Whittington Hospitals NHS Trust v XX (2020 ) UKSC 1

The triumph of identity over collectivism? 

On 1 April 2020, the Supreme Court handed down judgment in the case of Whittington Hospital NHS Trust v. XX [2020] UKSC 14.  This inevitably controversial judgment received scant media attention at the time, given the commencement of the Lockdown.  It is likely that the decision will be the subject of considerable discussion once the Lockdown eases.

The Supreme Court, by majority of three (Hale, Kerr and Wilson) to two (Carnwath and Reed) dismissed the Defendant’s Appeal against the Court of Appeal’s award of damages to a Claimant, including damages to cover the costs of a commercial surrogacy arrangement in California.  The Claimant was a young woman who had been rendered infertile by the Defendant’s admitted breach of duty in failing to investigate and treat her cervical cancer.  She wished to have four children and wished to do so by commissioning through surrogacy in California.

In  the leading speech, Lady Hale explicitly declined to follow her own earlier judgment as Lady Justice Hale in the case of Briody v. St Helens & Knowsley Area Health Authority[2001] EWCA Civ 1010. In that case, the Court of Appeal had unanimously decided that it would not be appropriate to award damages for a commercial surrogacy in California because the award of damages would include the payment of sums for activities which were unlawful under statute in the United Kingdom.  In paragraph 53 of her speech, having reviewed a number of issues where, on her analysis, the position in XX was markedly different to that at the time of Briody, Lady Hale considered that it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.

Lord Carnwath, with whom Lord Reed agreed, dissented.  At paragraph 63, Lord Carnwath concluded that the issue was essentially one of “legal policy” and that the most relevant factor was what had been described in earlier authorities as “the coherence of the law”.  A legal system which criminalised conduct but at the same time awarded damages to carry out the same activity could not be regarded as coherent.  Insofar as there was debate as to whether commercial surrogacy should be unlawful, Lord Carnwath indicated:

“It is difficult to think of a better guide to where to draw the line in a highly sensitive area such as this, than that indicated by Parliament.”

It is interesting to contrast Lady Hale’s approach in XX with her statement in Briodyin paragraph 15, where precisely the same argument arose as to funding an arrangement in California which would have been unlawful in the United Kingdom:

“It would appear (although I do not know whether there was any evidence on this before the Judge) that in California commercial agencies are permitted and surrogacy agreements may be binding.  If so, I have no difficulty in agreeing with the Judge that the proposals put to her were contrary to the public policy of this country clearly established in legislation and that it would be quite unreasonable to expect a Defendant to fund it.” 

Lord Justice Judge expressed a similar view at paragraph 39:

“Second, irrespective of dire medical prospects, the entire surrogacy agreement was unlawful in the United Kingdom.  The Judge was being asked to award damages for the express purpose of enabling Ms Briody to be provided with the wherewithal to pay for an unlawful contractual arrangement.  That is not a principal basis upon which to make a compensatory award.” 

Considering the reasons Lady Hale gave for adopting a different position, they do not appear to address this fundamental problem square-on.

In paragraph 49 of her speech, Lady Hale acknowledged that the usual position is that UK Courts will not enforce a foreign contract which would be contrary to the public policy of the United Kingdom.  She then asked, reasonably:

“Why then should the UK Courts facilitate the payment of fees under such contracts by making an award of damages to reflect them?” 

In paragraph 50 she indicated that not every aspect of the payments to be made in California would be unlawful in the United Kingdom.  However, given that the whole arrangement would have been unlawful and unenforceable in the United Kingdom, it is not clear what relevance is the fact that certain specific items of expenditure viewed in isolation of the overall purpose of the expenditure would be considered lawful.  There are many aspects of unlawful expenditure which, viewed in this way, could not in themselves be regarded as being contrary to the law. For example, a claimant might suggest that he or she wanted to travel to Columbia to use drugs which are illegal in this country, for pain relief. Would this claim succeed on the basis that neither the flight to Columbia nor the accommodation costs would in themselves be unlawful? Or a similar argument in relation to paying a solicitor to convey property in the context of a mortgage fraud? The reality is that the court would look at the proposal as a whole and would regard the lawfulness of individual components as irrelevant.

