What next for court-mandated medical testing following Clarke v Poole?

In recent years we have seen major clinical breakthroughs in early detection and diagnosis of hereditary and genetic diseases.  Blood tests can now identify early signs of Alzheimer’s disease long before symptoms appear, whilst the NHS’ Generation Study is using Whole Genome Sequencing to screen up to 100,000 newborn babies for rare genetic conditions. Meanwhile, epigenetic mapping from thousands of UK Biobank samples could unlock new insights into the causes of life-limiting diseases.

The case of Clarke v Poole & Others [2024] considered the question of whether a claimant in a serious injury claim can be ordered to undergo screening for serious underlying disease against their personal wishes. 

Background

The claimant, Ms Clarke, suffered a severe brain injury in a road traffic accident in 2018 leaving her with life-changing disabilities. Liability for the accident was admitted, and Judgment was entered in the claimant’s favour. Her claim for damages exceeded £22 million, largely made up of future care and case management costs.

The defendant argued that the claimant could have an underlying hereditary condition called Myotonic Dystrophy (MD, a type of muscular dystrophy) which was known to run in her family. The index accident occurred when the claimant was 31 years old and MD can become symptomatic between the approximate ages of 10 and 30. Causation was therefore unclear since there was significant overlap between the potential symptoms of MD and symptoms of the type of brain injury which the claimant had allegedly suffered in the index accident. If the claimant did have MD this would significantly shorten her life expectancy and create substantial care needs entirely unrelated to the accident. The defendant argued that if a MD diagnosis could be confirmed via testing, that would reduce the value of her future losses claim by around £10 million. 

MD can be confirmed through electromyographic (EMG) testing, a procedure involving the insertion of fine needles into muscles to measure their activity. The claimant refused to undergo EMG. In fact, she had previously refused the test even before the index accident. As summarised at first instance: “The claimant's principal objection to undergoing testing is that she does not wish to know whether she has MD as such a diagnosis will have lifelong implications for her health, travel and life assurance. She also refers to the invasive nature of the testing which she views as yet another insult to her body which has been so damaged by the accident.” A treating psychologist confirmed that any pressure to take the test could also damage the claimant’s mental wellbeing.

High Court decision and permission to appeal

At first instance before the High Court the defendant obtained a stay of the claim for future losses unless the claimant agreed to undergo EMG testing. 

Whilst the Court accepted that the claimant’s objection was genuine, they decided that the test was safe, routine, and central to resolving a key question in the case, and the defendant would be unfairly disadvantaged if they could not obtain test results. The Court’s view was that ordering a stay rather than forcing the claimant to take the test outright struck the fairest balance.

Application for permission to appeal was originally refused, however the claimant’s solicitors then applied to the Court of Appeal to reopen that refusal. The Court of Appeal granted their Application for permission to appeal as the High Court’s earlier refusal had not properly considered the psychological pressure the claimant faced in effectively being told she must either take the test or risk being denied a large part of her damages. The Court of Appeal held that this oversight undermined the fairness of the earlier process and created a risk of real injustice given the exceptional circumstances. Permission to appeal was therefore granted on all grounds on 11 April 2025.

Comment

It was hoped the appeal would provide better guidance on the important question of how to balance a claimant’s personal autonomy, and a defendant’s right to defend claims involving the complex issue of diagnostic testing.

However, at the time of writing the case does not appear in the Court of Appeal’s list.  It seems highly likely that the appeal will not be pursued by the claimant (but we will keep this under review), and unfortunately in those circumstances the important issues presented in the Clarke case will not be examined further by the courts for the foreseeable future.

We can, however, offer some useful points to consider for those who are presented with this issue in practice:-

• Even if the medical test which determines whether the suspected disease is going to develop is routine, it is important to consider each case on its merits, not only the immediate physical risk or discomfort of testing for the claimant, but also the longer-term emotional and psychological impact of compelling a claimant to undergo testing.
• Although testing for diseases is rapidly evolving, obtaining a diagnosis can still be a costly and lengthy process. For example, testing for Motor Neurone Disease can take up to 18 months because there is no single test and a neurologist is required to rule out other conditions with similar symptoms. In practice, it is important to weigh up whether the delay and cost of testing for the suspected disease is proportionate to the amount in dispute.
• Consider that diagnosis of what may be considered a life-limiting disease today may not remain so in 5, 10 or 15 years, especially if the diagnosis is made decades before symptoms first present themselves. For example, new medicines and therapies such as Givinostat (for MD) and AMT-130 (for Huntingdon’s Disease) have shown promise in disease management and slowing progression. As research continues, the prospect of effective disease-modifying treatments becomes increasingly attainable. Consideration of the most up-to-date scientific studies and literature is important to identify whether a treatment breakthrough is on the horizon or still decades away.

A final but important practical solution where medical testing is a contentious issue is the use of a single joint medico-legal expert (SJE) by the parties. In recent years the courts have endorsed the use of SJEs. The Court of Appeal recently upheld the decision of the Competition Appeal Tribunal in Stellantis Auto SAS v Autoliv AB [2024] providing clear authority on the Court’s power to order a SJE, even in complex high value disputes.

In 2022 Cotter J, in Muyepa v Ministry of Defence said that the reluctance to instruct single joint experts was often misplaced and this could reduce costs and polarisation of expert evidence. The King’s Bench Guide at para 10.44 echoes this stance and states "Parties should always consider whether a single expert could be appointed jointly by the parties in a particular claim or to deal with a particular issue. Before giving permission for the parties to call separate experts, the Master will always consider whether a single joint expert ought to be used, whether in relation to the issues as a whole or to a particular issue.” 

Therefore, when presented with a testing scenario, consider if a SJE may be best-placed to advise whether testing is necessary, proportionate and safe and whether they can deal with this issue in a less adversarial and more cost-effective manner than separate experts.