“Wrongful conception” ruling against UK general practitioner

In December 2021, Evie Toombes successfully sued Philip Mitchell, her mother’s general practitioner, arguing that she would never have been conceived had he given her mother clearer advice about the role of folic acid supplements before and during pregnancy. Despite surgical interventions, she still experiences neuromuscular, bladder, and bowel problems. These disabilities notwithstanding, she has become a successful athlete.12

Mitchell had made the following note of the relevant consultation in 2001: “Preconception counselling. Folate if desired discussed.” Judge Rosalind Coe, QC, described this as, “completely inadequate”2 and held that his advice was negligent. Had he given the correct advice, she said, Toombes’s mother, Caroline Toombes, would have delayed conceiving and taken folic acid. The court held that had she done so, she would, on the balance of probabilities, have subsequently conceived a baby unaffected by neural tube defect.12

Recommendations at the time supported periconceptual folate supplementation, and Mitchell described this in his evidence as the good practice he adhered to, leaving the final decision on this treatment to the patient herself.1

Much interest revolves around how Evie Toombes sued the GP on behalf of her mother for “wrongful conception,” thus avoiding the bar on disabled people suing for “wrongful birth.” The law of negligence is intended to compensate the patient (in this case her mother) for harm resulting from a duty of care being breached.3

The idea that “loss of the chance” of a better outcome is harm constituting negligence is already present in UK medical law. In 2004, a woman successfully sued her surgeon claiming that inadequate discussion of surgical complications had denied her the chance to decline or delay her operation and potentially achieve a better outcome.45 This did not result in a storm of litigation from others with similar grievances.

The Toombes v Mitchell ruling is different because unassisted pregnancy is not a treatment governed by the usual medical duty to obtain fully informed consent. Nevertheless, people do base life changing decisions, including planning a pregnancy, on the information that they receive from clinicians.

Directing blame at doctors causes professional unease when, for example, patient harm occurs against a backdrop of system-wide failings6 or a doctor is implicated in harm committed by someone beyond their control (such as the recent mass shooting in Plymouth7). However, although the Toombes judgment is surprising given the bar on wrongful birth cases and general sentiments upholding the sanctity of life in English law, it is likely to have limited application in routine practice. The notion that doctors should know and follow evidence based guidelines is already accepted and complicated only by the sheer number of guidelines available and their potential to contradict one another.8 Furthermore, documentation has improved substantially in the past 20 years, largely as a result of electronic health records. However, current work pressures may not be conducive either to excellent note keeping or to health promotion activities.