ABC v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 336

The Appellant’s claim against the Respondent NHS trusts had been struck out on the basis that there was no reasonably arguable duty of care owed to her. She appealed against this decision.

Her father had been detained by the Respondents under the Mental Health Act 1983 and the Respondents suspected he might have Huntington’s disease. His doctors decided not to override his confidentiality rights, and his wishes, to inform his children. The doctors had again considered whether to inform her at a later date when she informed her father that she was pregnant. After giving birth, she was accidentally informed of his condition and genetic testing determined that she also suffered from the disease.

HELD:

It was arguably fair, just and reasonable to impose a duty in such circumstances. While there was a difficulty with conflicting duties (to the patient and the patient’s child), the clinical guidance recognised that this difficulty already arose. It was arguable that the imposition of a legal duty would ensure that the balancing exercise between these competing interests was properly performed.

It was not clear that a legal duty to override confidentiality would cause confidentiality to be overridden more often than was the case under the existing professional duty to disclose.

The ‘floodgates’ argument could arguably be nullified by constraining the duty to the field of genetics. In this field, doctors obtained definite, reliable and critical medical information about third parties. This information might, in fact, mean that the third party themselves should be a patient.

Extending a doctor’s duty of care was consonant with the common law’s incremental development and need not be a matter left for Parliament.

June 15, 2017 В· Editorial Team В· Comments Closed
Posted in: Cases