England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2015

Mr Justice Dingemans:

1. This is the liability only hearing of a claim by the Claimant, Mrs A, against the Defendant East Kent Hospitals University NHS Foundation Trust ("the Trust"). Mrs A alleges that the Trust, in breach of duties to use reasonable care and skill in the management of her pregnancy, failed to advise her that her baby might be suffering from a chromosomal abnormality either at a consultation on 13 May 2009 or at a consultation on 3 June 2009. Mrs A alleges that had she been advised of this she would have undergone further investigation by amniocentesis, which would have proved the abnormality, and that she would have terminated her pregnancy either in week 32 of the pregnancy if she had been given advice on 13 May 2009, or week 35 if she had been given advice on 3 June 2009.
2. As it was on 22 July 2009 Mrs A's baby, B, was born suffering from an unbalanced chromosome 4 and chromosome 11 translocation which has caused severe disabilities to B. This is a very rare chromosomal abnormality. The experts at the trial had not heard of a similar case, but Mrs A believed that she had tracked down in the United States another family with a child with a similar abnormality and thought that there might be others worldwide.
3. Mrs A seeks damages for the costs that she has suffered as a result of B's birth, see generally McFarlane v Tayside Health Board [2000] 2 AC 59.

Issues

4. I am very grateful to Mr Gibson QC and Mr Dickason for the Claimant and Mr Whitting QC for the Trust for their helpful written and oral submissions. It is common ground that the first and major issue is whether, at the time of consultations on 13 May or 3 June 2009, there was evidence from which it might be inferred that there was a material risk that B might be suffering from a chromosomal abnormality. If so, it is common ground that the doctors ought to have raised that material risk with Mrs A.
5. If the risk had been raised with Mrs A there are then issues about whether Mrs A would, in the light of the information about the risk, have requested an amniocentesis. It is common ground that if Mrs A had had an amniocentesis, after a delay to enable cellular material to grow and be examined, the chromosomal abnormality would have been discovered. The final issue is whether, either at week 32 or week 35, both of which dates were at a time when the foetus would have been viable, Mrs A would have requested a termination of the pregnancy. It is common ground that if such a termination had been requested there would have been units which would have been able lawfully to carry out that procedure at that late stage of the pregnancy.

Anonymity order

6. At the commencement of the trial on 16^th March 2015 Mr Gibson sought an order pursuant to section 39(1) of the Children and Young Persons Act 1933 ("the 1933 Act") directing that no newspaper report should reveal the name of the Claimant and B. It appeared that no notice had been given to members of the press and that Mr Whitting for the Trust had only been given a few minutes' notice of the application.
7. The explanation for the lack of notice was that a request had only just been made by Mrs A on behalf of B. I asked about my jurisdiction to make an order in relation to section 39(1) of the 1933 Act in circumstances where B was neither a witness nor the Claimant, and I was told that there had been no time to carry out relevant research into the law before the request was made. Although I was concerned about jurisdiction under the 1933 Act, I was aware that an order might in certain circumstances be made under the Human Rights Act 1998 ("the 1998 Act"). Members of the press then present in Court stated that they had no objections at that time to an order protecting B's identity so long as they could report the existence of the proceedings and the identity of the Trust. In these circumstances I made an interim order preventing B from being identified in any newspaper report until after a further hearing at 10.15 am on 17^th March 2015, and I directed the Claimant to produce a Skeleton Argument in support of its application for an order.
8. In the Skeleton Argument the application for an order pursuant to the 1933 Act was not pursued. This was in the light of the decision in R v Jolleys ex parte Press Association [2013] EWCA Crim 1135; [2014] 1 Cr App R. 15 where the Court of Appeal made it clear that the provisions of the 1933 Act did not extend to a child who was not a victim, party or witness.
9. In the Skeleton Argument, and in oral argument on 17^th March 2015, Mr Gibson then pursued his application on the basis of article 8 of the European Convention of Human Rights ("ECHR") to which domestic effect has been given by the provisions of the 1998 Act. Mr Gibson submitted that: (1) there was a risk that if B was identified, professionals involved in her treatment might not care for her properly; and (2) the case involved the family's private life and there were sensitivities if B ever became capable of knowing what was being said (albeit at a time before her birth) about her parents' attitude to her birth. Mr Gibson relied on the recent judgment of the Court of Appeal in JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96 as authority for the proposition that he did not need to adduce evidence to show the sensibilities which might be engaged in this case.
10. JX MX was a case which dealt with anonymity orders for children and protected parties seeking Court approval of a proposed settlement. The Court of Appeal specifically noted the importance of open justice but identified that there had always been a historic exceptions for suits affecting wards and what were then termed lunacy proceedings. At paragraph 29 of the judgment it was noted that approval proceedings for children and protected parties did not lie outside the scope of open justice but the Court saw force in the argument that the court should be more willing to recognise a need to protect the interests of claimants who are children or protected parties, including their right to privacy, in relation to such approval hearings. In such approval hearings, when the reasons for seeking an order would generally be the same, it was not necessary to serve a witness statement. However such an exemption from the normal rules of evidence does not apply to this case, and after further submissions had been made a further witness statement from Mrs A was adduced. This was produced after Mrs A had given evidence in the trial, but both parties were content that I could rely on it for the purposes of the application for anonymity.
11. In her witness statement Mrs A set out her concerns. She noted that although it was unlikely that B's understanding would ever be at a level to comprehend the implications of the evidence in this case, B was a vulnerable 5 year old who would remain vulnerable into adulthood, and B reacted badly to confrontational or emotional behaviour on the part of other persons. Mrs A was concerned that persons, knowing of Mrs A's approach to some of the issues engaged in this case might harass or confront Mrs A and B either at her school or more generally. Mrs A said that she accepted that everyone had the right to their own views, but wanted to protect B from the consequences of any such confrontation. Mrs A noted that treatment of Mrs A and B at the Trust had always been sympathetic, but she was keen to ensure that B was treated in the same way as if the claim had not been brought.
12. It is established that the combined effect of section 6 of the 1998 Act and section 37 of the Senior Courts Act 1981 is that the Court may, in appropriate cases, make orders for anonymity, see In re Guardian News and Media Ltd and others [2010] UKSC 1; [2010] 2 AC 697. However it is also established that the Court would not, except in the most compelling circumstances, make further exceptions to the general principles of open justice, see In Re S (A Child)(Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593 at paragraph 20. In cases where both article 8 (privacy rights) and article 10 (freedom of expression rights) are engaged it is necessary to undertake the ultimate balancing test, see In Re S at paragraph 17. This test shows that neither article 8 nor article 10 has precedence over the other, there is a need for an intense focus on the comparative importance of the specific rights, the justifications for interfering with the rights must be considered, and proportionality must be applied to each right.
13. It is obviously tempting for a Court, particularly in circumstances when dealing with persons who are living with the consequences of the disabilities suffered by B, to do all that it can to remove or lessen the burden of public exposure that comes from open Court proceedings. However it is established that "the hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent to both parties and witnesses" but that "is to be tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect", see Lord Atkinson in Scott v Scott [1913] AC 417, which was followed and applied in JX MX.
14. In this case there is no basis for making an order for anonymity, or reporting restrictions, based on the fact that members of the medical profession might treat B less well because her mother had brought proceedings. Such a concern is entirely speculative, and would involve a deliberate and flagrant breach of professional duties on the part of the healthcare professionals, and there is no basis for inferring that it will happen in this case. If such a speculative concern justified an order for anonymity, anonymity orders would be made in every claim arising out of a clinical dispute. In my judgment such an approach would create a risk that public confidence would be undermined in the Court process. The public must have confidence in the Court process where claims with very serious financial consequences for both Claimants and NHS Trusts are determined.
15. However given the particular circumstances of this case and claim and the particular disabilities suffered by B, and attempting to assess the comparative importance of the article 8 and article 10 rights engaged, in my judgment it is right to grant an order requiring that, in any reporting of these proceedings, the Claimant and her husband are referred to as Mr and Mrs A and that their child is referred to as B. This is because the evidence establishes that B, with her disabilities, reacts badly to confrontation and there is evidence that others may confront Mrs A. This order is intended to preserve the right of the public to know about the claim, the evidence adduced, and the reasons for my decision, but also attempts to provide proper protection to B.
16. As there was no appearance after the first afternoon from members of the press when issues of anonymity were raised, I will give permission for any person to apply to discharge this order, on giving 48 hours notice in writing to the Claimant's solicitors, who are identified above.

