Clinical negligence and the duty to disclose: full house of 1COR members in high profile Court of Appeal case
7 June 2017
Five members of Chambers appeared before the Court of Appeal in ABC v St George’s Healthcare NHS Foundation Trust and others.
The Appellant, known as ABC, appealed against the strike out of her claim against the Respondents.
The Respondents were responsible for treating ABC’s father, who had been detained under the Mental Health Act 1983 after killing his wife, ABC’s mother. His doctors determined that he may be suffering from Huntington’s Disease, an incurable genetic condition. They considered whether to override his wishes and inform his children of the condition they had potentially inherited, but decided not to.
In 2009, ABC had informed her father that she was pregnant. Her father’s doctors again decided not to inform her of the suspected diagnosis. Genetic testing later confirmed the condition, and the information was accidentally disclosed to ABC, by which time she had given birth. Subsequently, she was tested gene positive for Huntington’s disease. It is too early to know whether her child will be affected.
ABC brought a claim for clinical negligence against the Respondents, who, she argued, should have informed her of a condition which could affect her health and wellbeing. The judge held that there was no reasonably arguable duty of care owed to ABC and struck out the claim.
On appeal, ABC relied on clinical guidelines which set out conditions in which confidentiality may be breached. She argued that there were professional obligations towards those who would be affected by certain clinical information, even if there was no direct doctor/patient relationship underpinning a duty of care.
The Court of Appeal allowed the appeal, holding that it was arguably fair, just and reasonable to impose on the Respondents a duty of care towards ABC on the facts alleged, and recognised the incremental development of the ambit and content of a duty of care at common law. The Court also remitted for trial the question of whether there was a duty to disclose under Article 8 of the European Convention on Human Rights.
ABC v St George's Healthcare NHS Foundation Trust  EWCA Civ 336
Lizanne Gumbel QC, Henry Witcomb QC and Jim Duffy appeared for the Appellant, instructed by Fieldfisher LLP
Philip Havers QC and Hannah Noyce appeared for the Respondents, instructed by Capsticks Solicitors LLP