I thought it might be interesting if I provided a wider circulation to this lecture I gave 12 years ago. In the present debate about British rights it shows how mid-way through the period under review English law started to struggle for the first time with issues concerned with patients’ rights. When I carried out widescale research before appearing for the defendants at first instance in the leading case of Sidaway, I had to look to common law jurisdictions overseas (in Canada and the United States and New Zealand, for instance) before I could mount coherent arguments in answer to the plaintiff’s complaint that the neuro-surgeon had performed a cervical laminectomy upon her without her informed consent. I then went off to the Sizewell Inquiry for two years, and when I returned I plunged into the new controversies surrounding the interpretation of the Mental Health Act 1983 and the island of rights-based law in the centre of its new legislative scheme.
The recent judgment of the UK Supreme Court in Montgomery v. Lanarkshire Health Board  UKSC 11 shows how far our law has naturally progressed since the Sidaway case so as to reflect the more mature approach to issues concerned with the patient’s “right to know” that was set in motion by Lord Scarman’s speech in Sidaway.
The Annual Minty Lecture to the Medico-Legal Society, 9th October 2003. A transcript of the text as delivered was published in the Medico-Legal Journal, Vol 72, Part One (2004) at pp 17-28.
Tonight we celebrate the Minty bequest again. Leonard Minty was a member of this Society for many years. He loved it so much he remembered it in his will. I have only been a paid up member for 16 or 17 years, but I understand why he loved it so much. I hope that bequests to the Society may catch on.
When the curate asked his bishop how long he should preach for, he was told he could preach for as long as he liked, but diocesan records showed no evidence of any souls being saved after the first ten minutes. I have been told to speak for an hour. If you go to sleep, be sure you wake up before we start drinking the bequest.
I was given a free choice of title. I am not a specialist in the medico-legal field. Later this year you will be hearing from a real specialist, James Badenoch QC. I am a butterfly, not a worker ant like James, but I have been lucky enough to have been quite close to a number of developments in the law over the last 40 years. I thought it might be quite interesting to talk about them.
I begin in 1963. It was in September of that year that I joined my chambers as a pupil. I was then 27. Passing Bar exams with the help of a correspondence course and a crammer taught me the names of lots of cases, but not much about legal practice. As Peter Webster’s pupil for a year I spent a lot of time watching an experienced junior at work advising doctors brought to him by Hempsons on behalf of the Medical Defence Union. So 1963 seemed a good place to start.
I will begin by saying something about law and practice all those years ago. The playing field was tilted in the doctors’ favour. I will refer to the way the legal duty of care was formulated; the law on limitation of actions; the law on discovery of documents; and the law, such as it was, on patients’ rights. Part of the prevailing culture, as Roger Clements said recently, dictated that it wasn’t really cricket for a doctor to give evidence against another doctor. Neither side had to disclose their expert evidence, or even the names of their experts, before trial. A plaintiff had no real way of assessing before trial the strength of the case for the defence, or of knowing why the defendant doctor would be saying that he had followed a practice thought to be reasonable.
There were two other features of that scene, both favourable to doctors, which I associate with Lord Denning’s name. I will come to him later on.
First, then, the legal duty of care. There are two things to notice about this. The main duty of care the law recognised then was the duty to take reasonable care not to do physical harm to one’s neighbour or his property. A doctor’s patient was his neighbour for these purposes. If the physical harm was accompanied by mental suffering, a patient could receive compensation for that as well. But in general there was no legal duty of care not to cause psychiatric injury on its own: I will come to the exceptions later on. In May 1963 the House of Lords detected for the first time a legal duty to take care not to cause economic loss, but that part of our law was still in its infancy.
The other thing, of course, was the Bolam test. Mr Justice McNair was a judge of the commercial court. A common lawyer like me remembers him for his directions to the jury in the Bolam case. I want to say something about the facts of that case before coming on to his statement of the law to the jury.
It was tried by judge and jury in February 1957. It was one of the last civil jury trials in a medical negligence case. A judge then had a discretion as to the mode of trial. Most such cases were tried by judge alone, but this one was a bit out of the ordinary.
Mr Bolam was a voluntary patient in a mental hospital. He was given ECT treatment. An electric current was passed through his brain. He suffered violent muscular contractions and spasms, and he had not been given any form of relaxant. He was left with bilateral stove-in fractures of the acetabula. He had not received any form of manual restraint. Nor had he been warned there were any risks. There were therefore three allegations of negligence: no relaxants, no manual restraint and no warning.
I need not say much about the first two. There was a firm body of medical opinion opposed to the use of relaxants in these circumstances. A number of competent practitioners also thought that the less manual restraint there was, the less likely the risk of fracture.
As to the risks, the plaintiff’s expert said he always told a patient what was involved in ECT treatment, including the possibility of fractured bones. He accepted that sometimes this might be unwise. But he said it would not be right to give no warning to a patient provided he could understand a warning.