Relevant legal principles

17. It is common ground that a doctor will be liable for breach of duty if the doctor has failed to do what a reasonably competent practitioner would do having regard to the standards normally adopted in the profession. A doctor who acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion is not guilty of negligence just because there was a body of competent medical opinion which might adopt a different technique, see Bolam v Friern Hospital [1957] 1 WLR 582. However further and different considerations apply in relation to the issue of providing information and obtaining informed consent.
18. The issue of consent was considered in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. Lord Bridge and the majority of the House of Lords adapted and applied the Bolam test subject to some exceptions, although Lord Scarman held that the right of patients to make their own decisions was a basic human right protected by the common law.
19. Lord Woolf MR in the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 revisited the issue and held "if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt". In Wyatt v Curtis [2003] EWCA Civ 1779 the Court of Appeal applied Pearce and it was stated, at paragraph 16, that "Lord Woolf's formulation refines Lord Bridge's test by recognising that what is substantial and what is grave are questions on which the doctor's and patient's perception may differ …" clarifying that the question was whether any catastrophic outcome was "sufficiently real".
20. The importance of patient autonomy was underlined in Chester v Afshar [2005] UKHL 41; [2005] 1 AC 134. Lord Bingham at paragraph 5 said the duty to advise was "to enable adult patients of sound mind to make for themselves decisions immediately affecting their own lives and bodies".
21. The Supreme Court addressed the issue of consent in Montgomery v Lanarkshire Health Board [2015] UKSC 11. There was a constitution of 7 Supreme Court Justices because the Supreme Court was examining the approach taken in Sidaway. In a judgment dated 11 March 2015 (some 5 days before the start of the this trial) the Supreme Court set aside a judgment of the Inner House [2013] CSIH 3, which had affirmed a judgment of the Lord Ordinary in the Court of Session [2010] CSOH 104. A mother had a large baby but was not warned of the risks of shoulder dystocia (where the baby's shoulder gets stuck in delivery) and was not advised of the option of a caesarean section. The Supreme Court reviewed the decisions in Bolam, Sidaway, Pearce, Wyatt and Chester v Afshar. They noted that in Sidaway a number of different approaches had been taken by the Law Lords, and concluded that "the analysis of the law by the majority in Sidaway was unsatisfactory in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications neither of which was fundamentally consistent with that test". Emphasis was placed on patient autonomy.
22. The appropriate legal test was considered, and it is now established at paragraph 87 of Montgomery, that a doctor is "under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments". The test of materiality is "whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it".
23. It was emphasised that "the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient".
24. When confronting arguments which had been raised against such an approach the Supreme Court noted that "the guidance issued by the General Medical Council has long required a broadly similar approach", see paragraph 93 of Montgomery.
25. The GMC published "Consent: patients and doctors making decisions together" which came into effect on 2 June 2008 and was in force at the material time. It noted that in order to have effective discussions about risk and adverse outcomes which the patients were most concerned about the options, including the option of doing nothing, needed to be discussed. It was stressed that "you must not make assumptions about a patient's understanding of risk or the importance they attach to different outcomes. You should discuss these issues with your patient". Later reference was made to the fact that "Patients should be told of any possible significant adverse outcomes of a proposed treatment" and that in the context of treatment, "a small but well-established risk of a serious adverse outcome" was significant.

Evidence

26. I heard factual evidence from Mr and Mrs A on behalf of Mrs A. I heard factual evidence on behalf of the Trust from Dr Lenka Galajdova ("Dr Galajdova") a consultant obstetrician and gynaecologist who had obtained that status in Belgium but who was at the time working as a senior Registrar while taking further examinations and who carried out the consultation on 13 May 2009, and from Dr Kate Neales ("Dr Neales"), the consultant obstetrician who carried out the consultation on 3 June 2009.
27. I also heard expert evidence on behalf of Mrs A from Dr Myles Taylor, a consultant gynaecologist & obstetrician who has over 6 years experience as a consultant in fetal medicine in a district general hospital preceded by 5 years in a London unit and from Dr William Reardon, a consultant clinical geneticist, who has 25 years experience working in Ireland and Britain. I heard expert evidence on behalf of the Trust from Dr David Howe, a consultant in FetoMaternal Medicine who has 12 years experience as a consultant in fetal medicine providing a regional tertiary service, and from Professor Frances Flinter, a consultant in clinical genetics, who has been working 25 years in a regional genetic department.
28. Much of the evidence was common ground and I will identify the areas of dispute and my findings where there are disputes. Otherwise the narrative below represents my findings on the evidence.

