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Written by Richard Money-Kyrle

Boyes Turner have successfully secured judgment on liability for the claimant in the case of Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB).

The defendant NHS trust was found to have failed to obtain informed consent in this wrongful Down’s syndrome birth case. Following a trial in which medical experts for both parties gave evidence expressing contrary views on the standard of care exercised by the sonographer at the 12-week fetal ultrasound appointment and the midwife at the 16-week antenatal appointment in obtaining informed consent for Down’s syndrome screening from the claimant, the judge, His Honour Mr Justice Jay, found:

  1. that sonographer failed to ensure that informed consent was being taken in relation to the type of screening and purpose of the scanning to be carried out at the 12 week fetal ultrasound appointment; and
  2. that the midwife failed to review the claimant’s apparent change of mind (resulting from her misunderstanding of the nature/purpose/findings of the 12 week screening) when she had the opportunity to do so at the subsequent 16 week antenatal appointment.

During the trial, the court explored the issues of witness recollection and whether particular local NHS Trust practice supported by independent experienced expert witnesses could be considered responsible, logical and reasonable.

NHS trust’s local practise did not amount to informed consent

The claimant had said that she would like fetal anomaly screening when this was raised by the midwife at her booking appointment. Screening was arranged to take place at her 12 week ultrasound scan at which she expected the sonographer to measure the thickness of the fetal nuchal fold which, combined with a blood test result, would give a weighted risk of Down’s syndrome.

12 week fetal anomaly scan appointment

The claimant was sure the sonographer did not ask any questions at the scan appointment other than whether she would like a photograph of the scan. The sonographer had no specific memory of the claimant’s scan appointment and relied on her usual practice.

The sonographer’s usual practice was to ask the woman “Do you want the screening for Down’s syndrome?” If the woman’s reply was ‘no’, the sonographer would follow the question up with something along the lines of, “So, we are not doing the screening then; we are just doing the dating scan and I will be checking the baby and making sure the dates are correct”. If the woman did not query the sonographer’s question the sonographer would enter, “Down’s screening declined,” in the computer system and proceed to a dating-only ultrasound investigation.

The sonographer’s usual practice was criticised as inadequate by sonography and feto-maternal experts called on behalf of the claimant but supported as appropriate by a senior radiologist experienced in antenatal screening and an independent feto-maternal consultant called on behalf of the Defendant.

The Judge’s findings

The Judge decided the claimant was mistaken in recalling that no discussion had taken place; there must have been some interchange for the sonographer to record “Down’s screening declined”.

The Judge found the sonographer was under a duty to take reasonable steps to ensure the woman’s informed consent was obtained. This would involve:

  • checking that there had been a discussion between the woman and the midwife
  • checking the woman had been given the NHS screening booklet
  • confirming that the woman understood the elements and purpose of scanning for Down’s syndrome

The Judge held that the sonographer’s usual practice failed to meet the standards required in taking informed consent owing to the risk of her questions being misunderstood, especially as the sonographer’s usual practice was the same regardless of whether or not the woman attended the scan expecting fetal anomaly screening or simply a dating scan.

In this case the sonographer’s questions had been misunderstood and the claimant was left with the impression that the sonographer was examining the fetal nuchal fold thickness as part of the screening test for Down’s syndrome.

The claimant had read the ultrasound report and interpreted the note, “Down’s syndrome declined” as the sonographer having ruled out the possibility of the fetus having Down’s syndrome (i.e. the sonographer had declined the possibility that the fetus had Down’s syndrome). The Judge accepted this evidence as the claimant’s true state of mind.

16 week midwifery appointment

At the 16 week midwifery review appointment the midwife did not raise with the claimant the apparent discrepancy in that she had accepted fetal anomaly screening but that screening had not taken place. It was the claimant’s case that:

  • it was mandatory at this appointment for the midwife to note and raise the apparent anomaly between her first wanting and then declining the fetal anomaly screening; and
  • that this would have resulted in the claimant being offered a blood serum quadruple screening test.

Midwifery and feto-maternal experts called on behalf of the claimant were clear that it was mandatory for the midwife to raise this anomaly with an open, non-judgmental question designed to clarify whether, in fact, the claimant had decided not to go ahead with Down’s screening. In contrast, the midwifery and feto-maternal experts called on behalf of the Defendant were clear that it was not mandatory for the midwife to make such an enquiry and that to do so would create a risk that the claimant would feel pressured to undergo screening, contravening the principle that the woman’s views should be respected.

The Judge found that it was mandatory, where screening had been anticipated but had not taken place, for the midwife to check that the woman had changed her mind and did not want Down’s screening:

“A simple and straight forward exploration and check that what has occurred, or not occurred, was and is in accordance with the patient’s wishes continues to place her at the centre of the decision making process and amounts to the taking of reasonable steps to ensure that everything has gone and is continuing to proceed according to plan. Any working hypothesis that everything has happened properly and in accordance with the patient’s wishes and expectations is unrealistic to virtually any human system”

The Judge went on to accept the claimant’s evidence that had screening given a high risk of Down’s syndrome (which was agreed), she would have gone on to diagnostic testing despite the risk of miscarriage and, following confirmation of diagnosis, would have proceeded to termination of pregnancy.