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When does a doctor owe a duty of care to a non-patient?

It is a commonly held principle that a doctor owes a duty of care to their patients. Much more controversial is whether a doctor can owe a duty of care to somebody who is not their patient.

This controversy was aired again recently when the High Court struck out a claimant’s case against a defendant NHS trust responsible for treating her father, after the judge found that the defendants had not owed her a duty of care to inform her of her father’s diagnosis of Huntington’s disease, in breach of patient confidentiality and his express wishes. Huntington’s disease is a genetic condition which children of the patient have a 50% chance of inheriting and is progressive, incurable and fatal.

This week he Court of Appeal has held that the claimant’s case is arguable and remitted the case for trial (ABC v St George’s Healthcare NHS Trust and others [2017] EWCA Civ 336, [2017] All ER (D) 116 (May))

What is the potential significance of this case?

The Court of Appeal’s decision means the High Court will look afresh at the reasons, including policy reasons, underlying their original decision. These reasons included the need to ensure that patient confidence in doctors was not undermined, the prevention of psychiatric injury through disclosure, and a floodgates argument that doctors would face an excessive burden in terms of their legal duties to patients and non-patients.

The Court of Appeal noted the strong trend in recent medical negligence cases to emphasise the autonomy of the patient and considered the different position in which clinical geneticists find themselves compared with other clinicians, given that they often come to know of actual or potential health problems present in third parties, who in turn require advice.

The facts of this particular case are compelling and if the court decides that such a duty exists this could have important implications for doctors and their duty to balance confidentiality on the one hand with self-determination and the prevention of harm (to others) on the other.