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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ARB v IVF Hammersmith & Anor  EWCA Civ 2803 (17 December 2018)
Cite as:  WLR(D) 766,  1 FLR 1317,  2 WLR 1094,  2 All ER 1074, (2019) 166 BMLR 39,  EWCA Civ 2803,  QB 93,  Med LR 119
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ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE JAY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
LADY JUSTICE NICOLA DAVIES DBE
|- and -
- and -
Jeremy Hyam QC and Suzanne Lambert (instructed by Hempsons) for the Respondent
Michael Powers QC and Mark McDonald (instructed by Axiom Stone Solicitors) for the Third Party
Hearing dates: 30-31 October 2018
Crown Copyright ©
Lady Justice Nicola Davies DBE:
"Looking again at Rees, the legal policy objections may be characterised as follows: the inherent difficulty, if not impossibility, of measuring the loss; the unwillingness to regard the child as a financial liability; the refusal to offset the benefits which will accrue from parenthood from any additional financial liabilities; the feeling that it is morally unacceptable to attempt this exercise; and the notion that it is not fair, just and reasonable to allow this sort of claim. These objections overlap, and may be expressed in different ways, with different emphasis. Most of them are apt to apply where the contractual obligation is strict. The last of these objections is expressly tied to considerations which traditionally have only operated in the tortious sphere, and it is to be noted that Lord Bingham also expressly referred to burdens on the NHS. However, the secondary obligation to pay damages arises by implication of the common law, and in my view the result should be the same even if one were notionally to strip away the tort-specific objections. Furthermore, I have difficulty with the notion that a private patient could succeed whereas an NHS patient could not."
"[We] Understand that:
1. a) We must both give written consent before any embryos are thawed and replaced…
2. In the event of divorce or separation:
- The IVF unit will only thaw and replace embryos if both partners give written consent at the time of embryo replacement. The partners should also be those which are named in this document…
5. Contract conditions:
a) We review the storage contract annually. It is the responsibility of the couple once a year to confirm that you wish storage of embryos to continue. Failure to keep in contact with the unit or failure to pay the annual storage fee will result in the disposal of your embryos 3 months after the annual review date has lapsed or on expiry of your consent form (whichever is first). It is also your responsibility to inform the senior embryologist if you change your address or if there is any change in personal circumstances.
b) It is your joint responsibility to pay the annual fee to cover storage of your embryos and administration.
c) Consent to store embryos is required by both partners. If either partner does not agree then the embryos have to be thawed and allowed to perish.
6. Declaration: We have been given sufficient time to consider the contents of this document, and have been given the opportunity to have counselling if required or to take legal advice before signing below…"
"FERC clinic is a nurse-led clinic, it may be possible for an embryologist to be in attendance.… If no embryologist is available for clinic, ask them to advise how many embryos should be thawed initially. …
1.2. The Consultation
- Allow the embryologist to explain about the embryos, if they are present
- Explain the consent to thaw form – if both partners are present and they are happy to sign it – witness the form
- If both partners do not attend clinic, give the consent form and emphasise the importance of returning it at the first scan appointment.
- Allow the embryologist to explain about the embryos, if they are present. Explain the Consent to Thaw Form – if both partners are present and they are happy to sign it – witness the form and scan it on IDEAS – Patients need to bring some forms of ID – i.e. Passport or Driving License
- If both partners do not attend clinic, give/email the consent form and emphasize the importance of returning it at the first scan appoint – Both patients need to sign Consent to Thaw Form in presence of a Nurse and their ID checked against their Passport or Driving license
Obtaining and Checking Consent forms
- It is important that both partners need to be present during coordination
- Both partners need to bring their valid ID (passport, driving license)
- The nurse taking consent needs to check that both signatures in the FERC consent match the ones in the valid ID and the ones in the previous consent forms (if available on IDEAS).
