Australia: Right of parents to plan their reproductive future

Last Updated: 29 January 2016
Article by Mark Birbeck

Waller v James [2015] NSWCA 232

Key Points

  • The parents' right to plan their family is an interest capable of the law's protection and medical practitioners have a duty of care to protect that right; and
  • A plaintiff may satisfy the "but for" test of causation, but if legal causation is not satisfied, his or her claim will fail.

Background

Keeden Waller was conceived through in vitro fertilisation (IVF) to parents Deborah and Lawrence Waller, the appellants. Keeden was born with the anti-thrombin deficiency (ATD) gene which he inherited from his father. Whilst Mr and Mrs Waller were aware that Mr Waller suffered from ATD, they were unaware that it could be genetically inherited. Coincidentally, four days after his birth, Keeden suffered a cerebral sinovenous thrombosis (CSVT) (a type of stroke). The CSVT left Keeden severely disabled.

Mr and Mrs Waller commenced legal proceedings against the doctor who coordinated the IVF, Dr Christopher James, alleging that:

  • Dr James ought to have informed them of the hereditary aspects of ATD (breach of duty); and
  • If Dr James had informed them as such, they would not have undergone the IVF procedure at that time and would have waited until Dr James was able to ensure that only embryos not affected by the ATD gene were available. As a result, they would have avoided having a baby who suffered from a CSVT (causation).

The trial judge found that Dr James had breached his duty of care. However, since the ATD did not cause Keeden's CSVT, it could not be said that Dr James' breach caused the loss and damage suffered by Mr and Mrs Waller.

Mr and Mrs Waller appealed arguing that Dr James' breach of duty caused them to be deprived of their 'right to plan their family and reproductive future'.1 As a result, they suffered loss and damage including the cost of raising Keeden.

One major issue before the appellate court was whether Mr and Mrs Waller's deprivation of "the right to plan their family" actually constituted an interest capable of the law's protection. In support of their submissions, Mr and Mrs Waller cited the High Court case of Cattanach v Melchior.2 Cattanach v Melchior concerned a wrongful birth following a failed sterilisation procedure in which the High Court found that the relevant harm or damage caused by the medical practitioner's breach of duty was "the burden of the legal and moral responsibilities which arise by reason of the birth of the child." By this reasoning, Mr and Mrs Waller's 'right' was entitled to the law's protection. Heydon J dissented pointing out that children are also a benefit to their parents (not merely a financial burden) and the majority's approach ignores this simple fact.4

A second issue was the scope and content of Dr James' duty of care. Dr James admitted that he owed Mr and Mrs Waller a duty of care pursuant to the principles outlined in Rogers v Whitaker.5 That duty encompasses the requirement of a medical practitioner to warn their patient of material risks and to provide necessary information so that the patient can make an informed decision as to the proposed treatment.6 Whilst Dr James had provided Mr and Mrs Waller a post-it note with the contact details of a genetic counsellor, he failed to advise them of the importance of obtaining genetic counseling and he failed to follow up with them to ensure that they had made an appointment with the genetic counsellor. The appellate court found that Dr James' duty of care extended to ensuring he attended to these two things as well as ensuring he did not interfere with a patient's right to plan their family.

As to breach, the appellate court found that Dr James had breached his duty of care to Mr and Mrs Waller. The only contested matter as to breach related to the issue of the post-it note and whether that constituted an adequate referral. The appellate court held that, whilst some of the expert evidence indicated that the usual form of referral was in writing or by phone, the purpose of the post-it note was to give Mr and Mrs Waller the genetic counsellor's contact details and that purpose was achieved. The referral by way of post-it note did not constitute a breach of duty of care.

Mr and Mrs Waller succeeded in establishing the "but for" test. That is, had Dr James explained to Mr and Mrs Waller the importance of obtaining genetic counselling, Mr and Mrs Waller would have attended a consultation with the genetic counsellor, and, then properly informed, they would have decided against proceeding with IVF at that time. Resultantly, they would not have had a child who suffered from CSVT. However, Mr and Mrs Waller failed to establish legal causation. When attributing legal liability, the relevant consideration is whether the risk of the injury is unacceptable to the patient. In the present case, having a child with ATD was an unacceptable risk to Mr and Mrs Waller. However, they were willing to accept the general risks of pregnancy which included a small risk of CSVT or some other form of abnormality. Having been well established that Keeden's ATD was not causally related to his CSVT, and that it was his CSVT that caused his severe disabilities, the appellate court found that Mr and Mrs Waller failed to prove legal causation.

The appeal was dismissed.

The Law

Two High Court decisions were considered here, those being Cattanach v Melchior7 and Rogers v Whitaker.8

Lessons Learnt

This case establishes that the parents' right to plan their family is an interest capable of the law's protection and medical practitioners have a duty of care to protect that right. Medical practitioners practicing in the area of fertility should be particularly aware of this case. The case also serves as a reminder to practitioners to keep detailed clinical notes, explain to patients the reasons for any referrals, and follow up with patients to ensure they have attended to the referral. Whilst Dr James was found to have breached his duty of care to Mr and Mrs Waller, he avoided liability on the issue of causation. Despite going to great lengths, Mr and Mrs Waller simply could not prove that Dr James' breach caused the loss and damage which they were suffering as a result of Keeden's disabilities.

Footnotes

1Waller v James [2015] NSWCA 232 at [6]
2[2003] HCA 38
3Cattanach v Melchior [2003] HCA 38 at [68]
4See [347] for a detailed discussion
5[1992] HCA 58
6These duties were discussed in Rogers v Whitaker [1992] HCA 58 at 483 and 490, and in F v R (1983) 33 SASR 189 at 192
7[2003] HCA 38
8[1992] HCA 58

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.