Burke v Leeds Health Authority

In medical negligence, a doctor’s duty to a child may be performed by advising the parents. The content, timing and force of that advice are matters of clinical judgment, informed by the parents’ anxieties at the relevant time. Where treatment is medically optimal, the child is fit to receive it, the available options have previously been explained, and postponement carries a small risk of fatal relapse, failure to repeat immediately before treatment that delay remains possible does not necessarily breach the duty of care. The appeal was allowed because the advice did not fall below the required standard.

Marc Burke, aged three, had acute lymphoblastic leukaemia and had previously suffered encephalopathy during chemotherapy. His treating doctors advised an intensification block, regarded as optimal and medically appropriate, and his parents consented. He subsequently suffered severe encephalopathy and became substantially disabled.

After a liability-only trial before H.H. Judge R.C. Taylor sitting as a High Court judge, the doctors were held negligent in advising in terms that effectively excluded postponement for several months. The Health Authority appealed. The central issue was whether, having discussed the available options earlier, the doctors breached their duty by failing to remind the parents immediately before treatment that postponement remained possible.

Appeal allowed unanimously. The court held that the trial judge was entitled to make the principal findings of fact, but erred in concluding that the doctors’ advice fell below the required standard.

1. Appellate approach. The appeal concerned conclusions drawn from primary facts rather than disputed witness credibility alone. The conversations had taken place nearly ten years earlier and had not been recorded. In those circumstances, the trial judge’s usual advantage was of reduced significance.
2. Duty and clinical judgment. Applying the principle stated in Thompson v Blake-James [1998] Ll.L.R.Medical 187, the duty was owed to the child, although it was performed by advising the parents. The doctors had to take reasonable care to place the parents in a position to make an informed choice in the child’s best interests. What had to be said, when it had to be said and with what emphasis were matters of clinical judgment. Much depended on the anxieties of the patient or parents at the time.
3. Application. The judge was entitled to find that all four options had been canvassed, including postponement. Immediately before consent, however, the parents’ concerns focused on whether Marc was well enough to undergo intensive therapy and whether that therapy was appropriate. Marc was well enough, the intensification block was the optimal treatment, postponement offered no medical advantage, and delay carried a small risk of relapse followed by death. The doctors’ failure to repeat the postponement option at that stage was therefore not negligent. No expert evidence established that such a reminder was required in these circumstances.

The finding of negligence was set aside and the appeal was allowed.

1. Court of Appeal (Civil Division). In [2001] EWCA Civ 51, the court allowed the Health Authority’s appeal and set aside the finding of liability for negligent advice.
2. High Court. H.H. Judge R.C. Taylor, sitting as a High Court judge, determined liability after a trial limited to that issue and held the Health Authority liable in negligence.