Mordel v Royal Berkshire NHS Foundation Trust

Healthcare professionals must take reasonable steps to secure informed consent immediately before a screening procedure. A clinician cannot rely solely on a patient’s brief answer, body language or an earlier provisional decision where there is a real risk of misunderstanding. The process must check that the patient understands the procedure and its purpose.

Where a patient booked for screening does not undergo it, the responsible midwife must make a brief, sensitive enquiry to confirm that the omission accords with the patient’s wishes. This does not undermine autonomy; it protects informed choice. Breach and causation remain distinct questions. Causation must be assessed by reference to the individual claimant rather than population statistics.

The claimant brought a clinical negligence claim arising from the birth of her child with Down’s syndrome. She alleged that the defendant’s sonographer failed to obtain informed consent before a first-trimester screening appointment and that the midwife later failed to investigate why the screening had not occurred or offer second-trimester screening.

The claimant contended that she had always wanted screening and would have undergone invasive diagnostic testing and termination if Down’s syndrome had been diagnosed. The defendant argued that screening had been declined and that its staff had acted in accordance with responsible professional practice. The trial concerned liability only.

1. Sonographer’s findings and breach. The sonographer had asked whether the claimant wanted Down’s screening, received an unreflective negative answer, and recorded that screening was declined. The claimant had not understood the question and had continued to believe that screening had been carried out.
2. Informed consent. Applying Bolitho v City and Hackney HA [1998] AC 232, the court held that professional support for a practice was insufficient if the practice was irresponsible, unreasonable, unrespectable or illogical. The sonographer had to take reasonable steps to ensure informed consent before the procedure. This required checking that there had been a discussion with the midwife, that the patient had received the relevant information, and that she understood the essential elements and purpose of Down’s screening.
3. A brief closed question followed by a statement that screening would not occur was inadequate. There was an unacceptable risk that the patient would be confused or that the clinician and patient would be at cross-purposes. Sensitive exploration of understanding did not interfere with autonomy. If further questions raised issues beyond the sonographer’s expertise, the patient should have been referred to a midwife.
4. Midwife’s duty. The NICE guidance requiring screening results to be reviewed, discussed and recorded could not be read restrictively. Where a patient had been booked for combined screening but had not undergone it, the midwife had to make a simple enquiry to check that the omission accorded with the patient’s wishes. The midwife was not required to conduct a lengthy investigation into reasons or motivations. The failure to make that enquiry was sub-standard care.
5. Causation. The screening would probably have shown a high risk of Down’s syndrome, followed by diagnostic testing. On the evidence, the claimant would probably have undergone invasive testing and, following confirmation, terminated the pregnancy. Judgment was therefore entered for the claimant.