The case of Toombes v Mitchell concerned allegations of negligent pre-conception clinical advice by the Defendant with respect to folic acid supplements. The focus of this second hearing of this matter centered upon witness testimony regarding the consultation, which took place two decades ago.
In this case, a GP was found liable to compensate a Claimant who was conceived after he provided negligent advice to her mother, Mrs Toombes, in a consultation in February 2001 about taking folic acid prior to pregnancy.
The Claimant was born with a neural tube defect causing spinal cord tethering (spina bifida). She suffers from weakness and impaired mobility and is fed through a nasogastric tube. The Claimant’s case was that had non-negligent advice been provided, Mrs Toombes would have delayed conception in order to start taking folic acid and consequently, a genetically different child without spina bifida would have been born.
This post will briefly summarise the decision on whether the Claimant had a legal cause of action in respect of the facts as alleged, handed down by Lambert J in December 2020, and the more recent decision of HHJ Coe QC in December 2021, who concluded that the Claimant had succeeded in establishing that the cause of action was made out on the facts.
The preliminary issue of whether a cause of action existed on the alleged facts was decided in December 2020 by Lambert J (Toombes v Mitchell  EWCA 3506).
The Claimant sought to bring a claim in her own right under section 1 of the Congenital Disability (Civil Liability) Act 1976 (“the Act”) and argued that the general prohibition on wrongful life claims established in case of (see McKay v Essex Area Health Authority  2 All ER 771) and enshrined in the Act was limited to negligence post-conception but for which a pregnancy would have been terminated. The Claimant submitted that her claim did fall within the scope of this prohibition and instead fell squarely within sections 1(1) and 1(2)(a) of the Act, which provides as follows:
(1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2) An occurrence to which this section applies is one which—
(a) affected either parent of the child in his or her ability to have a normal, healthy child…
Lambert J held that, on the facts alleged, a claim under the Act could be made out. The relevant wrongful act was the alleged negligent advice given by the GP and the relevant occurrence was the sexual intercourse in a folic acid deprived state that took place after the GP visit, resulting in the birth of the Claimant, who was disabled (para 56). Lambert J rejected the Defendant’s submission that this was a wrongful life claim, noting that the social and moral policy issues engaged when considering a negligent failure to prevent the birth of an already conceived child were different to those arising where but for the failure a child would never have been conceived at all (paras 51 – 52).
More recently, by a judgment handed down on 1 December 2021, HHJ Coe QC determined the factual liability issues in the claim. HHJ Coe QC had to decide:
a) What advice was given in the consultation in February 2001, and was it negligent?
The parties agreed that at the relevant time, the appropriate advice was that women preparing for pregnancy and in their first trimester should take folic acid supplementation of 400 μg in order to guard against the risks of spina bifida and neural tube defects (“the relevant guidance”) (para 58).
Mrs Toombes’ evidence was that her purpose in arranging the February 2001 consultation was to find out what she should do to have a healthy baby. She said that after the consultation, she was left with the impression that folic acid was not something that you had to take if you were maintaining a healthy, balanced diet (para 17). She maintained in cross examination that the GP had not told her about the risks of spina bifida and neural tube defects from folic acid deficiency and that he did not advise her of the relevant guidance – and in particular, he did not inform her of the recommendation to take folic acid prior to becoming pregnant (para 18). This was consistent with a medical entry from 2003 which reported that Mrs Toombes was “upset as was adv[ised] if had good diet prev[iously] would not need folic acid supplements” (para 23). Mrs Toombes also explained that about a year after the Claimant was born, she read that folic acid is recommended pre-conception and was so shocked by this that she telephoned her husband straight away (para 24).
The GP had no recollection of the consultation and therefore relied on his contemporaneous note, which read: “Preconception counselling. adv. Folate if desired discussed” (para 31). He said that because of the reference to folate in the note, it was likely that this was the focus of the consultation (para 32). He said that his usual advice to patients at that time was in keeping with the relevant guidance (para 32). He said that if asked, he would advise a patient that if they had very good folic acid intake from their normal diet, then the benefit of taking additional supplementation would be less important (para 33). He would leave it to the patient to decide whether to use supplements. He suspected from the wording of his note that Mrs Toombes had wished to discuss natural alternatives to supplements (para 34). He also said that in pre-conception consultations such as this one, he did not advise his patients to delay conception, but rather to start taking folic acid and continue to take it until after the first 12 weeks of pregnancy (para 35). On this point, he agreed in oral evidence that if on the day of the consultation Mrs Toombes had obtained folic acid, started taking it and become pregnant that same day, it would not have been against his advice (para 42).
