There have been a few recent cases in which the lower courts have had to explore the extent to which a medical duty of care should be extended, be it the issue of who exactly owes a duty or to whom the duty is owed.

In April 2017 I wrote a piece about the Court of Appeal’s review of the decision in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, in which the Court of Appeal upheld the High Court judge’s finding that a hospital’s A&E receptionist did not owe a duty of care to a patient and the Court was, therefore, unwilling to extend the duty of care.

Prior to that, in May 2016 I had written about the case of (1) Connor Smith (2) Nicola Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB), in which the basic principle that a doctor or hospital does not owe a duty of care in negligence to a third party who is not their patient was considered and determined against the claimant. In that article, I referred to the High Court judgment in Darnley and also the High Court decision in ABC v St George’s Healthcare NHS Trust [2015] EWHC 1394 (QB), a case concerning the issue of whether a duty was owed by a hospital to a patient’s daughter to warn her of her father’s genetic disease: the court decided no duty was owed and struck the claim out. It is this latter case, ABC, upon which the Court of Appeal has now given judgment regarding the strike out, and it makes for interesting reading.

In ABC, the claimant’s father, who had the genetic condition Huntington’s disease, in which there is a 50% chance of passing it on to his children, refused to give the hospital permission to pass this information on to his daughter, the claimant, who subsequently brought a claim for psychiatric harm to herself and a potential claim for wrongful birth, when she had found out by chance she had the condition, as she would have terminated her pregnancy if she had known of the condition because of the 50% risk of passing it on to her child. The claim was struck out by Nicol J. as being a “novel” duty of care which was a “giant step” to be “contrasted with the proper development of the common law of negligence by incremental steps” (as per Lord Toulson in Michael v Chief Constable of the South Wales Police [2015] UKSC 2).

At that point, the cases of Smith and ABC made it pretty clear that no duty was owed to any family member who was not a patient of the doctor or Trust; accordingly, doctors and Trusts could provide unacceptable care resulting in harm to a wider family member but, because their patient did not suffer any harm, they would not be found liable in negligence. The appeal court’s finding in ABC has, however, potentially offered a degree of hope for claimants.

The judgment set out the claimant’s case:

“‘It is said that the defendants knew at all relevant times the claimant was a daughter of her father, knew of the 50 per cent risk to her, and knew that such a diagnosis would have “a direct effect on the health, welfare and life of the claimant”. The facts gave rise to a special relationship between the defendants and the claimant. Alternatively, there was an assumption of responsibility by the defendants to the claimant. In either case there arose a duty of care. The defendants had an obligation to care for the claimant’s “welfare and psychological and/or physical well-being”. There was a duty to “take reasonable steps to prevent the claimant from suffering injury” whilst undergoing the family therapy. The therapy had a “therapeutic objective” to address the facts of her mother’s death, “the role that her father played in it, and her future relationship with her father”.

As a consequence of the duty of care it is said, in summary, that the defendants should have provided the information as to the father’s diagnosis “in a timely manner when it was known, or ought to have been known, that the claimant was pregnant” and that following the provision of information, the claimant should have been given the opportunity for “urgent diagnosis and testing” of her own condition, with further advice, support and termination of the pregnancy, if desired.”

The reference to “family therapy” was a point specifically identified in the judgment: “Part of the claimant’s case turns on the fact that during 2009 she and one of her sisters took part in family therapy, organised and facilitated by the defendants. In the course of the hearing before this Court draft re-amended particulars of claim were submitted on behalf of the claimant. As part of that pleading, the claimant avers that her attendance at the clinic for family therapy was in the capacity of “a patient of the defendants” and thus there existed a direct relationship giving rise to a duty of care.”

