In ABC v St George’s Healthcare NHS Trust and Others [2017] EWCA Civ 336, the Court of Appeal found that it was fair, just and reasonable to impose a duty of care on a doctor to inform a patient’s daughter that he had Huntington’s disease, in breach of patient confidentiality.

Facts

In 2007 the claimant’s father shot and killed her mother. He was convicted of manslaughter by diminished responsibility. In 2009 he was diagnosed with Huntington’s disease, an incurable inherited condition that can cause personality change, altered behaviour and aggression. It is passed to children in 50% of cases. His doctors wanted to tell the claimant, but he refused consent.

In April 2010 she gave birth to a daughter. In August 2013, she was accidentally informed about her father’s diagnosis and following testing was herself diagnosed with Huntington’s disease.

First Instance

The claimant raised an action against her father’s doctors. She alleged that she ought to have been informed of her father’s diagnosis. If informed she would have been tested for the disease and if her diagnosis had been confirmed she would have terminated her pregnancy. She alleged that the defendants owed her a duty of care at common law and had breached her rights under Article 8 of the European Convention on Human Rights.

The court held that “no reasonably arguable duty of care” was owed by the doctors to the claimant. Any potential interference with her rights under Article 8 would be justified for the same reasons relied upon to answer the common law claim. The court considered that while the duty of confidentiality was not absolute, there could be no duty to provide information to third parties except where there is a wider public interest.

The Appeal

The Court of Appeal focussed on the existence of a duty with reference to the Caparo tripartite test. The first two limbs were taken to be established. Their focus was on the third limb: whether it was fair, just and reasonable to impose a duty of care on the doctor to breach confidentiality and disclose the father’s condition to the claimant.

The court placed significance on the fact that professional guidance already imposes a duty on clinicians to consider breaching patient confidentiality in some circumstances. Public confidence would not be increased by a legal duty arising from some obligations contained in the guidance but not others. Where professional guidance requires a clinician to consider breaching patient confidentiality in certain circumstances, the patient and the person who needs the information should both have a remedy.

The court accepted the difficulty of placing a duty on clinicians to balance conflicting duties but considered the difficulty already arose from the professional guidance. Equally, the risk that confidence in the doctor/patient relationship may be reduced if patients are aware their confidentiality could be breached already existed as the duty of confidentiality was not absolute.

The court acknowledged that there was a ‘floodgates’ argument against a duty of care being imposed, but considered that it may be possible to distinguish geneticists from other medical practitioners. A general clinician usually only has knowledge of information about their existing patient whereas geneticists acquire definite, reliable and critical information that will affect their patients’ children.

Finally, the argument that the extension of a duty of care is a matter for parliament was firmly rejected. The court pointed to leading authorities establishing that the law of tort should evolve incrementally to provide appropriate remedies to contemporary problems.

Wider Implications

Recent case law has tended to focus upon the duties of doctors in their provision of information to patients. This case suggests that genetic risks may be the route by which the incremental development of the common law extends those duties to provide information to third parties, even where this is a breach of patient confidentiality. Medical practitioners will find themselves having to reconcile the conflicting duties of confidentiality to their patient and providing information to third parties. The case will now proceed to trial, which may allow further consideration of these important issues.