You write one up, then another one appears.
Again the President, again Miss Deidre Fottrell QC, again failure by an IVF clinic to get the paperwork right in an IVF process and meaning that the parents need to go to the High Court to get their legal status as parents sorted out.
And again, a hospital trust being pretty unsympathetic and feeble in how they picked up the pieces. (“Oh parents, there are some pieces. Mind how you go. No, we’re not picking them up.” Actually, that sarky summary seems to be an improvement on the bedside manner employed in this particular case, where a doctor rang them up to tell them that one of them was not the child’s legal parent, and didn’t offer them an appointment or even explain it in more detail in a letter. Cheers for that.)
Re N 2016
Here’s the mistake itself
- Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y did not sign a Form WP. Both of them signed a Form IC, though it was not in precisely the same form as the Forms IC I have had to consider in previous cases. The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
- I can take the matter quite shortly. The only material difference between the Form IC used in this case and the other Forms IC which I have previously had to consider, is that X’s declaration was in these terms:
- “I am not married to [name] but I acknowledge that she and I are being treated together and that I will take appropriate action to become the legal father of any resulting child.”
Below this there was the following Note:
“NOTE: The centre is not required to obtain a partner’s acknowledgement in order to make the treatment lawful, but … it is advisable in the interests of establishing the legal parenthood of the child.”
- Whatever might otherwise be the effect of the words “I will take appropriate action …” there is, on the facts of this case, no problem, because X subsequently signed the Form PP.
- In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.
And here is what the President said about the emotional strain on the parents and the clinic’s approach
- I have drawn attention in my previous judgments to the devastating impact on parents of being told by their clinic that something has gone ‘wrong’ in relation to the necessary consents (see In re A, para 69, Case G, para 31, and Case I, para 28). I commented (Case G, para 32) that these were situations calling for “empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology.” In both Case G and Case I, I was very critical of those clinic’s behaviour in this respect. Here again, unhappily, the clinic’s response fell far short of what was required.
- In the present case, X and Y were similarly affected as had been the parents in other cases. X, who received the initial telephone call from the clinic, says he “cannot describe the shock I felt.” “It is impossible to describe what it feels like to be told so baldly over the telephone that the child you believed you were the legal parent of was not your legal child.” He was initially unable to contact Y. When she got home “I was beside myself; I was not crying but I was distracted, shaking and unable to function at all.” The impact on him was graphically illustrated by the fact that he was unable to remember either the name or the telephone number of the doctor who had telephoned him. Y remembers the “shocking state” X was in when she got home. In her statement, she voiced her anger that “a doctor should think it reasonable to ring someone up and give them such terrible news over the phone and then not back up the news with an offer of an appointment to discuss the issues in person, an offer of counselling and not to confirm the advice in writing.” By the time there was further communication, about a week later, X and Y had lost all confidence in the clinic and decided to seek their own legal advice.
- The contrast with other events, before and after, is poignant and telling. X recalls how “I quite literally burst into tears when I found out [Y] was pregnant.” And the intense emotion, the enormous joy, the immense happiness with which X and Y reacted in court as I announced my decision was the most powerful and moving indication which it is possible to imagine of all they had had to go through.
- Unhappily, they did not receive from the clinic the support they were entitled to look for. The clinic declined to meet X and Y, as they wished. The clinic was tardy in confirming, though eventually it did, its unqualified assurance that it would pay their reasonable costs. Even worse, and despite earlier correspondence in which they had sought disclosure, the solicitors X and Y instructed had to make an application to the court before the clinic finally disclosed the relevant records.
- In F v M and the Herts and Essex Fertility Centre  EWHC 3601 (Fam), Pauffley J was, as it seems to me with every justification, unsparingly critical of the behaviour of the clinic in that case after their mistakes had been discovered. Referring to guidance issued by the HFEA following the judgment of Cobb J in AB v CD and the Z Fertility Clinic  EWHC 1418 (Fam),  2 FLR 1357, Pauffley J observed (para 14):
- “The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern.”
I repeat what I said I have said previously (Case G, para 33), I agree with every word of that. Pauffley J went on to criticise in particular the tardiness of the clinic in that case in disclosing the relevant patient files to the parents.
- What is required in all these cases, I emphasise, is immediate, full and frank disclosure by the clinic of all the relevant files as soon as they are requested by the parents. Legal professional privilege apart, which can hardly apply to the original medical files, there can be absolutely no justification for refusing such a request.
- I have now had the experience of watching too many parents in these cases sitting in court, as they wait, daring to hope for a happy outcome. The strain on them is immense. If the process is delayed because of obstruction on the part of the clinic, that is shocking. The original administrative incompetence in these cases is bad enough; to have it aggravated by subsequent delay, prevarication or obstruction on the part of the clinic merely adds insult to injury. Ms Fottrell, on instructions, tells me that her clients were shocked and upset by the clinic’s conduct and experienced great distress and anguish in the weeks and months following the initial telephone call. I am not surprised. The only mitigation is that when the clinic came to file its evidence, the “person responsible” who made the statement adopted a more seemly and appropriate stance, expressing “sincere apologies” for the clinic’s error and for its effect on X and Y.
And hooray, this time there were consequences
The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.
To err is human, but it is how you deal with those mistakes that makes all the difference.
Too many organisations, both public and private, seem to take the attitude, that if they make a mistake, they simply need to be unhelpful, unresponsive or even belligerent, and the people they have impacted will just go away. Sadly this is too often true, because the emotional and financial strain of taking something like this to the High Court is huge.
My wife and I have been through this with an LA on an adoption matter, and it literally felt like a nightmare from which we couldn’t wake up. The three days in the High Court itself were incredibly intense, but much worse were the months of desperately hoping that “this time the LA will do the reasonable thing” only to discover they hadn’t, and that in several cases they virtually perjured themselves in attempts to avoid responsibility. We had the future of our two children in mind, they were just watching a bottom line.
We eventually won (sadly in a way that didn’t lead to a published judgement), but we have friends who are in a similar position, and they simply don’t have the resources (mental and financial) for the required level of fight. Seeing our eventual victory hasn’t changed their mind, because they have also observed the huge toll it took.
Is there a solution to this?
I think the only thing that will help is to have a sufficiently high level of punitive damages awarded in these cases to make it too risky to undertake such behaviour. This is not the current situation, and I’m not even sure the right legal framework is in place to make it possible.
That does seem to have become a bit of a culture nationally – and even when organisations do apologise, it tends to be that mealy-mouthed type of “we’re sorry if our actions caused you distress or offence”
I wonder if part of it is the fear that if you admit to a mistake, you’ll be sacked or there will be a compensation claim. I think most of the public would appreciate organisations who were candid and said “What we did here was wrong, we shouldn’t have done it, we’re very sorry, here’s how we plan to put it right for you”
Not sure how we would reverse that, but as the saying goes, a fish rots from the head down, so Central Government would be a start.
There is a real worry about compensation, but that’s the reason I think we have to have high punitive damages if an organisation behaves in an unreasonable fashion after the event.
We’ve got to give organisations a clear encouragement to sort things out early and fairly, rather than digging in and hoping the problem will go away. A bit like the reason we have sentence discounts for early guilty pleas, and consider forcing a victim to go through a painful trial as an aggravating factor.
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