Schrödinger’s consent: ARB v IVF Hammersmith Limited & R

The doctor-patient relationship relies on mutual trust: to assume that every patient may be dishonest would cast a shadow over a doctor’s interaction with his patient. Unfortunately, however, there are rare occasions when patients intentionally mislead healthcare professionals, sometimes with grave consequences. The case of ARB v IVF Hammersmith is a recent example of such an instance. Whilst it may not change the law in relation to consent, it is a salient reminder of the importance of confirming the identity and on-going consent of patients to a course of treatment, particularly in the context of assisted reproduction, but also more widely.

Factual background

The case arose from a sad and complicated family breakdown: by all accounts, ARB and R had a difficult relationship. They attended IVF Hammersmith for fertility treatment in March 2010, resulting in the birth of a son. A number of embryos were left over from this cycle and were cryopreserved at the clinic for future use with the couple’s consent. They returned to the clinic together in 2010 for an appointment with a consultant to discuss having a frozen embryo transfer. Thereafter, R underwent certain tests to assess her suitability for further treatment, and ARB signed a number of forms.

R attended all subsequent appointments at the clinic alone. An IVF cycle routinely requires patients to attend a number of appointments for scans and tests, and it is not uncommon for the female
partner to attend such appointments alone. Indeed, the Code of Practice for IVF clinics published by the Human Fertilisation and Embryology Authority (the HFEA, the regulator for IVF) specifically envisages that the male partner or non-birth mother may not attend the clinic during his or her Partner’s cycle.

Unbeknown to the clinic, the couple’s relationship deteriorated significantly and R moved out of the family home in July 2010. Neither ARB nor R notified the clinic of the breakdown in their relationship or R’s change of address.

In October 2010, R attended the clinic alone for a frozen embryo transfer. She provided the clinic with a ‘Consent to Thaw’ form, purportedly signed by ARB. The embryologist compared the signature with other examples in the medical records, found it to be comparable, and proceeded with the thawing. The treatment was successful and R became pregnant. She notified ARB of the pregnancy for the first time on 14 February 2011, and gave birth to a daughter in July 2011. ARB notified the clinic of what he alleged was the forgery of his signature on the ‘Consent to Thaw’
form in January 2013.

Breach of contract

ARB brought a substantial claim against IVF Hammersmith alleging breach of contract on the basis that the clinic had agreed not to thaw or use embryos created with ARB’s sperm without his
consent. ARB alleged that his signature had been forged, therefore the clinic acted in breach of the agreement by proceeding with R’s treatment. ARB sought over £1 million for the costs of raising the unwanted second child. The clinic in turn brought a claim against R for an indemnity on the basis that any liability they incurred was as a result of R’s fraudulent misrepresentation.

This complex case was listed for a nine day trial in July 2017 before Mr Justice Robert Jay. He considered, amongst other things, whether ARB’s signature had in fact been forged, the implied and express terms of the contract between ARB and the clinic, whether the clinic was in breach of those terms, whether ARB’s failure to notify the clinic of the breakdown of the relationship was
a contributory fault, the public and legal policy issues relating to a claim for the costs of raising a healthy child (albeit unwanted), and the value of ARB’s claim.

Evidence

During the trial, ARB maintained that he signed forms in 2010 without reading them, and accepted in retrospect that they contained incorrect information (particularly about the status of the couple’s relationship) and that he would have known more about the proposed treatment if he had read them. He further indicated that he had signed a form to extend the storage of the embryos
in September 2010 ‘to avoid another shouting match’, but accepted that the only purpose of the continued storage was for the embryos to be used in treating R. ARB maintained, however, that he knew the embryos could not be used without his express consent.

R denied that she had forged ARB’s consent, though accepted that she misrepresented the status of her relationship with ARB and her address. Overall, the judge found that most of R’s evidence in the trial was dishonest, favouring ARB’s account.

The clinic obtained expert evidence from a hand-writing expert that concluded that it was very likely that the signature on the ‘Consent to Thaw’ form was a forgery. By subjecting the form to specialised lighting, it was possible to detect traces of graphite, suggesting a pencil tracing which had then been erased. The judge accepted this evidence and concluded that R had indeed forged ARB’s signature.

Unusually for a court hearing, where the judge is deemed to be a legal expert capable of interpreting the relevant legislation, two ‘regulatory’ experts were instructed by the parties to provide evidence about the somewhat idiosyncratic licensing and inspection regime governed by the HFEA. Both experts accepted it was not unusual for the female partner to attend appointments alone, and also that it was common to assume that couples would share information about treatment.

Judgment

The court found that the clinic had not been negligent in proceeding with R’s treatment without ARB being present since ARB was at least apparently still being treated together with R. Likewise, the clinic was found not to have been in breach of any duty to take reasonable care in obtaining ARB’s consent. The judge found, however, that the clinic was subject to strict liability: it undertook not to proceed without the consent of both parties and, in the absence of ARB’s genuine consent, it breached that obligation.

The claim failed, however, as a result of legal policy. Having considered the seminal cases of Macfarlane and Rees regarding claims for the costs of raising healthy children born following failed vasectomy and sterilisation procedures, the judge found that the same principles applied to thwart ARB’s claim. He considered in particular the inherent difficulty of measuring the loss, an unwillingness to regard a child as a financial liability, the refusal to off-set benefits of parenthood from financial liabilities, and the moral unacceptability of attempting the exercise. He also noted his difficulty with accepting that a private patient could succeed with such a claim whereas an NHS patient could not.

Although the case arose in unusual and – hopefully – rare circumstances, it serves as a powerful reminder of the importance of ensuring that patients provide informed, enduring consent to
treatment, particularly in the context of assisted reproduction. This is particularly important where there are gaps in the treatment process, and where one partner does not regularly attend. Hospitals and clinics that enter into contractual arrangements with patients should also ensure that the terms of those agreements are drafted so as to limit or exclude liability for certain eventualities, particularly in the event of dishonesty.