I recently reported in Lexis®PSL Personal Injury on the interesting case of (1) Connor Smith (2) Nicola Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB), following the judgment of His Honour Judge McKenna of 15 April 2016.

The principle in the case is simple: a doctor or hospital does not owe a duty of care in negligence to a third party who is not their patient.

This principle is worth a little closer analysis, however. The common law develops the existence of a duty of care in any given situation on an incremental basis and new potential duties still remain subject to the well-known test laid down by Lord Bridge in Caparo Industries Plc v Dickman [1990] 2 AC 605, in which to establish a legal duty a claimant must satisfy three elements (although there is not inconsiderable overlap between them): (1) foreseeability; (2) proximity; and, (3) public policy.

The original “neighbour” principle which Lord Atkin set out in Donoghue v Stevenson [1932] AC 562 remains important in considering at least the first two elements. In that case, his Lordship explained:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

The first element, that harm was reasonably foreseeable, in essence is an objective test of whether a reasonable person in the defendant’s position would have foreseen that someone in the claimant’s position might be injured. The second element, that there was a relationship of proximity, essentially means that there must be sufficient closeness between the claimant and the defendant to justify a legal duty being owed. The third element, that it is fair, just and reasonable to impose a duty of care, is the “public policy” element that enables the courts to control attempted extensions to the duty of care even in the presence of foreseeability and proximity. One of the most well-known examples of such control relates to “nervous shock” cases for a “secondary victim”, i.e. a person who suffers psychiatric damage as a result of harm done to another (see the seminal case of Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310).

However, there are many examples of duty cases decided on the basis of public policy, including recent cases in the medical arena relating to whether a duty was owed to a patient by an A&E receptionist (it was not: Darnley v Croydon Health Services NHS Trust [2015] EWHC 2301 (QB)) and whether a duty was owed by a hospital to a patient’s daughter to warn her of her father’s genetic disease (it was not: ABC v St George’s Healthcare NHS Trust [2015] EWHC 1394 (QB)). It is perhaps noteworthy that the unsuccessful claimants in both Darnley and ABC have appealed to the Court of Appeal, with substantive appeal hearings due to take place in, I believe, December 2016 and March 2017 respectively. Medical cases not infrequently test the courts because the law has to try to develop in tandem with, sometimes rapid, advances in modern medicine. Smith (much as with ABC) would seem to be a good example of this.

Although in Smith the court concluded that no duty was owed by the doctor or hospital to family members of the patient, the decision might be considered harsh in the particular context of the case. Adrenomyeloneuropathy (AMN), the genetic disorder in the Smith case, is the adult form of X-linked adrenoleukodystrophy (X-ALD). X-ALD is a metabolic disorder, in which fatty acids accumulate in tissues causing damage, with an estimated birth incidence of 1 in 20,000 (although it is probably higher) and in which newborn screening is now technically feasible. To some extent it came to prominence in 1992 because of the film “Lorenzo’s Oil”. Its inheritance is complex, but essentially it is transmitted in an X-linked recessive manner, meaning that all males (XY) who have the abnormal gene on the X chromosome are clinically affected but females (XX) are only affected if they have two abnormal X chromosomes and otherwise are (largely) asymptomatic carriers when they carry only one abnormal X chromosome. Although X-ALD/AMN cases were probably identified as early as the late 19th century, it was only really in the 1980s that the clinical spectrum became apparent and only since about 2009 that newborn testing has been technically feasible.

In this particular case, it would certainly seem to have been reasonably foreseeable that a relative of the index patient might be harmed when that patient’s genetic condition was negligently not diagnosed by the defendant; and, indeed, for the purposes of the defendant’s application to strike out the claim, the defendant conceded that such foreseeability did exist.

Whether there was proximity between the defendant hospital and the wider family members was more contentious, the defendant arguing that there was not. However, if we remind ourselves of Lord Atkin’s dicta on proximity as set out above, it would seem reasonable to think that wider family members of a patient with a hereditary condition should be included as “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”: one of the fundamental purposes of genetic testing is to ascertain afflicted family members, increasingly so as greater numbers of genetic diseases, their mode of transmission and methods of treatment are discovered.

Even if foreseeability and proximity were satisfied, the claimant lost on the grounds of public policy, the judge declaring that “The settled policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people”. But is that really fair, just and reasonable nowadays in this type of case? The claimants understandably argued that the class of those who might be injured by the defendant’s negligent failure to diagnose the genetic condition was defined and ascertainable and, accordingly, the scope of the duty is to take reasonable steps to provide the patient with an accurate diagnosis that would enable relatives to seek genetic testing. Indeed, those relatives, or at least that class, would, or should, have been in the mind of the doctor/hospital when testing the index patient and should the index patient test positive those relatives would (subject to specific facts) end up being tested by the (or, at least, a) hospital and, accordingly, be a patient.

It seems to me that, contrary to the judge’s view, it arguably could be against public policy to allow a hospital to escape liability for negligence which results in harm to an ascertainable class of individuals who would (or should) have been in the contemplation of the hospital when committing the negligence even if members of that class were not (yet) their (or a) patient but would have been absent the negligence and who, as a result of the negligence, have lost the opportunity to be tested and, if found to be positive, treated. However, perhaps the rub is that, if this were to be applied to a more common genetic condition, such as cystic fibrosis, with which it is estimated that 1 in 2,500 babies are born in the UK every year and approximately 1 in 25 people of European descent are carriers of the abnormal gene, then one can perhaps see that the courts may feel compelled to exercise control on the basis of public policy for fear of the economic effects to the NHS alone, even if morally and ethically such a conclusion, to my mind at least, would feel strained in this day and age.

I am not aware of whether the claimants have sought permission to appeal in Smith, so we will have to watch this rather interesting space (whilst also seeing what the appeal court concludes in Darnley and ABC).