In this post Rachit Buch of 12KBW discusses the Court of Appeal’s recent reversal of Nicol J’s decision to strike out a claim on the basis that a doctor did not owe a duty of care to disclose a patient’s hereditary disease to his child.
Overturning the decision the Court of Appeal held that it was arguable that medical practitioners could be liable for failing to inform family members of a diagnosis where there was definite, reliable and critical medical information as would be the case in clinical genetics.
The facts of this case are particularly sad. The Claimant’s father shot and killed her mother in 2007. He was convicted of manslaughter on grounds of diminished responsibility and sentenced to hospital and restriction orders under the Mental Health Act 1983. The Defendants operated health facilities or employed practitioners involved in the father’s treatment.
In early 2009 it was suspected that the father suffered from Huntington’s disease, a neurodegenerative condition that causes involuntary movements, muscle problems, cognitive disorders and psychiatric problems. Huntington’s results in death approximately 10 – 30 years following onset. It is caused by mutations in one gene and is inherited in a ‘dominant’ pattern meaning that only one copy of the mutation is needed to cause the disease. Therefore, if one parent has the mutation, there is a 50% chance of it being passed onto a child. Symptoms usually begin at around 35 – 40 years of age – often after reproductive age.
The Claimant’s father’s diagnosis was confirmed in 2009 when the Claimant was pregnant. The father’s clinicians discussed informing his daughters. The father expressly declined consent to inform them, at one point expressing fear that the daughters would be upset, may commit suicide or have an abortion.
The Claimant gave birth to a daughter. She later found out about her father’s diagnosis through an accidental revelation by his doctor.
The claim was brought in negligence and for breach of Article 8 of the European Convention on Human Rights. The Claimant claimed that it was a breach of duty for the clinicians not to have informed her of the diagnosis; and that if she had been informed she would have terminated her pregnancy. The Defendants applied to strike out the claim on the grounds that it disclosed no reasonable cause of action.
Nicol J acceded to the Defendants’ application at first instance ( EWHC 1394 (QB),  P.I.Q.R. P18). The Defendants raised nine reasons in support of the strike out (discussed in detail in the Court of Appeal judgment). The judge found that the Claimant was seeking to construct a duty of care that involved liability for an omission; that this was entirely novel; and that there was no special relationship between the Claimant and Defendants that made it arguable that it was fair, just and reasonable for such a duty to exist.
Irwin LJ, with whom Underhill and Gloster LJJ agreed, reversed the decision of the High Court and allowed the claim to proceed to trial. Each of the nine submissions made by the Defendant at first instance were taken in turn and found either to be unpersuasive or not sufficient to merit striking out.
Of particular importance in favour of a duty existing in respect of the Claimant was Irwin LJ’s judgment that there was already a private law action preserving confidentiality; not to find a duty in this case would mean the countervailing public interest in doctors abiding by professional obligations to patients would have no corresponding private law remedy. The claimant relied on two examples of guidance to doctors that justify breach of confidentiality if the public interest permits. Nicol J’s decision would leave no possible cause of action in respect of a breach of this guidance.
In addition, Irwin LJ found that the potential for conflicting duties for doctors – facing litigation from a patient if information is released against their wishes and from the third party if it is not – would not be worsened by the existence of a duty of care. The professional guidance relied upon by the Claimant already enjoined practitioners to consider disclosure to relatives and accepts that in some circumstances the duty of confidentiality may have to yield to prevention of harm in the public interest.
The Defendants’ submissions that a duty in the Claimant’s circumstances would lead to use of significant resources, and potentially apply to a wide range of circumstances (the ‘floodgates’ argument) was met by the point that, in the field of clinical genetics, practitioners would be in receipt of ‘definite, reliable and critical medical information’. It was at least arguable that this distinguished the present case from other situations, limiting the occasions where this extended duty would apply.
On one reading, this decision is just one example of an appeal court being unwilling to prevent a claim for a novel duty of care being cut off at the summary stage. However on closer analysis, the judgment goes further than that. This case is in reality a tentative dip of the judicial toe into the water of medical genetics.
The judgment is unusual in that there is no detailed analysis of the first instance judge’s error of law. The aspect of the Defendants’ submissions that appears to have troubled the Court of Appeal most is the floodgates argument. Irwin LJ noted, in respect of other examples in which the Defendants said doctors would be under a duty to inform third parties, “Here, I recognise that there is force in the Defendants’ submissions” . However, this concern was met with the suggestion that “It is only in the field of genetics that the clinical acquires definite, reliable and critical medical information about a third party, often meaning that the third party should become a patient.” 
It remains to be seen whether this view withstands scrutiny. Huntington’s disease is perhaps the most extreme example of genetic information providing certainty of outcome (in scientific terms – of the likelihood of the genotype being converted to the phenotype). Increasing knowledge of genetics has shown that, very often, numerous factors affect a genetic predisposition to a certain condition. More often than not, the information clinical geneticists will have will not be definite. It may be predictive of the risk of contracting certain conditions. It is unclear in these circumstances whether the reasoning of the Court of Appeal would hold.
Irwin LJ also held the view that a distinguishing feature of genetics is that, for the most part, individuals about whom the doctors will hold information will be contactable  – a further reason to distinguish wider application of a duty to inform third parties. The content of a duty in respect of family members not in regular contact is yet to be tested.
The Defendants’ submissions that this was a novel and far-reaching development was met by reference to two American cases on similar topics. The case of Smith v University of Leicester NHS Trust  EWHC 817 (QB) – broadly similar in fact and in which His Honour Judge McKenna struck out the claim – was not referred to.
What is clear is that the scope and nature of practitioners’ duties will develop as the fields of personalised medicine and genetic testing expand. It will be interesting to see whether genetic information will still be seen as exceptional or whether these cases will be judged on existing principles of clinical negligence.
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