Duty of care to a quasi patient

Duty of care

This issue occupied much of the pleadings and, therefore, of the judgment. The claimant’s father (F) suffered from Huntington’s disease (HD). In 2007, he shot and killed his wife, the claimant’s mother, and was convicted of manslaughter on grounds of diminished responsibility and was sentenced to a Hospital Order. In HD, there is a 50% chance that a child will have HD. The health professionals responsible for F’s care sought his permission to disclose his condition to his daughter (the claimant) who was pregnant at the time. F refused permission. The claimant’s daughter was born in April 2010. In January 2013, the claimant was diagnosed as having HD. She claimed that had she been informed that F had HD she would have had her pregnancy terminated. She also claimed that the failure to inform her of F’s condition and the sequelae caused her psychiatric damage, including considerable anxiety now and later should her daughter prove to have HD. She claimed that the defendants owed her a duty of care and were, therefore, negligent in their failure to inform her of F’s condition; that information would have prevented the damage she suffered. The defendants pleaded that they owed a duty of care only to F, who was their patient and not to his daughter, the claimant.

Much of the legal argument was concerned with the duty of confidentiality which the defendants owed to F their patient encompassing their duty to respect and accede to his wish that his daughter should not be informed of his underlying condition, HD. Reference was made to authorities, including the GMC, which had set out the circumstances in which the duty of confidentiality was not absolute, especially where confidentiality might result in harm to others.

In 2009, when the diagnosis of HD in F had already been established, the claimant and her sister attended the Springfield Clinic for family therapy, which was suggested to F in January 2009. In March, October, November and December, there were meetings between F, the claimant and a representative of the family therapy team. The claimant also attended a meeting of a multi-disciplinary team relating to her father’s (F) case. The teams or representatives in these meetings were all part of the Trusts responsible for F’s case.

The word “patient” has its origins in the Latin word “to suffer”. The word has come to be used as a noun, meaning one who is under medical treatment. The claimant satisfies both usages. Undoubtedly, she was suffering as a result of F’s HD, even though initially she did not know the diagnosis. She suffered further by being denied the opportunity to have her pregnancy terminated through her being denied knowledge of F’s medical diagnosis. That denial of knowledge led to later suffering when she did acquire the knowledge that HD could affect her daughter.

Before she knew of F’s HD was she under treatment, either medical or some other form of treatment by the defendants? (The judge considered all three defendant bodies together.) The team she saw repeatedly in 2009 was a family therapy team. Thus, there is no doubt that (a) she was suffering and (b) she was under treatment/therapy at root due to the disease which her father had. Therefore, she was owed a duty of care by those who provided her “therapy”, who were the same as those who had care of F, and who had access to all the information relating to F.

Furthermore, there was discussion among the medical staff as to whether the claimant should be told about the diagnosis of HD (particularly in view of her pregnancy). This indicates clearly that the medical staff felt that they had, or could have, some duty of care towards the claimant.

This was entirely consistent with good medical practice. Most responsible doctors who are caring for a patient with a serious condition, and especially one which has major genetic implications for the patient’s offspring, will certainly consider that they have a responsibility towards the family, irrespective of any formal doctor–patient relationship. Here that duty/responsibility was greater because F’s daughter (then pregnant) was under therapy by the same health trusts responsible for F.

The defendants accepted that the injury to the claimant would have been reasonably foreseeable if they failed to inform her that F had HD. They also accepted that there was sufficient proximity between claimant and defendant for a duty of care to arise. All this would surely constitute a special relationship between claimant and defendant. The circumstances certainly satisfied the conditions as set out by the GMC and other bodies in which the aversion of harm and the benefit to those at risk (e.g. the claimant and her daughter) outweighed any distress that disclosure would cause, for example, F.

Incremental approach to duty of care

This is a legal rather than a medical matter. For a lay person (not a lawyer), it is very difficult to understand how a completely novel situation – as accepted by all parties – could be dealt with incrementally which is the usual manner in which the common law evolves. To insist upon “incrementality” as a sine qua non is to inhibit evolution of the law and to deny justice on the facts of the case. That is what appears to have happened here, and as with the issue of duty of care did not provide sufficient grounds for striking out the claim.

Although HD is a relatively rare condition, the case has wide and important implications for society, medicine and the law and deserves to be examined by a higher court.