This week sees the beginning of the trial in the High Court of ABC v St George’s Healthcare NHS Foundation Trust and others, a high profile clinical negligence case concerning the disclosure of confidential medical information.
Elizabeth-Anne Gumbel QC represents the Claimant, instructed by Jonathan Zimmern at Fieldfisher.
Philip Havers QC and Hannah Noyce represent the Defendants, instructed by Catherine Bennett at Capsticks.
The Defendants were responsible for treating ABC’s father, XX, whilst he was detained under the Mental Health Act after killing his wife, ABC’s mother. Doctors suspected that he may be suffering from Huntington’s Disease, an incurable genetic condition. XX refused to consent to the doctors disclosing this information to his two daughters.
In 2009, ABC informed her father that she was pregnant. Genetic testing later confirmed XX’s diagnosis of Huntington’s disease, meaning that his daughters each had a 50% chance of having inherited the condition.
The doctors involved considered whether to breach XX’s confidentiality and to inform his daughters of the potential, and later confirmed diagnosis, but decided not to do so. The information was accidentally disclosed to ABC after she had given birth. Subsequently, she tested gene positive for Huntington’s disease. It is too early to know whether her child is affected, as testing is usually delayed until adulthood.
ABC brought a claim for clinical negligence against the Defendant NHS Trusts, who, she argues, were under a legal duty to disclose the information to her or should have at least taken steps to see that she herself was offered genetic testing. She also alleges that her rights under Article 8 of the European Convention on Human Rights (ECHR) have been breached. She says that, had she been told about the potential diagnosis, she would have undergone testing and, upon receiving a positive result, she would have terminated her pregnancy.
Some of the issues in the case have already been aired in court, following an earlier application by the Defendants to strike out the claim. That application was successful at first instance, with Nicol J holding that it would not be fair, just or reasonable to impose the duty contended for, and that the human rights claim was also bound to fail (judgment here). However, on appeal, the Court of Appeal held that it was arguably fair, just and reasonable to impose such a duty, and that the claim under the Human Rights Act was also arguable. It therefore determined that the case should proceed to trial.
The trial before Yip J began on Monday 18 November 2019 and will continue until the following week, with closing submissions to be heard in January 2020.
Read more about the case below:
- Court of Appeal judgment.
- Original news item.
- Tracey Elliott, ‘Must the family be told? Genetic information and liability for non-disclosure to relatives’ 2018, 1COR
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