ABC v St George's Healthcare NHS Trust & Ors [2020] EWHC 455 (QB) (28 February 2020)

This the trial of the action. There was an earlier attempt to strike out, which succeeded before Nicol J ([2015] EWHC 1394 (QB)) but was reversed by the Court of Appeal ([2017] EWCA Civ 336). 

Claimant’s father was diagnosed with a neurological disorder. Family therapy was proposed, and claimant began to attend.  Around this time, claimant became pregnant. It then emerged that the father had Huntington’s disease. This had obvious implications for claimant, as the disease is genetic, but a deliberate decision was taken to keep this confidential – not least because the father was adamant that this should happen. Claimant subsequently had a healthy baby.  She was however then diagnosed with the disease, with symptoms expected to manifest in 5-10 years. She insisted that had she been properly informed by the defendant health authorities, she would have terminated the pregnancy. Damages were agreed at £345k if liability could be established.

The defendants were three NHS trusts. Crudely, the first was very much involved with the treatment of the father, who was a patient of the second defendant; the claimant’s involvement in the family therapy made her a patient of the second defendant also. The third was involved in the team managing treatment. All three trusts knew the relevant facts.

Yip J held that the second defendants owed a duty, but the claim failed on breach and causation – the other defendants were held not to owe a duty.  

Per Yip J:

Article 8 rights were pleaded, but not seriously relied on at trial: “… the Convention does not add anything to the common law, nor does it provide a basis for action if the common law does not … ” (252).  

As to negligence: 

1/ A duty was owed to the claimant qua patient, but there was no breach of that duty. "The claimant was told that she could discuss matters in confidence without her father being told. It is obvious that this would also operate in reverse" (141).

2/ “I do not consider that the claimant can rely upon an assumption of responsibility in the sense required to bring her within the established category of cases where a duty of care exists” (152). 

3/ “The claimant's submissions under this third head identified that the court was being asked to consider the duty of a multidisciplinary team (including geneticists, forensic psychiatrists, family therapists and social workers) when confronted with the situation that a patient diagnosed with Huntington's disease does not want his pregnant daughter to know of the diagnosis …” (157)

“The duty which is contended for is not a free-standing duty to disclose genetic information. Any duty to provide information and advice to the claimant in breach of [the father]'s confidence could only arise where the outcome of a proper balancing exercise required [his] confidentiality to be overridden” (164).

“… there was a close proximal relationship between the claimant and the second defendant. That the claimant was at risk of suffering harm if the information about her genetic risk was withheld from her was not only foreseeable, it was actually foreseen by the second defendant” (173-174).

“I accept, of course, that a duty to the claimant would conflict with the duty of confidence owed to [the father]. However, it has long been recognised that the duty of confidence is not absolute … I agree with Irwin LJ that incentivising obligations in one way but not the other may encourage rather than diminish defensive medicine. What is being proposed is a duty to balance risks and interests properly” (178).

“I do not accept that recognising a duty to this claimant on the particular facts of this case would open the floodgates to numerous claims. I have already identified that the factual matrix is unusual and that there was close proximity between the claimant and the second defendant. Recognising a duty to her is nowhere near the giant leap that might be required to recognise a duty to multiple relatives around the world” (182).

“In recognising a legal duty in these terms, the law is not imposing a new obligation on doctors or hospital trusts. Rather, the legal duty recognises and runs parallel to the professional duty to undertake a proper balancing exercise which all the experts in this case agreed already exists” (195). 

But on breach:

“In short, this was a difficult decision which required the exercise of judgment. The relevant guidelines for psychiatrists made it clear that confidentiality should not be breached unless the doctor was certain that this was in the public interest. The GMC guidelines supported breaching confidentiality to avert a risk of death or serious harm. There was room for reasonable disagreement as to how the judgment should be exercised. That is demonstrated by the lack of consensus in the medical opinion before me. The claimant has not demonstrated that the views of the defendants' experts are illogical. I therefore conclude that the decision not to disclose was supported by a responsible body of medical opinion and cannot be considered to have amounted to a breach of the duty I have identified” (231). 

On causation:

“It is impossible for anyone to be certain about what the claimant would have done if faced with information about her father's condition in early October 2009. However, I am not required to be certain but rather to decide the issue on a balance of probabilities. I have no doubt that she would have been distressed and traumatised. There would have been a significant time pressure. The situation would have been very challenging for the clinicians as well as for her. Although I accept that it is possible that she would have sought testing herself, I think it more likely that she would not have done so” (252). 

Steve Hedley

9thlevel.ie

private-law-theory.org

ssrn.com/author=32978