Happily fraud, dishonesty and forgery are seldom features of IVF treatment. But on rare occasions (and for widely differing reasons), some patients are not wholly transparent or honest in their engagement with clinics.
One such instance was the sad and complex case of ARB v IVF Hammersmith & R: a claim for the costs of raising a healthy but unwanted child born after the forgery of a signature on a consent form. The Supreme Court has recently rejected the Claimant's final appeal, ending over five years of litigation.
ARB and R had treatment together at IVF Hammersmith in 2008, resulting in the birth of a son. Five embryos were stored following this first cycle, and the couple returned to the clinic together in March 2010 to discuss a frozen embryo cycle. Following this, ARB did not attend any further appointments. A few months later, the couple's relationship irrevocably broke down and R left their shared home. Neither ARB nor R informed the clinic about their change in circumstances, and ARB signed further consent forms after they had separated which indicated they remained together and paid for the continued storage of the embryos.
R attended the clinic for a frozen embryo transfer in October 2010, producing a 'Consent to Thaw' form, purportedly signed by ARB. The treatment was successful but R did not inform ARB that she was pregnant until 14 February 2011. She gave birth to their daughter in July 2011.
ARB notified the clinic that his consent had been forged by R in January 2013. He subsequently brought a claim against the clinic for breach of contract, seeking to recover the costs of raising the second child. He argued, amongst other things, that the clinic had contracted not to use the stored embryos without his consent and, although they believed they had his consent, it was in fact forged. The use was therefore in breach of the terms of their agreement.
The case was first heard in the High Court in July 2017, where the court held that R had forged the signature of her former partner on the vital consent form, enabling the treatment to go ahead. Although the judge found that the clinic was neither in breach of any duty to take reasonable care, nor negligent to proceed without ARB being present, he found that the clinic was subject to strict liability under the contract: it had undertaken not to proceed without ARB's consent and, though it believed he had consented, the signature was a forgery.
The claim ultimately failed due to a matter of policy, namely that UK claimants cannot recover the costs of raising healthy children – a principle developed over many years, particularly in cases regarding failed sterilisations and vasectomies. The Court of Appeal agreed in December 2018, dismissing ARB's appeal and upholding the legal policy bar. This summer, the Supreme Court also agreed, finding that ARB's case did not raise a novel point of law and dismissing his final appeal.
Aside from upholding this important policy, the case also highlights several challenges and considerations for fertility clinics.
Who are you treating?
It would, of course, be enormously damaging to clinics' relationships with their patients if there were to be any hint of suspicion, or a suggestion that patients might not be honest. However, the HFEA's Code of Practice quite rightly states that clinics should check the identities of their patients (and partners where relevant) against identifying information in the medical records to avoid the possibility of misrepresentation or mistake, and that this should be done both before providing treatment and at each subsequent consultation, examination, treatment or donation.
Re-checking identity is particularly important where there has been a long gap in treatment or since a patient's last attendance at the clinic. Clinics should also ensure they check the identity of anyone withdrawing or varying consent. If there is any doubt about a patient's identity, the clinic should take steps to verify this, including examining or re-checking photographic identification.
What is their relationship?
The legislation regarding consent to treatment and storage in IVF refers to patients receiving 'treatment together'. This term can, of course, be interpreted in different ways (both by patients and clinics), and its meaning was debated at length during the ARB hearings.
Clinics encounter a seemingly endless variety of relationships, family structures and complexities. In any event, clinics need to take reasonable steps to clarify the nature of patients' relationships when they attend for treatment 'together' due to their potential significance. In most instances, this will be uncontroversial, but 'marriage' and 'partner' may mean very different things to different people. For example, 'partnership' has meant marriage, cohabiting, occasional intimacy, close friendship, and joint enterprise to different couples. As R said during the hearing: 'Obviously I was aware that we might not get back together … But a partnership means parents as well, and we were both already partners to D, so we were partners.'
Clinic staff need to be alive to the legal implications of these permutations and, where appropriate, patients should be encouraged to take their own legal advice before embarking on 'treatment together'.
Everyone knows that relationships also change over time. Like IVF Hammersmith, most clinics' internal consent forms and contracts require that patients and their partners inform the clinic if their circumstances change – whether by separation or change of address (neither of which were brought to the attention of the clinic by ARB or R). Clinics may also wish to proactively check with couples that their circumstances have not changed, particularly when they are treating patients over a prolonged period or where one partner has not attended the clinic on a regular basis. A long gap may also prompt clinics to renew consents altogether.
Who has attended?
It is not unusual for female patients to attend appointments alone, particularly during frozen cycles, and the HFEA Code of Practice specifically envisages this. After their initial consultation together, ARB did not attend the clinic again during R's treatment in 2010, and the clinic proceeded with treatment on the reasonable presumption that there would be communication and discussion between R and her partner – also assuming, in the absence of evidence to the contrary, that neither would be dishonest or misleading about their continuing relationship. Neither ARB nor R notified the clinic about the breakdown of their relationship or change of address, and ARB continued to sign forms after his relationship with R had ended (albeit unbeknown to the clinic).
The claim highlights the importance of maintaining contact with patients and their partners throughout the treatment process. Whilst it is, of course, vital to treat patients in a sensitive and supportive manner, maintaining a trusting relationship, clinics also need to have sufficient safeguards in place to identify problems – both to protect themselves and their patients. It also raises the question of whether clinics can properly assume that couples share information which has only been provided to one of them.
Many clinics now require that both patients sign key consent forms in the presence of a member of clinic staff, or if physical attendance is not possible, arranging a video call with the partner to confirm their wishes. This is particularly important in relation to critical steps like embryo transfer. A clear record should also be made in the patients' medical records of who attends each appointment and what information has been provided.
Who has completed the forms?
An obvious but equally important issue which this case highlights is the need to ensure that all signatures, dates and ticks are present on all consent forms, and that signatures are checked and double-checked before treatment is provided. Although it may be a sensitive matter, clinics should query any variation or lack of fluidity in a patient's signature and, where necessary, ask them for further verification.