In a landmark judgment, the English court of appeal has opened the door in the UK to the extension of the duty of care owed by a hospital to the daughter whose father had been diagnosed with Huntington’s Disease despite the father refusing to consent to the disclosure.
The facts of this case are tragic. In 2007, the claimant’s father shot and killed her mother. He was convicted of manslaughter on the grounds of diminished responsibility and committed to a mental institution. In early 2009 it was suspected and subsequently confirmed that he suffered from Huntington’s Disease. Huntington’s Disease is inherited. The child of a parent with the disease has a 50 per cent chance of developing the condition which causes damage to the brain cells giving rise to personality change often associated with aggression and violence.
Those concerned with the father’s care considered on numerous occasions whether they should override the patient’s confidentiality and inform his children, because of the implications for them, and they ‘may have a right to know’. But they did not disclose the information.
The claimant became pregnant but the father’s wish remained that the diagnosis should be kept confidential from his children, ‘especially the pregnant one’, so that they are not additionally distressed. The claimant accidentally found out about her father’s diagnosis and was herself subsequently diagnosed as suffering from Huntington’s Disease.
She sued the hospital and the mental institution on the basis of failure to inform her of her father’s diagnosis, in light of her pregnancy. If she had been informed of her father’s diagnosis she would have sought to be tested for Huntington’s Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child would be dependent on an ill single parent or inherit the disease. The claim included a wrongful birth claim in relation to the child. This aspect of the judgment is dealt with here.
The question before the court was whether in the context of genetic medicine, it was fair, just and reasonable to impose on the healthcare providers a duty of care towards the claimant on the presented facts.
The defendant hospital raised various policy reasons as to why the duty of disclosure should not in these circumstances be extended to the claimant. One argument was that if this duty were extended, patients may be less candid with their doctors if the patient knows that that duty may be breached. But the court questioned the degree to which such loss of confidence may be affected. It was also argued on behalf of the hospitals that this problem could arise in other medical scenarios not relating to genetic conditions and that this might open the floodgates leaving the doctor in a catch-22 situation whether or not to disclose information to a third party.
Whatever the implications to the third party, the court said it was only in the field of genetics where the clinician only had knowledge of the medical facts about the existing patient that the clinician acquired definite, reliable and critical medical information about a third party, often meaning that the third party should become a patient.
Where no consent has been given, South African law in terms of the National Health Act 2008 recognises a duty by a doctor to keep the medical information about his or her patient confidential unless required by law or if the non-disclosure of the information represents a serious threat to public health. The Protection of Personal Information Act 2009 permits processing of personal health information by consent or where it is deemed necessary in the interests of justice or for the safety of other patients.
This case presents, at least in the UK, a possible limitation to doctor/patient confidentiality where the legitimate interests of others who are readily identifiable are affected.
The case ABC v St George’s Healthcare NHS Foundation Trust has been remitted to the trial court for argument.