Circumstances leading up to the pregnancy with B

29. Mr and Mrs A married in 2005. At that time Mrs A was aged 33 years and Mr A was aged 31 years. Mrs A had post-graduate qualifications and worked as a museum curator and her husband worked for a different museum as a collections manager. Mrs A understood that fertility in women declined after their 35^th birthday so she had a desire to get on with having a child, and Mr and Mrs A immediately tried for a baby. After 6 months they underwent investigations into sub-fertility. The investigations suggested that normal conception should be possible and showed no cause for concern. As it is relevant it should be noted that Mr A's sperm count was high although the morphology of some of the sperm was poor and there were 50 per cent with forward progression.
30. After a further 12 months without becoming pregnant Mr and Mrs A attended the fertility clinic at Medway Maritime Hospital and were referred to the Brabourne Clinic for fertility treatment. The fertility treatment was due to commence in February 2007 but in the event Mrs A conceived naturally in January 2007. However Mrs A suffered a miscarriage at 8 weeks.
31. Mr and Mrs A were told that the natural conception was a good sign, but Mrs A noted that no one had looked into why she had miscarried. I understand Mrs A's concerns about this given what they now know, but the evidence showed that 1 in 5 pregnancies resulted in a miscarriage and it is common ground that there was no breach of duty in failing to investigate the miscarriage. Mr and Mrs A were then provided with the course of fertility treatment funded by the NHS. The NHS will only fund one cycle. They were offered the option of "normal" IVF, in which the sperm and egg are mixed in a dish, or Intra Cytoplasmic Sperm Injection ("ICSI") which involves injecting a sperm directly into the egg. They chose ICSI and Mrs A said she understood that this involved choosing the better looking sperm, and Mrs A recalled being told that the problems with Mr A's sperm were serious enough to proceed straight to ICSI. In October 2007 Mr and Mrs A underwent IVF using ICSI which was unsuccessful.
32. After this Mr and Mrs A used their savings to undertake one further, and what would have been for financial reasons, final course of IVF. Mr and Mrs A undertook a lot of research because they did not want to use up their savings and proceed if their chances of success were low. They wanted to ensure that they would have a successful pregnancy and a healthy baby, but became concerned about the lack of energy in Mr A's sperm. Mr and Mrs A went to their GP and had a test called a DNA fragmentation and sperm aneuploidy test at a clinic in London. The results were sent to the fertility clinic and their GP. The results showed that the DNA fragmentation test had been carried out on chromosomes 13, 18 and 21 and an "absence of chromosomal disjunction abnormality on the sample studied" was recorded, meaning that there was no chromosomal abnormality detected for chromosomes 13, 18 and 21. Chromosomes 13, 18 and 21 are noted to be capable of causing a trisomy. A trisomy is a genetic abnormality which causes a baby to have 3 copies of chromosomes and not 2 copies of the chromosome. The trisomies which occur with chromosome 13 are known as Patau's syndrome, the trisomies occurring with chromosome 18 are known as Edwards' syndrome and the trisomies occurring with chromosome 21 are known as Down's syndrome.
33. Under "Notes" at the bottom of the DNA fragmentation report it was stated "Please note that 3 of 22 autosomes have been examined. Therefore a normal result does not preclude increased aneuploidy rates for other chromosomes". This meant that there was a warning that other chromosomes might have more or less than the normal number of copies. All of the professionals who were consulted advised them that there was no reason not to proceed with the privately paid ICSI. There is a letter dated 16 June 2008 which suggests that Mr and Mrs A were told that ICSI represented the best chances of obtaining conception.

Mr A's chromosomal abnormality

34. It has now been established, as a result of further testing following B's birth, that although Mr A has the normal number of chromosomes (46), part of chromosome 4 has broken and attached itself to chromosome 11. Chromosome 11 has part of chromosome 11 broken which has in turn attached to the missing part of chromosome 4. This has created what is called a balanced translocation. In a normal pregnancy the father and mother will supply 23 chromosomes each to make up the 46 chromosomes in the baby.
35. It is apparent from the evidence that I heard that Mr and Mrs A were particularly frustrated that Mr A's chromosomal abnormality had not been picked up by testing before or after they underwent the second round of ICSI treatment, but it is accepted that there is no claim against those who advised Mr and Mrs A leading up to the second round of ICSI treatment. As noted above the DNA fragmentation test had shown an absence of chromosomal disjunction abnormality on the sample of Mr A's sperm which had been tested.

B's pregnancy and the management and treatment of Mrs A

36. The second round of ICSI treatment was successful. An ultrasound scan (at 7 weeks and 2 days) identified a pregnancy on 13 November 2008. On 8 January 2009 Mrs A was booked in for antenatal care at the William Harvey Hospital in Kent. The estimated delivery date was 6 August 2009, at which time Mrs A was going to be 37 years old.
37. In a scan on 26 January 2009 (when Mrs A was 12 weeks and 4 days) it was noted that there was a "single viable fetus".
38. Nuchal translucency and serum biochemistry tests confirmed that B was not at an increased risk of genetic abnormalities for trisomies with chromosome 13 (Patau's syndrome), 18 (Edwards' syndrome) and 21 (Down's syndrome). These tests were discussed on 25 February 2009 and Mrs A was handed a document, which she recalled as being smaller than the document in the bundle but which it is accepted contained the same figures, which recorded the risks of chromosomal abnormality adjusted to take account of the results. The risks were 1:37,891 for a trisomy with chromosomes 13 and 18, and 1:1753 for a trisomy with chromosome 21. Mrs A said that the only chromosomal abnormality about which she was really aware before the birth was Down's syndrome. The cut-off risk on the document for referring for an amniocentesis was 1:250 for Down's and 1:100 for the other two syndromes. Dr Reardon considered that those cut-off rates were consistent with good practice.
39. On 27 March 2009 (when Mrs A was 21 weeks and 1 day) an anomaly ultrasound scan was performed. The fetal measurements were recorded to be just above the 5^th centile. The fetal measurements were for biparietal diameter ("BPD"), which is a form of skull measurement; head circumference ("HC"); femur length ("FL"); and abdominal circumference ("AC"). Normal liquor (or amniotic fluid) was recorded, and measurement of this is sometimes recorded as the Amniotic Fluid Index ("AFI"). The evidence showed that a reading below 8 for the AFI would be below normal. Blood flows are sometimes measured by peak systolic to end-diastolic ("S/D") by way of Doppler studies or scans which can identify poor flow between the baby and the placenta.
40. A repeat scan was booked for 4 weeks to confirm normal growth.
41. On an antenatal visit on 1 April 2009 B's measurements were noted to be on lower centile on a scan, but the results were discussed and reassurance given. On 22 April 2009 an ultrasound was carried out. This showed "growth demonstrated … Growth remains just above the 5^th centile. Review by midwife".
42. On 6 May 2009 at an antenatal visit Mrs A was noted to be fit and well, and at low risk of Down's syndrome. The abdominal circumference ("AC") was noted from a scan to be just above the 5^th centile, but better. No complaint is made about Mrs A's management and treatment before 13 May 2009.

