Keywords: Confidentiality, Liability for non-disclosure
ABC’s father had shot and killed her mother in 2007 and was sentenced under the Mental Health Act to a Hospital Order with Restrictions.
He was diagnosed in 2009 with Huntington’s Disease (a progressive and fatal condition of the central nervous system) which causes mental, emotional, physical and behavioural deterioration.
The condition is inherited and there is an accepted 50% risk of a child of a parent with Huntington’s Disease inheriting the condition. A reliable predictive genetic test is available which can determine whether or not an individual has the faulty gene that causes Huntington’s Disease.
ABC’s father had told her brother of his diagnosis, but did not want the information disclosed to his two daughters (including ABC).
During 2009, ABC and one of her sisters took part in family therapy with her father, organised by the defendants. On two occasions, those responsible for the father’s care considered whether to disclose his diagnosis to his daughters without his consent and decided to respect his wish to keep the information confidential.
By the time of the second decision, in January 2010, ABC was pregnant and both her father and those treating him were aware, not only that she was pregnant, but also that this was her first child and that she would be a single parent. ABC’s daughter was born in April 2010.
In August 2010, ABC accidentally became aware of her father’s diagnosis. She underwent genetic testing and was subsequently diagnosed with Huntington’s Disease. It was not yet known whether ABC’s daughter had inherited the condition. ABC contended that, if she had been informed promptly of her father’s diagnosis she would have sought a genetic test and, on confirmation of her own diagnosis, she would have terminated the pregnancy. Her claim therefore included a “wrongful birth” claim.
ABC sought to argue that she was owed a duty of care by the defendants either directly (on the ground that her participation in family therapy gave rise to a relationship of care) or indirectly (on the ground of a professional obligation towards those who, although not in existing doctor/patient relationships with a clinician, have a vital interest in genetic information which the clinician has obtained).
For the claim to succeed, ABC would need to show that:
- the harm to her was reasonably foreseeable
- there was sufficient proximity between her and the Defendants for a duty of care to arise
- that imposing a duty of care towards her on the Defendants was fair, just and reasonable
The parties essentially agreed that the first two requirements were satisfied in this case. The question that remained was whether it would be fair, just and reasonable for a professional duty to override confidentiality to be a legal duty towards the person in need of the information. Irwin LJ summarised the issue:
“Of course there is no simple duty of disclosure. But if the clinician conducts the requisite balancing exercise, and concludes that it falls in favour of disclosure then a professional obligation arises. The question is whether a breach of that obligation is actionable.” (para. 23)
A number of arguable issues relating to whether imposing such a duty of care would be fair, just and reasonable were identified:
- Whether the public interest in preserving confidence in the confidentiality of the doctor/patient relationship was outweighed by the public interest in preserving confidence in doctors acting with a duty of care towards all patients/potential patients
- Since doctors are already potentially liable to patients for unjustifiable breaches of confidentiality, whether it is in the public interest for that to be balanced against a potential liability to a third party for non-disclosure
- Whether or not legal liability in addition to the existing professional duty to disclose (in certain situations) might create or worsen difficult issues which already arise as a result of the professional duty such as:
- Possible damage public confidence in the doctor/patient relationship, either simply through the existence of the liability or by making doctors more likely to decide in favour of disclosure
- Possibly causing doctors to tend to put pressure on patients to consent to a disclosure to avoid possible liability
- The difficulty of determining prior to disclosing the information whether a third party would wish to know or might be harmed by knowing the information
- Whether the positions of (1) clinical genetists (who come into possession of medical information pertaining directly to third parties who should become patients and may require preventive treatment) and (2) other clinicians (who may come into possession of medical information about their existing patients which may pose a risk to or indirectly affect a third party) are sufficiently distinct for a line to be drawn which would avoid ‘opening the floodgates’ towards an endless potential liability
The defendants also argued that the creation of such legal liability would be such a large extension of the common law of negligence that it should be for Parliament and not the courts to make such a change. Irwin LJ rejected this pointing to the US case of Tarasoffwhich held a therapist liable for failing to inform an identifiable third party of their patient’s expressed intent to murder the third party. He noted that, in that case, the extent of the risk was lesspredictable and quantifiable than the genetic risk faced by ABC and her daughter. He also considered the US case of Safer v Packwhich considered whether a doctor had a duty of care to warn those known to be at risk of avoidable harm and concluded that such a duty of care could arise in the instance of a genetic risk where: “The individual or group at risk is easily identified, and substantial future harm may be averted or minimised by a timely and effective warning”. As US cases, neither of these judgements was binding on the English Court of Appeal, but, occurring in a similar common law jurisdiction, served to illustrate the potential arguability of the issues.
Irwin LJ was less convinced that ABC’s claim could be advanced on the basis of a duty of care to her arising from her participation in family therapy (rather than through her biological relationship to her father). He also expressed doubt about founding the claim as a human rights breach under Article 8, rather than on the basis of common law. Nevertheless he left the claimant free to argue both of those positions in a substantive hearing of the case.
ABC’s case had been struck out in the High Court on the basis that it was not reasonably arguable.
The Court of Appeal, therefore, has merely found that ABC case is arguable. Essentially that means that it is legally feasible for the claim to succeed. However, it definitely does not mean that the claim will succeed at trial. But it will certainly be an interesting case to watch. If it were to succeed, social care and health practitioners will need to exercise more caution in ensuring clear and legally literate thinking when making decisions regarding breaching confidentiality and in recording the reasons for their decisions – including decisions not to disclose information. Decisions of a similar nature are becoming more common with the developments in genetic testing and, unless parliament decides to legislate on the issue, the courts are likely to need to continue to wrestle with where to draw the boundaries between patient confidentiality and risk to other individuals.
Full transcript available at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/336.html