The Court Distinguish Between Able and Disabled Bodied Parents? Judicial Reasoning (Essay Sample)

WHEN DECIDING ON ISSUES RELATING TO WRONGFUL CONCEPTION SHOULD THE COURT CONSIDER THE HEALTH OF THE PARENTS OR THE CHILD
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Law
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22nd April 2016
Introduction
The law on wrongful conception is a contentious issue which does not have grounds in the constitution. Most of the cases on this grounds are decided based on values and a set of facts. An action brought to the court for wrongful conception is based on the tort of negligence and is thus governed by principles of duty of care, breach of contract and causation. However, the case law in the UK has intimated the considerations to public policy, social and ethical views, which exceeds the range of negligence. The issue of parenthood resulting from negligence is a matter that requires a lot of consideration since most judges and observers have different views concerning this matter.[J K Mason, 'Wrongful Pregnancy, Wrongful Birth And Wrongful Terminology' (2002) 6 Edinburgh Law Review.]
Many questions have arisen in the English courts following the McFarlane v Tayside Health Board ruling by the House of Lords. The answers to the questions if a child born with a disability can be used as an exception or if the law should entitle damages to a disable parent of a healthy child are still controversial. The McFarlane case is not able to answer these questions which has led to the creation of difficult exceptions by the lower courts. This culminated in a ruling of Rees v Darlington Memorial Hospital NHS trust case by the House of Lords. This essay will try to review the different case laws set by the courts and why there are different responses to cases of ‘disability’ regarding either the parent or the child. It will try to analyse the development of case law concerning wrongful conception by analysing the cases of McFarlene, Parkinson and Rees and why it has led to a one-size-fits all approach for future claimants.[McFarlane v Tayside Health Board [2000] 2 AC 59.] [D. Brahams, 'Damages For "Unwanted" Healthy Child Awarded To Physically Disabled Mother But Not To Mentally Handicapped Mother' (2003) 71 Medico-Legal Journal.] [Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52.] [Ibid (n. 2)] [Parkinson v. St James and Seacroft University Hospital NHS Trust [2001] WLR 376] [Ibid (n. 4)]
Literature Review
Wrongful Conception and Unwanted Pregnancies
This is a claim that arises from clinical negligence which puts the burden of proof on the claimant. They must prove that a duty of care has been breached and has caused harm. This claim arises when an individual pursues sterilisation so that they can avoid the use of contraceptives and also prevent unwanted children. In the UK, the sterilisation procedure is done when the patient volunteers and has a capacity to do so. If the patient lacks the voluntary capacity, pursuant to the Medical Capacity Act of 2005, a High Court declaration of lawfulness can be given for the same. The medical practitioner as a product of negligence may fail to perform an accurate sterilisation or provides ineffective post operation advice which results in a pregnancy for the mother.[J. K Mason, The Troubled Pregnancy: Legal Wrongs And Rights In Reproduction (Cambridge University Press 2007).]
If pregnancy occurs due to the failed sterilisation, a few issues concerning claim for wrongful conception arise. These include: what are the reasons for the claim that would lead to damages being awarded to the applicant, would the claim stand in court under the normal tort principles, what kind of damages would be sought out from the court and are there plausible policy issues that would impede the claim. The nature of the claim is that, due to the negligence of the practitioner, the applicant has been burdened by an undesired pregnancy and parental duties, which was what they wanted to avoid through the medical intervention. The damages for this claim contain two elements. The first element is the ‘Mothers Claim’. This is the damage that emerges due to the pregnancy itself i.e. the pain of child birth and amenity loss. The second claim for damage is due to the increased financial burden of bringing up a child until the majority age. This second claim has proven to be contentious since it is seen as a pure or consequential economic loss.[Donal Nolan, 'New Forms Of Damage In Negligence' (2007) 70 Modern Law Review.]