The defendants called three doctors. The first said he thought the dangers were minimal. If the patient did not ask him about the risks, he would say nothing about them. He did not want to give a mentally ill patient the opportunity to refuse the only helpful remedy then available.
The second doctor said that he would have to use his judgment. Giving the full details might drive a patient away. The third doctor’s evidence went along the same lines as the first.
When he directed the jury, the judge gave them a very strong steer. The jury had been told it was the introduction of physical methods of treatment of medical illness that had led to mental patients being given a real chance of recovery for the first time. ECT was the most important of these. The judge said that although it was a matter entirely for them, the jury might well think that when a doctor was dealing with a mentally sick man and had a strong belief that his only hope of cure was ECT treatment, he could not be criticized if he did not stress the dangers, which he believed to be minimal, involved in that treatment.
That was 1957. Today a judge would be very much more concerned about the patient’s capacity to understand, and about his entitlement to know the risks involved in a violent invasive assault on his brain.
But Bolam did not enter the law books as a decision on the facts. We know of it because of the judge’s direction on the law. He told the jury that in an ordinary negligence case the standard by which a defendant’s conduct was judged was the standard of reasonable conduct judged by the man on the top of the Clapham omnibus. But where there was a situation which involved the use of some special skill or competence, the test was the standard of the ordinary skilled man exercising and professing to have that special skill. He said that a doctor was not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in their particular art.
The medical profession in effect set the standards. The judges did not set them. In this respect their approach to medical practice differed from their approach to solicitors’ practice. In that context they believed they were qualified to decide what was proper practice and what was not. They did not let other solicitors come and give them their views on the matter.
The 1963 law on limitation seems a very long way away. Of course, if a surgeon cut off your left leg when you had consented to his cutting off your right leg you would know about it as soon as you emerged from the anaesthetic. But if the harm was latent, the three-year limitation period ran from the time the harm was more than minimal. You might be statute barred before you discovered that there was anything wrong with you. Parliament tried to remedy things in 1963, but it took another 12 years for the law to settle down as it is now.
The 1963 law on discovery of documents also seems strange to us now. There was no question of pre-action discovery of the other side’s documents. Until the pleadings were closed, the plaintiff’s advisers had to do their best with their client’s version of events and any notes and letters he happened to have. And there was no way of obtaining documents from a third party. The best one could do was to serve a subpoena to the third party to produce their documents at the trial.
Even after the law changed in 1969, doctors were so unkeen for a patient to see his own medical records that they succeeded in persuading the Court of Appeal to limit disclosure to the other side’s experts on a confidential basis. It was not till 1978 that the House of Lords ended this practice of restricted disclosure.
Finally, there was no clear-cut articulation anywhere of what a patient’s rights were. The law of trespass stopped a doctor from committing a battery on his adult patient of sound mind without his consent, but that was about as far as the law went. With adults of unsound mind there were a lot of grey areas. It was not till the 1980s that any real attention was paid to the legal validity of the practice by which consent was always sought from a surrogate, such as a patient’s next of kin. In general the law said that patients could safely trust their doctors, and that the application of the Bolam test was the fairest way of administering justice between doctor and patient.
In the late 1970s I wrote five hundred pages under the title “Medicine” for the third edition of Halsbury’s Laws. I doubt if I mentioned patients’ rights at all.
Practice in relation to the pre-trial disclosure of experts’ reports stayed in the dark ages until the mid-1980s. The general rules on the disclosure of experts’ reports changed in 1969. But the court had a discretion in cases where the facts were in dispute, and because the facts were always in dispute in medical negligence cases, pre-trial disclosure of experts’ reports was never ordered.
Finally, Lord Denning. He disliked large damages awards in personal injury cases, and his views influenced the other members of the Court of Appeal. He had an even greater antipathy to medical negligence actions. I will say something about his judgment in Hucks v Cole in a few minutes.
Peter Webster’s work came from the MDU via Hempsons. In those days the two medical mutual societies handled every claim against a doctor. When the NHS started, the doctors insisted on being allowed to arrange their own liability insurance. They refused to be dependent on NHS bureaucrats. They feared that medical negligence claims might be admitted for reasons which had little to do with the merits of the defence. If the MDU regarded a doctor’s case as shaky they settled it well before trial. At the trial they always insisted on a QC. They wanted to provide doctors with the very best.
I do not have the 1963 figures, but I do know that in 1952 the MDU paid out a total of £35,000 in compensation payments to patients. I doubt if the figure for 1963 was very much larger. Hempsons had only six partners then, and Peter Webster advised them on most of the High Court claims in London and the South East.
So much for 1963. Now a word about a case in 1968. Mrs Hucks was due to have a baby, and Dr Cole was her GP. He also attended the local maternity hospital. Just before she went to hospital he visited her and saw she had a septic spot on her finger. He did nothing about it. On the day after she had her baby, a nurse saw that she now had two septic spots. Dr Cole prescribed a 5 day course of tetracycline. Tetracycline stops bacteria growing, but it does not kill them. A path report then told him that penicillin would kill the streptococcus, but he decided to keep her on the tetracycline until the end of the course. This decision was not faulted at the trial.
