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Toombes v Mitchell [2021] EWHC 3234 (QB) - Rochelle Powell, Temple Garden Chambers

21/12/21. This landmark ruling has been a source of great concern for medical practitioners because it means they can now be found liable for negligent pre-conception advice resulting in the birth of a child with a health condition.

Background

The case concerned a claim for damages for negligent clinical advice given to a mother prior to her conception. The mother had arranged a pre-conception consultation with the Defendant doctor on 27 February 2001 and asked about folic acid. It was alleged that the Defendant advised that if the mother was eating a healthy diet, it was not necessary to take folic acid supplements. The note of the consultation simply said “folate if desired discussed”. The mother did not take folic acid and subsequently became pregnant with the Claimant. The Claimant was a 20-year-old woman born with a neural tube defect causing spinal cord tethering. She suffered from impaired mobility and incontinence. She claimed that the cause of her disability was her mother's failure to take folic acid before her conception, which was in turn caused by the doctor's negligent advice.

Crucially, at an earlier preliminary hearing, the parties agreed the following facts:

i. The Defendant's failure to advise the Claimant's mother that she should take folic acid supplement, and to prescribe the supplement, was a breach of the duty of care;

ii. But for that breach of duty, the Claimant's mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved the therapeutic level of the folic acid in her bloodstream;

iii. The Claimant was conceived shortly after the consultation and but for the breach, the Claimant would not have been conceived and born at all; and,

iv. The sibling would have been “a genetically different person” who would not have suffered from a neural tube defect.

Evidence

In reaching her decision, HHJ Coe QC considered key evidence from the Claimant’s mother, her medical records and the Defendant. On the basis of her evidence and medical records, it was noted that the mother would have done everything she could to ensure a healthy baby. She had stopped drinking, reduced her caffeine and was refraining from sexual intercourse at the time of the pre-conception appointment. When the mother was advised by the first midwife she saw to take folic acid, she did so immediately. When Mrs Toombes’ became pregnant a second time, she took the larger dose of folic acid pre-pregnancy, and for the first 12 weeks theraftef. The Defendant accepted that his note of the consultation was “inadequate” and agreed that the relevant literature of the time made it clear that folic acid should be taken “before conception” and when “preparing for pregnancy”. However, it was his view that the advice to “folate if desired” was not inconsistent with giving the usual advice in accordance with the recommended guidance.

Decision

The Court rejected Dr. Mitchell’s evidence that he provided advice in accordance with the recommendations at the time. It was held that he should have given the mother advice about folic acid in accordance with the guidance, namely that she should have been told that the recommendation was to take folic acid daily “before conception”. The recorded advice “folate if desired” was inadequate and had the mother received the appropriate advice, she would have followed it. She was “a very careful person who was very concerned about doing the right thing”. The judge held (at paragraph 78) that had the Claimant’s mother received the appropriate advice, she would have:

“…delayed conception, that she would have refrained from unprotected sexual intercourse until she had taken folic acid for at least some weeks; that she would not have attempted to conceive until she was taking the prescribed dose of folic acid, that she would have delayed attempting to conceive for at least one month; and (from her witness statement and oral evidence) that she would have waited until she had completed an appropriate programme of pre- conception folic acid.”

Accordingly, the Claimant’s claim succeeded.

Comment

Whilst the implications of this ruling, in terms of both defensive medicine and patient care, may sit uneasily with many healthcare professional, it is important to note that this case is very fact specific. There is still a requirement to prove a causal link between the circumstances of the sexual intercourse and any disability.

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