These actions brought against wrongful conception originated abroad and were registered first in the 1930s from America and Canada in later years. The first case to be recorded in the UK was the Udale case with the judgement being made based on public policy grounds with damages for raising an uncovenanted child being rejected. This decision was overruled in the Thake v Maurice case and the Emeh case with the judges administering the "perfectly ordinary straightforward rules" of negligence cases. The Emeh case served as case law for all subsequent wrongful conception cases. For instance, the Bennar v Kettering Health Authority case which dealt with a damages claim regarding an undesired child’s tuition expenses applied the decision from Emahs case. Additionally, the case for Goodwill v British Pregnancy Advisory services awarded damages to the applicant whose partner’s vasectomy had failed and led to an unwanted pregnancy. The Emeh case provided that the consideration of public policy grounds should not impede an award of damages based on negligence rules. Therefore, the claim against failed sterilisation was accepted by the English Courts but this did not last since the policy grounds judgement was re-opened again by the McFarlane case.[Udale v. Bloomsbury Area Health Authority [1983] 2 All ER 522] [Richardson v. LRC Products Ltd [2000] Lloyd’s Rep Med; (2001) 59 BMLR 185] [Thake v. Maurice [1985] 2 WLR 215; [1986] QB 644; [1986] 1 All ER 497] [Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012.] [V. Chico, 'Wrongful Conception: Policy, Inconsistency And The Conventional Award' (2007) 8 Medical Law International.] [Benarr v. Kettering Health Authority [1988] NLJR] [Goodwill v. British Pregnancy Advisory Service [1996] 2 All ER 161] [Ibid (n. 2)]
The McFarlane case also came about due to a failed sterilisation which lead to the family getting a fifth child that was unplanned but healthy. With the case reaching the House of Lords they overturned the Court of Appeals decision which had upheld the previous case law set by Emeh’s case. The Lordships, on a 4:1 majority, held that the mother was entitled to damages from the pain of child birth but decide against awarding the same for child rearing. All the judges were in agreement against awarding damages for childrearing albeit each giving different reasons for their decision supposedly due to their moral misgivings.[Ibid (n.2)] [J K Mason, 'Unwanted Pregnancy: A Case Of Retroversion?' (2000) 4 Edinburgh Law Review.]
Lords Hope and Slynn commented that the intangible benefits of child-bearing would compensate for the unplanned maintenance costs but also considered the impracticality of determining the balance. Lord Slynn, using Caparo’s case, illustrated that the doctor’s duty of medical responsibility did not extend to child-rearing and an extension of such duty would be unjust and unreasonable. The Lords Hope and Clyde also concluded that the medical practitioner’s responsibility of fault was not proportionate to the loss suffered and thus the request for restitutionary justice can’t be attained. The only dissenting judge on the award for pain and suffering, Lord Millet, also observed that the bearing of a healthy child should be considered a blessing and not harm. In his view, the blessing of a healthy child would come with the parents accepting future responsibilities. He dissented on the money awarded for pain and suffering and instead proposed that the McFarlanes’ should be given the convectional award of 5000pounds.[Caparo Industries plc v. Dickman [1990] 1 All ER 568]
Of interest is Lord Steyn’s judgement for denying the child-rearing claim on the foundations of distributive justice. He considered that an ordinary Underground commuter would view the birth of a healthy child as beneficial and thus it would be unjust to place the liability on the Health board. Simply put, a reasonable person would not accept the awarding of compensation for a healthy child. Lord Steyn’s judgement was informed by the difference between distributive and corrective justice and moral theory. Distributive justice looks beyond the liability claim of harm meted out to a person by another by considering the perception of the liability by third parties and compensation grounded on equitable allocation of losses in the society. For instance, in McFarlane the Underground commuter scenario could be considered as the third party to the claim together with the NHS, whose assets are absolutely invoked as the instrument of compensation to the parent.["Instinctively, the traveler on the Underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing." (Lord Steyn at 82 [2000] AC 59). Lord Hope also believed that the principle of distributive justice was vital to the decision (at 96 [2000] AC 59).]
Nevertheless, many observers have found it difficult to comprehend the reasoning behind his decision based on distributive justice. Foremost, neither the Lordships Hope and Steyn gave a conclusi...