31 May 2006
In this issue: In this edition we look at the High Court's decision on 'wrongful life', access issues to donor information for assisted reproductive technology recipients, and the issues in the UK Lillywhite case.
- High Court dismisses 'wrongful life' claims
- Infertility treatment access issues
- How important is the UK Lillywhite case?
In brief: By a 6-1 majority, the High Court recently dismissed the claims of two severely disabled people, each of whom asserted a case of negligence against their mothers' doctors, and both claiming that they should not have been born. Senior Associate Belinda Boulton reports.
Alexia Harriton was born on 19 March 1981 with severe congenital disabilities caused by the rubella virus which her mother had been infected with in the first trimester of her pregnancy. Mrs Harriton had suffered a fever and rash in early August 1980 and, on 13 August 1980, consulted general practitioner Dr Max Stephens. At that consultation, she raised a concern that she might be pregnant, and that her recent illness might have been rubella (she was aware that rubella in early pregnancy could produce congenital abnormalities in an unborn child). Dr Max Stephens advised Mrs Harriton to have a blood test to determine pregnancy and whether she was suffering from rubella.
Mrs Harriton's subsequent test results stated that 'if no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities'. The test also confirmed that Mrs Harriton was pregnant.
On 22 August 1980, Mrs Harriton consulted Dr Paul Stephens who reviewed her test results, confirmed her pregnancy, and ruled out rubella. He did not, though, prescribe any follow up blood testing for Mrs Harriton, nor did he advise her that a pregnant woman who may have had rubella in her first trimester had a very high risk of having a child with congenital abnormalities.
Mrs Harriton, though, had in fact had rubella and her child's disabilities, when born, included blindness, deafness, mental retardation and spasticity. Alexia will require continuous care for the rest of her life.
Mrs Harriton claimed that, had she received the proper advice about the effects of rubella, she would have terminated the pregnancy.
Alexia claimed general damages for pain and suffering, special damages for past and future medical and care costs, as well as a claim for loss of income (based on average weekly wage and life expectancy).1
In the second case, Keeden Waller was conceived as a result of in vitro fertilisation (IVF). His parents had experienced difficulties conceiving because Mr Waller had a low fertility rate. The Wallers were referred by their general practitioner to Dr James, an obstetrician and gynaecologist with a practice in infertility and IVF procedures. The GP's referral letter to Dr James referred to the fact that Mr Waller had anti-thrombin 3 deficiency (AT3 deficiency), a condition which results in a propensity for the blood to clot, and that he was taking Warfarin daily for this condition.
Dr James discussed the AT3 deficiency with the Wallers during an early consultation. Various tests were then done, one which confirmed Mr Waller's low fertility rate, but none of the tests ordered by the specialist obtained any information about the genetic basis for Mr Waller's AT3 deficiency (or the likelihood of AT3 being passed on). Dr James subsequently recommended IVF treatment and, relying on that recommendation, the Wallers commenced treatment on 14 October 1999. Mrs Waller then became pregnant with Keeden. Subsequently, Mrs Waller was referred to a specialist obstetrician, Dr Hoolahan, for antenatal care. Dr Hoolahan conducted a number of tests during the pregnancy, but failed to advise the Wallers that the AT3 deficiency was genetically transmittable to the baby and its potential consequences.
On 10 August 2000, Keeden was born with genetic AT3 deficiency. He has permanent brain damage, cerebral palsy and uncontrolled seizures.
Mrs Waller said that, had she known that the AT3 deficiency could have been passed on to her child, the couple would have deferred IVF treatment until they could have been assured that the AT3 deficiency would not be passed on, or that they would have used donor sperm, or they would have terminated the pregnancy.
Keeden brought an action in negligence against Dr James and Dr Hoolihan. He also claimed general damages, economic loss and damages for gratuitous care.2
The main issue in each case was whether Alexia and/or Keeden had a cause of action in negligence against each mother's respondent doctor, who had failed to advise of circumstances which would have (they say) led to a lawful termination of each pregnancy. If such a cause of action existed, the next issue was whether the heads of damage were limited to, or were different from, damages generally available in claims for personal injury.
In the Harriton case, the specific duty of care postulated was a duty on Dr Paul Stephens to have diagnosed rubella, and to have advised Mrs Harriton that the only way to prevent a very high risk of bearing a child with grievous injury caused by rubella would have been to terminate the pregnancy. It was that failure that was said to have caused, or materially or effectively caused, the damage, namely Alexia's life with disabilities.