- If it all matches, the nurse taking consent signs the consent form as a witness (member of staff) and document that signatures has been checked against the valid ID (specify which ID) and the previous consent forms
- Ask the patient/s to also write the same signature as with the previous consent forms if different from the valid ID, and document any remarks
- The completed consent form is scanned into the patient's file in IDEAS, the original will be kept in the folder found in the operational office and be discarded after 6 months
If in case the male partner is not present during the coordination appointment (even with his signature)
- check females signature and sign as witness with a note that male is not present during coordination and advised patient that male partner is required to attend the clinic and complete the consent form prior to the first scan appointment
- male partner to bring a valid ID to the unit when completing the consent form
- scan the consent form into IDEAS
- original copy to be kept at FERC consent folder in the nurses office and to be given to patients on Day of Embryo Transfer
2.3.2 Procedure when the male partner attends the unit to complete the consent forms
Any nurse or embryologist can assist male partner in completing the consent form:
- print out the scanned consent form from IDEAS, read remarks
- ask the male partner to sign the consent form and make sure it matches the one in the valid ID and the previous consent forms (if available on IDEAS)
- Ask the patient to also write the same signature as with the previous consent forms if different from the valid ID, and document any remarks
- countersign as witness
- scan the consent form into IDEAS
2.3.3 Circumstances that male partner is not available
For any circumstances that the male partner will not be available by any means such as out of the country, disability or others, discuss the issue with the consultant and senior Embryologist and document the decision on IDEAS."
"I understand that [the clinic] will renew the storage of our embryos for a further year, the next review will be June 2011.
It is our responsibility to keep the senior embryologist informed of any change of address and circumstances. We understand that if we do not keep in contact, our embryos will be disposed of three months after the date stated above, unless I have contacted the senior embryologist at [the clinic] and organised continued storage."
Neither party informed the clinic of their separation.
"[R] and [ARB] consent to the thawing of our embryos that were frozen following infertility treatment. We also understand that …
- The decision of the number of embryos to thaw will be made after discussion with ourselves and a member of the IVF team. This will be renewed on the day of the thaw by an embryologist and is dependent on the survival of the embryos. …
'Discussed with Ben Lavender 1 good embryo to be thawed and placed if it survives. If not 4 remaining eggs to be thawed and observed.' [In manuscript]
- We understand that we are being treated as a couple and that the male partner will be the legal father of any resulting child."
This form was not signed as required by a "member of centre".
Judge's findings of fact
"Thus, I conclude that ARB did not sign the Consent to Thaw form on 20th October 2010 or at all. His signature was forged by R. I further conclude that he did not in fact give his informed consent to the procedure because he was not given all the necessary information which would have enabled him to provide his consent, he was not willing to have a child with R in September and October 2010, and he would not have signed the Consent to Thaw form had R asked him to do so. I am completely satisfied that ARB had not in fact been given sufficient information by R in relation to the number of embryos to be implanted and their stage of development. I am also completely satisfied that ARB had no intention of having another child with R after May 2010. In October 2010 R well knew that, which explains why she resorted to desperate, dishonest measures."
"12. General Conditions
(1) The following shall be conditions of every licence granted under this Act—
(c) except in relation to the use of gametes in the course of providing basic partner treatment services, that the provisions of Schedule 3 to this Act shall be complied with…
Schedule 3 – Consents to use or storage of gametes, embryos or human admixed embryos etc
(1) A consent under this Schedule, and any notice under paragraph 4 varying or withdrawing a consent under this Schedule, must be in writing and, subject to sub-paragraph (2), must be signed by the person giving it.
(3) In this Schedule 'effective consent' means a consent under this Schedule which has not been withdrawn.
3. Procedure for giving consent
(1) Before a person gives consent under this Schedule—
(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and
(b) he must be provided with such relevant information as is proper.
(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 and, if relevant, paragraph 4A below.
4. Variation and withdrawal of consent
(1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes, human cells, embryo or human admixed embryo to which the consent is relevant.
5. Use of gametes for treatment of others
(1) A person's gametes must not be used for the purposes of treatment services or non-medical fertility services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.
(2) A person's gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.
8. Storage of gametes and embryos
(1) A person's gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent."
