No duty of care to disclose to pregnant daughter father’s genetic disease – High Court

20 May 2015 by Rosalind English

ABC v St George’s Healthcare NHS Trust and others [2015] EWHC 139, Nicol J – read judgment

Philip Havers QC  and Hannah Noyce, and Elizabeth-Anne Gumbel Q.C. and Henry Witcomb  of Crown Office Row represented the defendants and claimant respectively in this case. None of them have had anything to do with the writing of this post.

I have blogged before on the Pandora’s box of ethical problems and dilemmas emerging out of our increasing understanding of genetic disorders (see here, here and here), and here is a case that encompasses some of the most difficult of them.

In short,  in 2007 the claimant’s father (‘F’) shot and killed the claimant’s mother. He was convicted of manslaughter on grounds of diminished responsibility and detained at a hospital run by the second defendant. In 2009 St George’s Hospital diagnosed him as suffering from Huntington’s disease.

Huntington’s disease is an extremely serious condition, genetic in origin, which leads to inexorable mental and physical breakdown in the course of the sufferer’s lifetime. There is no cure or treatment for it. If a parent has it, there is a 50% chance that his or her child will have it as well.
For good reason therefore, the various health professionals sought F’s consent to disclose the diagnosis to his daughter. As it happens, the claimant was pregnant at this time. It was pleaded that the defendants were aware of this and were also aware that the claimant would be very concerned about having a child who might also have Huntington’s Disease. But F refused to allow the medical staff to tell his daughter about this diagnosis. They did not do so and F’s daughter (‘C’) was born in April 2010. In August 2010 the claimant was told accidentally by one of her father’s doctors that he had Huntington’s Disease.

It then transpired that the claimant herself had the condition. It was too early to test her child for Huntington’s.

Issues before the Court

The claimant alleged that the failure to tell her of her father’s condition was (a) actionable negligence on the part of the defendants and (b) a violation of her rights under Article 8 of the European Convention. She contended that if she had been informed of her father’s condition, she would have undergone a test to see whether she had it as well. Once that showed positive, she would have terminated her pregnancy. She claimed she had suffered psychiatric damage because of the defendant’s failure to inform her, and, if her daughter did have the disease, the claimant said she would also incur additional expense which would otherwise have been avoided.

The defendants applied to bring the claim to an end, submitting that it should be struck out because it disclosed no reasonable cause of action. On behalf of the defendants, Philip Havers QC submitted that even if all the factual allegations were proved, it was plain that the claimant would not be able to establish a relevant duty of care on the part of the defendants and she did not have an arguable claim that her rights under the Convention have been violated.

The claimant relied on a 2006 report of a Joint Committee of the Royal College of Physicians, the Royal College of Pathologists and the British Society for Human Genetics,  “Consent and Confidentiality in Genetic Practice: Guidance on Genetic Testing and Sharing Genetic Information.” One section of the report dealt the position where consent to release information had been refused:

The Human Genetics Commission, the Nuffield Council on Bioethics and the GMC have all expressed the view that the rule of confidentiality is not absolute. In special circumstances it may be justified to break confidence where the aversion of harm by the disclosure substantially outweighs the patient’s claim to confidentiality. Examples may include a person declining to inform relatives of a genetic risk of which they may be unaware, or to allow the release of information to allow specific genetic testing to be undertaken.
Before disclosure is made in such circumstances, an attempt should be made to persuade the patient in question to consent to disclosure; the benefit to those at risk should be so considerable as to outweigh any distress which disclosure would cause the patient; and the information should be anonymised and restricted as far as possible to that which is strictly necessary for the communication of risk.

However, the defendants pointed out that the claimant was seeking to impose liability for an omission – a failure to inform her of her father’s condition. Ordinarily that required some special relationship between claimant and defendant under Caparo v Dickman [1990] 2 AC 605. But the present situation could not be characterised in either way.

the Claimant was seeking to recover damages in a novel situation. Of course, the categories of duty of care were not closed. However, they should be expanded only incrementally. The Claimant could not point to any situation where a duty of care was recognised to exist which was at all comparable or close to the present one.

Furthermore, the common law and GMC guidance recognised the confidential nature of information passing between doctor and patient by imposing a duty of confidence on the doctor. Whilst it was not absolute – the public interest in preserving confidence could, in certain circumstances, be outweighed by the public interest in disclosure – that did not make it fair, just or reasonable, to impose a duty of care on the defendants to the claimant in this case.