The consultation on 13 May 2009

43. On 13 May 2009 (when Mrs A was 27 weeks plus 6 days) Mrs A had a further antenatal visit. She had a scan. This showed that the measurements for BPD, FL and HC were continuing around the 5^th centile, but AC was now below the 5^th centile. AFI was 6.7. Umbilical Dopplers S/D were 3.82, which was normal.
44. Mrs A saw Dr Galajdova. It was apparent that Mrs A did not have a particularly clear recollection of the meeting and gave evidence that she had seen a male doctor who she thought might have been Eastern European and who she described. The description matched Dr Waronski and the notes show that Mrs A did meet Dr Waronski on other occasions, but not on 13 May 2009. Dr Galajdova, who is female, had no recollection of the meeting itself save that recreated from the notes, but she confirmed that she must have seen Mrs A to have made the notes that she did. In the end it became common ground that Mrs A had seen Dr Galajdova on 13 May 2009 and I make a finding to that effect. It is obvious that over time the sequence of meetings with doctors might become honestly but mistakenly mixed up in the memory, and in my judgment that is what had occurred with Mrs A. Mrs A remembered being told, on a number of different occasions, that her baby was constitutionally small.
45. The notes recorded "growth less than 5 % tailing off". Dr Galajdova says that she would have advised Mrs A that "although some babies are constitutionally small, the recent scan suggested that this baby's growth rate was slowing down" indicating that there was a problem. Dr Galajdova said that she had noted that growth was tailing off, and was concerned that B might be born imminently. Dr Galajdova told Mrs A about this which caused Mrs A to be shocked. Dr Galajdova gave steroids to Mrs A to enhance fetal maturity. Dr Galajdova was very concerned about placental insufficiency, which she believed was indicated by the AC measurements. It was for this reason that she requested Doppler scans to measure blood transfer across the placenta to be checked, and for weekly antenatal visits.
46. It is common ground that Dr Galajdova did not tell Mrs A that B might be suffering from a chromosomal abnormality, and I will address below the issue of breach of duty.

Later developments in May

47. On 15 May 2009 (when Mrs A was 28 weeks plus 1 day) cord Dopplers were scanned and checked and normal, and the AFI was normal at 8. A scan showed normal Dopplers and an AFI of 6 on 20 May 2009. In the antenatal visit on the same day (when Mrs A was 28 weeks plus 6 days) these measurements were noted.
48. On 22 May 2009 (when Mrs A was 29 weeks plus 1 day) a scan showed fetal heart movements, an AFI of 6 and Dopplers which were normal. On 27 May 2009 a scan was carried out. This showed an AFI of 7 and normal cord Dopplers. In the antenatal visit on the same day (when Mrs A was 29 weeks plus 6 days) growth was recorded as "still just below 5^th centile slightly better than last week".
49. On 29 May 2009 Mrs A had a CTG. The notes show that these were being performed weekly because of reduced growth, but the trace was reassuring.

The consultation on 3 June 2009

50. In an antenatal visit on 3 June 2009 Mrs A saw Dr Neales. A scan was carried out showing AFI of 6.3 and normal Dopplers. The notes record "IUGR" meaning "intra-uterine growth restriction". A reduced AFI was noted. The notes recorded "no underlying cause identified". It was noted that there had been steroids. The plan was to have weekly Doppler scans, check of the amniotic fluid index and blood pressure checks. The aim of the plan was to get to 36 weeks for the pregnancy if there was no change on the ultrasounds or clinical findings. Other notes show that Dr Neales recorded that it was "IVF/ICSI pregnancy 2^nd cycle" there was a move to shared care. The breech position was noted and the notes recorded "reduced AFI ?? IUGR". This records Dr Neales was questioning whether there was IUGR. A caesarean section was booked for 22 July 2009 which would be brought forward if there was stopped growth or there was an abnormal Doppler.
51. It is common ground that Dr Neales did not tell Mrs A that B might be suffering from a chromosomal abnormality. There was an issue about Dr Neales' note and the statement "no underlying cause identified". Dr Neales said that her note meant that she had excluded other causes such as chromosomal abnormality and infection and not identified the underlying cause. I accept Dr Neales' evidence on this point because I accept that if Dr Neales had not excluded chromosomal abnormality as a material risk she would have said as much to Mrs A. However this does not answer whether there was actually a material risk at the time, and I will address the issue of breach of duty below.

Continuing visits and management to the birth

52. In an antenatal visit on 10 June 2009 (when Mrs A was 31 weeks plus 6 days) an additional scan was requested. In the ultrasound scan measurements showing asymmetric growth (particularly for BPD and AC) were recorded. It was noted that the BPD, HC and AC readings were on the 5^th centile but showed normal growth since the last scan. AFI was 2.5. All of this was showing growth in accordance with a low base.
53. On 11 June 2009 Mrs A had another reassuring CTG trace. On 12 June 2009 (when Mrs A was 32 weeks plus 1 day) a scan showed normal cord Dopplers and increased AFI at 4.5.
54. On 15 June 2009 a reassuring CTG trace was obtained. In an antenatal visit on 17 June 2009 (when Mrs A was 32 weeks plus 6 days) the notes record that Mrs A felt well. A scan had shown that AFI was 4 and there were normal Dopplers. Fetal movements were felt.
55. On 19 June 2009 (when Mrs A was 33 weeks plus 1 day) the AFI was noted to be 4 and there were normal Dopplers with S/D of 2.58. On 22 June 2009 Mrs A attended for a CTG scan. She was reassured about the IUGR. The outcome of the CTG scan was noted to be suspicious and the monitoring continued and was noted on a yellow sheet and continued until it became reassuring.
56. In an antenatal visit on 24 June 2009 (when Mrs A was 33 weeks plus 6 days) no abnormality was detected. This followed a scan showing normal Dopplers and an AFI of 4.5.
57. In an antenatal visit on 1 July 2009 (when Mrs A was 34 weeks plus 6 days) a scan showed AFI was 4.5 and there were normal Dopplers. The baby was recorded to be active.
58. In an antenatal visit on 8 July 2009 (when Mrs A was 35 weeks plus 6 days) an ultrasound scan showed that BPD and AC were at the 5^th centile but showing normal growth. Normal growth of AC and FL was noted. AFI was 3.2. S/D was raised on the Doppler reading. The growth was asymmetric. It was noted that Mrs A felt well, it was noted that the BPD and HC were at the 5^th centile that showed normal growth since the last scan. On 9 July 2009 a reassuring CTG trace was obtained.
59. On 10 July 2009 (when Mrs A was 36 weeks plus 1 day) a scan showed AFI at 4 and cord Dopplers normal with good end diastolic flow. On 15 July 2009 (when Mrs A was 36 weeks plus 6 days) a scan showed AFI at 6.4, normal Dopplers and a breech presentation.
60. On 22 July 2009 B was born by caesarean section at 0919 hours at 37 weeks and 6 days. After the birth B's condition was diagnosed. The placental histology was normal.