The notes showed that the septic places were not completely healed on the fifth day. Dr Cole did not prescribe penicillin then. Instead, Mrs Hucks went home with no further treatment. She then became ill with fulminating septicaemia and very nearly died. She suffered from a serious psychiatric disorder as a result, but the judge said he was sure that she would overcome her handicap, and awarded her £2,500. The Court of Appeal increased this award to £4,000.
At the trial the plaintiff’s expert said that no responsible practitioner would have stopped treatment completely. Three doctors, including Dr Josephine Barnes, all said they would have done the same as Dr Cole. There was no direct evidence, other than the notes, about Mrs Hucks’s condition when the tetracycline ended. Two nursing witnesses who could have given evidence about this, were present in court but were not called by the defence,
This seems to have been the only reason why the majority of the Court of Appeal upheld the trial judge’s finding of negligence. Lord Justice Diplock was worried that the judge was requiring a higher standard of prescience than should be expected of a GP with obstetric qualifications. Puerperal septicaemia was now very, very rare. Dr Cole had simply forgotten about it. Lord Denning, for his part, expressed views about the higher burden of proof in medical negligence cases that were quoted again and again in court until the House of Lords said that he was wrong. He said that a charge of negligence against a medical man, a solicitor, or any other professional man, stood on a very different footing from a charge of negligence against a motorist or an employer. The reason was because the consequences for the professional man were far more grave. A finding of negligence affected his standing and reputation. The burden was correspondingly greater. The principle applied that: ‘In proportion as the charge is grave, so ought the proof to be clear.’ He added that a doctor was not liable for an error of judgment. He was only liable if he fell so far below reasonable standards that his conduct might fairly be held to be inexcusable.
The third judge, Lord Justice Sachs, was struck by the evidence from the three defence witnesses that they would have done the same thing in Dr Cole’s shoes. But he was also struck by the grave nature of the risk they were overlooking. He said that when the evidence showed that a lacuna in professional practice existed by which risks of grave danger were knowingly taken, then, however small the risks, the court must examine that lacuna – particularly if the risks could be easily and inexpensively avoided. If the court finds, on analysis of the reasons given for not taking those precautions, that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function was to state that fact and where necessary to state that it constituted negligence.
To-day all three judgments would be published immediately on the BAILII website. In 1968 things were different. The transcripts were lodged in the Supreme Court Library, where they could not be copied except at great expense. There was a very brief note of the case in The Times, and that was all. I am sure I did not mention Lord Justice Sachs’s judgment in Halsbury’s Laws. Professor Ian Kennedy quoted it in the first edition of his book on Medical Law in 1989, but it did not surface in a law report until 1993.
That was 1968. Practice in the field of medical negligence cases did not alter much until the early 1980s. Then things started to change. The change was associated with the growing influence of human rights law. If a patient’s entitlement to personal autonomy was properly acknowledged, how did this square with the “doctor knows best” syndrome? Were the judges too ready to allow doctors to be judges in their own cause? How much information was a doctor legally obliged to give his patient about the risks of the treatment?
In about 1980 I was instructed as a junior to settle the defence of the Bethlem and Maudsley Hospital in the Sidaway case. By the time of the trial before Mr Justice Skinner in February 1982 I was a QC.
Mrs Sidaway had had problems since she injured an elbow in 1958. In 1960 she was referred to Mr Falconer for the first time. He diagnosed a narrowing of her spinal column between the fifth and sixth cervical vertebrae. Surgery was successful. The pain reappeared in 1973. In 1974 Mr Falconer performed a laminectomy of C4 and a facetectomy of the disc space between C4 and C5. Sadly the supply of blood to her spinal cord was obstructed during the operation, and she suffered lasting impairment of movement on her right side. Nobody blamed negligent surgery. Damages were agreed at £67,000.
She said that she would never have consented to the operation if she had been told of a risk that she would become so severely disabled. She framed her claim in both battery and negligence. The judge found as a fact that she would not have consented if she had been warned of the very slight risk.
Mr Falconer had died before 1980. We had to prepare the defence on the basis of other people’s knowledge of him. He was a wonderful, caring surgeon, but he was also a man of very few words. The judge found as a fact that he did not tell Mrs Sidaway that this was an operation of choice. He said there was a possibility that he might disturb a nerve root, and of what that might entail, but he did not tell her about the very, very rare risk that he might cause damage to her spinal cord.
When I researched the law on behalf of the defence, I found virtually no help in any decided English case. An article by an academic at Leicester University gave some useful leads into overseas cases. There I found more traces of a rights-based approach to medical law. Three Canadian cases denied a surgeon the right to go further in the middle of an operation than his patient’s consent allowed unless there was a life-threatening emergency. There were traces of a rights-based approach in South Africa and New Zealand. Much more significant was a recent decision of the Supreme Court of Canada, and the recent development in some US state jurisdictions of a pretty rigid set of rules on informed consent. As I read on, it became clear that the judges in some of those states were concerned with the habit of some neuro-surgeons in private practice to offer to do a cervical laminectomy for ten thousand bucks then and there for a patient with a pain in the neck without first exploring the possibilities of more conservative forms of treatment.
