Commentary: A case of wrongful conception

Dr Beth Walker, Medicolegal Consultant at Medical Protection, analyses a recent case and looks at what it means for clinicians

The unusual case of Ms Evie Toombes v GP Dr Philp Mitchell[1] has caused significant concern amongst doctors.

The context around the claim has also raised emotive ethical issues around disability and “wrongful life”. Parents can bring a claim for wrongful birth; a term used for claims where had there not been negligent treatment, the child would not have been born either because the pregnancy would not have occurred or would have been terminated. However, the child themselves cannot bring a claim for “wrongful life” (where the injury alleged is not the claimant’s disability but the fact of their existence).[2]

In a preliminary trial in November 2020, Dr Mitchell’s legal team argued this was in fact a wrongful life claim and should be struck out. Ms Toombes contended the claim was not for wrongful life but wrongful conception, which she argued was permissible under subsection 1(2)(a) of the Congenital Disabilities (Civil Liability) Act 1976 (The Act). The judge agreed the three components required were satisfied: 1) a wrongful act (negligent advice), 2) an occurrence as defined in the Act (the claimant’s mother had sexual intercourse without taking folic acid) and 3) a child was born with disabilities. It was therefore ruled that Ms Toombes could bring a claim in her own right.

Liability at the second trial

The second trial on liability took place in November 2021.[3] In a conference ahead of trial, the defendant’s team sought to rely on expert evidence regarding whether Ms Toombes was already pregnant when she consulted with Dr Mitchell. Master Cook refused permission to rely on expert evidence and the trial proceeded on factual evidence alone.[4]

The defendant’s team submitted Mrs Toombes was already pregnant at the time of the consultation and that her evidence was unreliable as the details had evolved over time. In 2006, the claimant alleged that had she received appropriate advice, her mother would have taken folic acid in the critical time period, preventing her lipomyelomeningocele (LMM). The defendant responded that the evidence is clear folic acid supplementation does not prevent LMM. The claim evolved to allege that had she been properly advised, Mrs Toombes would have delayed conception to take folic acid, meaning a genetically different child would have been born. The key issue therefore became the timing of conception, rather than the effect of folic acid.

At trial, Mrs Toombes said she had a clear recollection of the appointment she had made for pre-conception counselling and asked specifically about folic acid. She stated Dr Mitchell reassured her if she had a healthy diet folic acid was not necessary and advised her to start trying to conceive straightaway. Mrs Toombes said she became pregnant almost immediately.

Dr Mitchell understandably had no recollection of the 2001 consultation. In evidence, he relied on his contemporaneous note (“Preconception counselling. adv. Folate if desired discussed”) and his usual practice. At the time, his usual advice was to tell patients that guidance recommends 400μg folic acid daily for women preparing for pregnancy and during the first trimester. He also would state if the patient had very good folic acid intake from their diet, the benefit of taking additional supplementation would be less important. He acknowledged in evidence that dietary intake would have to be very good to avoid the need for supplementation.

The judge found Mrs Toombes to be a credible witness and did not accept Dr Mitchell’s evidence:[5] “I formed the view that he was attempting to reconstruct a conversation/consultation on the basis of that inadequate note which required him to speculate or make assumptions about what was said.[6]…I find that Dr Mitchell told her that if her diet was good enough, folic acid was not necessary. I find that that is the more likely meaning of his note, ‘Folate if desired’.”[7]

Outcome of the case

The judge concluded that Mrs Toombes was given the impression folic acid was optional if you had a healthy diet and that Dr Mitchell did not advise her of the risks from folic acid deficiency or of the relevant guidance. With this advice, the judge held that she would have waited before trying to conceive. The judge ruled in favour of the claimant on all points.

The trial came down to whose factual evidence the judge preferred regarding the 2001 consultation. GPs have voiced their fear at the implications, in particular the conclusions regarding Dr Mitchell’s evidence. The judgment re-emphasises the importance of recording detailed consultation notes, though we know for many GPs the ever-increasing time and workload pressures are impacting their capacity to do this.

What does this mean for doctors?

The claimant’s team felt one factor impacting the judgment was that Mrs Toombes specifically made an appointment to seek pre-conception advice, rather than this being an ‘off the cuff’ question within a consultation regarding another matter.[8] Doctors are advised to take particular care during pre-conception counselling, especially in consultations solely made to seek this advice. NICE guidance on pre-conception counselling is summarised here.

There is also concern that the ruling will open the floodgates to related “wrongful conception” claims, however those involved feel the ruling will only apply in rare circumstances. Claimants born as a result of pre-conception negligence can bring a claim for “wrongful conception”, but only if the individual circumstances fall within the narrow statutory requirements. Claimants must prove a causal link between the specific circumstances of conception and their disability, meaning this will likely only apply in a small number of clinical scenarios. Further, if a similar case arises and goes before the appellate courts, it remains to be seen how they will consider this development in law.

• Medical Protection has not been involved in this case.