Dr Rick Thomas

Wrongful conception – the latest weapon in culling disability?

Dr Rick Thomas is a Public Policy Researcher at CMF.
The views expressed do not necessarily reflect those of CMF.

At the end of November, in the High Court, the case of Toombes v Dr Philip Mitchell was heard before Rosalind Coe QC, acting judge.

The claimant, 20-year-old Evie Toombes, sued her mother’s GP, Dr Mitchell, on the grounds of her own wrongful conception. Had her mother been given the appropriate advice at the time, namely, to take folic acid supplements before getting pregnant as well as during the first trimester, she would have postponed getting pregnant until her folate levels were optimal. She would therefore have given birth to a genetically different child from Evie, it was claimed.

Evie was born with a rare form of neural tube defect, known as lipomyelomeningocele (LMM). She suffers from a neuropathic bladder and bowels, gut motility issues and weakness of her lower limbs. She requires frequent self-catheterisation and is fed via a nasogastric tube and parenteral nutrition via a Hickman line.

The ruling

Unlike more common forms of Spina Bifida, the incidence of LMM is not reduced by folic acid supplements in pregnancy. But causation was not at issue in the hearing. The judge had to decide between conflicting recollections of the pre-pregnancy consultation. She found Evie’s mother’s account more credible than that of the GP, Dr Mitchell. He unsurprisingly had no clear recollection of the conversation some 20 years previously. Relying upon his brief note in the medical record, he assumed that he would have given his standard advice at the time – that folate supplements were optional for patients on healthy diets. His note was found to be inadequate, and his standard advice somewhat short of that recommended in the BNF and the Practical General Practice textbook of the time. The judge took the view that, had she received appropriate advice, Evie’s mother would have delayed becoming pregnant and, on the balance of probabilities, would subsequently have given birth to a ‘normal’, healthy child. Evie was awarded damages in an amount yet to be confirmed but sufficient to cover her considerable healthcare requirements for as long as she lives.

By any measure, Evie is a remarkable young woman. She has shown courage and perseverance in the face of the continuing challenges of her medical condition to become an accomplished equestrian who competes in para and able-bodied show jumping at national and international levels. She embodies her motto – ‘find a way, not an excuse’ – and aspires to compete in the Paralympics. This is a young woman determined to make the best of life and to push back against the limitations imposed by her disability. She speaks in schools and other public engagements to raise awareness of ‘hidden disability’ and works at Nottingham University to help educate student nurses.

Wrongful conception

Empathy for Evie and her supportive family is entirely appropriate. But is there a downside to this ruling? Case law now gives legal recognition to the notion of a ‘wrongful conception.’ How many others will be encouraged by this ruling to pursue retrospective legal action on the same basis?

Though Evie herself is sustained by her love of riding and her hopes of becoming a Paralympian, will not this verdict only serve to strengthen the notion that certain lives are ‘not worth living?’ It appears to give legal force to the idea that conceiving a child with a disability is ‘wrongful’ and, by extension, that allowing such a child to be born is also wrongful. It is not hard to imagine that the term ‘wrongful conception’ will be hijacked by the pro-abortion lobby to apply to any conception that is unintended or unwanted, and not simply those few that result from inadequate or negligent pre-pregnancy medical advice. The ruling underlines the responsibility of GPs to give comprehensive and up-to-date pre-conception advice. However, it could easily be interpreted as suggesting that GPs are responsible for ensuring that wrongful (as in ‘unwanted’) conceptions do not result in ‘wrongful’ births.

Around six per cent of children (0.8 million) in the UK are disabled. The biggest group are those with neurodevelopmental conditions and impairments. Are all of these to be regarded as wrongfully conceived? Surely, the mark of a truly civilised country is the respect it affords to its most vulnerable members.

Setback

Public awareness of the human rights of people with disabilities, and the discrimination many still experience, has been raised in recent years by political figures like Lord Shinkwin and organisations like Don’t Screen Us Out. There is still a long way to go in the campaign to achieve equality for people with disabilities. That cause can only be set back by rulings like this that, albeit inadvertently, send the message that disabled babies should not be brought into this world. How ironic that the legal precedent of ‘wrongful conception’ should be set by the case of the admirable Evie Coombes, whose own triumph over adversity is so inspiring.

Impact

Spare an empathetic thought for the GP, Dr Mitchell, by all accounts a family doctor much loved by his patients. Ten-minute consultations don’t allow for detailed note-making with an eye on potential litigation. Who of us has not made all-too-brief notes of a routine consultation, never dreaming they would be dissected in court 20 years later? Who of us has not given common-sense advice rather than trigger needless anxiety by detailing every possible complication? Any one of us could have found ourselves in Dr Mitchell’s shoes. It is no surprise to read comments from many junior doctors suggesting that this judgement makes them less likely to choose GP as a career option, and from established GPs saying this has strengthened their intention to retire early, both worsening the crisis in a profession with a significant workforce shortage.

And what impact will this ruling have on doctor/patient relationships? It can only undermine trust and increase the trend towards ever more defensive medicine. More comprehensive note-making will mean less time listening to patients. The quotient of anxiety among already stressed doctors will increase. Fewer still will elect to be full, weight-bearing, practice partners.

Evie and her family need be disturbed no longer about the ongoing costs of her disabilities. But the hidden messages in this ruling – that people like Evie should never be born and that GPs could be held responsible if they are – are truly disturbing.

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