Supreme Court Update: Scope of Duty of Care in Khan v Meadows
Last week the Supreme Court handed down its judgment in the case of Khan (Respondent) v Meadows (Appellant)  UKSC21. The difficult question in issue – can a mother sue for damages for a baby born with autism following a pregnancy, which, with appropriate care, would have been terminated but for an unrelated reason? The progression of the case from the High Court to the Supreme Court has been an interesting journey to follow. The case questions the scope of a Defendant’s duty of care in clinical negligence cases, and illustrates the difficulties, and at times inconsistencies, in applying the legal test of causation to medical situations.
In 2006, the Claimant (Ms Meadows) sought advice from the Defendant (GP, Dr Khan) regarding the risk of haemophilia in future pregnancies. Blood tests were unable to identify whether the Claimant was a carrier of the haemophilia gene; she required genetic testing to determine this. The Defendant advised the Claimant that the tests results were normal, from which the Claimant understood she was not a carrier of haemophilia. The Claimant went on to give birth to a son in 2011, and he was diagnosed with both haemophilia and, latterly, autism. It was accepted that Dr Khan had acted negligently but the central legal dispute related to whether the Defendant was liable only for the costs attributable to haemophilia (£1.4million), or also for the costs attributable to her son’s autism (£7.6million). Factual causation was not in issue - had the Claimant been appropriately advised of the need to undergo genetic testing, this would have identified her haemophilia gene, she would have specifically opted to test for this during her pregnancy and she would have elected for a termination if positive.
In the High Court, the Claimant relied on the principle of “but for” causation, and sought to align the matter with other wrongful birth claims. The Claimant argued that, but for the Defendant’s admitted negligence, the Claimant’s son would not have been born and the Defendant should therefore be liable for all the consequences of the pregnancy, except those that cannot be recovered as a matter of law (such as the costs of bringing up a healthy child), as would be the case in other wrongful birth claims.
The Defendant argued that this was a novel point in clinical negligence, and sought to apply the “scope of duty principle” outlined in South Australia Asset Management Corporation v York Montague  AC 191 (“SAAMCO”). The Defendant contested that there is a fundamental difference between a parent seeking information about a specific disability (and accepting all other risks relating to the pregnancy), and a wrongful birth claim where the parent seeks to terminate any pregnancy.
Mrs Justice Yip aligned her assessment of causation closely to Chester v Afshar (p55). She concluded that the risk that materialised, namely autism, had “everything to do with” the Claimant’s initial reason for approaching the Defendant – namely, to seek advice about the continuation of a pregnancy. Accordingly, the Defendant should bear the liability for all outcomes of this pregnancy. Mrs Justice Yip awarded damages in the sum of £9million.
The Court of Appeal unanimously overturned this finding, in a concise judgment lead by LJ Davies. The Court concluded that Mrs Justice Yip had failed to apply the test in SAAMCO, which demands an adequate link between the breach of duty and the particular type of loss claimed. It is not enough to find a link between the breach of duty, and a stage in the chain of causation (i.e. the pregnancy) and conclude that the Defendant should be liable for all the consequences of the pregnancy. In summary, the development of autism was a “co-incidental injury” and fell outside the scope of the Defendant’s duty of care.
The 7-judge panel of the Supreme Court has unanimously, upheld the Court of Appeal’s finding. The judgment highlights the need in all negligence cases to assess what the scope of a defendant’s duty of care is, by considering the purpose for which the Defendant’s professional services were engaged. “Factual causation”, although important to determine, actually had no relevance to the question of the scope of a Defendant’s duty. Although the verdict was unanimous, the Lords took slightly different approaches to the appropriate tests for assessing the scope of the duty. Lord Hodge and Lord Sales (with Lady Black and Lord Kitchin in agreement) have determined a sequence of six questions, which will serve as a useful model for clinical practitioners considering the scope of duty principle. Lord Burrows (p79) found this approach unhelpful, and set out his own seven-part test to reach the same conclusion. The differing opinions but united conclusion make this judgment well worth the read for all within this area.
The clear headline for clinical negligence practitioners from this latest update from the Supreme Court is that that the scope of a Defendant’s duty merits early and clear consideration in all cases. This will, of course, be particularly germane to our Trust and GP clients in any cases relating to “advice” or “consent”. It will also be interesting to see how the scope of duty test develops in other areas of medicine. For example, is a radiologist’s scope of duty limited by the details provided on the scan report form, if another obvious diagnosis is missed? More generally, it is possible that this judgment reflects a subtle challenge to the controversial Chester v Afshar, and it remains to be seen how these findings will be reconciled in the future.
If you would like to discuss this topic in more detail please contact Zara Bhakri, Associate.