A UK High Court has ruled that doctors treating individuals with serious ailments owe a legal duty of care not just to their patients but to third parties associated with the people they are treating, writes MedicalBrief. The decision may have wide-ranging implications for clinicians, especially as genetic and genomic testing becomes more common.
The case involved a woman who had sued doctors because they failed to tell her about her father’s fatal hereditary disease, Huntington’s (HD), before she had her own child. Had she known of the risks involved, she would have terminated the pregnancy, she argued.
The Guardian reports that the woman, known as ABC, lost the case. Mrs Justice Yip announced that despite having sympathy for the woman’s circumstances, it had not been established she would have had a termination had she known the risks to her unborn baby.
“Our client is very disappointed,” said Jonathan Zimmern, of Fieldfisher who acted for ABC. “This judgment is nevertheless important. For the first time, the law now requires clinicians to perform a detailed balancing exercise between the interests of the patient in keeping information confidential and those of any at-risk third parties with whom they have a close relationship. Mrs Justice Yip has established such a balance should now be made as a legal necessity.”
“We lost the case but a legal precedent has been established – that care and balance has to be taken when considering a third-party’s right to know information which might reveal a serious risk to them. In ABC’s case, the information was genetic but the judgment is wider and will apply to other information, for instance in a forensic psychiatric context,” added Zimmern.
ABC brought the case after discovering that her father (who is in a secure hospital after killing ABC's mother) was diagnosed with HD in 2009 but refused to allow doctors to tell his adult daughters, says a Bionews report. ABC had a daughter in 2010 and subsequently found out about her father's diagnosis. She has since taken a genetic test and carries the HD gene variant, meaning she will develop the disease. Her child has a 50% chance of also being affected. ABC claimed that she would have been tested sooner had she known, and would have terminated her pregnancy upon receiving a positive result to avoid her child being orphaned or dependent on a severely ill adult.
Justice Yip, delivering her verdict in the High Court of England and Wales agreed that the doctors “owed the claimant a duty of care to balance her interest in being informed of her genetic risk against her father's interest and the public interest in maintaining confidentiality. The scope of that duty extended to conducting a balancing exercise and to acting in accordance with its outcome.”
However she found that the doctors had conducted the balancing exercise as required, and so had not breached their duty of care to ABC: “The decision not to disclose was supported by a responsible body of medical opinion and was a matter of judgment open to the second defendant after balancing the competing interests.”
The report says the decision may have wide-ranging implications for clinicians, especially as genetic and genomic testing is becoming more common. When the case was originally brought to the High Court in 2015, Mr Justice Nichol expressed concern that if clinicians have a duty to disclose such information it would undermine doctor-patient confidentiality and public trust in the medical profession.
However, Justice Yip emphasised that the responsibility is in keeping with existing professional guidance. The General Medical Council (GMC)'s 2017 guidance tells doctors that “If a patient refuses consent to disclosure, you will need to balance your duty to make the care of your patient your first concern against your duty to help protect the other person from serious harm.”
“The duty I have found is not a free-standing duty of disclosure nor is it a broad duty of care owed to all relatives in respect of genetic information. The legal duty recognises and runs parallel to an established professional duty and is to be exercised following the guidance of the GMC and other specialist medical bodies” Justice Yip said.
[link url="https://www.theguardian.com/society/2020/mar/01/huntington-disease-ruling-doctors-duty-to-tell-patient-family"]Full report in The Guardian[/link]
[link url="https://www.bionews.org.uk/page_148330"]Full Bionews report[/link]
[link url="https://www.bailii.org/ew/cases/EWHC/QB/2020/455.html"]Judgment[/link]
[link url="https://www.bionews.org.uk/page_148351"]Bionews comment[/link]
[link url="https://blogs.keele.ac.uk/navigating-the-legal-maze-abc-v-st-georges-healthcare-27777cf0700f"]Case analysis from Dr Michael Fay, Keele University School of Law[/link]