism was a condition on a rest which existed for every pregnancy was a natural, unforeseeable consequence of birth. She also found that causation was made out for that reason. She found the damages were comparable for all of the extra maintenance costs, including autism related costs. Meadows actually appears to be the first reported case in which a different disability has arisen than the one the doctor being consulted about. So in light of that on the uncertainties produced by previous Court of Appeal of House of Lords decisions. It wouldn't be surprising if this decision was to face an appeal, although present non has been confirmed. Swift move to our next light. You can see this completes the WEBINAR. So hopefully what you can see here is that there's being recent activity in these controversial areas and there's a lot to look at. I'd really recommend you go and read all of these cases in four. There's a lot in the judgments, very interesting reads and worth getting your head around. The progression of wrongful life wrongful conception wrongful birth cases through the courts has historically demonstrated on implicit reliance on policy. It is interesting to read that for yourself, with over 30 years having elapsed since the last decision on wrongful life in almost 15 years since the last decision at Supreme Court level in wrongful conceptual for birth cases, it might be time for this to come before the Supreme Court again. And so we can only watch and see what's going to happen with the case is thank you for watching