THE HONEST WITNESS WHOSE EVIDENCE WAS NOT ACCEPTED – BUT WHO STILL WON HER CASE: A CLOSE ANALYSIS OF THE LAY AND EXPERT EVIDENCE IN MORDEL

The result of the judgment today  in Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) has already been well publicised.  A mother succeeded in her claim that the defendant trust was negligent in failing to check her wishes in relation to pre-birth testing whether her child had Down’s syndrome. What (inevitably) hasn’t been publicised is the method by which the judge reached that conclusion. It is a case where the claimant and her witnesses were found to be wholly honest, but their evidence was not accepted.  The judge also scrutinised the expert evidence with extreme care. (To be frank I am hoping to promote some more informed comment than the “payout” type headlines that have appeared in some newspapers already).

 

 

“I did feel that some of the experts came too close to the line which separates the giving of opinion evidence from advocacy;”

THE CASE

The claimant mother alleged that the defendant was negligent in failing to carry out appropriate tests prior to the birth of her child who had Downs Syndrome. Her case was that if the tests had been carried then she would not have proceeded with the birth.

THE REJECTION OF THE CLAIMANT’S PRIMARY CASE

The crucial element here is that the claimant’s primary factual case was not accepted.  She was, the judge found, “ a transparently honest witness who did her best to assist and not to mislead the court.” As we have seen so often honesty does not always lead to accuracy.  The judge did not accept the claimant’s case that she was not asked whether she wanted a scan.

  1. The claimant and her partner have given a very clear account, apparently based on their recollection, that Ms Bracher proceeded to perform the scan without further ado. It is their evidence that all that Ms Bracher ever asked was whether they wanted a picture of the scan. It is said by Ms Bradley that they, and in particular the claimant, are in a far better position to assist the court as to what happened because this was a “first” for them and a life event; whereas Ms Bracher is constrained to resort to an account of her usual practice, which after all is susceptible to departure in specific circumstances and/or to human error.
  2. I cannot accept Ms Bradley’s submissions on this issue. The circumstantial and documentary evidence strongly militate against the claimant’s primary case, notwithstanding my overall general assessment of her credibility. The proposition that nothing was said, beyond maybe opening courtesies and introductions, is very difficult to accept. Not merely would this have amounted to a gross breach of duty by the sonographer and a significant departure from her standard practice, the fact that she did select a particular option from the dropdown menu weighs very heavily in her favour. The fact remains that she would not have been using this menu at all if the claimant had answered “yes” to her question: the use of the menu presupposes both that the question was asked and answered in the negative. I have said that the claimant and her partner were honest witnesses, but to my mind the real issue here is not credibility but reliability of recollection. If this were a brief exchange which may not have been understood (I will be coming to this in due course), the proposition that it has simply been forgotten is not merely plausible but probable. In these particular circumstances, the proposition does not reflect poorly on the credibility of either the claimant or her partner.
  3. In the light of Ms Bradley’s submissions, I have considered the possibility that Ms Bracher was guilty of some sort of mistake or human error but have concluded that this is highly unlikely to have occurred in relation to the dropdown menu for the reasons I have already given. Not merely would she have been nowhere near this part of the form had the answer been “yes”, she had to make a specific selection. The possibility that Ms Bracher heard “no” when the claimant in fact said “yes” is also highly unlikely and has not been suggested by anyone. Whatever the claimant’s actual wishes, my overall assessment of the evidence, the inherent probabilities and basic common sense points to Ms Bracher having adhered to her routine on this occasion.

THE CLAIMANT SUCCEEDED ON HER SECONDARY CASE (AND IT IS ALL TO DO WITH EXPERTS)

The claimant’s secondary case was that the clinician, having been told by the claimant that she did not want to test for this issue, should have checked.   It was this issue that the claimant succeeded upon.   The judge heard evidence from Dr Chudleigh and Dr Mason (for the claimant) and Dr McHugo and Mr Howe (for the Defendant).