In the Waller case, Keeden's parents argued that the duty owed extended to providing them with all of the material facts that would bear on his potential health, thus enabling them to make decisions about their IVF treatment or a lawful termination of Mrs Waller's pregnancy. It was those failures that were said to have caused, or materially caused, Keeden's life with disabilities.
The High Court dismissed each appeal, holding that, to have a cause of action in negligence, Harriton and Waller needed to show that damage had been suffered, and a duty on the part of the doctors in question to avoid that damage. However, no legally recognisable damage could be demonstrated or defined.
The court noted that, in Australian common law, all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection. To allow a disabled person to use their own existence as actionable damage was held by the court to not only be inconsistent with statutes prohibiting differential treatment of the disabled, but also incompatible with the law's sanction of those who wrongfully take a life. The court found that trying to compare a life with non-existence for the purpose of damages was impossible, as was a comparison of Alexia and Keeden with able-bodied children, or with a nominal life without disabilities.
In brief: The Victorian Law Reform Commission released its second position paper on the Assisted Reproductive Technology and Adoption Project in July 2005. Among other things, the position paper examines the legal position with respect to access to donor information. Lawyer Laura Colavizza reports.
Part 7 Division 1 of the Infertility Treatment Act 1995 (Vic) (the Act) provides a regime for the collection of, and access to, donor information. The Infertility Treatment Authority (ITA) maintains a central register of information with details of the name and sex of each child born as a result of donor treatments in a licensed clinic or by a licensed doctor, the donor's name and contact details, the name and contact details of the recipient of the donor gametes, and the details of any physical abnormalities of the parties. The Act governs the level of access to this information depending on when the donation of gametes occurred.
If a donation of gametes was made on or after 1 January 1998, a donor-conceived person may be able to obtain identifying information concerning their donor if they are over 18 years of age (section 79). The identifying information will be released if the applicant has received appropriate counselling concerning the consequences of the disclosure and the ITA has made reasonable efforts to contact the donor to alert them of the release of information and that they may need counselling (s80). Where a child is under the age of 18, the application for identifying information must be made by the parents/guardian of the child, and the release of the information is subject to the consent of the donor (ss 74 and 75).
Where a donation was made prior to 1 January 1998 (or the donor has consented to use of the gametes after 1 July 1998), donor-conceived persons will be entitled to access non-identifying information contained in a different register managed by the ITA and established under the Infertility (Medical Procedures) Act 1984 (Vic) (s191).
With respect to donations made prior to 1 January 1988, donor information will have been retained by hospitals or doctors, and will only be available to the ITA if voluntarily provided.
Interim recommendations of the Commission
The Victorian Law Reform Commission (the Commission) has recommended that a new guiding principle be inserted into the Act that 'all children born as a result of the use of donated gametes have a right to information about their genetic parents'. The Commission noted that this principle reflects recent reports on the importance of informing children of their birth origins, and complies with international conventions (eg the Convention on the Rights of the Child). The Commission, however, opposed the imposition of a legal obligation on parents to tell their children of their birth origins. Instead, they recommended that support strategies be adopted to encourage parents to tell children of their birth origins through education and counselling. Further, parents of children born through donor treatments should be provided with ongoing counselling, support and resources to enable them to inform their children of their origins and how to access donor information.
The Commission also recommended that donor-conceived children under the age of 18 should be able to apply for information identifying donors, but access to information should only be released if a counsellor is of the opinion that the child has sufficient maturity to understand the information.
The interim recommendations proposed by the Commission have placed a strong emphasis on the need to have children informed of their birth origins and to provide a supportive and well-resourced environment for such disclosure. The increasing use of donor gametes would seem to support such an approach. In February 2006, the central register contained entries for 802 births arising from 478 donors.
In its submissions in response to the position paper, the ITA has raised concerns over the Commission's recommendations relating to counsellors determining the maturity of donor children to access information. The ITA notes that children under 18 should have the support of their parents and a counsellor in applying for identifying information, who should acknowledge that the child is of sufficient maturity to understand the nature of the information. If such support was not forthcoming, the matter could be referred to the ITA Review Panel rather than relying on a counsellor's independent assessment of the child.
The position paper is one of a series of three papers, which are to result in a final report to the Victorian Government by the end of 2006 on the issue of reproductive technology and adoption. In light of the submissions by the ITA, it remains to be seen the extent to which the interim recommendations will be adopted in the Commission's final report to government.
