The Background
ABC is an anonymous woman who brought a claim of negligence against St George’s Healthcare NHS Trust and two other NHS Trusts. Her father, XX was convicted of manslaughter by diminished responsibility for killing her mother. XX was serving his sentence in hospital undergoing treatment from a team of doctors including psychiatrists and psychologists. As part of this treatment, ABC was involved in family therapy from the second defendant.
The doctors suspected XX had Huntington’s Disease (HD), the neurodegenerative disorder. This diagnosis would explain his actions in killing ABC’s mother. For a long time, ABC’s father resisted genetic testing. Eventually he agreed to have the test and was diagnosed with HD. Around the same time, ABC became pregnant. XX’s diagnosis meant she had a 50% chance of inheriting the gene and if she had it, her child had a 50% chance of inheriting it also. XX’s doctors recommended that they tell ABC about the diagnosis so that she could have genetic testing but XX would not allow it. Given his right to doctor/patient confidentiality, his medical team complied with his decision for a long time. Eventually, ABC became aware of her father’s diagnosis when she was seven months pregnant. After she had given birth, ABC underwent testing and discovered she had the HD gene and therefore may have passed it on to her child.
ABC brought a claim that the defendants had breached their duty to tell her that she may have the HD gene. She argued that in receiving family therapy, she was their patient and they owed her a duty as her doctors. The defendants argued that receiving family care did not amount to being their patient. Nevertheless, they owed a duty of confidentiality to XX.
She argued that they breached their duty of care when they acquired genetic information relating to her that they did not disclose to her. ABC claimed that had she been told at the time of the diagnosis she would have sought genetic testing. Upon discovering she had the gene she would have terminated the pregnancy and therefore the defendants had caused her to suffer loss and damage.
The Decision
The judge considered four key questions:
Did any or all of the defendants owe ABC a duty of care as one of their patients?
The judge found there was no doctor/patient relationship between ABC and the first or third defendants. They had not specifically treated her and were simply made aware of her circumstances by the second defendant. As such, they did not owe her a duty of care. The second defendant did owe ABC a duty of care because they had treated her in family therapy.
If so, was there a duty to disclose the HD diagnosis to ABC?
There are several arguments and reasons for not breaching XX’s confidentiality in a situation like this. On the other hand, there has been medical professional guidance for some time supporting the decision to disclose genetic information although it is not mandatory. In order to decide whether there is a duty to disclose, the doctor must balance the family member’s interest to know about the diagnosis against the patient and the public’s interest in maintaining doctor/patient confidentiality. If the former outweighs the latter then the doctor has a duty to disclose to the family member. In this case, the Judge decided that on balance it was logical and reasonable for the second defendant to decide not to disclose the information. As such, there was no duty to disclose established.
Did the defendants breach this duty in not disclosing the diagnosis to her?
Given there was no duty to disclose the HD diagnosis to ABC, the second defendant had not breached any duty of care owed to her.
If there was a breach, did ABC suffer loss and damage by not having the opportunity to seek genetic testing and terminate the pregnancy?
In this case, this question became irrelevant as there was no breach of duty. The judge considered it anyway. He decided that even if ABC had been told of the diagnosis straightaway, she could not prove that she would have undergone genetic testing straightaway. Accordingly, she would not have been able to terminate the pregnancy. She would not have suffered loss or damage if there had been a breach of duty.
This case establishes wider legal duties to breach doctor/patient confidentiality but not by much. Given the developments being made in genetic testing, it may also be the first step to further widening of those legal duties.