The claimant further submitted that professional guidance (from the Royal College of Physicians, the Royal College of Pathologists and the British Society of Human Genetics entitled “Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information” with the relevant edition being published in April 2006) made it clear that there were professional obligations towards those who, although not in existing doctor/patient relationships with a clinician, had a vital interest in genetic information which the clinician had obtained, and that this was a good foundation for an extension of the legal duty of care, notwithstanding this was disclosure of confidential information of the patient beyond the doctor-patient relationship.

It was accepted between the parties that the claimant would be able to establish at trial that injury to her was reasonably foreseeable from a failure to inform her that her father had Huntington’s disease and that there was sufficient proximity between the claimant and the defendants for a duty of care to arise. The argument to be determined by the appeal court was whether it was ‘fair, just and reasonable’ to impose on the defendants a duty of care towards the claimant on the facts alleged.

The defendants asserted nine grounds as reasons based on policy as to why the claim should not be remitted for trial, although the appeal court considered that some of them overlapped. Irwin LJ., with whom the other two judges agreed, gave the judgment of the Court and commented on each of the defendants’ arguments:

(i) The public interest of preserving the doctor/patient relationship. The judge stated that he had reached no firm conclusion on this argument, but that the claimant’s case was arguable and should not have been struck out.

(ii) The law of confidence allowed a doctor to disclose confidential information in certain circumstances and the imposition of a duty might encourage doctors to breach confidence where it might not otherwise have been justified. This tied in with (iii).

(iii) Doctors would be subject to conflicting duties, liable to be sued by their patient if they disclose information which should have remained confidential, and liable to be sued by a third party, such as the claimant, if they fail to disclose information which they should have revealed. The judge considered that the claimant’s assertion that this was a proper balancing exercise for the clinician was a properly arguable position.

(iv) There was a risk of undermining the trust and confidence which is so important to the doctor/patient relationship. The judge again did not reach a decided conclusion but recognised the claimant’s position as being clearly arguable.

(v) Doctors might put pressure on patients to agree to disclosure to avoid the risk of being sued by third parties and practice “defensively”. Again, the point was arguable.

(vi)Some third parties may not wish to receive information, yet a doctor may not be able to explore whether this is the case without effectively imparting the information itself. This tied in with (vii).

(vii) It is possible that the third party may suffer psychiatric harm if he or she is told the information in question, which might place the doctor in a dilemma. The judge did not seem convinced that these two arguments did not already apply to clinicians and could not quite see how the proposed duty extension would worsen the position, subject to medical expert evidence.

(viii) It would be burdensome to place on doctors who receive considerable confidential information a duty to consider whether any of it needs to be disclosed to third parties. The judge was not convinced by this argument, certainly when applied to geneticists who had to deal with it already, but did recognise the concern about the “floodgates” argument, although it was not unarguable such as to warrant a strikeout of the claimant’s claim.

(ix) The extension of the duty proposed was contrary to the incremental way the law of negligence ought to progress. The judge reviewed both English and foreign authorities, commenting on two from the U.S, and firmly rejected the defendant’s assertion that the imposition of the duty claimed should be for Parliament and not the Courts.

The judge also raised question marks over the claimant’s alternative bases for her claim: first, that there was an assumption of a duty of care as a consequence of her participation in the family therapy organised and provided by the defendants, an argument which the judge said would not have persuaded him to remit the case for trial had this been the only argument; and, secondly, under Article 8 of the European Convention, although he was unconvinced that the Convention added anything to the common law position but stated that he would not preclude the claimant from arguing this case.

Accordingly, the Court considered that the claimant’s case was properly arguable and the appeal was allowed, the order striking out the claim was quashed and the case remitted for trial.

Whilst no substantive decision has yet been reached regarding the claim asserted by the claimant in ABC for the extension to the duty of care, the appeal court at least considered that the claim had sufficient bases for it to be properly arguable at trial. So, at least the claimant will have an opportunity to argue her case in full at trial. However, we will have to wait to see what conclusion is ultimately reached at trial and, of course, whatever decision is reached, whether the case then goes on appeal – again!