Mother of Down syndrome boy triumphs in ‘wrongful birth’ claim

Sydney Mitchell LLP

The traditional view is that the birth of a child is always a blessing, but the law has moved on from that position and now recognises the financial and other burdens involved in bringing up a disabled child.

In a case on point, a mother whose child was born with Down’s syndrome after pre-term opportunities to identify the condition were missed by NHS staff won the right to substantial compensation.

When pregnant with her first child, the young mother had told her GP that she wished to undergo all six of the standard screening tests undertaken by the NHS. When she attended hospital for her first scan, however, she was recorded as having declined Down’s syndrome screening.

The ticking of that box affected the procedures followed throughout her pregnancy, with the result that her son’s condition went undetected.

After she launched a so-called ‘wrongful birth’ claim, the High Court found that, when asked by a sonographer whether she wanted to undergo Down’s syndrome screening, she had answered ‘no’.

That question had, however, been asked in a somewhat abrupt manner, and the Court found that, in failing to elicit further information from the mother or explore the matter further, the sonographer had failed in her duty to obtain the mother’s informed consent.

But for that failure, the Court found that the mother would have expressed the wish to undergo Down’s syndrome screening, either at the first scan or later in her pregnancy.

She would have consented to invasive testing if made aware of the risk of Down’s syndrome and, had her son’s condition been discovered early enough, she would have opted to terminate the pregnancy.

The Court’s decision meant that the mother was entitled to compensation equal to the additional costs of bringing up her son arising from his disabilities. The amount of her damages award is bound to be substantial but will be finally assessed at a further hearing.

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