Findings on the evidence about Mrs A's attitude to the risk of having a disabled baby

61. Mrs A said in her witness statement (at paragraph 102) that "if during the pregnancy I had been told that there was the possibility of B being born disabled I would not have proceeded with the pregnancy" and (at paragraph 103) that "I do not believe in bringing a child into the world if they are going to suffer and be unable to lead a full life. If we had the slightest belief that there would be something wrong I would not have proceeded with the pregnancy". Mrs A also said (at paragraph 104) that "we agreed that I would undergo the testing for Downs syndrome in early pregnancy, which actually came back as low risk. However, had the test suggested that I was at risk of having a baby with Downs syndrome I would have opted to undergo an amniocentesis". Mrs A did not accept the suggestion in cross examination that this did not reflect her attitude at the time and was affected by hindsight.
62. It was apparent that Mrs A did not want to have a disabled baby, and as was remarked in evidence, everyone wants to have a healthy baby. However the evidence also showed, and I find, that Mrs A was prepared to accept a "background" risk of having a disabled child because that was her own evidence about what she had accepted in relation to the Down's syndrome test. When asked about the passages suggesting that Mrs A would not accept any risk, and her continuation of the pregnancy with risks of 1:1753 for Down's syndrome, Mrs A made it clear that she did not consider that sort of figure to be a real risk.

Was there evidence showing that there was a material risk that B might be suffering from a chromosomal abnormality on either 13 May 2009 or 3 June 2009