HHJ Coe QC found that the GP’s note of the consultation was “completely inadequate” (para 61). She rejected the GP’s assumption that the term “folate if desired” meant that he gave Mrs Toombe’s his usual standard advice about folic acid and then had an additional discussion about diet versus supplements (para 61). She found that there was no evidence that Mrs Toombes was averse to supplements or tablets (para 63). Rather, HHJ Coe QC found that the more likely meaning of the note was that the GP told Mrs Toombes that if her diet was good enough, folic acid was not necessary (para 63). HHJ Coe QC further found that Mrs Toombes was not told the reason for taking folic acid supplements (para 64). HHJ Coe QC further found that the GP’s alleged usual practice of advising patients according to the relevant guidance was inconsistent with his evidence that he would not advise patients to delay attempting to conceive in order to take folic acid supplements (para 59). Thus, HHJ Coe QC concluded that Mrs Toombes “was not advised appropriately by the defendant” (para 66).
b) Was the Claimant’s mother pregnant at the time of the consultation?
Mrs Toombes’ evidence was that because the purpose of the consultation with her GP was to ensure she found out everything she need to do to have a healthy baby before conceiving, she and her husband had refrained from sexual intercourse since her last menstrual period up to the consultation (which was the relevant period for the purposes of determining if she was pregnant with the Claimant at the time of the consultation). She was described by HHJ Coe QC as being “absolutely adamant” on this point (para 19). HHJ Coe QC found, “[g]iven her careful approach to conception” and the fact she had made the consultation appointment to discuss what to do prior to pregnancy, on the balance of probabilities Mrs Toombes was not pregnant at the time of the consultation (para 70).
c) If the Claimant’s mother did in fact receive negligent advice, would she have delayed conception if she had received non-negligent advice?
Mrs Toombe’s evidence was that had she been given the correct guidance, she would have waited to conceive in order to start taking folic acid supplements (para 26). This was bolstered by her evidence that once advised to take the supplements by a midwife, she immediately did so (para 21), and the fact that she took folic acid supplements for 3 months before conceiving her second child (Para 71). HHJ Coe QC accepted Mrs Toombe’s evidence on this issue, noting that Mrs Toombes was “a very careful person who was very concerned about doing the right thing” (para 72).
It was agreed by the Defendant and therefore did not need to be decided by HHJ Coe QC, that on the balance of probabilities, later conception would have resulted in birth of a child without the defect that the Claimant suffered from.
As a result of her conclusions on the above factual issues, HHJ Coe QC held that the claim succeeded.
Carin Hunt, a barrister from our Clinical Negligence team commented on the case as follows:
The issues to be determined in the second hearing of this matter came down to witness testimony as to what was said in a medical consultation that took place two decades ago. Whilst practitioners frequently face an uphill battle when relying on a patient’s recollection of what was or wasn’t said in a medical consultation, there were a number of features of the evidence in this case that operated in the Claimant’s favour. Mrs Toombes was a particularly careful individual, concerned about doing all she good to ensure the health of her future children. She had a clear basis for her recollection of the consultation being what it was, as a balm to the adverse effect of the passage of time on that recollection, and subsequent events such as the March 2001 visit with the midwife, the supportive 2003 medical record, and her account of later discovering advice about folic acid in a book helped to bolster her version of the relevant events. By contrast, the brevity and ambiguity of the GP’s note disadvantaged his position, as it could be interpreted as consistent with Mrs Toombes’ account, and his own evidence about his usual practice was inconsistent. HHJ Coe QC’s careful extrapolation and analysis of the witness evidence shows the relevance of the minutiae of the factual matrix on which the Claimant’s ultimately successful claim turned.
It is of note that this case has sparked significant controversy in the media and medical profession, with many headlines and commentators mischaracterising the nature of the claim as a wrongful life claim or suggesting that Claimant argued that folic acid would have prevented her spina bifida, which she did not. While a necessary element of the Claimant’s legal cause of action required reliance on the counterfactual of a different child being born, this was not, as per the 2020 decision of Lambert J, a wrongful life claim, but rather, an application of the Congenital Disability (Civil Liability) Act 1976 as giving rise to liability for pre-conception advice. Though this application of the Act is indeed novel, it is still the case that the Claimant’s parents could have brought a valid wrongful birth claim in these circumstances (see Parkinson v Seacroft and St James University Hospital NHS Trust  EWCA Civ 530) – although the damages would have been limited to those persisting over their lifetime, rather than the lifetime of the Claimant.
It is also worth noting that at paragraphs 53 – 57 of her judgment, HHJ Coe QC provides a helpful analysis of the way this claim evolved and crystallise over time, and how this did not undermine the credibility of the case when finalised. This may be of help to Claimant practitioners where such a point is raised by the Defendant in the context of long-running litigation.
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