In commenting on matters of practice, Mr Justice Peter Jackson queried whether the requirement of ticking a 'half a centimeter square' box on a consent form was necessary, given that it would be easy to overlook.
'Everybody makes mistakes in filling in forms from time to time, even important ones, and experience shows that mistakes can be made in checking forms. I fear that the small tick box in this case is in some respects an accident waiting to happen', he said, noting that such 'trivial' errors in paperwork can lead to serious legal consequences – and also significant legal costs.
The comments came in a case concerning a couple undergoing IVF using donor gametes who were unmarried at the time of treatment. Although signing consent form WP that would have enabled the partner to become a legal parent, the female patient had failed to tick the required box - 'the absence of no more than a centimetre of ink in a tick box is nothing more than an understandable error', the judge observed. The woman's partner made an application to court to become his child's legal parent, which the judge granted with 'no hesitation'.
The mistake came to light after an audit was conducted by the Human Fertilisation and Embryology Authority (HFEA) following court rulings that identified a number of mistakes in the taking of consent (see BioNews 792). Since then, the High Court has dealt with a number of cases concerning paperwork errors, in one of which the President of the Family Division, Sir James Munby, spoke of 'widespread incompetence' in the fertility sector (see BioNews 819).
Justice Jackson went on to add that having discussed the matter with Lord Justice Munby, he wished to draw the attention of the HFEA to the wording of consent forms WP and PP. He said where the form asked the person completing it to sign, it would seem 'unnecessary' for there also to be a tick box.
'I cannot detect the purpose of the tick box when the effect of the consent could as easily be described in the declaration above the signature', he said: 'I would invite the HFEA to consider whether this part of the form is not in fact superfluous at best and a potential trap at worst.'
Justice Jackson also criticised the fertility clinic involved, the Hewitt Fertility Centre, for not informing the couple that a mistake had been made on a consent form until eight months after it was discovered – although he noted the couple had 'nothing but praise' for the staff and the treatment they received. The judge said the clinic had 'understandably' sought advice from the HFEA regarding the incident, but a delay of such a length could not 'possibly be justified'.
'The families who are affected by predicaments of this kind are, in my view, entitled to be told at the earliest stage reasonably possible, however painful the news will be,' he said, adding that couples should be able to get their own advice 'in real time' rather than relying on the clinic or the HFEA.
'There was, in my view, nothing to prevent the clinic from informing this couple at the outset, giving assurances as to legal costs. This may have led to matters taking a different and possibly swifter course,' Justice Jackson said.
Finally, he noted that clinics should file their witness statements at the earliest stage in proceedings so that matters could be brought to a conclusion more quickly.