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The scope of the doctor’s duty of care – ABC revisited

Posted on 18th November 2019

The case of ABC v St George’s Healthcare NHS Trust and others [2017] EWCA Civ 336, [2017] All ER (D) 116 (May) returns to the High Court for determination, over two years after the Court of Appeal reversed a High Court Judge’s decision to strike out the claimant’s claim against the defendant NHS trusts responsible for treating her father. The judge had found that the defendants had not owed her a duty of care to inform her of her father’s diagnosis of an inherited genetic condition, in breach of patient confidentiality and his express wishes. The Court of Appeal held, however, that the claimant’s case was arguable and remitted the case for trial.

Facts of the case

The facts of the case are unusual: the claimant’s mother had been shot and killed by her father in 2007, after which he was convicted of manslaughter on the grounds of diminished responsibility and detained at a psychiatric clinic.

In 2009, the defendants diagnosed the Claimant’s father with Huntington’s disease, a genetic condition which children of the patient have a 50% chance of inheriting. Huntington’s disease is progressive, incurable and fatal.

Doctors treating the father reportedly discussed whether they should tell his daughters, but the father did not want his daughters to know, on the basis that they might become distressed. Once he was told that the claimant was pregnant, he made clear that he did not want her to be told of the diagnosis as he feared the news might be deeply upsetting, and ran the risk that his daughter might have an abortion.

The claimant was subsequently confirmed to carry the Huntington’s gene after she had inadvertently found out about her father’s condition, but it is not known if her daughter is affected.

The claimant argued that it was critical that she should be informed of her father’s diagnosis in the light of her pregnancy. Her position was that if she had known of her father’s diagnosis, she would have had a termination, and so her claim included wrongful birth.

The relevant law

The claimant issued the claim on the basis that the defendants owed her a duty of care. She also argued that they breached her rights to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR).

The defendant successfully applied to the High Court to strike out the claim on the basis that there was no reasonably arguable duty of care at common law, and that the human rights claim failed as ‘any interference would plainly be justified under Article 8(2) ECHR, for all the reasons relied upon in answer to the common law claim’.

The Court of Appeal decided that the claimant’s case was arguable, remitting it to the High Court for determination. It considered in turn the policy reasons which had persuaded the High Court that the claim had no real prospect of success, including 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.

This case is clearly of huge importance to the claimant herself, but will also be watched by legal practitioners with interest. The scope of the duty of care is under scrutiny here, and whether imposing a duty of care to the claimant (in this case, a third party, not the patient) was fair, just and reasonable. There are many aspects of this case which make it unusual and challenging, including the fact that the Claimant was pregnant (and as yet it is unknown whether her child carries the Huntington’s gene, so she may not have an additional disability at all, a usual requirement for a wrongful birth claim), and additionally that at one stage the claimant and her father had been undergoing family therapy provided by the defendants as a means to helping them come to terms with what had happened in 2007, and therefore the claimant also asserts that there was a direct doctor-patient relationship with her due to the fact she was receiving family therapy.

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