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Clinical negligence: consent and standard of care in antenatal screenings

United KingdomScotland
05/11/2019
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The claimant, Edyta Mordel, A mother who was not properly informed when declining antenatal Down’s syndrome screening, has been awarded compensation from the NHS in respect of her claim for clinical negligence. It was held that the standard of care for obstetricians goes beyond a ‘tick-box’ approach for informed consent in antenatal screenings.

Facts

The Court heard that Ms Mordel, whose native language is Polish, failed to understand the sonographer when asked if she wanted antenatal screening. Ms Mordel stated that, had she understood the question, she would have requested the screening. In those circumstances, Ms Mordel alleged that if she had been informed of her son’s diagnosis, she would have subsequently terminated the pregnancy.

Ms Mordel proceeded to claim damages in respect of the NHS Royal Berkshire Trust’s alleged failure to seek her consent to the screening.

Decision

At trial, medical experts for both parties gave evidence expressing contrary views on the standard of care exercised by the sonographer and whether Ms Mordel had been given the opportunity to provide her informed consent for antenatal screening from the Trust.

Mr Justice Jaye found that the sonographer should have checked: (i) that there had been a discussion between Ms Mordel and the midwife about screening; (ii) that Ms Mordel had been supplied with the relevant NHS booklet; and (iii) that Ms Mordel understood the essential elements and purposes of screening for Down’s syndrome.

Accordingly, it was held that the sonographer had failed to obtain Ms Mordel’s informed consent to forgo the screening.

Comment

The decision reinforces the obligation upon medical professionals to explore further any refusal of antenatal screenings. Whilst it would not always be necessary to determine the ‘reasons’ for acceptance or rejection, the Court found that it is a fundamental principle of the modern NHS to check whether patients fully understand the relevant issues. In this way, the standard of care goes well beyond a mere ‘tick-box’ approach to informed consent. The decision also reinforces the need for medical professionals to ensure they have obtained consent from patients more generally.

Further reading: Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB).

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