HFEA Code of Practice Eighth Edition
"Guidance Note 4
T58. Prior to giving consent gamete providers must be provided with information about: (a) the nature of the treatment, (b) its consequences and risks, (c) any analytical tests, if they are to be performed, (d) the recording and protection of personal data and confidentiality, (e) the right to withdraw or vary their consent, and (f) the availability of counselling.
T59. The information referred to in licence condition T58 must be given by trained personnel in a manner and using terms that are easily understood by the gamete provider.
Guidance Note 5
T57. Gametes or embryos must not be used in the provision of treatment services … unless effective consent is in place from each gamete provider in accordance with Schedule 3 …
The law requires the centre to obtain written informed consent from a person before it performs the following procedures: … (e) using embryos created with their gametes for their own treatment, treatment of a partner or treatment of others.
5.1 The centre should obtain written informed consent from a person before it carries out the following procedures: (a) using their gametes for their own treatment or their partner's treatment.
5.3 The centre should establish and use documented procedures to ensure that no activity involving the handling or processing of gametes or embryos is carried out without the appropriate consent having been given.
Interpretation of mandatory requirements
The law requires that before a person consents to the procedures outline in box 5A, they should be given:
(a) enough information to enable them to understand the nature, purpose and implications of their treatment or donation,
(b) a suitable opportunity to receive proper counselling about the implications of the steps which they are considering taking, and
(c) information about the procedure for varying or withdrawing any consent given, and about the implications of doing so.
5.6 The centre should give anyone seeking treatment or considering donation or storage enough time to reflect on their decisions before obtaining their consent. The centre should give them an opportunity to ask questions and receive further information, advice and guidance.
5.9 The centre should ensure that anyone giving consent declare that:
(a) they were given enough information to enable them to understand the nature, purpose and implications of the treatment or donation,
(b) they were given a suitable opportunity to receive proper counselling about the implications of the proposed procedures,
(c) they were given enough information about the procedure for varying or withdrawing consent, and
(d) the information they have been given in writing is correct and complete.
5.10 Treatment centres should take all reasonable steps to verify the identity of anyone accepted for treatment, including partners who may not visit the centre during treatment. If a patient's identity is in doubt, the centre should verify their identity, including examining photographic evidence such as a passport or a photocard driving licence. The centre should record this evidence in the patient's medical records.
5.11 To avoid the possibility of misrepresentation or mistake, the centre should check the identities of the patients (and their partners, if applicable) against identifying information in the medical records. This should be done at each consultation, examination, treatment or donation."
"1. For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the intervention in question … Acquiescence where the person does not know what the intervention entails is not 'consent'.
10. To be valid, consent must be given voluntarily and freely, without pressure or undue influence being exerted on the person either to accept or refuse treatment. …
13. To give valid consent, the person needs to understand the nature and purpose of the procedure. Any misrepresentation of these elements will invalidate consent. …
18. In considering what information to provide, the health practitioner should try to ensure that the person is able to make an informed judgment on whether to give or withhold consent. …
32. The validity of consent does not depend on the form on which it is given. Written consent merely serves as evidence of consent: if the elements of voluntariness, appropriate information and capacity have not been satisfied, a signature on a form will not make the consent valid.
33. Although completion of a consent form is in most cases not a legal requirement (exceptions include certain requirements of the Mental Health Act 1983 and of the HFEA 1990 as amended) the use of forms is good practice where an intervention such as surgery is undertaken."
Appellant's Ground of Appeal 1
i) The IVF clinic was found by Jay J to have committed a breach of contract by thawing and implanting the embryos. The legal policy developed in cases of tort resulting from wrongful conception/birth, which prevents recovery of loss arising from the birth of a healthy child, does not apply in cases of contract. In assessing any loss, it is not for the court to take any account of any benefit arising from the birth and upbringing of the child but simply to apply the rule in Hadley v Baxendale (1854) 9 Exch 341 to the financial loss resulting from the breach in contract;
ii) The court must consider the nature of this contract and the breach. It can only occur if the female wishes to have a child and the male does not want to have a child using his gametes. The loss which would result, namely the birth of a child, would satisfy both limbs of Hadley v Baxendale;
iii) As a general rule of contract, if a particular type of loss falls within either limb of Hadley v Baxendale and a claimant in fact regards the birth as a loss and not something which brings any benefit, the claimant is entitled to claim such a loss. Mr Halpern QC accepted that such an approach would entail an assessment of the claimant's loss based not on an objective assessment by the court but on the claimant's own subjective assessment.
