Case of Note: Mordel v. Royal Berkshire NHS Foundation Trust (High Court, 8 October 2019 – Jay J.)

Date published:

This was a claim for ‘wrongful birth’. Ms. Mordel, whose first language was Polish although she spoke good English, became pregnant in 2014 and had her booking appointment with a community midwife at her GP’s surgery on 23 June. She agreed to undergo all six of the standard screening tests, including those for Down’s syndrome during the first trimester. However she was recorded as being “unsure” about any invasive tests (namely diagnostic testing in the event that initial screening indicates more than a 1:150 risk of Down’s).

Initial screening consists of ultrasound testing of the foetal neck (the nuchal translucency test) and a blood serum test of the mother. Ms. Mordel saw a sonographer on 22 July for these tests, the latter asking “Do you want the screening for Down’s syndrome?”, to which she answered “no”. Accordingly, those tests were not performed and the sonographer only undertook a maternal ultrasound for dating purposes. She noted in the records “Down’s screening declined”.

Throughout the remaining course of the pregnancy, no Down’s tests were undertaken and the claimant gave birth to a child with Down’s on 25 January 2015. She was extremely upset at this and sued the trust, maintaining that if she had she known that her child possessed this condition, she would have had a termination.

The trust’s defence was that Ms. Mordel unequivocally informed the sonographer that she did not want Down’s testing and that a patient’s wishes must be respected.

Mr. Justice Jay found in favour of the claimant. Having heard her give evidence, he concluded that her English was not perfect and although she was reasonably fluent, there were occasions when she failed to understand what was being put to her by counsel, particularly if a question had a degree of nuance or complexity. He decided that the sonographer should have satisfied herself that the patient understood “the essential elements and purposes of scanning for Down’s syndrome”. He thought the sonographer’s first question was “somewhat abrupt” and that she should have “done more to lay the ground properly”.

He interpreted the claimant’s use of the word “no” as an unreflective response in the heat of the moment. She had not processed the question properly. He accepted Ms. Mordel’s explanation that she thought the question meant whether she wanted a child with Down’s. The judge acknowledged that clinicians are not required to “delve into the reasoning processes and motivations” of a patient, but concluded nevertheless that the sonographer had been at fault. Consequently, he held that there had been sub-standard care, for which the trust was liable.

This might be regarded as a harsh judgment, but it should cause NHS bodies to consider carefully how to deal with patients whose first language is not English. Degrees of fluency vary hugely, of course, and if a patient cannot understand English to any significant extent, a translator may be the only safe option. However, when a patient is apparently quite fluent, the judgment call is more difficult. It is a very fine line between ensuring that the patient has understood the nature of a test (for example) and being overbearing and questioning a patient’s comprehension. In this case the notes clearly revealed that the claimant had agreed all the routine screening tests, so in the judge’s view, that should have caused the sonographer to ensure the patient had understood the situation clearly, rather than simply noting the position and moving on.