In paragraph 51 of her speech, Lady Hale referred to the continuing practice of the courts to grant parental orders to parents who had commissioned children through surrogacy. However, this practice had been established before Briodywas considered. It was concluded by the Court of Appeal that these orders were made retrospectively with the best interests of the child being paramount. They did not support authorising expenditure on commercial surrogacy.

Then in paragraph 52 of her speech, Lady Hale made reference to the great changes in societal attitudes to family and parenthood since the time of Briody.  Whilst this was undoubtedly correct and relevant to other aspects of the decision in relation to surrogacy, in particular in relation to the use of donor eggs, the position in relation to commercial surrogacy was conspicuous as to those which had not occurred. In particular, the statutory provisions prohibiting commercial surrogacy remain in place. The Law Commission, in a wide-ranging consultation paper published in 2019, did not suggest that there should be any change in the law in this respect, nor indeed suggest that this issue needed to be included in the consultation.

Therefore, Lady Hale’s speech did not confront the essential question of how a legal system which criminalises conduct but at the same time awards damages to facilitate that conduct could in any way be considered coherent.

Lord Sumption in his 2019 Reith lectures, “Trials of the State: Law and the Decline of Politics”, argued that there had been a growing tendency for what might be described as issues of social policy to be determined by the Courts rather than by Parliament.  Parliament, he felt, was becoming less powerful and this was unfortunate because Parliament was the appropriate forum for resolving differences of opinion over social issues.  He stated:

“A nation cannot hope to accommodate divisions amongst its people unless its citizens participate in the process of finding political solutions to common problems.  Law has its own competing claim to legitimacy, but it is no substitute for politics.” 

Lady Hale offered a reply to this in her Patterson Memorial Lecture on 8 October 2019.  Whilst any reputation that Lord Sumption has had for popular wisdom has probably been dispelled by his suggestion that we should view Coronavirus in the same apparently sanguine way that medieval peasants felt about the Black Death, nonetheless Lady Hale’s speech in XX is not a reply to his argument, but appears to be making it good.  Once it is acknowledged that she has failed to deal with the issue in relation to coherence of the law, her speech can only be read in terms of its conclusion as to commercial surrogacy as expressing a personal view, thereby translated into public policy.

I think the real reason for Lady Hale’s different view lies at the very commencement of her judgment in paragraph 1:

“For some women, the ability to bear and to rear children is a vital part of their identity.  What then should be the measure of damages for a woman who has been wrongfully deprived of the ability to bear children herself?”

The concept of identity did not figure in the arguments in Briody, nor generally in society at that time. The importance of identity has grown since that time and is now a paramount, indeed possibly all-prevailing concept.  It is interesting to contrast the basis of legal policy in the speech of Lord Carnwath.

The discussion of legal policy starts with the case of McFarlane v. Tayside Health Board[2000] 2 AC 59.  In McFarlane, the House of Lords identified that through a process of what was described as legal policy it would not be appropriate to award damages for the costs of bringing up a healthy child even though the child was the result of negligent failed sterilisation.  The House of Lords considered that whilst the parents had not wished the child, she would nonetheless be a loved child who would bring great pleasure to her parents.  Given the other demands on the resources of the NHS, it was not fair, just or reasonable that they should pay damages for the upbringing of this child.  This was essentially a collectivist approach which took into account the interests of all in determining the policy question.

When giving evidence in Briody, the Defendant’ expert, Professor Lord Winston, was asked by Claimant’s Counsel what the Claimant could do if she was not able to have a child through surrogacy, to which Lord Winston replied that she could reconcile herself to childlessness.  Some 20 years later this would be considered as an extremely controversial reply.  However, it did reflect a certainly 20th century attitude that there were things that had to be accepted, albeit still acknowledged in the level of awards of general damages for infertility.

