‘Compelling medical testing; the £10 million question’ by Patricia Leonard

Compelling medical testing; the £10 million question

Until recently, it appeared the legal principles around compelling Claimants to undergo medical testing were fairly settled. The accepted test was a two-stage test, set out by Lord Justice Kennedy in Laycock v. Lagoe [1997] PIQR 518:

“…a two-stage test. First, do the interests of justice require the test which the defendant proposes? If the answer to that is in the negative, that is the end of the matter. If the answer is yes, then the court should go on to consider whether the party who opposes the test has put forward a substantial reason for that test not being undertaken; a substantial reason being one that is not imaginary or illusory. In deciding the answer to that question the court will inevitably take into account, on the one hand, the interests of justice and the result of the test and the extent to which the result may progress the action as a whole; on the other hand the weight of the objection advanced by the party who declines to go ahead with the proposed procedure, and any assertion that the litigation will only be slightly advanced if the test is undertaken. But, if the plaintiff for example has a real objection, which he articulates, to the proposed test then the balance will come down in his favour.”

Under this approach, the balance generally favoured the claimant where substantial reasons existed for refusing testing. This approach was followed in cases involving genetic testing (Paling v Sherwood Forest Hospitals NHS Foundation Trust [2021] EWHC 3266) and early expert assessment (Read v Dorset County Hospital NHS Foundation Trust [2023] EWHC 367 (KB)), and has been endorsed in the White Book commentary.

The Two-Stage Test: Legal and Practical Considerations

Stage One requires the court to assess factors such as the probative value of the proposed test, whether the test will resolve a disputed issue, whether there is credible evidence that the Claimant may have the condition in question, and the potential impact on quantum. In some cases, Defendants have sought genetic testing in brain injury cases based on speculative assertions – where no specific syndrome has been identified, but a genetic cause is merely hypothesised. Scrutiny should be undertaken as to whether the Defendant will concede the issue of causation once the outcome of testing is known. Even where a genetic link is established, causation may remain unresolved due to the complex interplay between genetic predisposition and environmental factors, and the often minimal contribution of certain genes to the condition.

When looking at the second stage, factors such as the invasiveness of the test, the physical/psychological risks of testing and potential mitigation strategies. The Defendant should clarify whether further testing of the claimant or family members may be required depending on the results. Additionally, the possibility of incidental findings – such as information about adult-onset conditions or carrier status – must be considered as a Claimant will be forced to live in the shadow of this knowledge. As Master Sullivan noted in Paling, there is a qualitative difference between choosing not to undergo genetic testing and being compelled to do so but opting not to receive the results.

Genetic testing may also reveal risks to family members, raising complex questions about confidentiality and potential legal duties. In rare cases, a duty of care to relatives may arise, potentially requiring a breach of the Claimant’s confidentiality. Genetic testing may also reveal genetic issues for family members, raising complex questions about confidentiality and potential legal duties. In rare cases, a duty of care to relatives may arise, potentially requiring a breach of the claimant’s confidentiality.

Any adverse results could have long term consequences; a Claimant may have to disclose the results for health or life insurance or to future employers. It may impact future family or reproductive plans.

A Shift in Interpretation: Clarke v Poole [2024] EWHC 1509 (KB)

In Clarke, the Claimant sustained a severe brain injury in a road traffic accident, resulting in profound physical and cognitive impairments. Her provisional schedule of loss exceeded £22 million. Her mother had previously been diagnosed with asymptomatic myotonic dystrophy (MD), a hereditary condition.

Experts agreed the Claimant exhibited symptoms potentially indicative of active MD. There was a 50% chance she carried the relevant gene, though possession of the gene does not guarantee symptomatic manifestation. It was also agreed electromyographic neurophysiological (EMG) would determine whether the Claimant had active MD and the Defendant argued the presence of MD would significantly reduce the Claimant’s claim.

Unlike in Paling, the Claimant in Clarke presented with at least one symptom of MD, and the proposed testing was more targeted. Notably, the Defendant pursued EMG testing rather than genetic testing – this was likely a strategic decision following the unsuccessful attempt to compel genetic testing in Paling. While a positive EMG result would strongly suggest the presence of the gene, it would lack the definitive certainty of genetic testing and offers limited insight into future clinical deterioration.

The Claimant refused EMG testing, citing (i) the significant implications of a diagnosis, (ii) personal autonomy, and (iii) concerns about mental health deterioration. She had previously declined EMG testing when her mother was diagnosed.

The Legal Debate: Two Stages or Three?

The parties agreed the Laycock two-stage test applied and was satisfied. However, the Defendant argued there should be a third stage which requires the court to perform an evaluative exercise of both party’s respective interests to determine the just and proportionate outcome in all the circumstances.

HHJ Gargan decided, notwithstanding Kennedy LJ’s explicit reference to a ‘two-stage test’, a true reading of Laycock required this third stage. This interpretation drew upon Starr v National Coal Board [1977] 1 WLR 63 (not cited in Laycock) but argued to be consistent with its underlying reasoning. HHJ Gargan held that Laycock must be read in the broader context of earlier authorities, including Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 and Hill v West Lancashire Health Authority (unreported, April 1996). He reasoned that the two-stage formulation in Laycock was intended merely to ‘summarise and simplify’ the test, and that the balancing exercise had always been an integral component of the analysis.

HHJ Gargan described the third stage as a balancing of “competing rights, namely (i) the defendant’s right to defend itself in the litigation; and (ii) the claimant’s right to personal liberty.”. Particular weight should be given to the Claimant’s objections if “the test is invasive and/or involves pain/discomfort and/or the risk of physical/psychological harm. He also held the terms of the stay should “do no more than is reasonably required to enable the defendant properly to defend the claim.”

He stayed part of her claim for future losses (with a value of £10m) unless she consented to EMG testing/conceded the issue of MD. The first two stages were answered positively and in relation to the balancing exercise, he opined that the EMG results would have a material bearing on the determination of the dispute, any physical risks posed by the test were limited, there were potential “therapeutic” advantages (not identified), her anxiety could be alleviated by home/local testing and a negative test would provide significant comfort.

Awaiting Clarity from the Court of Appeal

Permission to appeal was refused by Nicola Davies LJ. However, a successful application (via a rarely-used CPR 52.30) to reopen the refusal of permission was heard by Underhill LJ and Whipple LJ on 24 February 2025 and permission to appeal was granted on all 5 grounds. The five grounds argued that the correct approach in law was a two-stage test and the judge erred in the way he carried out the third stage.

The Court of Appeal is expected to clarify the correct interpretation of Laycock and its relationship to Starr.

Underhill LJ expressed tentative support for HHJ Gargan’s analysis, stating he was “inclined to think” it was correct. Whipple LJ, while not expressing a definitive view, noted:

“…there is at least a respectable argument that Laycock is correct, not because it suggests a two-stage instead of a three stage test (although it may be correct for that reason) but because it implicitly recognises that a claimant who objects to undergoing a test or investigation, in circumstances where that objection is not imaginary or illusory, is likely to be objecting on grounds of personal autonomy which will weigh heavily in the balance and may well be determinative of the outcome.”

Whipple LJ’s comment that personal autonomy “may well be determinative of the outcome” provides hope for Claimants navigating these complex and deeply personal issues.

Patricia Leonard, 7BR

Share: