Dear Colleagues:

I came across this unreported case the other day and thought that it might be of interest to the group: ABC v St George’s Mental Health NHS Trust, 16 May 2017 [2017] EWCA Civ 336, CA. I apologize if it has already been circulated but I could find no record of it in my email.

The claimant’s father was diagnosed with Huntington’s Disease. His doctors attempted to convince him to inform his daughter about the diagnosis. He refused and wanted the diagnosis kept confidential. The claimant-daughter then became pregnant. The father still refused to allow his doctors to inform the claimant since “he felt they might get upset, kill themselves, or have an abortion”. The Claimant then gave birth to a daughter. After the birth, the Claimant was accidentally informed about the father’s diagnosis of Huntington’s Disease, underwent testing and was herself diagnosed as suffering from Huntington’s Disease.

The claimant sued the doctors on the basis that they owed her a duty of care to disclose this confidential information since she was pregnant and would become a single mother, she had a 50 per cent risk of having the disease and therefore non-disclosure would have “a direct effect on” her “health, welfare and life” and that the guidance given by the Royal College of Physicians, the Royal College of Pathologists and the British Society of Human Genetics would have potentially allowed/mandated the doctors to override confidentiality. She also claimed that had she been proved with this information she would have had an abortion to prevent the risk of transferring the disease to another human being.

The defendant’s moved to strike out the claimant’s action as disclosing “no reasonably arguable duty of care” but perhaps unwisely accepted that for the purposes of the motion that “the first two limbs of the tripartite test can be taken to be established for present purposes”. The Court of Appeal, despite being presented with a comprehensive list of policy reasons found, partially on the basis of cases like

Tarasoff v Regents of the University of California (1976) 551 P.2d 334 and Safer v Pack (291 N.J.Sup. 619, that it was arguable that the recognition of the duty would be fair, just and reasonable.

On the merits, it seems wrongly decided to me and confuses professional/ethical obligations owed to regulatory bodies with legal duties owed to private citizens and seems hard to square with the UKSC decision in Michaels but very interested in other’s thoughts.

Sincerely,

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)