High Court reaffirms scope of medical practitioners’ duty of confidentiality
ABC v (1) St George's Healthcare NHS Trust, (2) South West London and St George’s Mental Health NHS Trust and (3) Sussex Partnership NHS Foundation Trust [28.02.20]
In this case, the UK High Court explored the scope of a doctor’s duty of confidentiality and the potential liability arising out of an alleged failure to disclose to an ‘at-risk’ third party.
The claimant’s father (F) was convicted of the manslaughter of his wife on the grounds of diminished responsibility. F was detained at the Shaftesbury Clinic which is run by the second named defendant.
In 2009, it was suspected that F had Huntington’s disease and he was transferred to St George’s Hospital which is the responsibility of the first named defendant, where his diagnosis was confirmed. The third named defendant employed F’s social worker around the time of his diagnosis.
Shortly after F was provisionally diagnosed, the claimant fell pregnant and informed her father. The second named defendant became aware of her pregnancy through information provided by her father.
F’s doctors asked F if they could inform his daughter of his diagnosis as she had a 50% chance of inheriting the condition. F refused to give the doctors permission for fear that the claimant might have an abortion. The doctors discussed the possible disclosure of F’s diagnosis to the claimant, without his permission, but decided having considered carefully the balance of pros/cons not to breach his confidentiality.
In April 2010, the claimant gave birth to her daughter and four months later was informed in error by one of her treating doctors that her father had the disease. The claimant herself was subsequently diagnosed with Huntington’s disease in 2013.
As referred to in the Judgment, if the claimant had Huntington’s disease, “there was a 50% chance that the claimant had inherited the gene and if she had it her baby had a 50% chance of inheriting it”. The claimant’s daughter will not be able to have a definitive test to confirm, or rule out, the condition until adulthood.
The High Court
The claimant’s case
The claimant issued proceedings in 2015 alleging that:
- She was owed a duty of care by all three defendants due to the proximate relationship that existed between the parties.
- Her rights under Article 8 of the European Convention on Human Rights had been violated. The claimant alleged that she would have undergone genetic testing if she had known about her father’s diagnosis and would have had an abortion if she had been diagnosed with the disease.
The defendants’ case
The defendants argued that if a doctor was subjected to a duty of care to disclose information to third parties, it would undermine the trust and confidence which is fundamental in the doctor/patient relationship.
At the initial High Court Hearing, the High Court considered that it would be a “radical departure” to impose liability on the defendants for a failure to inform the claimant of F’s diagnosis and thereby breach F’s confidentiality. The claimant’s case was struck out.
The claimant appealed this ruling to the Court of Appeal which was heard in March 2017.
The Court of Appeal
The Court of Appeal preferred the argument put forward by the claimant that confidentiality is a “balancing exercise” on the part of the clinician and imposing a legal duty in certain situations serves to protect both parties.
Overall, the Court of Appeal held the claimant’s case was arguable and remitted the case for a further full hearing in the High Court.
The High Court heard the case in full in November 2019, to determine liability only, as quantum was agreed at £345,000.
The High Court held that, in fact, a duty of care was owed to the claimant who had attended therapy sessions at the second named defendant, the same hospital Trust where her father was detained.
The information about her father's diagnosis was discovered through his own treatment and management and not through the daughter’s family therapy. Therefore, the scope of the duty owed to the claimant as a patient of the family therapy team did not extend to releasing her father’s confidential medical information to the claimant.
However, the Court held that “there was a close proximal relationship between the claimant and the second defendant”. Its clinicians were aware of her pregnancy and had direct communication with her. They had foreseen the possibility of psychological harm to her and the loss of opportunity to terminate the pregnancy. The Court held that it was reasonable to impose a legal duty on them to balance her interest in being advised of the genetic risk against the interest of her father, and the public interest, in protecting doctor/patient confidentiality.
The Court was satisfied that an appropriate balancing exercise had been undertaken by the second named defendant regarding the disclosure of the information. They had weighed up the competing interests of the father’s right of confidentiality with the duty of care owed to the claimant but, ultimately, concluded that it was not appropriate to breach the father’s right to confidentiality in this instance. The second named defendant was found not liable for a failure to disclose to the claimant.
By the end of the trial, no specific allegations of negligence had been made against the third named defendant. The Court held that the inclusion of the third named defendant in the proceedings did not advance the claimant’s case and did not consider the third defendant’s relationship with the claimant further.
It is interesting to note that the claimant found out her sister was pregnant approximately a year after her father was diagnosed and told her father’s clinicians. They decided not to inform the claimant’s sister about her father’s diagnosis. The claimant herself decided not to tell her sister as she was concerned as to the impact it would have on her sister’s pregnancy. This is further evidence to show how difficult this balancing exercise can be.
The Court was not satisfied that if the claimant had been informed about her father’s diagnosis, she would have terminated her pregnancy. This was because the timeline within which she would have had to make a decision and undergo a termination was very short.
This case is a welcome re-affirmation for clinicians of the importance of protecting doctor/patient confidentiality. However, it does highlight that clinicians must be able to demonstrate that they have undertaken an appropriate balancing exercise in weighing up a patient’s right to confidentiality with a duty of disclosure to an at-risk third party.
Further, this Judgment confirms that it was the relationship between the claimant and the second defendant which was of primary importance and that there is no extended duty to locate and inform family members to divulge personal information even if this could be relevant to them.