Mrs A v East Kent Hospitals University NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWHC 1038 (QB) |
| Docket Number | Case No: TLQ/14/0024 |
| Court | Queen's Bench Division |
| Date | 31 March 2015 |
[2015] EWHC 1038 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Dingemans
Case No: TLQ/14/0024
Christopher Gibson QC and Robert Dickason (instructed by Wolferstans) for the Claimant
John Whitting QC (instructed by Clyde & Co) for the Defendant
Hearing dates: 16, 17, 18, 19 and 20 March 2015
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
In this case there is no basis for making an order for...
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