Yesterday saw the publication of the long awaited judgment in ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB), which is available on BAILII.
At an early stage in the proceedings, the defendants applied to strike out the claim on the ground that it disclosed no reasonable cause of action. Nicol J acceded to that application (ABC v St George’s Healthcare and others [2015] EWHC 1394 (QB)). The Court of Appeal overturned his decision and ordered that the matter should proceed to trial (ABC v St George’s Healthcare and others [2017] EWCA Civ 336 .
The claimant argued that the defendants, having determined that her father probably had Huntington’s disease, should have told her of that. The father refused permission to tell his daughters of the diagnosis when it was suspected and also once it was made.
Although a limited duty was held to exist, the claim failed on breach and on causation. In short the trial judge held:
- On duty, the obligation of a medical professional to maintain confidence about a patient’s health or treatment is not absolute ([36] – [44]). The claimant was a patient of the second defendant’s family therapy team or analogous to a patient such that a duty to exercise reasonable care was owed. However participation in family therapy does not bring with it a right to receive confidential information about other participants. It was fair, just and reasonable to impose on the second defendant a legal duty to the claimant to balance her interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally. The scope of the duty extended not only to conducting the necessary balancing exercise but also to acting in accordance with its outcome (at [188] – [189]);
- On breach of duty (though curiously the analysis was made by reference to Bolam without express reference to Montgomery), the relevant guidelines for psychiatrists made it clear that confidentiality should not be breached unless the doctor was certain that this was in the public interest. The GMC guidelines supported breaching confidentiality to avert a risk of death or serious harm. There was room for reasonable disagreement as to how the judgment should be exercised. That is demonstrated by the lack of consensus in the medical opinion. The claimant had not demonstrated that the views of the defendants’ experts were illogical. The decision not to disclose was supported by a responsible body of medical opinion and cannot be considered to have amounted to a breach of the duty identified above (at [231]).
- On causation, the claimant did not establish that she would have been tested and undergone a termination had the risk of inheritance of Huntington’s disease been disclosed to her during her pregnancy (at [264]). If the claimant had deferred a decision about whether she would undergo testing herself until after her father had been tested, there would not realistically have been time for her to be tested and arrange a termination.
It was also noted, relevant to causation, that when the claimant later knew that her sister was pregnant, she decided that her sister should not be told (at [245]). The St George’s Clinical Ethics Committee also decided against notification of the sister, given the refusal of permission by the father.
This decision is also summarised by Nigel Poole QC on his blog.