Personal Injury, Serious Injury & Clinical Negligence

IVF failings part III

Following hot on the heels of the decision in Re the Human Fertilisation and Embryology Act 2008 (Case G), about which we commented last week, Sir James Munby has yet again been obliged to deal with an application for a declaration of parenthood as a result of the failings of an IVF clinic. This was the ninth such case of this type dealt with by the President of the Family Division, since Re A and others (Human Fertilisation and Embryology) (Legal Parenthood: Written Consent) [2015] EWHC 2602 (Fam), [2016] 1 All ER 273, [2015] WLR(D) 387, reported here in October last year.

In the Matter of the Human Fertilisation and Embryology Act 2008 (Case I) the clinic used out of date forms prescribed under the 1999 Act for treatment which commenced on or after 6th April 2009, the date upon which the 2008 Human Fertilisation and Embryology Act came into force. They used the old forms despite being made aware of the need to use new prescribed forms, compounding the error by identifying the treatment as using the sperm of the intended father, when in fact donor sperm was being utilised.

The Court had no difficulty in making a parenthood order in favour of X, husband of Y, the mother of the child. Although the forms were incorrect, all had been prepared on the basis that X would be the father of the child and the fact that he was not was the product of an avoidable administrative error by the clinic.

It seems that Sir James may well be losing patience with the attitude of the clinics, who yet again appear to have reverted to the defendant’s classic “deny, defend, delay” approach to medical errors, even when clearly in the wrong.

We can do no better than to conclude with Sir James assessment of the conduct of the clinic in his judgment published this month:

27)  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, and Case G, para 31). 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 Case G, I was very critical of that clinic’s behaviour in this respect.

28) In the present case, X and Y were similarly affected. Y, who received the initial telephone call from the clinic, says she was “beside myself” and felt “physically sick.” X, when he got the news from Y, felt “total devastation.” “I was totally numb and shocked.”

29) Unhappily, they did not receive from the clinic the support they were entitled to look for. In the very first telephone call, Y recalls being told that X’s name should not have been put on the birth certificate and that the certificate should have recorded the father as being unknown. X and Y are critical of the clinic’s handling of the problem which, after all, it had created. In her report, the guardian, who has been involved in all nine cases to date, observed that the subsequent actions of the clinic “do not compare favourably to those of the other clinics” and that the clinic has appeared “defensive and insensitive.” She described the comment about the birth certificate as being “not only factually incorrect but most terribly hurtful.”

30) The letter dated 26 June 2014 to which I have already referred contained not a single word of apology or regret. A subsequent letter dated 15 April 2015 contained an offer to pay the reasonable costs of the parenthood application “without cap” and an offer of £1,000 each to X and Y “by way of ex gratia payment in recognition of the anxiety they have suffered, in full and final settlement of all causes of action.” As in the case of the earlier letter, it contained not a single word of apology. In January 2016 the clinic filed the witness statement to which I have already referred. It contained this anaemic sentence: “I would like to take this opportunity to express my sincerest apologies on behalf of CARE Sheffield and CARE Fertility Group for the distress that this matter has caused [X], [Y] and the [child].” This, I was told, was the first apology either X or Y had had from the clinic.

31) The clinic’s behaviour is by no means the worst I have seen in the course of considering all these cases, but it was, nonetheless, seriously deficient and, in my judgment, deserving of the criticisms voiced by X, by Y and by the guardian.

Chris Thorne Partner at Clarke Willmott, is an expert in fertility related medical negligence claims. He was the lawyer behind the leading case of Yearworth v North Bristol NHS Trust and can advise you in any fertility related claim. If you, or anyone you know, wishes to speak to Chris about a claim involving IVF or birth issues, please contact him on 0345 209 1461 (Chris.Thorne@clarkewillmott.com).