In this post Helen Waller of 12KBW discusses Mrs Justice Yip’s dismissal of a claim that sought to establish that a doctor owed a duty of care to disclose a patient’s hereditary disease to his child.
An earlier appeal of a strike out application in this tragic case has already been reported on by Rachit Buch of 12KBW. That report can be found here:
The Factual Background
In brief summary of the facts, the father, XX, had killed the claimant’s mother in 2007, for which he was made subject of a restricted Hospital Order pursuant to the Mental Health Act 1983 following a conviction for manslaughter by reason of diminished responsibility. It transpired that XX had Huntington’s disease, a hereditary choreic syndrome. XX made it clear that he did not want the claimant and her sister to know. This remained true when XX learnt that the claimant was pregnant. XX knew that his status meant that the claimant might have Huntington’s disease and her unborn child also. He was aware that this might influence her decision about whether to continue with the pregnancy.
The claimant came to learn of her father’s Huntington’s disease through an accidental disclosure by one of XX’s treating physicians some months after she had given birth. She later underwent genetic testing to discover that she, too, had Huntington’s. She went on to bring a claim in both negligence and under the Human Rights Act 1998 for breach of Article 8 of the ECHR. The claimant contended that the defendant health trusts ought to have informed her of the risk that she had inherited the Huntington’s gene at a time when it was open to her to terminate her pregnancy.
The Issues at Trial
The issues to be determined by Yip J are set out at paragraph 24 of her judgment. They were stated to be as follows:
“i) Did the defendants (or any of them) owe a relevant duty of care to the claimant?
ii) If so, what was the nature and scope of that duty?
iii) Did any duty that existed, require that the claimant be given sufficient information for her to be aware of the genetic risk at a stage that would have allowed for her to undergo genetic testing and termination of her pregnancy?
iv) If a duty of care was owed, did the defendants (or any of them) breach that duty by failing to give her information about the risk that she might have a genetic condition while it was open to her to opt to terminate her pregnancy?
v) If there was a breach of duty, did it cause the continuation of the claimant’s pregnancy when it would otherwise have been terminated? (This involves consideration of whether the claimant would in fact have had the opportunity to undergo genetic testing and a termination).”
At trial, the Claimant identified three potential routes to a duty of care:
“i) The claimant was a patient of the defendants (or at least the second defendant) so that the case falls within the scope of the established duty of care arising out of the doctor-patient relationship.
ii) The forensic psychiatry unit of the second defendant assumed responsibility for the welfare of the claimant, both in the context of providing family therapy and through her long-standing relationship with the team caring for XX and her involvement in his rehabilitation programme.
iii) If neither of the above routes are found to apply, by the application of established principles to the facts of this case by incremental extension (as explained by Caparo v Dickman and Robinson v Chief Constable of West Yorkshire).”
The defendants denied that the claimant was a patient of any of the defendants, but rather that she was a third party to the relationship between each of them and XX. They argued that this was plainly a novel claim involving a negligent omission in respect of which no duty has ever previously been recognized by the courts. They submitted that even if the necessary proximity and foreseeability of harm were established, it would not be fair, just and reasonable to impose a legal duty in the circumstances.
Any duty that could be established would plainly conflict with the duty of confidence owed by the defendants to XX.
The Judgment
Yip J was careful to make clear that she would not be attempting to define the limits of any duty of care owed by doctors to those who are not their patients. She was only required to determine whether, on the facts of this case, a relevant duty was owed to the claimant.
The judge undertook a very careful analysis of the extensive evidence that had been put before her, both documentary and oral. She concluded at paragraph 130 that she was unable to find on the evidence “that it is probable that the claimant could have been alerted to the genetic risk without a direct breach of XX’s confidentiality”.
It was found that the claimant was a patient of the second defendant’s family therapy team. This was a case of applying established principles to a new factual situation, rather than recognising a novel duty. However, the claim could not be “properly characterised as badly performed family therapy”. Further, the judge held (at paragraph 143) that the claimant was not in a doctor-patient relationship with Dr Olumoroti, a forensic psychiatrist who headed the team with responsibility for XX’s care. Crucially, “even as a patient of the second defendant, the claimant remained a third party to the relationship between each of the defendants and XX”.
The judge ruled that there was no assumption of responsibility such as would fall within the Hedley Byrne principles. There was “no question of the claimant having relied on the defendants to undertake the balancing exercise as to whether she should be told of her father’s diagnosis”.
These conclusions meant that the third and, arguably most important, limb of the claimant’s submissions fell to be determined: should the court recognise a duty of care in this novel situation? This necessitated a weighing in the balance of the claimant’s interest in being informed of her risk of a genetic disorder against her father’s interest in having the confidentiality of his diagnosis preserved.
In considering the issue, Yip J concluded at paragraph 170 that, “the courts have been willing to recognise that a doctor or health authority may owe a duty of care to persons other than their primary patient but that such a duty is only capable of arising where there is a close proximal relationship between the claimant and defendant”. As matters unfolded, the only defendant with whom such a proximal relationship could be properly alleged was the second, of whom the claimant was a patient for the purposes of family therapy.
As the court recognised, the foreseeability of the claimant suffering harm as a result of non-disclosure was not just foreseeable, but in fact foreseen by the second defendant. Therefore, the question of whether the imposition of a duty would be fair, just, and reasonable fell to be considered (at paragraph 176 onwards). Yip J found merit in the submission that the recognition of such a duty would not be “novel” as the defendants had argued, but rather would be a modest incremental step as foreseen by Montgomery in the particular circumstances where there is extant professional guidance on the point. At paragraphs 188 and 189, she concluded that it was fair, just and reasonable to impose on the second defendant a legal duty “to balance her interest in being informed of her genetic risk against her father’s interest in preserving confidentiality … and the public interest in maintaining medical confidentiality generally”.
Having found a duty and identified its scope, Yip J turned to consider the question of breach. In taking into account the lack of consensus of opinion amongst the medical experts before her and the fact that the claimant had not demonstrated that the defendants’ experts’ views were illogical, the judge concluded that the decision not to disclose was not in breach of duty. The balancing exercise required had been carried out.
In further looking at the question of causation, the judge held that “the claimant has not proved that she would have undergone a termination if notified of the risk during pregnancy”. Accordingly, the claim would have failed on causation even if it had succeeded on breach.
In accordance with the dicta of Irwin LJ in the Court of Appeal, considering the strike out application, Yip J held that the Convention claim did not add anything to the common law claim or provide a basis for action if the common law did not. Therefore, the claim failed.
Commentary
This is an important decision on the scope of the duty imposed upon medical professionals in respect of third parties whom are posed a risk by others, with whom the medical professional is in a relationship of confidentiality. It is clear from Yip J’s judgment that there is a duty, concomitant with the relevant professional guidelines, that the medical professional(s) must conduct a balancing exercise between the third party’s interest in being informed of the risk and the patient’s interest in confidentiality. That balancing exercise does not go so far as to expressly impose a duty to warn. However, it is clear from this judgment that the court can envisage circumstances where the balancing exercise would fall sufficiently in favour of disclosure that a failure to do so might give rise to a cause of action. This, in fact, is on all fours with current GMC guidelines.
This claim may have failed on breach and causation on the particular facts, but the door is certainly open for another in different, perhaps more stark, circumstances to succeed.
Clinical Negligence Law 