Susan Rodway QC wins landmark case of negligent pre-conception advice

Susan Rodway QC was instructed by Tim Spring of Moore Barlow in the case of Toombes v Mitchell  [2021] EWHC 3234 (QB) in which Her Honour Judge Coe QC has today handed down judgment in favour of the Claimant against her mother's general practitioner for negligent advice provided prior to conception.

In February 2001 Mrs. Toombes attended Dr. Mitchell specifically to ask his advice as to the steps she should take before trying to become pregnant. In particular Mrs. Toombes was concerned about waiting for some time after stopping the contraceptive pill. She had also heard mention of folic acid and raised this specifically with the doctor. Dr. Mitchell had no independent recollection of the consultation and was forced to rely upon his contemporaneous note and his 'standard practice'. His note was woefully inadequate with the only reference to folic acid being 'folate if desired'. The court accepted Mrs. Toombes recollection that Dr. Mitchell did not tell her about the relationship between folic acid supplements and the prevention of spina bifida. He told her that if she had a good diet folic acid supplements were 'not necessary' and that she should go away and have 'lots of sex'. Nine months later the Claimant was born with a form of spina bifida.

The inadequacy of the note was clearly important. The Court rejected Dr. Mitchell's evidence that he provided advice in accordance with the recommendations at the time ( all of which referred to folic acid supplements taken before becoming pregnant) and found that had proper advice been provided the Claimant's mother would have delayed conception for about a month whilst taking the supplement. This would have led to a later conception of a normal, healthy child.

The unique legal issue in the case was whether the Claimant had a cause of action for being born in her damaged state. The alternative was not based upon an argument that she should have been terminated and hence avoided issues of 'wrongful life' and 'wrongful birth'.  In the former, the courts have consistently turned their face against such an action as repugnant to the law. In the latter, the claim has to be brought by parents of the injured child.

In a hearing on this preliminary issue, Lambert J found in favour of the Claimant that she had a cause of action against her mother's doctor which was consistent with the Congenital Disabilities ( Civil Liability ) Act 1976. This was despite the inevitable fact that a later conception would have been of a different genetic individual.

The ground-breaking ruling means that a healthcare professional can now be found liable for negligent pre-conception advice which results in the birth of a child with a serious health condition.

The claim now proceeds to the assessment of damages for the Claimant's injuries.

You can view the full judgment here.

Evie Toombes