"…two features were crucial. First in monetary terms it is impossible to calculate the benefit of avoiding a birth and having a healthy child … the emphasis was squarely on the impossibility of undertaking a process of weighing the advantages and disadvantages. The second feature was explained by Lord Millett as follows:
'In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy B baby as more trouble and expense than it is worth.'"
"The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say 'our more or less inadequately expressed ideas of what justice demands' …. This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases."
i) Lord Hope, referring to his judgment in McFarlane stated at [51G-H]:"It was the insuperable problem of calculation that was the critical point in the decision so far as I was concerned. If, as I believe, it is impossible to measure the benefits to arrive at a figure which could be awarded as damages. The conclusion which I drew was that, for this reason, these costs must be held to fall outside the ambit of the duty of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and the laboratory."
ii) Lord Nicholls at  and Lord Hutton (dissenting) at [86, 87, 97] also based their respective conclusions on what was fair, just and reasonable (i.e. legal, not public, policy).
iii) At  Lord Millett stated:"There is no difficulty about causation, whether as a matter of fact or of legal responsibility. The pregnancy and birth of a child are the very things which the defendants are employed to prevent. It is impossible to say that consequential loss falls outside the scope of their duty of care. They are accordingly liable for the normal and foreseeable heads of loss, such as the mother's pain and suffering (and where appropriate loss of earnings) due to the confinement and delivery. The novelty of the claim in McFarlane lay in one particular head of damage – the cost of bringing up a healthy child."At  he cited with approval the words of the late Sir Roger Toulson (as he then was) as follows:"In a lecture to the Personal Injury Bar Association's Annual Conference in 2003 Sir Roger Toulson, Chairman of the Law Commission, described the ratio of McFarlane as follows:'Although at a detailed level there are therefore significant differences between the judgments, at a broader level two features dominate them. These are, first, the incalculability in monetary terms of the benefits to the parents of the birth of a healthy child; and, secondly, a sense that for the parents to recover the costs of bringing up a healthy child ran counter to the values which they held and which they believed that society at large could be expected to hold.'"
iv) Lord Scott at  to  drew attention to the general distinction between damages in tort and contract, but said that there was no difference in the case of professional negligence where the duty was the same duty to take reasonable care, whether arising in tort or in contract:"Accordingly, as it seems to me, the answer to the McFarlane case, to the present case and to each of the other like cases to which your Lordships have been referred does not depend on whether the claim is a contractual or a tortious one. The same result must be reached whether the claimant was a private patient or an NHS patient. In every case the claimant, having established negligence, is entitled, as a matter of general principle, to be placed in the same position he or she would have been in if the professional advice or services had been competently provided. So in every case this general principle of damages would require the claimant to be placed in the position he or she would have been in if the baby had not been born."
"317. The crux of the matter remains whether the legal policy enunciated by the House of Lords in Rees, and undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence which I have identified, should – for reasons of principle, logic and policy – apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. This last aspect is crucial because the current focus is on the secondary obligation to pay damages arising under the common law.
318. In my judgment, the same legal policy applies to thwart ARB's claim. The measure of damages is the same; the test for remoteness does not turn on any distinction pertaining to the nature of the underlying obligation; and, most particularly, there is no material difference for the purposes of this legal policy between contractual duties of these two types…"
I agree with the analysis. It is of note that Lord Scott in Rees stated that as to the general principle of damages, which require a claimant to be placed in the position he or she would have been in had the baby not been born, recovery does not depend upon whether a claim is a contractual one or a tortious one.