I have three memories of that trial 21 years ago. The first was the quality of the evidence given by Mr Uttley, of the Atkinson Morley Hospital, on behalf of the plaintiff. Although he admired Mr Falconer, Mr Uttley was adamant that it was the neuro-surgeon’s duty to warn a patient of a risk like this if there was a chance that an operation would turn out so catastrophically. The second was the evidence given for the defence by a very distinguished neuro-surgeon, recently retired. He divided his practice up into three equal parts. Between the ages of 30 and 40 he told his patients about the risks he had read about in books. They would often disappear under their bedclothes in fright until a junior member of his team told them not to take any notice of what he had just said. Between 40 and 50 he told them about the risks they might meet in his hands. And between 50 and 60 he did not warn them at all because he knew that there was no risk in his hands. He retired on his sixtieth birthday. The judge did not accept the whole of his evidence as setting an appropriate standard of care for neuro-surgeons generally.
My third, and most vivid, memory of that trial is of Dr Goudarzi. He was an Iranian. He had been the senior house officer in Mr Falconer’s team at the time. He was therefore the only defence witness able to give direct evidence on the facts. The MDU ran him to earth in North Carolina and flew him over for the trial. I remember him suddenly stopping his evidence, a propos of nothing in particular. He turned to the judge and said: “For God’s sake, My Lord, don’t subject English doctors to what we have to put up with in North Carolina!” He then described the long printed lists of all the rare possible outcomes of every treatment which he had to give his patients to read before obtaining their consent.
Four consultant neuro-surgeons gave evidence, and their evidence provided a gold-mine for the judges in the higher courts when they considered whether a doctrine of informed consent formed part of English law. Mr Uttley, however, admitted in cross-examination that he would not personally question the judgment of a surgeon that it was not in a patient’s interest to frighten her by telling her about death or paralysis. That admission was always likely to win the case for the defence in the end, and so it proved.
I was away at the Sizewell Inquiry when that case went up and up. As we know, the majority of the House of Lords applied the Bolam test and decided that the doctrine of informed consent formed no part of English law. The eight judgments in the higher courts provide an interesting insight into judicial attitudes in the early 1980s to the importance of giving effect to a patient’s right to know what his doctors were doing. At one extreme is the attitude of Lord Justice Dunn in the Court of Appeal:
“The evidence in this case showed that a contrary result would be damaging to the relationship of trust and confidence between doctor and patient, and might well have an adverse effect on the practice of medicine. It is doubtful whether it would be of any significant benefit to patients, most of whom prefer to put themselves unreservedly in the hands of their doctors. This is not in my view ‘paternalism’, to repeat an evocative phrase used in argument. It is simply an acceptance of the doctor-patient relationship as it has developed in this country.”
At the other is the minority opinion of Lord Scarman in the House of Lords:
“To the extent I have indicated, I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of the patient’s condition he takes the view that a warning would be detrimental to the patient’s health.”
So much for informed consent. Provided a doctor’s practice satisfied the Bolam test, he would have a complete defence to a claim in negligence, unless the court concluded that a risk of a seriously untoward result was so high that the court could form its own judgment about the extent of a doctor’s duty. Lord Justice Sachs’s judgment in Hucks v Cole was still gathering dust in the library. It was not cited in the Sidaway case at all. Everyone agreed that the law of battery provided no help in identifying the content of the doctor’s legal duty, provided he told the patient in broad terms what he was proposing to do before obtaining his consent.
I would pick out three features of the early 1980s, apart from the creation of AVMA in 1982. The appropriateness of the Bolam test was upheld three times in the House of Lords. The doctrine of a legally enforceable duty to obtain a patient’s informed consent was rejected. And efforts to introduce the law of battery into the resolution of claims arising out of clinical mishaps was rebuffed, except in those cases where there was obviously no consent at all.
A new phenomenon then arose. Arguments based on the speech of Lord Wilberforce in McGhee v National Coal Board and an earlier judgment of his own led Peter Pain J to reverse the burden of proof in relation to both liability and causation in Wilsher v Essex Area Health Authority. If a patient could show that a doctor had failed to take some precautionary step, the doctor would be held liable in negligence if a risk eventuated which the precaution existed to prevent unless he could prove that he had not been negligent. He also held that the doctor also had to prove that his negligence, established in this way, did not cause the harm complained of.
The case was also remarkable because it was almost the last, and certainly the oddest, example of the “trial by ambush” way of conducting litigation of this kind. The defendants called four experts, but they had only disclosed the report of one of them, and he had completely changed his mind before he gave evidence at the trial. The judge therefore had to try to understand what they were saying as the case went along. In the end a trial listed for five days lasted four weeks. I came into the case later, and I was told by my junior that the judge only began to understand the effect of much of the evidence he had heard during his closing speech for the defence.
Any one of seven different causes, including the very fact of premature birth itself, might have caused the retrolental fibroplasia which led the boy to be virtually blind all his life. The Court of Appeal straightened out the judge’s views on the burden of proof on liability, but the majority of the court upheld his approach on causation. Lord Justice Mustill said that if it is known that a risk may ensue from a breach of duty, and if the breach of duty and the identified risk both occur, then unless the contrary can be proved, the risk must be held to have been caused by the breach of duty, even though the existence and extent of the contribution made by the breach could not be ascertained.
The five members of the House of Lords all had immense experience of this kind of litigation, and I persuaded them to have none of it. I was conducting the Harrods Inquiry at the time and I remember I had to take a week away from Mr Tiny Rowland and Mr Mohamed al Fayed in order to get on top of the finer details of the law on causation.
Lord Fraser told us that the reason why there was a glut of Scottish cases in the 1950s and 1960s which eased the way of plaintiffs in industrial disease cases was that the judges were appalled by the poor working conditions in Scottish factories in those days. They were determined to use tort law to ensure that employers’ liability insurers took effective steps to improve things. Lord Lowry, for his part, kept saying that a judge in Ulster would have made findings of fact against which I could not have appealed. I agreed.
At all events the House of Lords unanimously restored the burden of proof on causation to where it had always been, and said very firmly that McGhee was a decision on its facts and made new law. They ordered a retrial. The boy was now nearly ten, and his claim was settled before the retrial took place. Lord Bridge hated taking his damages away, and whenever I met him over the next ten years he would ask me: “Did the blind baby get his damages after all?”
Wilsher, then, was another case in which orthodoxy prevailed. Orthodoxy was quite unable to solve a different problem with which I was concerned at the time, because there was no orthodox solution to it. I refer to the spotlight thrown on the adult mental patient’s right to decide by the Mental Health Act 1983 and its aftermath.
The Mental Health Act 1959 had abolished the old parens patriae jurisdiction of the Chancery judges. Before 1959 a mentally disabled adult might be made a ward of court, and a judge could then take decisions for him. In the 1960s and 1970s a series of scandals at large psychiatric hospitals led Parliament to introduce US-style rights law into our statute book. In future if a mental patient was compulsorily detained, he could not be treated for his mental disorder without his consent unless some stiff statutory requirements were satisfied. The more intrusive the treatment, the stiffer the requirements.
But after creating this oasis of statutory rights-based law, Parliament did nothing about the acres of freedom-based common law all around it. Who could now give lawful consent to treatment given for voluntary adult patients for their mental disorder if they could not take decisions for themselves? Who could give a lawful consent for a sectioned adult patient for treatment not connected with his mental state? With children, the wardship court could give consent, but this had not been possible for adults for over 20 years.
Nobody knew the answers. I was advising the Royal College of Psychiatrists and acting for a number of consultant psychiatrists at the time. For this reason I came and spoke at a symposium in this building 16 years ago when we were all guessing what the answer of the common law judges might be.
It was obvious that the common law had to solve the problem in some way or other. We bandied a number of ideas about, but none of us hit on the solution that the House of Lords eventually stumbled on in re F. F was a 36-year old voluntary patient in a mental hospital with the mental age of a small child. A male patient fancied her, and the hospital staff believed it would be in her best interests to have her sterilised, because she would not be able to cope with the effects of pregnancy and childbirth. The difficulty was that there was nobody who could give a lawful consent.
Lord Goff hit on an answer from his knowledge of shipping law. When a ship got into difficulties far from home, the ship’s master could take decisions in an emergency binding on the ship’s owner through what was called his agency of necessity. The law allowed an agent to act on his principal’s behalf when it was not in practice possible for him to take instructions, so long as he acted bone fide in his principal’s interests. Lord Goff derived two rules from this line of cases. There must be a necessity to act in a situation where it is not practicable to communicate with the person being assisted. And the action taken must be such as a reasonable person would take in all the circumstances of the case, acting in the best interests of the assisted person.
This formula left a lot of difficult questions unanswered. Because there was a gap in the law, the law lords had invented a solution, but when law lords do this kind of thing they leave a lot of rough edges. When I was at the Law Commission we produced a report in 1995 which smoothed out a lot of these rough edges, but Parliament has ignored it. The House of Lords has now had to stretch the agency of necessity rules to cover the treatment of voluntary patients for their mental disorder. They now have none of the statutory protections provided for compulsory patients by the Mental Health Act. It is high time that this part of the law was put on a coherent statutory basis.
By this time further issues had arisen which would have been unheard of in 1963. The legal academics like to categorise them as wrongful conception or wrongful birth or wrongful life cases. There are two reasons why they would have been unheard of. The first arose from doubts about the lawfulness or the appropriateness of sterilisation for non-therapeutic purposes. The other was that until 1967 abortion was unlawful.
Wrongful conception cases are those where the conception of an unwanted child follows a negligently performed sterilisation. Wrongful birth cases are those when a woman maintains she would have had an abortion if medical negligence had not deprived her of the choice. Wrongful life cases are those where some other form of negligence leads to the conception and birth of a child who would not have been conceived but for the negligence.
I first encountered a wrongful life case in the late 1970s. A girl had been born with a genetic disability which led her to have claw hands and feet. When she married, her first child had this same disability. She was determined not to give birth to another child with this condition. Her GP, however, thought he was an expert on genetics, and he told her not to worry: the risk of this happening again was very small. So she had another baby, who had the same disability. She was then told that the chances of a recurrence were in fact at least 50-50. So she went to her lawyers. They claimed in the name of the child.
This was uncharted territory. Again I had to cross the Atlantic for an answer. The Supreme Court of New Jersey had produced one answer in a rubella case in 1967. They held that the handicapped boy’s complaint involved his saying he would have been better off not to have been born at all. They said: “Man who knows nothing of death or nothingness, cannot possibly know whether that is so”. In Wyoming a judge said that to make this comparison was beyond the competence of these cold courts. In another state a judge quoted Oedipus’s cry at Colonus (“Not to be born was best”) before holding that the correctness or otherwise of this proposition was non-justiciable.
At all events in my case liability was denied on these grounds, and the parents must have received similar advice. About five years later the English Court of Appeal reached the same conclusion. It is now the parents who claim for the loss they have suffered, and this in turn may give rise to difficulties.
In the early 1980s the English Court of Appeal held that it did not offend public policy for a court to award damages to parents for the cost of bringing up a healthy child they would never have had but for a doctor’s negligence. We then had plenty of cases which evidenced the very real hardships which some of these parents encountered. I decided one of them in the early 1990s, and the report of that case showed the difficulties the mother encountered because the doctor who sterilised her had not spotted that she was already pregnant at the time.
The courts did not suggest that a mother should reasonably have an abortion once she knew the true position, or that she should have mitigated her loss by putting the child out for adoption. In my case I expressed surprise that as the law stood, parents who had always had their sons educated at Eton could obtain the cost of an education at Eton for the unwanted child out of the NHS. The House of Lords has now held that the law will not recognise the validity of a claim for bringing up a healthy unwanted child. But the law of causation is also on the move, and it may be that the answer to my puzzlement would now be that although the cost of an Eton education was a foreseeable and reasonable consequence of the doctors’ negligence, it would not be fair or just to impose this financial burden on them.
Another case of mine at the same time raised a different set of difficulties. A mother gave birth to a child suffering from spina bifida. She had had an ultrasound scan at 26 weeks and it was common ground that the doctor should have spotted the signs of spina bifida in the fetus. The question I had to decide was whether she could have had a lawful abortion at that stage of her pregnancy if she had been correctly advised about the scan. The law did not then preclude an abortion at more than 24 weeks, so that I had to decide whether the child was by then capable of being born alive. If he was, the Infant Life Preservation Act 1929 would outlaw the abortion. I held that he would have been capable of being born alive, and there was no appeal. Soon after this Parliament altered the law, and this problem would not occur today.
That case brought home to me the difference between the precision of English law, even if it is sometimes expressed in old-fashioned terms, and the imprecision of rights-based law which may leave the judges in the eyes of a political storm. In Roe v Wade the US Supreme Court produced an inventive interpretation of the 14th amendment to the US Constitution, and the row about the way the 14th amendment should be interpreted in abortion cases has rumbled on ever since. There is still unfinished business in Strasbourg jurisprudence, too, about the meaning of the right to life in Article 2 of the European Convention. As the Convention is called a living instrument there may yet be shoals ahead. In England all a judge had to do was to interpret an Act of Parliament. Parliament had decided when an abortion should be legal and when it should be illegal, and there was thankfully no room for the judges to make these decisions for themselves.
There was plenty of other work for the judges to do by now. Difficult new issues came rolling in. I was on duty as the Queen’s Bench judge in chambers when the first case arrived in which a mother was refusing to have a Caesarean operation although the doctors said that her baby’s life or health would be at risk if they were not allowed to operate. At the last minute the President of the Family Division heard about the case and transferred it to his list. After a fairly short hearing he directed that the operation should go ahead without the mother’s consent. I remember thinking at the time that I would have found the case much more difficult than he did. The Court of Appeal, after hearing much fuller argument, has now said that he was wrong. But now there is a great deal of case-law and academic writing in this country about a mother’s right to decide for herself. In the early 1990s there was virtually nothing.
In the context of the general law of negligence things were also on the move. In Bolitho v City and Hackney Health Authority, decided in November 1997, the House of Lords built on the foundation laid by Lord Justice Sachs in Hucks v Cole. The case related to a two year old boy with breathing difficulties. The boy suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. A doctor was found to have been negligent in not responding effectively to a call from a nursing sister. The question then arose whether the outcome would have been any different if the doctor had responded to the call. The doctor said that if she had attended she would not have arranged for the boy to be intubated. Five distinguished experts for the plaintiffs all said that any competent doctor would have intubated. Three distinguished experts for the defence all said that on the symptoms the boy presented intubation would not have been appropriate. The judge found one expert on each side to be particularly impressive.
Did the doctor have a good defence? Negligence was proved, and she could not be heard to say that if she had attended the result would have been exactly the same if her own practice in that event would have been a negligent one. The judge refused to choose between the two competing strands of medical opinion, and the higher courts held that he was right to do so. But in the House of Lords Lord Browne-Wilkinson opened wide the door which Lord Justice Sachs had pushed ajar all those years before. He said that there may be some cases where a judge may not be satisfied that the body of medical opinion relied upon by the defence is reasonable or responsible. Where it is clear that responsible medical opinion has weighed the risks and benefits of a particular course of practice, the judge will not second guess the experts. But if, in a rare case, it can be demonstrated that a professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I said that I would return to the cases where the courts allow the recovery of damages for psychiatric illness when no physical injury has been sustained. This line of authority began in 1901 in a case in which a runaway pair-horse van broke into the front room of the pub where a pregnant barmaid was serving drinks. She recovered damages for the shock which brought on the premature birth of what the judges called an idiot child. This “nervous shock” line of cases then developed slowly. By the early 1990s recovery was still only possible if the plaintiff’s psychiatric illness was triggered off by some shocking event, if he or she was very closely related to the person who suffered the shock, and if the damage was suffered because he or she was present at the shocking event or came upon its immediate aftermath.
I had to apply this part of the law in a clinical negligence case in December 1992. The claim was brought by a father whose 23-year old son had been injured in a motor-cycle accident. He was at his son’s bedside for 14 days before the son fell into a coma and died. He then suffered a very severe and prolonged grief reaction. He felt that his son might have survived if the medical management of his case had been different, and that there might have been something he could have done to influence the treatment policy. For the purposes of deciding a preliminary point I was invited to assume that the treatment had been negligent.
The father’s illness was obvious, the hospital’s negligence was assumed, and the one could clearly have been shown to have caused the other. But there had been no sudden shock, and I had to disallow the claim for this reason. The Court of Appeal later held that I was correct to do so.
Since then the House of Lords has made the law even more complicated. We have to distinguish between primary victims and secondary victims. A primary victim can now recover damages for psychiatric illness without having to prove any physical injury as well. A secondary victim still has to go through a lot of judge-made hoops before a claim can succeed. Recently the Court of Appeal gave the law another little nudge in a claimant’s favour. Nobody could say that the present state of the law is rational, but the House of Lords now refuses to go forwards or backwards. The Law Commission recommended a number of sensible reforms seven years ago, but again Parliament has taken no notice. If there is a contract between the parties, the law is different again.
With the blurring of the distinctions between psychiatric and physical injury came group litigation where claims were based on the plaintiffs’ anxieties. This kind of litigation brings its own problems, particularly now that solicitors are allowed to advertise – another sea-change from 1963. I saw some of the problems in an appeal we decided six years ago. A health authority had discovered that one of their health workers was HIV positive and there was a very remote risk of infection from that source. It decided to pass the news about this discovery to every patient who had had any contact with this health worker. They also told the patients’ GPs. They told the patients that counselling and blood-testing would be available to anyone who wanted it.
100 of the 830 patients who had had dealings with the health worker then sued the authority for damages for negligence. We overruled the judge and held that the defendants had not been negligent in adopting the strategy they chose. We did not apply the Bolam test because there was no adequate well of professional experience on which to draw: there had been only one previous incident of its type. A judge therefore had to decide for himself whether the health authority fell below the standards reasonably to be expected of it when it selected its preferred method of communicating the news to its patients. He could listen to what the experts had to say, but in the end the decision was his.
A worrying feature of that case was that the plaintiffs would have to show that they had suffered from a diagnosable psychiatric illness, if they were to succeed. By the time the case reached our court on the issue of liability after five and a half years, legal aid had not been extended to obtaining a psychiatric report on any of them. Nobody seems to have thought this out the difficulties of causation or proof of damage very clearly. This type of litigation now seems to be in the doldrums.
The House of Lords has now told us that a claim may be classified as a personal injury action even though there is neither a physical injury nor a diagnosable psychiatric illness. They decided this in one of the dyslexia cases. The Court of Appeal had held that the plaintiff could not recover because the psychological upset the dyslexia had caused him did not constitute an injury properly so called. The House of Lords reversed them and held that it was fair, just and reasonable to allow the plaintiff to recover from the negligent authorities who had failed to diagnose his dyslexia.
For the purposes of the Limitation Act they were willing to equate the psychological upset with a personal injury. At all events this is what we interpreted them to be doing in a later case called Robinson. What happens to the Limitation Acts when a dyslexic can show he has suffered a lot of financial loss but no psychological damage at all, is something the House of Lords will have to work out for themselves.
This is very much the litigation scene I am watching today. Some of the changes stem from a much greater willingness to recognise the importance of a patient’s personal autonomy. Some of them stem from the intellectual restlessness of certain members of the present House of Lords. Some of them stem from the coming into force of the Human Rights Act 1998.
