The law is clear that a nurse's duty of care includes giving advice and information about the inherent risks of a proposed action and whether any steps can be taken to minimise the risk (Sidaway v Bethlem Royal Hospital [1985]). Failure to warn of material risks that then caused harm would result in an action for negligence (Chatterton v Gerson [1981]).
The law underpinning this duty to warn moved away from the traditional ‘nurse knows best’ approach to a person-centred ‘prudent patient’ approach with the UK Supreme Court decision in Montgomery v Lanarkshire Health Board [2015]. In its judgment, the UK Supreme Court held that nurses and other health professionals could no longer rely on the paternalistic Bolam Test (Bolam v Friern HMC [1957]) as the standard for disclosing information about risks inherent in treatment. The Court found that greater importance was now attached to personal autonomy and, when asking for advice before making a decision that might have an effect on their health and wellbeing, patients were entitled to information about risks and about alternative treatment that might be available.
Nurses are now under a duty to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. Nurses can no longer selectively choose what information to disclose (Montgomery v Lanarkshire Health Board [2015]).
The Supreme Court now requires nurses to judge the materiality of a risk by considering:
‘… whether, in the circumstances, a reasonable person in the patient's position would be likely to attach significance to the risk, or the [nurse] was or should reasonably be aware that the particular patient would be likely to attach significance to it.’
Montgomery v Lanarkshire Health Board [2015], paragraph 87
Failure to warn and duty to the unborn child
The question as to when a duty of care is owed to an unborn child is one that often challenges practitioners, including nurses, and the courts. The initial presumption under English law is that an unborn child has no legal rights until it is born alive (Paton v British Pregnancy Advisory Service Trustees [1979]). An unborn child cannot sue or recover damages and, in R v Tait [1990], a threat to a pregnant woman to kill her unborn child was held not to be a threat to kill a third person under the Offences Against the Person Act 1861, section 16, because a foetus is not a person distinct from its mother. However, once born alive a child can retrospectively apply its rights back into the womb.
At civil law the Congenital Disabilities (Civil Liability) Act 1976 does allow a child born with disabilities caused by medical negligence before birth to sue for a breach of duty of care even though they were not a person in the eyes of the law when the injury took place, if its provisions are met.
The Congenital Disabilities (Civil Liability) Act 1976, section 1, provides that if a child is born disabled as the result of an occurrence before its birth by a person who owes the child a duty of care, then the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable in negligence.
The occurrences that can give risk to negligence are either one which (Congenital Disabilities (Civil Liability) Act 1976, section 1(2)):
- Affected either parent of the child in his or her ability to have a normal, healthy child or
- Affected the mother during her pregnancy or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.
Cases that affect the mother during her pregnancy or affect her or the child in the course of its birth have been the main cause of action under the 1976 Act. In Burton v Islington Health Authority [1993] a baby was born with disabilities caused by negligent treatment of the mother during pregnancy by the health authority. The Court found that a child born with disabilities caused by negligence before birth can sue for breach of duty of care since, although not a person in the eyes of the law when the injury took place, an unborn child is clothed with all the rights of action when born alive that it would have had if in existence at the date of the accident to its mother.
Similarly, in Montgomery v Lanarkshire Health Board [2015] the UK Supreme Court held there had been negligence when a woman who was diabetic was under the care of an obstetrician as she was expected to have a large baby. Although the risk to her baby of shoulder dystocia, where the baby's shoulders would be unable to pass through the pelvis, was some 9-10%, this risk was not disclosed to the mother, nor was the alternative possibility of delivering the baby by caesarean section. Shoulder dystocia did occur, and the baby suffered severe disability from the resulting occlusion of the umbilical cord.
Occurrences affecting the parent or their ability to have a normal, healthy child
Cases under this category of the 1976 Act have been much rarer but the High Court recently ruled on a case where a failure to warn of preconception risks was held to be negligent and the child could claim damages for being born with a neural tube defect.
In Toombes v Mitchell [2020] the claimant, a woman now aged 20, was born with a neural tube defect causing spinal cord tethering. Her mobility was limited, and she suffered from double incontinence. She alleged that the cause of her disability was her mother's failure to take folic acid before her conception, which was caused by the defendant's negligent advice. There was a failure to warn her mother of any association between folic acid intake and the prevention of spina bifida or neural tube defects. The High Court had to first establish if a failure to warn of preconception risks fell within the provisions of the Congenital Disabilities (Civil Liability) Act 1976, which would allow a claim for damages for harm caused in the womb.
The High Court held that causes of action under section 1 of the 1976 Act involved three components:
- A wrongful act
- An occurrence set out in section 1(2)
- And a child born disabled as a result of the occurrence.
The word ‘occurrence’ meant that something happened; but the 1976 Act did not require that it involve a change or alteration in the mother's physiological state. That is made clear by section 1(3), which says it is no defence to a claim from the child to say the mother suffered no actionable injury. There was no reason why the claimant's mother's reliance on the negligent advice she was given and having sexual intercourse in a folic-acid deficient state, could not be a relevant occurrence.
The High Court concluded that all three elements required under the 1976 Act were present in the child's case:
- A wrongful act, negligent advice about taking folic acid preconception
- This led to an occurrence, sexual intercourse in a folic-acid deficient state
- This resulted in a child born with disabilities due to that deficiency of folic acid.
In a further hearing, Toombes v Mitchell [2021], the High Court accepted as fact that there was a failure to advise the mother about the relationship between folic acid supplements and the prevention of neural tube defects, and a failure to advise her to take such supplements prior to conception and for the first 12 weeks of pregnancy. The High Court accepted that had the mother been provided with the correct recommended advice, she would have delayed attempts to conceive. In the circumstances, there would have been a later conception that would have resulted in a healthy child. The claimant was therefore entitled to damages.
Conclusion
The case of Toombes v Mitchell [2020] extends the duty to warn of risk to include preconception advice. Nurses who fail to warn of risks causing harm to a child later born alive will find the case falls within the scope of the Congenital Disabilities (Civil Liability) Act 1976, which will allow the disabled child to sue for harm caused in the womb as a result of negligent advice.
KEY POINTS
- A nurse's duty of care includes giving advice and information about risks
- The Congenital Disabilities (Civil Liability) Act 1976 allows a child born with disabilities caused by medical negligence before birth to sue in negligence
- The case of Toombes v Mitchell [2020] extends the duty to warn of risk to include preconception advice
- Nurses who fail to warn of preconception risks that cause harm to a child later born alive can be sued for negligence if the requirements of the Congenital Disabilities (Civil Liability) Act 1976 are met