The law of confidence allowed a doctor to disclose confidential information in certain circumstances – see for instance Attorney-General v Guardian Newspapers (No.2) [1990] 2 AC 109 (and ...W v Egdell [1990] Ch 359). The Claimant was contending for a duty to do so. Consciously or unconsciously, this might encourage doctors to breach confidence where it might not otherwise have been justified.

The defendants also contended that if a doctor were subject to a duty of care in some situations to disclose information to third parties, it would undermine the trust and confidence which is so important to the doctor/patient relationship. It may lead to patients being less candid with their doctors. The same point had been made by the Strasbourg case in the context of Article 8 of the Convention – see  Z v Finland (1998) 25 EHRR 371 at [95].

Elizabeth-Anne Gumbel QC pointed out that there was sufficient proximity between the claimant and the defendants to establish a duty of care:  the claimant herself had been undergoing family therapy with the defendants. She was in that sense their patient, like her father. The purpose of the therapy was to help her come to terms with the fact that her father had killed her mother, but that was not possible if she was kept in ignorance of this aspect of her father’s condition which may have been material in what had led him to do what he had done.

The Court’s Decision

The defendant’s strike out application was allowed. Nicol J took into consideration the fact that F’s conviction for manslaughter implied acceptance that he was (at least in 2007) suffering from a disease of the mind which diminished his responsibility for his criminal act. But this did not mean that he lacked capacity to give or withhold his consent to his daughter being told of the diagnosis of Huntington’s Disease. Nor was he persuaded by the claimant’s argument that the family therapy significantly affected the viability of her case that the defendants owed her a relevant duty of care:

 It may well be that the Defendants owed the Claimant a duty of care in the way in which they carried out the family therapy. But none of this means that the Defendants were obliged to disclose to some family members information which they held under a duty of confidence to another family member. I do not accept that the claim can be characterised as badly performed family therapy rather than the omission to disclose information which the Claimant would have wanted to know.

In the judge’s view, the duty of care which the claimant was trying to construct was “entirely novel”. The nearest situation they had been able to advance in which a duty of care had been recognised was A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB). In that case a mother who had been receiving ante-natal care from the defendant complained that she had not been told that her baby might be suffering from a chromosomal abnormality. If she had been so advised, she said she would have had an abortion. But that, according to Nicol J, was an entirely conventional duty of care owed by a doctor to his patient. This case was more akin to the line of cases where parents have sued local authorities for negligently assuming that children have been abused and taken into care. The courts have struck out these cases as disclosing no cause of action because the local authorities owed the parents no duty of care (X v Bedfordshire County Council [1995] 2 AC 633 and D v East Berkshire NHS Trust [2005] 2 AC 373.)

this is not a case where the Claimant can show that a novel duty of care would be but an incremental development from some well established duty. It would, on the contrary, be a radical departure to impose liability in circumstances such as these. It would be an example of the “giant step” which Lord Toulson in Michael v Chief Constable of the South Wales Police [2015] UKSC 2 at [102] contrasted with the proper development of the common law of negligence by incremental steps.

The claimant had submitted that “It would be very curious if the Defendants’ clinicians were entitled to discuss the Claimant’s pregnancy and the possibility she would have an abortion but not owe any duties to advise her as to the risks to her fetus of developing a genetic disorder.” But in Nicol J’s judgment this juxtaposition did not strengthen the claimant’s contention.

The clinicians were “entitled to discuss the Claimant’s pregnancy and the possibility she would have an abortion” because on the pleaded facts she had made them aware of these matters. They were matters properly to be taken into account in the discussions they had with F and the advice that they gave to him. However, they fall well short of demonstrating that the Defendants owed a duty of care to the Claimant to disclose information about her father’s diagnosis to her against the wishes of her father, their patient. Ordinarily, therefore, I accept the absence of a special relationship and the absence of assumption of responsibility mean that the Claimant cannot establish a duty of care.

As for the claim under Article 8, this was something of an “afterthought”.  It had to be the claimant’s case that the positive duty implicit in Article 8 required the defendants to disclose her father’s condition to her.

Only then could their failure constitute an interference with her rights under Article 8 (whether to her family life or, as I think is more accurate, her private life). It may not matter whether the debate is seen as taking place over the existence of such a positive duty or the justification for any interference. Either way there is plainly a balance to be struck between the value to the Claimant of knowing that her father had this genetic condition (and so that she had a 50% chance of also being afflicted) on the one hand and her father’s right (also under Article 8) to have the confidentiality of his medical information preserved.
I agree with Mr Havers that all the reasons which I have set out in the context of the common law claim, mean that the balance comes down decisively against the Claimant. The Convention does not assist the Claimant in either of the ways she puts her case.

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