  1. Dr Chudleigh was an impressive witness who was clear, firm and not opinionated. Dr McHugo was a reasonable and competent expert who made a number of appropriate concessions in cross-examination. She conceded that had Ms Bracher asked “Do you want the Down’s screening?” and said nothing else in reaction to a “no” answer, she would not have been obtaining an informed consent. Overall, I felt that she was not quite as authoritative and compelling as Dr Chudleigh.
  2. The contest between Mr Mason and Mr Howe has proved more difficult to evaluate. I have already commented on the high quality of Mr Howe’s report. He also gave a reasonably good account of himself and of his opinions in the witness box. Mr Mason’s report was not particularly impressive. He gave no references for any opinions expressed, and he was quite brief on questions of breach of duty. On the other hand, in many respects he was a very good witness orally, notwithstanding the evident and regrettable difficulties consequent on the makeshift video-link which had to be deployed.
  3. I did feel that some of the experts came too close to the line which separates the giving of opinion evidence from advocacy; and here I am not confining myself to the experts whose evidence I have reviewed thus far. Mr Mason, for example, should not have said that the claimant was “very keen” to have Down’s screening, even if he had been told that in conference. I think that it is clear from the way in which I have already summarised, and will in due course summarise, the expert evidence in this case where the difficulties arise. I do not need to be explicit.
  4. I remind myself that this cannot be a matter of simply preferring one side’s witness or witnesses over another’s. The Bolam test, as qualified by Bolitho, imposes a stringent burden on claimants; and one which very often cannot be overcome. The defendant has called two experts whose evidence, taken at its face value, supports Ms Bracher’s practice. The issue for me is whether her practice was irresponsible, unreasonable and unrespectable, if not illogical, in the light of the duty to take reasonable steps to secure informed consent. To my mind, there is no real distinction between on the one hand consenting to and on the other declining a procedure in these circumstances because (a) the claimant still had to consent to the dating scan and understand what that entailed, (b) none of the experts identified any relevant distinction, and (c) she had either to accept or reject the defendant’s “informed offer” on a basis which was properly informed.
  5. I take Mr de Navarro’s point that the process counselled by the claimant’s experts is not specifically prescribed in the 2007 National Standards, the NICE Guidelines or local policy. However, informed consent is a fundamental principle of the modern NHS, and I would not expect documents of this sort to be prescriptive as to how it should be obtained. The obligation falls on the clinician to secure it; the obligation does not rest on the patient. On a related topic, I consider that the defendant has consistently overstated the difficulty in exploring the patient’s level of understanding without at the same time appearing to undermine her right to choose. It is not the patient’s reasons for acceptance or rejection which need to be unpicked (pace Dr Chudleigh’s choice of words, assuming that this is what she meant to say); rather, a gentle exploration is required of the patient’s state of mind, conducted for the limited and specific purpose of checking that she understands what is entailed. Respect for patient autonomy is scarcely undermined by sensitive inquiry: indeed, it is enhanced because autonomy, properly understood, predicates full understanding. I discern nothing in sections 7 and 8 of the 2007 National Standards which suggests otherwise.
  6. Thus, what informed consent means is not sensibly in dispute: the issue here is the nature of the steps which should be taken to secure it. I have previously referred to the taking of reasonable steps because I think that in the context of a human system it is impossible wholly to avoid misapprehensions persisting and misunderstandings arising despite the implementation of entirely proper practice by a sonographer. The NHS could not operate if the law required guarantees and complete “fail-safes”, the latter term being interpreted literally. However, what is reasonable in this context must absorb consideration of the issues at stake here. Not merely is the birth of a child with Down’s syndrome a life-changing event for most parents, the steps required to guard against parental choice not being respected are not onerous. What is at issue here is the asking of a limited number of questions to ensure that what may be an unwarranted outcome does not result.
  7. What is reasonable cannot depend on the attributes and characteristics of any particular patient. An examination of the claimant’s actual wishes is highly germane to causation (my third issue) but it has no relevance to the second. A reasonable process or system must take into account the fact that patients will naturally vary in terms of their ability, knowledge and capacity to understand.