Clause 1(a) of the Agreement (paragraph 6 above)
i) The clinic owed an implied obligation to exercise reasonable care in relation to complying with its obligations under the 1990 Act, HFEA Guidance and its licence conditions, at the time consent was being sought for the thawing and replacement of the embryo;
ii) The clinic owed an express obligation to ARB not to thaw and replace an embryo if he did not give his written consent;
iii) This obligation is strict.
1. (a) We must both give written consent before any embryos are thawed and replaced."
The words "understand that" govern the six clauses in the Agreement. The arrangement is between ARB and R of the one part, and the clinic of the other. It is bilateral: the clinic provides services in consideration of payment. The Agreement is the only document which records that arrangement, other documents signed by the parties being consents given pursuant to the Agreement. It follows that the word "understand" signifies acceptance by ARB and R of the standard terms offered by the clinic.
"In principle, therefore, although there is every reason to assume, in the absence of a term to the contrary, that a professional person has undertaken no more than to use reasonable skill and care in relation to matters calling for the exercise of his professional skill and expertise, there would seem to be no good reason why one should make a similar assumption in relation to other aspects of his instructions. As to those, one would expect to construe the terms of engagement in each case to ascertain the precise nature of the obligations undertaken, without making any prior assumption that they are qualified or unqualified…"
Rix LJ, having reviewed previous authorities in respect of the obligation of a professional person to exercise his professional skill, said of those authorities at :
"…They all turn on their own particular facts. They nevertheless allow the following conclusions: (1) that the default obligation is one limited to the taking and exercise of reasonable care; (2) that it requires special facts or clear language to impose an obligation stricter than that of reasonable care; (3) that a professional man will not readily be supposed to undertake to achieve a guaranteed result; and (4) that if he is undertaking with care that which he was retained or instructed to do, he will not readily be found to have nevertheless warranted to be responsible for a misfortune caused by the fraud of another. It follows from the jurisprudence and from these conclusions to be derived from them, however, that it is not possible to support a blanket approach whereby, even in the absence of an express warranty, a professional's responsibility is nevertheless always limited to the taking of reasonable care."
"An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each relevant person ..."
Schedule 3 paragraph 8(2) provides that:
"An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each relevant person in relation to the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents."
Schedule 3 paragraph 1(3) provides:
"In this Schedule 'effective consent' means a consent under this Schedule which has not been withdrawn."
Appellant's Ground of Appeal 2
"279. First, Ms Suthers accepted that the clinic's SOP for telephone or postal co-ordination, or something similar, was practised in a number of IVF clinics at the time (at one point, she went further and agreed that it was common practice); that the presumption that a couple being treated together would share information, whether commonplace or not, was one which some clinics would make; that it was not uncommon for the male partner not to attend the co-ordination appointment or the final appointment before implantation; and that some clinics operate a practice whereby the Consent to Thaw form, as a 'provisional consent', is in place at or before the time of the first suppress scan appointment, with the final decision being made on the day of implantation (when it would be common only for the female partner to be present) as to the number of embryos to be thawed.
280. Secondly, clause 5.10 of HFEA's Code of Practice states that clinics should take all reasonable care to verify identity, 'including partners who may not visit the centre during treatment'.
281. Thirdly, on the facts of this case the clinic was entitled to believe that the Patient and Partner questionnaire was completed by ARB on the date the document bore.
282. Fourthly, on the facts of this case R was continuing to represent, or at least give the impression, that she was communicating with her partner ARB, who was being treated together with her in pursuit of a common objective."
However, having so found, the judge at  identified three matters which caused him concern; (i) that ARB and R were being treated together as patients at all material times before they separated. He then stated:
"My second concern is that the clinic's SOPs operative at the material time made clear that if both partners were present, their signatures should be witnessed, but if one partner was not present, this need not happen. This is illogical. Thirdly, a strict application of the clinic's former SOPs could have permitted what occurred in this case without ARB having attended any relevant clinic appointment. This is troubling…"
Respondent's second ground
Lord Justice David Richards:
Lady Justice King DBE: