Legal Updates

ABC v St George‘s Healthcare NHS Trust and others [2020] EWHC 455 (QB)

In this recent English case, the High Court recognised that the second defendant, a trust which ran a hospital, owed a duty of care to the daughter of its patient. The duty recognised was a duty to “balance her interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally”. The scope of this duty extended to conducting the balancing exercise and to acting in accordance with its outcome.The patient was diagnosed with a genetic disorder. He declined to consent to disclosure to his daughter. The trust did not disclose to his daughter during her pregnancy the risk that she had inherited the gene¹ for the disease. On the facts, the trust’s decision not to disclose did not amount to a breach of the duty recognised, as it was supported by a responsible body of medical opinion. The duty recognised may potentially apply to other information that reveals a serious risk to a third party, such as information about a patient’s hallucinations telling him to injure his relative.

I. Facts

It is essential to examine the unusual facts of this case in order to understand the circumstances in which the duty of care above arose.

The claimant’s father (XX) was detained in a hospital run by a trust, the second defendant (D2), pursuant to a manslaughter sentence for killing the claimant’s mother.

Whilst XX was detained, the claimant commenced attending family therapy sessions arranged by D2. The family therapy was offered as part of the therapeutic interventions provided to XX while he was a patient at the hospital, but the claimant’s participation in the family therapy was also designed to offer a therapeutic benefit to herself, who was a victim of XX’s crime and XX’s daughter.

After the claimant commenced attending the family therapy sessions, XX was diagnosed with a genetic disorder called Huntington’s disease. The risk that the claimant had inherited the gene for this disease was revealed to the healthcare professionals through the diagnosis of XX. Unfortunately, XX declined to consent to the disclosure of the information to the claimant.

The child of someone with Huntington’s disease has a 50% chance of developing the condition. The healthcare professionals were aware that the claimant was pregnant. However, they took the view that they should not override XX’s confidentiality and did not alert the claimant to the risk that she had inherited the gene for this disease in time for her to terminate her pregnancy. It was only after the claimant had given birth that she was found to have inherited the gene for this disease, which meant that her child had a 50% chance of developing the condition.

The claimant brought a claim in negligence against the three trusts which were responsible for the relevant healthcare professionals, including D2, arguing that the trusts breached their duty of care to her in failing to alert her to the risk that she had inherited the gene for Huntington’s disease in time for her to terminate her pregnancy. The claimant also brought a claim under the Human Rights Act 1998 against the defendants, but this briefing will discuss the negligence claim only.

II. Judgment

The High Court dismissed the negligence claim against the three defendants. The analysis of the court was as follows.

Whether the defendants owed any relevant duty of care to the claimant

The court considered the following three potential routes to a duty of care.

Possibility 1: Duty of care owed as a patient

The claimant was a patient of D2’s family therapy team. Even if better described as a “participant” in family therapy, her relationship with D2 as a participant in family therapy was directly analogous to that of a patient undergoing therapeutic intervention. The duty of care owed by D2 in the context of family therapy to the claimant, as a patient or alternatively as a participant in family therapy, was to conduct the therapy with reasonable professional skill and care. However, the decision whether to provide the claimant with information about her genetic risk lay outside the scope of such duty.² 

Possibility 2: Assumption of responsibility

Other than to the extent that the court had found the claimant to have been a patient, or alternatively as a participant in family therapy, the claimant could not rely upon an assumption of responsibility in the sense required to bring her within the established category of cases where a duty of care existed.³

Possibility 3: Should a duty of care be recognised in this novel situation?

The court held the following and concluded that, at law, D2 (but not the first defendant or the third defendant) owed a duty of care to the claimant to “balance her interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally”⁴:

1. The courts had been willing to recognise that a doctor or health authority might owe a duty of care to persons other than their primary patient, but such a duty was only capable of arising where the claimant and defendant had a close proximal relationship.⁵ There was no close proximal relationship between the first defendant and the claimant, and no sufficient evidential basis arose to maintain a claim against the third defendant. However, there was a close proximal relationship between D2 and the claimant on the facts. The claimant’s participation in the family therapy arranged by D2 was an important part of the factual matrix, and D2’s clinicians had a significant amount of information about the claimant and her circumstances.⁶
   
   
2. It was foreseeable and actually foreseen by D2 that the claimant was at risk of suffering harm if the information about her genetic risk was withheld from her.⁷
3. It was fair, just and reasonable to impose the duty to balance the interests above on D2.⁸

The scope of this duty of care extended to conducting the balancing exercise and to acting in accordance with its outcome.⁹

The court emphasised that this duty of care was not “a broad duty of care owed to all relatives” of the patient in respect of genetic information. This duty of care was likely to arise only in limited circumstances where there was a close proximal relationship between the at-risk person and the medical professionals.¹⁰

Importantly, the court was inclined to take the view that it did not stand up to close scrutiny to limit this duty to genetic cases, as it did not see why genetic information should be treated differently from other information which revealed a serious risk to another person.¹¹ The court gave the following example:

“Suppose a patient disclosed auditory hallucinations telling him to physically harm his relative to his psychiatrist. I suggest it would be surprising if information of that nature was less susceptible to being subject to a duty to consider breaching confidence than a genetic risk.”¹²

Breach of duty and causation

The claimant’s negligence claim against D2 would only succeed if 1. D2 breached the duty to balance the interests above and 2. the claimant would have undergone a termination of her pregnancy had the risk been disclosed to her during her pregnancy. The court held that the claimant failed in both and, therefore, dismissed her negligence claim against D2:

1. D2’s decision not to disclose did not amount to a breach of the duty to balance the interests above, as it was supported by a responsible body of medical opinion and was a matter of judgment open to D2 after balancing the interests. One should refer to the judgment for the standard of care, which was measured by reference to the professional guidelines, and for how any claimed breach of this duty would be tested by reference to the Bolam / Bolitho principles;¹³
   
2. the claimant had not established that she would have undergone a termination of her pregnancy had the risk been disclosed to her during her pregnancy.¹⁴

III. Concluding remarks

This important English decision should be persuasive in Hong Kong. Significantly, as the court noted, the legal duty to balance the interests above runs parallel to the established professional duty in the UK to undertake a proper balancing exercise.¹⁵ What the legal duty requires is not necessarily the same as what the professional duty requires. The judgment of the court is available here.

¹ Para. 9 of the judgment in ABC v St George’s Healthcare NHS Trust and others [2020] EWHC 455 (QB) (“the Judgment”) states that “[a]lthough I shall refer to ‘the Huntington’s gene’ as a shorthand, strictly it arises from a genetic mutation”.
² Para. 138, 143, 148, 149 & 173, the Judgment
³ Para. 152, the Judgment
⁴ Para. 188, the Judgment
⁵ Para. 170, the Judgment
⁶ Para. 171-173, the Judgment
⁷ Para. 174-175, the Judgment
⁸ Para. 176-188, the Judgment
⁹ Para. 189-190, the Judgment
¹⁰ Para. 196 & 261, the Judgment
¹¹ Para. 184, the Judgment
¹² Same as above
¹³ Para. 191-194,196, 231 & 263, the Judgment
¹⁴ Para. 252, 253 & 264, the Judgment
¹⁵ Para. 195, the Judgment