  8. Mr de Navarro submitted that the booking appointment is not the occasion on which informed consent is obtained, not least because the requisite 24 hours cannot have elapsed. I accept that submission. He further submitted that this is the occasion on which the patient is furnished with all relevant information so that an informed offer may properly be made by the midwife on behalf of the defendant. I also accept that submission. The point he was making was that all necessary information had already been provided to the patient by the midwife and it was not the sonographer’s duty either to counsel (or re-counsel) the patient or provide anything more in terms of information. Mr de Navarro submitted that it was the sonographer’s role to ascertain the patient’s decision.
  9. I agree with the submission that the system works on the basis that the midwife informs the patient, but I do not accept that the sonographer’s role is limited to taking the patient’s decision one way or another: i.e. hearing an acceptance or a declination of Down’s screening. All relevant information may have been provided beforehand, but informed consent to the procedure in question still had to be provided. To the extent that the claimant’s expert, Mr Mason, at one point suggested otherwise, I would disagree. I think that the point is more than a semantic one because the midwife has not, and cannot have, obtained informed consent from the patient, and in any case the focus must be on the patient’s wishes and agreement to the procedure at the moment it is about to be performed. In my judgment, it is the sonographer’s duty to satisfy herself that the patient is consenting to the procedure, either with or without the NT, before it is undertaken on the basis of proper information; and that her consent is informed. This in my view logically mandates: (i) checking that there has been a discussion between patient and midwife, (ii) checking that the patient has been supplied with the NHS booklet, and (iii) ascertaining by brief questioning that the patient understands the essential elements and purposes of scanning for Down’s syndrome. These conclusions are in line with the evidence of Dr Chudleigh and Mr Mason which I accept.
  10. As I have said, I reject the contention that items (i)-(iii) above involve in some way prying inappropriately into the patient’s reasons or reasoning and undermining her free choice. Mr Howe informed me that the 2007 National Standards were introduced to obviate these very risks, but there is no conflict between my conclusions and para 8 in particular of this guidance document. The risk only arises in the event of maladroit or insensitive interrogation, and NHS professionals are well habituated to avoid that.
  11. As I pointed out in oral argument, the defendant may be caught between a rock and a hard place. If informed consent was effectively given at the booking appointment, with the decision communicated to the sonographer being something of a formality, the defendant’s forensic difficulty would be that the claimant had accepted (i.e. given informed consent to) six tests including the NT on this very occasion. On that hypothesis, the sonographer ought to have been doing what the claimant had already consented to; or, at the very least, have explored that the claimant’s apparent change of mind was genuine. In any case, even on this hypothesis (which I do not accept), the sonographer would remain under an obligation to ensure that the consent that had been given remained valid. On the other hand, if informed consent had not been given beforehand, which is my analysis, it would be incumbent on the sonographer to take reasonable steps to ensure that it was given before the procedure commenced.
  12. I must say that I believe that Ms Bracher’s opening question, without any preliminaries or preamble, was a somewhat abrupt way to begin an important exchange between a medical professional and a patient. I appreciate that sonographers are busy, are working under time-pressures and that their lists are full, but I am driven to conclude that she should have done more to lay the ground properly, if for no other reason than to preclude the real risk that she and her patient were at cross-purposes and/or that the latter was not listening to her properly. This would be all the more so in a situation such as the present in which the bald question might have confused or bewildered the claimant. Why ask “Do you want the Down’s screening?” when the claimant would have been entitled to think that she had already told the midwife that she wanted this very procedure and that her wishes must have been recorded.
  13. Mr Howe’s practice is materially different from Ms Bracher’s, and in my view probably goes far enough to ensure that informed consent is being obtained. Mr Mason’s gentle question is preferable, as is Dr Chudleigh’s suggested approach. Both would make clear that the procedure about to be performed is an ultrasound for screening purposes involving no more than the measurement of the thickness of the foetal neck: this information, together with a blood test, will lead to the acquisition of more accurate data as to the risk of Down’s syndrome (here, I am paraphrasing heavily).
  14. I appreciate that the modicum of exploration I am holding that the sonographer was duty-bound to perform could lead to the patient asking a series of questions about the procedure which the former might have felt unqualified to answer: a sonographer is not a midwife, and is not trained to provide advice. However, in such circumstances the obvious solution and requirement would be to refer the patient for further consultation with a midwife, preferably on the same day.
