Antenatal care: testing and independent contractors

JS v Lothian Health Board [2009] CSOH 97

In July 1994 JS and her husband underwent screening to ascertain whether they were carriers of the cystic fibrosis gene. JS was advised that the result of the screening was negative, but her son was subsequently born with cystic fibrosis. She claimed that she would have terminated the pregnancy if she had been told that the foetus had cystic fibrosis, and sued Lothian Health Board alleging negligence because the screening was not carried out properly.

As part of her antenatal care JS was referred by her GP to a Consultant Obstetrician at the Eastern General Hospital in Edinburgh. In common with other women she was sent a leaflet entitled "Cystic Fibrosis Carrier Testing for Couples". The leaflet gave no indication of its author, and it explained that the screening was by means of a mouthwash. If JS wished to proceed with the testing she was required to bring along a sample from her husband to her first appointment at the antenatal clinic. She was to give her own sample at the clinic.

Initially only her sample was to be tested and if the result was positive then her husband's sample would also be tested. If both samples returned positive results, the mother would be referred to genetic counselling and further testing at the hospital to ascertain for certain whether the foetus had cystic fibrosis. The leaflet issued to JS stated that in the event that the foetus had cystic fibrosis, one option open to her was to consider termination of the pregnancy.

In the case of JS the Health Board accepted that her mouthwash sample was taken at her initial appointment at the Eastern, and they also accepted that it was reported to her that the results of the test were negative.

It is now known that the sample given by JS demonstrated a positive result, but was of poor quality and ought to have been repeated. Both JS and her husband are carriers of the cystic fibrosis gene, and any child born to them has a significant risk of developing the condition.

The Health Board sought to avoid liability and have the case against them dismissed because the testing was carried out by a body independent of the hospital, the Human Genetics Unit of the University of Edinburgh. The Health Board argued that the testing was not funded by them nor carried out by an employee of theirs, but rather by an employee of the University. On that basis, they asserted that they were not responsible for ensuring that independent scientists exercised reasonable skill in carrying out the testing. It was suggested that JS ought to sue the employers of those scientists, the University.

To complicate matters further these scientists were geographically located in another of the Health Board's hospitals. The indication from the pleadings was that the scientists worked in close proximity to Health Board employees carrying out similar duties. In this case JS's sample had been analysed by an employee of the University. JS asserted that due to the close working relationship between the scientists and the hospital it was impossible for JS to know exactly who would look at her samples.

At a debate on the legal basis of JS's claim the arguments focussed mainly on the existence of a non-delegable duty of care. However, in deciding the issue Lady Stacey placed importance on the fact the leaflet was sent to JS by the hospital and there was nothing in it that indicated the testing would be carried out by anyone other than the hospital. The leaflet made it clear that should the test results be positive, then it would be the hospital that would arrange for JS to receive further information and testing. On that basis Lady Stacey concluded that the core issue was not whether the hospital had control of the scientists who carried out the screening, but rather whether the hospital had assumed responsibility for the wellbeing of JS. In that regard she commented that the factual circumstances surrounding the testing and JS's perception of the circumstances surrounding the testing would assist in determining that issue. Lady Stacey therefore felt that it would be appropriate to allow the matter to proceed to a trial.

This decision is only a first step for JS. It represents only one hurdle in what will no doubt turn out to be a series in a case of such complexity. While the judge acknowledges the existence of a possible duty, the scope of that duty is yet to be determined.

Lady Stacey's circumvention of the non-delegable duties argument is of interest. Her adoption of an assumption of responsibility rationale prevents a defence based upon the instruction of an ostensibly competent independent contractor.

Contributed by Caroline Gordon

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