63. The question about whether Mrs A should have been warned about the risk that the low growth on 13 May 2009 or 3 June 2009 might have been caused by chromosomal abnormality depends on whether there was a "material risk" that B was affected by chromosomal abnormality on either 13 May 2009 or 3 June 2009. In this case that means either a reasonable person in Mrs B's position would be likely to attach significance to the risk, or "the doctor is or should reasonably be aware that [Mrs B] would be likely to attach significance to it".
64. The GMC Guidance makes it clear that "a small but well-established risk of a serious adverse outcome" is significant for the purposes of obtaining consent. It is also clear from Montgomery that what is a material risk cannot be reduced to percentages, is fact sensitive and sensitive to the characteristics of the patient.
65. I therefore need to assess whether there was evidence showing a material risk that B might be suffering from a chromosomal abnormality on either 13 May 2009 or 3 June 2009. It is common ground that if there was evidence showing that there was a material risk that B was suffering from a chromosomal abnormality on either 13 May 2009 or 3 June 2009, then Mrs A should have been told about that risk. Mrs A contends that the evidence shows that there was such a material risk, and the Trust contends that there was no evidence showing such a material risk.
66. In order to address this question it is necessary to consider the effect of a number of different factors relied on by the respective sides. However I should refer first to the evidence of Dr Galajdova and Dr Neales. Dr Galajdova said that she had considered the situation by reference to "decision trees" and had not considered the issue of chromosomal abnormality to be anything that was required to be raised with Mrs A. Dr Galajdova accepted that she could not exclude the risk, but said that she could not exclude theoretical risks of most things, and made it clear that she did not consider there to be a material risk in this case. Dr Galajdova did not make any reference to the ICSI conception, considering that in this case it did not make any difference. It was apparent, because Dr Galajdova had studied medicine in University Hospital, Ghent, Belgium where ICSI had been pioneered, that she had a good understanding of some of the issues relating to ICSI addressed by the experts.
67. Dr Neales was aware that B had demonstrated IUGR. Dr Neales had considered whether B was constitutionally small and placental insufficiency. Dr Neales had excluded the less frequent fetal infection or chromosome abnormality, She had considered that the small size was "probably due to placental insufficiency" and that there was "no reason to suspect any other cause, and thus no further investigations were needed".
68. The evidence relied on by Mrs A to show that there was evidence showing such a material risk is that: the morphology of Mr A's sperm was abnormal, which Dr Taylor considered might be indicative of an underlying paternal problem; Mrs A had suffered a miscarriage at 8 weeks' pregnancy, although it would not have had a great impact it could be considered with other factors according to Dr Taylor and Dr Reardon; that Mr and Mrs A had undergone an unsuccessful cycle of ICSI treatment which although Dr Taylor and Dr Reardon accepted was the likely outcome of an ICSI cycle, Dr Reardon said might point towards a possible chromosomal basis for the subfertility; Mrs A had become pregnant by ICSI, which it was said by Dr Reardon and Dr Taylor increased the risk of any foetus having a chromosomal abnormality as the parental karyotype had not been tested; there was IUGR of B; there were normal Doppler scans. All of this meant that the risk of a chromosomal abnormality was material, being about 1-3 per cent. The doctors should have asked Mrs B about her attitude and would have discovered that she wanted to know what was the cause of B's low growth and was sure that she did not want to take any risk of bringing a disabled child into the world.
69. The evidence relied on by the Trust to show that there was no evidence showing such a material risk is that: the total sperm count for Mr A was normal and the percentage of normal forms was normal according to World Health Organisation guidelines according to Professor Flinter; the miscarriage by Mrs A at 8 weeks pregnancy was not an indication of any chromosomal abnormality according to Dr Howe and Professor Flinter; the unsuccessful ICSI cycle was not relevant because that was the most likely outcome of any ICSI cycle according to Dr Howe and Professor Flinter; Dr Howe did not consider that a successful ICSI pregnancy was relevant in this case. Professor Flinter said that if Mr A had had no or low sperm counts that would increase the risk of the foetus inheriting a Y chromosome abnormality if the baby were male, but there was in this case no low or no sperm count and no association between ICSI and non sex-chromosome abnormalities in the context of a reasonable sperm count; Dr Howe and Professor Flinter said that the nuchal translucency and serum biochemistry tests confirmed that B was not at increased risk of chromosomal abnormalities tested; they also considered that the normal anomaly scan had the effect of further reducing risk of the baby having chromosomal and structural anomalies; the AFI was reduced; and the tailing off of growth was asymmetric, and the tailing off of growth was for the AC, abdominal circumference, which was associated with placental insufficiency. This meant that there was no material risk of B being affected by chromosomal abnormality there was only a risk described as "theoretical", "negligible" or "background", and which in percentage terms was less than 1 in 1,000. There was therefore no need to discuss this risk with Mrs A and in any event any reasonable patient, and Mrs A, would not have wanted to know about it and would have ignored it in the same way that she had ignored the residual background risk of Down's syndrome.
70. It was common ground that the nuchal translucency assessment and serum biochemistry showed that the risks of trisomies 13, 18 and 21 were reduced, and that such tests might pick up some other chromosomal abnormalities. It was also common ground that the fetal anomaly scan carried out at 21 weeks showed no structural problems, and showed a smaller than average baby which led to the use of serial growth scans which was appropriate. It was also common ground that there was no evidence that the ICSI procedure itself increased the risk of structural chromosomal anomalies, but Dr Taylor and Dr Reardon on one hand, and Dr Howe and Professor Flinter on the other hand disagreed on the significance in relation to having a baby with a chromosomal abnormality. It is also common ground that the scan on 13 May 2009 showed that the baby was smaller than average.
71. Both sides also placed reliance on Guidance from the Royal College of Obstetricians and Gynaecologists ("RCOG") and other publications. RCOG Guideline No.31 was published in November 2002. Under a headline "When a small fetus is diagnosed, assess for risk of chromosomal defects" it recorded that "up to 19 % of fetuses with an AC and EFW less than the fifth centile may have chromosomal defects … Therefore, all growth-restricted fetuses need an ultrasound anatomical survey as a minimum. It may also be appropriate to offer karyotyping". Reference was made as authority for the figure of 19 % to a paper by Snijders and others "Fetal growth retardation: associated malformations and chromosomal abnormalities", published in 1993.
72. I should note that in 2013, so after the relevant dates in this case, RCOG issued an amended guideline which suggested that "karyotyping should be offered in severely SGA fetuses with structural anomalies and in those detected before 23 weeks, especially if uterine Doppler is normal".
73. It was common ground between the experts at the trial that the risk was very much reduced from the 19% figure used in the 2002 RCOG Guideline because of developments in scanning since the paper by Snijders and others and because an anatomical survey had been carried out by ultrasound scan which had not shown any structural anomalies. Dr Taylor and Dr Reardon both relied on the figure as a starting point, and emphasised that the normal Doppler's was a factor which would increase the risk of a chromosomal defect. The Trust noted that the actions of Dr Galajdova and Dr Neales were not in breach of any mandatory RCOG Guidance, and that all that was suggested by the guidance was that karyotyping might be appropriate, but that in this particular case it was not.
74. The paper by Snijder and others showed that 89 of the 458 fetuses had chromosomal abnormalities. However only 4 of those 89 did not also have a structural abnormality on ultrasound. That gives an overall percentage of 0.78%. Professor Flinter and Dr Howe both gave evidence that modern ultrasound facilities as used in 2009 would have picked up nearly all of the remaining chromosomal abnormalities, effectively meaning the risk was a background risk. Dr Howe said that the risk of IUGR being due to chromosomal abnormality was less than 1in 1,000, having looked carefully at the reported incidence of chromosomal abnormalities of the type suffered by B. Analysis of the type of chromosomal abnormality identified in the paper shows that none of those chromosomal abnormalities were in fact relevant to the situation of Mrs A's pregnancy at 28 weeks once normal structural anomaly scans and normal chromosomal testing is shown. It should be recorded that Snijders and others challenged traditional thinking that chromosomal abnormalities were associated with early onset symmetrical growth restriction (at pages 552-553).
75. Reference was also made to other published papers. The paper by Anandakumar and others: Early Asymmetric IUGR and Aneuploidy was published in 1996. This showed that the incidence of IUGR in chromosomally abnormal foetuses was 5.8 per cent. However it is also right to record that there did not appear to be any of the chromosomal defects relevant to this case in the study. Some reliance was also placed on the paper by Anandakumar which showed that where there had been late onset of IUGR, there was an incidence of zero for chromosomal abnormalities. It is fair to note that in this case the IUGR was diagnosed late, but it does not show that it was a late onset. That said the figures from Anadakumar can properly be added to the samples used by the others, and the figures do show that viable foetuses at a late stage of pregnancy with chromosomal abnormalities generally comparable to the type suffered by B are exceptionally rare.
76. There was a paper by Hansen and others: The risk of major birth defects after ICSI and IVF published in March 2002 which suggested that infants conceived with ICSI or IVF had twice as high a risk of major birth defects as compared with natural conception, and also showed an increase of chromosomal abnormalities.
77. The paper by Bonduelle and others: Prenatal testing in ICSI pregnancies was also published in 2002. The paper looked at chromosomal abnormalities following ICSI, and part of the concern was to see whether the process of ICSI might cause such abnormalities. There was no evidence to show that the ICSI process caused such abnormalities but the results were relied on by both sides to support their respective cases on risks of chromosomal abnormalities in foetuses following ICSI conceptions.
78. Dr Taylor relied on the figure that there were 3.84 per cent of abnormalities (of 338 ICSI infants tested postnatally 13 had abnormal karyotypes). Both he and Dr Reardon said that underestimated the risk because fathers were offered pre conception testing, and this would have reduced numbers of babies with chromosomal abnormalities. Dr Reardon said that he was not qualified to quantify the risk but said that it was small but significant and agreed that it was at least 3 per cent, relying on a 3 per cent figure from the paper by Bonduelle and others and 4 per cent from the paper by Snijders and others. Dr Howe considered that the majority of chromosome anomalies after ICSI were shown to be sex chromosome anomalies which would not be related to growth restriction, and that the risk of unbalanced structural chromosome anomalies remained very low at about 1:1500. Both Dr Howe and Professor Flinter said that Dr Taylor and Dr Reardon had taken figures in the papers relating to ICSI as a starting point, but also used them as an ending point, and had failed to take account of all the features which meant that there was no risk beyond background risk in this case. Analysis of the appendix to this paper shows that there was one possible chromosomal abnormality relevant in the circumstances of this case. Given the numbers this supported a figure of a risk of less than 1:1500.
79. Dr Reardon also referred to an abstract published in the American Society of Human Genetics which referred to chromosomal anomalies of 11.5 per cent in IUGR with normal scans. However Professor Flinter pointed out that these were chromosomal anomalies shown with new testing with heightened sensitivity and show anomalies which are present in the majority of persons without obvious effect. As this was only an abstract, and because it related to copy number variances of uncertain effect, I did not derive assistance from this paper.
80. There was also reference to an internet publication called Up to Date which shows a copyright date of 2014. This suggested that Chorionic villus sampling ("CVS") (which was another form of testing for chromosomal abnormalities carried out at an early stage of pregnancy) or amniocentesis should be offered to all ICSI couples after counselling about the risks of paternally inherited chromosomal abnormalities. Mr Gibson relied on Professor Flinter's evidence when being cross examined about this publication which was said to have been to the effect that counselling and testing ought to be offered to all ICSI couples. This had not been my understanding of Professor Flinter's evidence at the time, and Mr Gibson had himself expressed surprise that Professor Flinter had agreed with the proposition put in cross examination.
81. I have considered this point and I have had the advantage of helpful notes of evidence on this point from the solicitors on both sides to compare with my own note, as well as a transcript of the relevant evidence which I received on 14^th April 2015. Part of the difficulty with examining what went on is the fact that Professor Flinter was, as Professor Flinter made clear, not familiar with the publication, and so was being asked questions about a text that she had not studied. The second part of the difficulty was that Professor Flinter responded to the question about whether she agreed with the proposition set out in the text by saying "I would qualify that …" and explaining that by reference to the fact that Mr A did not have low or no sperm. It was suggested that this was the qualification which next appeared in the text, which Professor Flinter accepted. Professor Flinter then noted that Mr A had a good sperm count, and the sperm were within the normal range. Mr Gibson then asked whether, subject to that qualification, the advice was right and Professor Flinter agreed.
82. I have to say that I did not derive much assistance from this exchange. Professor Flinter made it plain that the suggestion was not relevant in a case such as this, where Mr A had a good sperm count, and the sperm were within the normal range. Professor Flinter was not familiar with the text and had made that clear. The text is directed at a situation before there have been nuchal translucency and serum biochemistry tests and ultrasound scans which have excluded structural abnormalities. The question for me is whether the evidence available on 13 May 2009 or 3 June 2009 would have shown that there was a material risk that B was suffering from a chromosomal abnormality.
83. There was one final piece of evidence from Professor Flinter which it is necessary to record. Professor Flinter said that the starting point for an assessment of the risk of a chromosomal abnormality of the type suffered by Mrs A was 1 in 50,000. This was calculated by taking 200,000 individuals making 100,000 couples and 100,000 pregnancies, working out a 1 in 500 chance of a translocation, which meant 400 individuals would have a translocation. Assuming everyone gets pregnant, 50 per cent of the pregnancies from those individuals will be chromosomally unbalanced, giving a figure of 200 chromosomally unbalanced pregnancies. 99 per cent of those will not be viable, leaving 2 chromosomally unbalanced pregnancies in 100,000 giving the 1 in 50,000 figure. Professor Flinter stressed that this was simply a starting point, and that IUGR would affect the statistics, but she did not get beyond a figure of 1 in 1,000.

Findings

84. In my judgment the evidence did not show that there was a material risk to which Mrs A should have been alerted that B was suffering from a chromosomal abnormality. If the risk had been at the level indicated by either Dr Taylor and agreed by Dr Reardon (namely somewhere between 1 or 3 per cent), or anywhere approaching that level, then I would have concluded that both Dr Galajdova or Dr Neales should have raised it with Mrs A. However in my judgment the evidence given by Professor Flinter and Dr Howe to the effect that the risk was 1 in 1,000 or, as Dr Galajdova and Dr Neales put it, theoretical, negligible or background, was much to be preferred and I accept that evidence. The reason that I accept the evidence given by Professor Flinter and Dr Howe is because: (1) Mrs A had successfully carried B to 27 weeks plus 6 days (as at 13 May 2009) and from then on to 3 June 2009, and the evidence shows that very few foetuses with chromosomal abnormality will be carried to term; (2) the nuchal translucency and serum biochemistry tests had excluded to background level the risks of genetic abnormalities for trisomies with chromosomes 13, 18 and 21, which are the most common type of chromosomal abnormality; and (3) the ultrasound scans had not detected any structural abnormalities, and most foetuses with chromosomal abnormalities will be detected by such testing. These factors meant that the prospects of B having a chromosomal abnormality were, in real terms, well below background levels. It is true that B was conceived following ICSI, there was IUGR and normal Doppler scans. However the reduction in growth was detected late and was asymmetric and was concentrated on the AC. There was also a reduced AFI. These factors strongly suggested that the reduction in growth was related to placental insufficiency.
85. In my judgment the approach by Dr Taylor and Dr Reardon to the specific circumstances of B's case did not condescend to deal with the effect of the normal nuchal translucency and serum biochemistry tests, and the normal ultrasound scans or the fact that B was an ICSI baby. If the effect of those findings were applied to the statistics relied on in the papers by Snijders and others; Anandakumar and others and Bonduelle and others it is apparent that the risks in this case for B were reduced to no more than a background level.
86. As to the point about the sperm there was no information available to Dr Galajdova or Dr Neales, and there is nothing to suggest that they acted in breach of duty in failing to obtain it. In my judgment even if it had been obtained it would not, for the reasons given by Professor Flinter have made any difference because the total sperm count was normal and the percentage of normal forms was normal.
87. As to the point about the previous miscarriage the evidence shows that 1 in 5 pregnancies end in miscarriage, this was only the first miscarriage suffered by Mrs A, and there is nothing to suggest that any investigation or warning ought to have been triggered.
88. As to the point about the failed ICSI cycle in my judgment it would have provided no relevant evidence because this was the likely outcome for any ICSI cycle.
89. In these circumstances there was no need to have any discussion about fetal karyotyping with Mrs A. This was because a reasonable patient, in the position of Mrs A, would have attached no significance to risks at this background level. Further, for the reasons given in paragraph 62 above, I do not find that Mrs A would have attached significance to these levels of risk.
90. In my judgment the decision in Montgomery affirms the importance of patient autonomy, and the proper practice set out in the GMC Guidance and the proper approach set out in Pearce and Wyatt. It is not authority for the proposition that medical practitioners need to warn about risks which are theoretical and not material.
91. In my judgment the evidence shows that B was a small foetus, who grew along the 5^th centile for most of the pregnancy. B was rightly described as a constitutionally small baby. There was a tailing off of growth on 13 May 2009, but there was thereafter growth continuing in accordance with the relevant centile. The scan on 10 June 2009 showed an increase of the rate of growth so that AC had recovered to the 5^th centile. The tailing off of growth on 13 May 2009 was asymmetric in that it affected the measurement for AC, but not FL and HC. The AFI was reduced. In these circumstances I find that the cause of the tailing off of growth before the recovery was placental insufficiency. This is because the tailing off of growth was asymmetric and for abdominal circumference which it was common ground was most likely to be associated with placental insufficiency. There was also a reduced AFI which was commonly associated with placental insufficiency. I also note that there had been an increase in growth velocity for a period after the scan of 13 May 2009. I should record, out of completeness, that I accept Mr Gibson's submission, which Mr Whitting did not challenge, that a finding that the cause of B's low growth was placental insufficiency (such a finding being on the balance of probabilities) does not answer whether there was a material risk as at 13 May 2009 or 3 June 2009 about which Mrs A ought to have been warned. It was for that reason that I addressed first my finding of material risk on 13 May 2009 or 3 June 2009.

Would Mrs A have undergone amniocentesis

92. I turn to consider whether, if Mrs A had been told about that there was a risk that B might have a chromosomal abnormality, Mrs A would in the light of the information about that risk have requested an amniocentesis. It is common ground that if an amniocentesis had been performed (and the probabilities are that it would have been performed without inducing a miscarriage), after a delay to enable cellular material to grow and be examined, the chromosomal abnormality would have been discovered.
93. The evidence shows that if a material risk had been identified by Dr Galajdova on 13 May 2009 she would have referred to Dr Neales. It appear that Dr Neales would have provided information, whether on 13 May 2009 or 3 June 2009, to the effect that it was likely that B was genetically small or there was placental insufficiency, but in a very small number of cases can indicate an underlying problem. That risk could only be excluded with amniocentesis, which carried risks of premature delivery, miscarriage bleeding or infection.
94. Mrs A notes (at paragraph 113 of her witness statement) that the fear of having a baby with chromosomal defect "would have been fore front in my mind and despite the risk of provoking premature labour" she would have opted for amniocentesis. Mr A said that they would have been absolutely determined to find out what was wrong, and that they were living on the edge at the time, being concerned that Mrs A might go into premature labour at any time.
95. I find that Mrs A would have pressed for further information from Dr Neales. This is because it was apparent from the evidence and the medical notes that Mr and Mrs A had taken a careful approach to all the information that they were being given. As Mr A said in evidence in relation to the issue about a termination, there would have been a discussion. That discussion would have yielded Dr Neales' view that the risk of B having a chromosomal abnormality was a negligible, theoretical or a background risk. That discussion would also have provided Mrs A with the information that amniocentesis carried a 1 in 100 risk of provoking premature delivery, and Mrs A knew, or would have been reminded, such a premature birth carried risks of significant risk of disability to B.
96. In these circumstances Mrs A would have been in a situation where there was a negligible, theoretical or background risk of chromosomal abnormality which might have been excluded or confirmed, against a real risk of provoking premature delivery. There was nothing in Mrs A's beliefs about having a disabled child that suggested she would opt for a higher risk of having a disabled baby. Any such decision in this case would have been illogical on the evidence and I do not find that Mrs A would have made such a decision. I note in this respect that Mrs A was prepared to live with the theoretical or background risk of having a Down's syndrome child after the earlier nuchal translucency and serum biochemistry tests.

Would Mrs A have elected for a termination at week 32 or 35

97. The final issue is whether, either at week 32 or week 35, at a time when the foetus would have been viable, Mrs A would have requested a termination of the pregnancy if an amniocentesis had been carried out and shown that there was a chromosomal abnormality.
98. It is common ground that Mrs A would have been told that: the overwhelming majority of children with a chromosomal abnormality would be likely to have developmental delay; it would be extremely unlikely that there would be no significant effect or that child would lead a normal and healthy life; delayed growth and development were commonly associated with the chromosomal imbalance; it was likely the child would suffer from cognitive deficit and would need a degree of care throughout life and would not be independent; and the prognosis would be guarded. Mrs A said that, notwithstanding the nature of the operation that would be required to be carried out to effect an abortion on a foetus aged over 30 weeks (injecting the heart with potassium to stop the heart of the foetus, waiting for 2 days to ensure that the foetus was dead, and then being induced for delivery), she would have gone through with it if she had been told what doctors agree she would have been told.
99. Mr B was more hesitant, to the extent that at the beginning of his re-examination on this issue Mr Gibson remarked that he was not sure where Mr A was with his evidence. In the final event Mr A said that there would have been a discussion and that he believed that they would have opted for a termination.
100. I have found this part of the case the most difficult to determine. I should record, out of fairness to Mr and Mrs A, that they did not have the opportunity of making this decision and were therefore attempting to put themselves into a position which did not confront them. However I do not accept the evidence that Mrs A and Mr A gave to the effect that they would have had a termination at that late stage of the pregnancy. This is because when Mrs A was told by Dr Galajdova that there was a real risk that B might be born prematurely on 13 May 2009 (when Mrs A was 27 weeks plus 6 days pregnant), in circumstances where the evidence showed that Mrs A was well aware of the potential consequences that might have for disabilities with a premature baby, Mrs A's reaction was, as recorded in the notes by Dr Galajdova, one of shock and continued efforts to do all that she could to maintain the pregnancy. If Mrs A had adopted the approach that she said that she had, namely taking no risk of bringing a disabled child into the world, she would have at that stage begun discussions about terminating the pregnancy. I accept, as Mr Gibson submitted, that as a patient Mrs A's approach did not have to be logical or internally consistent, but Mrs A's evidence was that her belief was clear and consistent, namely that Mr and Mrs A would not bring a disabled child into the world but when confronted with that risk they did not act as they indicated that they would. Their understandable reaction to the news on 13 May 2009 shows that although Mr and Mrs A have convinced themselves after the event that they would have terminated the pregnancy at either week 32 or 35, they would not have done. They would have continued with the pregnancy, hoping for the best outcome.

Conclusion

101. For the detailed reasons given above there was as at 13 May 2009 and 3 June 2009 no material risk that B was suffering from a chromosomal abnormality. There was the background risk but there was nothing to suggest that was a risk to which a reasonable patient, in the position of Mrs A, or Mrs A herself, would have attached any significance.
102. I do not accept if Mrs A had been given about the risk of B having a chromosomal abnormality that Mrs A would have had an amniocentesis, because the risks of having a disabled baby would have been greater from amniocentesis than from continuing with the pregnancy. I do not find that Mrs A and Mr A would have had a termination of the pregnancy if an amniocentesis had been carried out and shown that there was a chromosomal abnormality, this is in the light of their actions when told about the risks of imminent delivery on 13 May 2009. I therefore dismiss the claim.