  15. In my judgment, it is relevant that it was Ms Bracher’s practice to ask exactly the same question regardless of what had been recorded at the booking appointment. At the very least, and I consider that she should have gone further, in a case where the patient had provisionally accepted screening for Down’s syndrome, she should have asked whether she still wanted it; and in a case where she had rejected it, she should have sought confirmation that this was so. I was particularly concerned by Ms Bracher’s evidence that if the patient had indicated at booking that she did not want Down’s screening and then had answered “yes” to the standard question which is still asked in these circumstances, the sonographer would have proceeded to carry out the NT provided that she was satisfied that her question had been understood. To be fair to her, the way in which this evidence came out during the hearing did not readily facilitate an answer from Ms Bracher as to whether in such circumstances she would have gone on to state what she was going to do (presumably adapting what I have been calling the second limb of her routine to these notional facts); but even if it were her practice to do so there would still be a real risk that patients who did not want screening for Down’s syndrome would end up having the NT.
  16. It is also relevant in this case that the sonographer was not provided with a tabula rasa. She knew, or ought to have known, that the claimant had indicated provisionally that she wanted Down’s screening; or, to use Mr Howe’s terminology, had been made an informed offer to that effect. She knew, or ought to have known, that this was at the very least likely to be the claimant’s expectation when she walked into the room. I do not have to decide how frequently patients do change their mind because on any view this must be uncommon. The sonographer should have been expecting a “yes” answer but instead she heard the opposite. Yet this on my findings prompted no further inquiry. As I have pointed out, Ms Bracher stated in cross-examination that she would not have asked any follow-up questions had she been of the opinion that her patient had understood the question. But the answer “no”, without more, could provide insufficient enlightenment on this crucial issue. By definition almost, the sonographer could not be satisfied that this answer was correct without some further exploration; and to that extent the experts were in agreement.
  17. The issue arises as to whether Ms Bracher’s second limb – uttered just before the patient is asked to lie down in preparation for the scan – is sufficient for the purposes of ensuring that the patient has understood what is, and is not, about to happen. Although expressed as a proposition and not as a question, it is clear that Ms Bracher’s second limb does constitute a further opportunity of sorts to ascertain the patient’s wishes; but is it an adequate one? Dr Chudleigh and Mr Mason are firmly of the opinion that the second limb does not go far enough, and I accept their evidence on this point. A statement of this sort would attract an unacceptably high risk of being met with silence regardless of the patient’s actual state of mind, even assuming, which will not be the position in too many cases, that it has been properly understood. Patients who have not been through this experience before may well assume that everything is still going according to plan and with their wishes: that would, or could, be their working hypothesis.
  18. The fact remains that on Ms Bracher’s account the taking of informed consent involves asking a short question and hearing the answer (maybe 3 seconds); explaining briefly what is about to happen and inviting the patient to lie down (maybe 5-6 seconds); and then turning to the computer and selecting the appropriate dropdown menu (a few more seconds, but the patient will not know precisely what is happening). My overall assessment is that this is an inadequate process in all these circumstances because there remains an unacceptable risk that a patient perplexed by Ms Bracher’s first question will not be properly informed.
  19. I am reluctant to find against a sonographer or any medical professional for that matter who may well have been following the practice of her unit – I heard little or no evidence about this either way. However, I have come to the conclusion that I am driven to do so, for all the reasons I have given, in the face of what logic, common sense, and the preferable expert evidence have dictated.

IMPORTANT WORDS

The penultimate paragraph of the judgment is of some importance.

Nothing I have said in this judgment should be interpreted as suggesting that the birth of a child with Down’s syndrome must be seen as unwelcome. Some parents have absolute ethical objections to termination of pregnancy, and for them the discussion begins and ends at that point. Other parents accept the possibility of having a baby with Down’s syndrome without a shred of concern or reluctance. The State expresses no judgments either way, but it is the policy of the NHS that Down’s screening must be offered to all expectant mothers, the premise being that many would wish to exercise their right to proceed to medical termination in the event of a diagnosis. These various wishes and decisions must be and are respected without comment.