ABC v St George’s Healthcare NHS Trust [2017] EWCA Civ 336 (16 May 2017)

The claimant's father was diagnosed with Huntington's Disease while she was pregnant. Despite knowing the diagnosis carried a 50% hereditary risk to her, clinicians respected the father's confidentiality wishes and did not inform her. She later discovered she had the disease and sued, arguing the defendants owed her a duty of care to disclose. The Court of Appeal allowed the appeal, finding the claim arguable and remitting it for trial.

Facts

The claimant’s father killed her mother in 2007 and was detained under the Mental Health Act. In 2009, while the claimant was pregnant, her father was diagnosed with Huntington’s Disease, an incurable, progressive, and fatal hereditary condition. Children of affected parents have a 50% chance of developing the disease. The father expressly refused to allow his daughters to be informed of his diagnosis. In August 2010, after the claimant had given birth, she was accidentally informed of the diagnosis. She was subsequently diagnosed with the disease in January 2013.

The Claim

The claimant alleged that the defendants owed her a duty of care to inform her of her father’s diagnosis, particularly given her pregnancy. Had she been informed, she would have sought testing and, upon a positive diagnosis, would have terminated the pregnancy. Her claim included a ‘wrongful birth’ element regarding her child, who faces a 50% risk of inheriting the condition.

Issues

The central issue was whether it was fair, just and reasonable to impose on the defendants a duty of care towards the claimant in circumstances where disclosing her father’s diagnosis would breach his patient confidentiality. The defendants had obtained a strike out from Nicol J on the basis that no reasonably arguable duty of care existed.

Judgment

The Court of Appeal (Lord Justice Irwin, Lord Justice Underhill, and Lady Justice Gloster) allowed the appeal and remitted the case for trial.

Key Reasoning

The Court examined nine policy reasons advanced by the defendants against imposing such a duty. Lord Justice Irwin found none of these arguments conclusively demonstrated that the claimant’s case was unarguable:

On the argument regarding conflicting duties, the Court noted that clinicians already face difficult balancing exercises under professional guidance from the Royal College of Physicians, Royal College of Pathologists and British Society of Human Genetics, which acknowledges that confidentiality is not absolute and disclosure may be justified where the aversion of harm substantially outweighs the patient’s claim to confidentiality.

Regarding the uniqueness of genetic medicine, the Court observed that geneticists are in a distinct position compared to other clinicians: they acquire definite, reliable and critical medical information about third parties who, although not patients, should become patients. As Lord Justice Irwin stated:

“It is only in the field of genetics that the clinician acquires definite, reliable and critical medical information about a third party, often meaning that the third party should become a patient.”

The Court considered US authorities including Tarasoff v Regents of the University of California and Safer v Pack, the latter concerning a physician’s duty to warn of genetic risks. While not binding, these provided helpful analysis.

On the argument that such development should be left to Parliament, Lord Justice Irwin cited Lord Bingham in D v East Berkshire:

“But the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution.”

Implications

This decision establishes that claims for a duty of care by healthcare professionals to warn identifiable third parties of genetic risks are at least arguable and should proceed to trial. It recognises the unique position of clinical geneticists who acquire reliable medical information about non-patients, and opens the door to potential development of the law of negligence in this area. The case emphasises that professional guidance acknowledging circumstances where disclosure may override patient confidentiality provides a foundation for considering whether legal duties should also arise. Any such duty would be tested against the Bolam/Bolitho standard, with considerable latitude afforded to clinicians facing such difficult decisions.

Verdict: Appeal allowed. The order striking out the claim was quashed and the case was remitted for trial.

Source: ABC v St George’s Healthcare NHS Trust [2017] EWCA Civ 336 (16 May 2017)