The Claimant’s case for damages so that she could have a family in XX was, at every human level, extremely compelling.  Very clear reasons would have to be identified as to why it should not succeed.  Coherence in the law is, however, more compelling.  Coherence is not just a desirable quality from the law.  It is an essential quality.  Without coherence, law is not law, but becomes a selection of seemingly arbitrary rules.  How would you explain to a person who was subject to a criminal prosecution in the United Kingdom for running a commercial surrogacy agency that the Courts in this country awarded substantial sums to fund payments to such agencies?

I have a further problem with the claim for paramount nature of identity.  I have to admit to being an unreformed (and never to be reformed) mid 20th century collectivist who is quietly enjoying queuing outside of shops at present.  I readily admit that such collectivism had its unattractive qualities, including automatic male supremacy, the involvement of a class system, and intolerance (even mockery) of minorities.  The developing emphasis on identity can be seen as a reaction to these negative and out-moded features of collectivism.  However, I agree with Professor Mark Lilla who coined the term ‘identity liberalism’, that excessive concentration on individual identities will detract from core liberal values. Commenting after the election of President Trump, Mark Lilla stated:

“American liberalism has slipped into a kind of moral panic about racial, gender and sexual identity that has distorted liberalism’s message and prevented it from becoming a unifying force capable of governing.”

Lilla is denounced variously as a misogynist, homophobic, and even worse, when on analysis all he is saying is that identity liberalism has gone too far.  His jibe that identity liberalism is “Reaganism for lefties” is instructive.  We are, to our very obvious detriment, living in uniquely consumerist times.  Emphasis on identity could be seen as a form of psychological consumerism encouraging an individual to focus on him or herself and their specific attributes.  In the same way that material consumerism is obviously destroying our environment, it is possible that psychological consumerism could damage our social fabric.

It has been suggested that when we emerge from the lockdown it will be to a world which will be at least materially different.  It will be interesting to see how the decision of the Supreme Court in XX is viewed, either as a step in the right direction or a step too far?

Breach of duty and corona virus: not so abstract after all

Since the start of the corona virus there has, understandably, been increased speculation about the knock-on effect to clinical negligence cases. A particular concern is whether the extra pressure placed upon NHS services and the allocation of resources will lead to a surge in claims.

The typical scenario would be a patient that attends hospital for a non-corona virus illness. There is a delay in him receiving the appropriate medical treatment which results in injury. From the Claimant’s perspective, he should have been seen, diagnosed and treated in a timely manner. The Defendant’s position is that resources were stretched and therefore it was not possible to assess him earlier.

Within this scenario the standard principles of tortious liability will continue to apply. The Claimant must demonstrate a breach of duty on the Bolamtest. It is worth revisiting what McNair J said in Bolamas regards breach of duty so as to understand its application within a specified situation:

where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

…in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards.’

McNair’s J reference to ‘at the time’ is important. It is not just a reference to the state of medical knowledge but a reference to the temporal context. A duty of care does not exist in a vacuum and breach of the same is assessed according to context. The significance of context was recognised by Green J in Mulholland v Medway NHS Foundation Trust[2015] EWHC 268 (QB) [90]:

In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’

The recognition of context was again made clear by Turner J in Morrison v Liverpool Women’s NHS Trust 2020 EWHC 91 (QB) [94]:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority. This is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.’

It is fair to say that in cases where there are time and resource pressures the wider context will be of crucial importance. However, these cases are distinct to those where the treatment received fell below the standard expected. Once a patient is seen by a clinician there is an expectation that the treatment will be in line with a reasonably competent medical practitioner. Perhaps the most controversial area will be cases where a hospital seeks to defend falling below an otherwise acceptable standard; for example, a failure to monitor a patient due to pressures from corona virus patients.

It is impossible at this stage to determine whether there will be an increase in the number of claims. It is fair to assume that cases alleging negligence brought about by limited resources due to corona virus pressures will be robustly defended. The duty of care owed in these situations is not abstract and is rooted within context.

Charles Austin