In brief: In a decision handed down in late 2005, a majority of the English Court of Appeal decided that a doctor had failed to provide an adequate explanation as to what he had seen on an ultrasound scan and was therefore negligent in failing to make a diagnosis of holoprosencephaly. Lawyer Dominic Nguyen reports on the case.
On 26 April 1992, Alice Lillywhite was born with holoprosencephaly. Holoprosencephaly is a condition that results from severe malformation of the brain caused by the failure of the forebrain to divide into two during pregnancy. Prior to consulting Professor Rodeck (the respondent), Alice's parents (the appellants) had gone for a routine abnormality scan conducted by Janet Wright, a superintendent radiographer. Mrs Wright had been unable to identify several structures within Alice's brain and made a referral to the respondent.
At trial, the appellants alleged that the respondent had not exercised the standard of care to be expected from a specialist consultant in concluding that Alice's brain, while she was still in utero, showed no signs of abnormality. The respondent should have correctly identified the absence of three structures in the brain, namely the corpus callosum, cavum septum pellucidum and the anterior portion of the falx (the absent brain structures), which would have indicated that Alice had holoprosencephaly. As a result, the appellants were not advised accordingly. If this had been done, the pregnancy would have been terminated.
The judge accepted that the respondent had conducted a painstaking scan and seen echoes which he took to represent the absent brain structures. However, without the scan pictures of what the respondent had seen (which had since been destroyed), the judge decided that it was a matter of considering what structures could have produced the echoes mimicking the absent brain structures, and whether the respondent should have realised that those echoes were mimics. Taking into consideration expert medical evidence from both sides, the judge decided that the respondent had provided possible answers as to what might have produced the mimicking echoes and, therefore, negligence had not been established.3
The appeal decision
On appeal, the appellants submitted that the trial judge was, on the evidence, wrong to conclude that negligence had not been proven. They argued that on the facts, where Mrs Wright had correctly identified anomalies on Alice's scan, there was a heavy burden on the respondent to put forward evidence that would negate the inference that he had not exercised reasonable care and was therefore negligent. The respondent argued the trial judge was entitled to conclude that the appellants had not discharged the burden of proof in light of all the evidence. Therefore, the issued raised before the English Court of Appeal was whether there had been a failure by the respondent to exercise reasonable care and skill. By a majority, the English Court of Appeal found in favour of the appellants, overturning the trial judge's decision.
Lord Justice Latham, following a line of English authorities, stated:
[I]n some cases the evidence produced by a claimant may be such as to require the court to focus with some care on the explanation given by a defendant to displace that which would otherwise be the inevitable inference from the claimant's case that negligence has been established.4
His Lordship placed particular emphasis on P v Leeds Teaching Hospitals Trust.5 In Leeds , several ultrasound scans were taken of the claimant's child, in utero, in which no abnormality of the bladder had been noted. Subsequently, the claimant's child was born with cloacal-exstrophy, a condition where parts of the abdominal contents develop outside the abdominal wall.
His Lordship considered this case to be analogous with Leeds, then proceeded to examine the trial judge's approach to the evidence and his conclusions. Lord Justice Latham concluded that, on the evidence, the respondent had not overcome the burden of establishing an explanation for all three of the absent structures.
In dissent, Lady Justice Arden disagreed with the majority that this case was analogous with Leeds and, thus, took a different approach to the majority. To her, once it was accepted by the trial judge that the respondent had performed a careful scan, and that he must have seen the mimicking echoes, to establish negligence the appellants had to provide something more. She was not satisfied that the appellants had done so.
As a postscript, on 27 February 2006 the House of Lords refused an application from the respondent to appeal against this decision.
At the present time, the Lillywhite case has not been considered and/or applied by an Australian court. It does provide, however, a timely warning to all doctors, not just those within the field of obstetrics and gynaecology. Where a referral has been received by a doctor, with a specific request requiring medical investigations such as ultrasound scans to be made, the doctor should always provide an explanation as to what they had seen, in particular, where the diagnosis and/or conclusion differs from the referral received.
- Harriton v Stephens  HCA 15.
- Waller v James; Waller v Hoolahan  HCA 16.
- Lillywhite v University College London Hospitals' NHS Trust  EWCA Civ 1466. The decision was delivered on 7 December 2005.
- Lillywhite v University College London Hospitals' NHS Trust  EWCA Civ 1466 at .
-  EWHC 1392 (QB).
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