I will end by referring at random to just four matters of unfinished business. First, the House of Lords’ decision in Fairchild. It is still too early to say how much difference this will make in medical law cases. In that case the claimants suffered from mesothelioma, but all of them had been exposed to asbestos dust by more than one negligent employer, and there was some chance that the tumour might have been triggered off by a non-industrial cause. In the Court of Appeal we rejected the claims on conventional grounds. None of the claimants could prove causation against any particular defendant.
The House of Lords reversed us. They said that the earlier decision in McGhee had after all decided an important point of principle, even if their predecessors in the Wilsher case could not spot it. They held that if a plaintiff’s disease is demonstrably attributable to a particular cause, and it is simply impossible for him to prove which of his negligent employers were responsible, justice requires him to be allowed to jump over the evidential gap and hold every employer 100% liable, however small the chance that the tumour was triggered off during his time with that employer. In two of the three cases the chance was less than 10%. It will take a long time before all the ramifications of that decision are worked out. In a medical context it has been suggested that the Fairchild principle might be applicable when an unstable spinal fracture is successively mishandled by a number of healthcare providers, and the patient eventually develops paraplegia.
Next, necessity again. In the Conjoined Twins appeal we were all satisfied that on the face of it it would be murder if the surgeons performed positive acts that were bound to end Mary’s life in order to give her stronger sister Jodie a real chance of life. You will remember that Mary was born with no effective lungs or heart of her own, and was kept going by the support she received from a common aorta. Once the surgeons cut that lifeline, Mary would die.
On the extraordinary facts of that case I relied on the common law doctrine of necessity as the lawful justification of what was proposed. We had to give judgment in that case only a week after argument was ended. Seven law lords were all waiting to say what they thought of my judgment when they were told that the parents had chosen not to appeal. It remains to be seen whether this extremely rare doctrine can be invoked in some future medical case.
Next, damages for the birth of a child. The House of Lords decided three years ago that the Court of Appeal was wrong after all, and that a parent could not recover damages for the cost of bringing up a healthy child. But what if the child that was born was suffering from a disability? I was party to two decisions in the Court of Appeal when we decided that the parents could recover the extra expense attributable to the child’s disability. In the second of these cases the child’s meningitis was triggered off a few weeks after the child’s birth by reason of an infection she picked up during her journey through the birth canal.
Lady Justice Hale was a party to both these decisions. She was also party to a third decision, in a case called Rees, where the unwanted child was healthy but the mother was blind, and the cost of upbringing would be much heavier as a result. Seven members of the House of Lords heard the defendants’ appeal in Rees this summer, and we are now waiting to learn where the law is going.
Finally, the case where the patient would not have consented to an operation (which in the event went wrong) if she had been carefully advised, but would probably have had a similar operation anyway. Is the negligent doctor liable, because she would later have run the same risk, and if so, for what? The House of Lords may give us the answer to this one, too, quite soon.
Fifteen years ago I met a clerk in a Chancery set of chambers whose father had served in the same set for 60 years before he retired in 1976. I said his father must have seen a lot of changes in Lincoln’s Inn over the years. “No, he didn’t”, I was told, “Things didn’t change at all. It is only since he retired that they haven’t stopped changing”.
Things didn’t change much between 1963 and 1983. There were stirrings between 1993 and 2003. In the last ten years they have really taken off. It is quite an exhausting time to be a judge.
 Bolam v Friern Hospital Management Committee  1 WLR 582.
 See Cartledge v E.Jopling & Sons Ltd  AC 758.
 See the Administration of Justice Act 1969.
 Hucks v Cole, first reported in (1993) 4 Med LR 393.
 The formation of the Association of Victims of Medical Accidents greatly improved the quality of the way clinical negligence claims were conducted by plaintiffs’ solicitors.
 Whitehouse v Jordan (see note 33 above); Maynard v West Midlands Regional Health Authority  1 WLR 634; and the Sidaway case (see above).
 Clark v McLennan  1 All ER 416.
 The later stages of this case were reported as Wilsher v Essex Area Health Authority  QB 730 (CA) and  AC 1074 (HL). I appeared for the defendants when the case reached the House of Lords.
 McKay v Essex Area Health Authority  QB 1166.
 Udale v Bloomsbury Area Health Authority  1 WLR 1098.
 Allen v Bloomsbury Area Health Authority  1 All ER 651.
 Rance v Mid-Downs Health Authority  1 QB 587.
 S (Adult) Refusal of Treatment)  Fam 123.
 Dulieu v White  2 KB 669.
 The decision of the Court of Appeal, upholding my judgment, is reported at Sion v Hampstead Heath Health Authority  5 Med LR 170.
 AB v Tameside & Glossop Health Authority  8 Med LR 91.
 A (Children) (Conjoined Twins: Surgical Separation)  Fam 147.
 Parkinson v St James & Seacroft University Hospital Trust  EWCA Civ 530,  QB 266 and Groom v Selby  EWCA Civ 1522,  PIQR P18.