Abstract
Our speaker tonight is Philip Havers, King’s Counsel. Over a long and distinguished career which began back in 1974, Philip’s practice has encompassed a wide variety of work including public and human rights law, clinical negligence, public inquiries and several high profile inquests. He has appeared regularly in the appellate courts including in several landmark cases. He is listed, quite rightly, as a “Star Individual” in all the major UK legal directories and is in fact a past winner of the Award for Clinical Negligence Silk of the Year.
Alongside his client work he was for many years the Head of Chambers at 1 Crown Office Row, a role he described as “a little like herding cats”, and he’s also chaired various disciplinary tribunals. He serves as a deputy High Court judge and, no doubt equally challengingly, as a member of football’s Premier League Arbitration Panel.
I have known Philip for a great many years. He will, I am sure, not mind me sharing with you his interests outside the law which include music, tennis and the Traveling Wilburys.
So it is a particular pleasure for me to say, Philip, thank you for agreeing to address us and welcome to the Medico-Legal Society. (Applause)
The Attorney-General of England, who happened then to be my father, learnt of the proposed publication of the book and sought an injunction in the Australian courts to prevent its publication. You won’t be surprised to hear that the application was refused with some glee by the courts of Australia. So the book was published in Australia and then in the USA, Canada, the Republic of Ireland and elsewhere. Significant numbers of the book were brought into the United Kingdom and the Sunday Times then published the first extract of its proposed serialisation of the book. So, nothing ventured, nothing gained, the Attorney-General applied in the English courts for an injunction to prevent any further publication of the book by the Sunday Times or, indeed, anyone else. That application failed because, as the Vice-Chancellor put it, news anywhere is news everywhere and he said that even before the internet had been invented.
The reason why I have begun with a story about a spy is because this is where we find a modern statement of the law of confidence by the highest court in the land, then the Appellate Committee of the House of Lords which is now the Supreme Court. You may have noticed that one of the many bodies which Liz Truss recently said she wanted to abolish, for reasons that she hasn’t yet explained, was the Supreme Court!
The most cogent statement of the law is to be found in a judgment of Lord Goff as follows and I am going to quote the relevant passage: “A duty of confidence arises where confidential information comes to the knowledge of a person in circumstances where he or she has notice, or is held to have agreed, that the information is confidential with the effect that it would be just in all the circumstances that he or she should be precluded from disclosing the information to others. The existence of this principle reflects the fact that there is such a public interest in the maintenance of confidences that the law will provide remedies for their protection. However that public interest may be outweighed by some other countervailing public interest which favours disclosure.”
All of which takes me to the recent case of ABC v St George’s Healthcare NHS Trust, 1 a decision of Yip J, who I think is married to a doctor. It was a case about medical confidentiality, one of the most well-established relationships of confidence along with lawyer and client, priest and penitent and banker and customer, to name the others. In respect of all these relationships the common law has for a very long time recognised that information given to or about, in this case, a patient to his or her doctor is confidential and thus protected by the law so that the doctor cannot lawfully disclose that information to another without the patient’s permission unless the public interest in disclosure decisively outweighs the public interest in protecting the information. In practice, the cases show that this requires exceptional circumstances, for example where the patient has told his doctor that he intends to kill his wife.
The principle is also recognised by the European Court of Human Rights as an integral part of the right to privacy under Article 8 of the European Convention on Human Rights which accords a high level of protection to such information. In one of the leading European Court cases, Z v Finland,
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the court stated as follows: “Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such treatment, thereby endangering their own health and, in the case of transmissible diseases, that of the community.”
So, the European Court of Human rights has set a high bar for justifying disclosure but, as with the common law, under the Convention, the right of privacy is qualified in that it may be breached and thus confidential information may be disclosed if there is a pressing social need to do so and the decision to do so is proportionate to that which it is intended to achieve.
This, therefore, was the background to the ABC case but, as I should explain, the case raised a new question not yet addressed either under our common law or under the Convention, that is to say whether that principle applies to genetic information, that is, information which is relevant not only to the doctor’s patient, but potentially to those related to the patient such as his or her family, and information which may have profound consequences for their health if the information is not disclosed to them.
That was the broad question which arose in this case, at least initially. Should such information be disclosed even if disclosure would breach the patient’s confidence or, more precisely, is there a legal obligation to do so? It seemed to me that the question was one of great interest as well as one of great importance and I tended to analyse it in terms of ownership of the information. To whom does such information belong, that is to say genetic information? Ordinarily, medical information “belongs” to the patient because it’s information about the patient and no one else, but genetic information arguably belongs to everyone who has or may have inherited the gene in question, in which case it is information about them all and thus it is information which belongs, in that sense, to them all. So, the question would be, are they, as a result, entitled to such information as a right? Put another way, are doctors therefore under a legal duty to provide that information to them?
I turn therefore to the facts of the ABC case which are tragic and unusual. In 2007 the claimant’s father killed her mother for which he was convicted of manslaughter and made the subject of a restricted hospital order. As a result, he was detained at the Shaftesbury Clinic at Springfield Hospital where he received care and treatment from a multidisciplinary team which included psychiatrists, psychologists, therapists and social workers. A year or two after his admission, his treating clinicians began to suspect that he might have a movement disorder and, in June 2009, a consultant neurologist made a clinical diagnosis of Huntington’s disease. Most of you will no doubt already know that Huntington’s disease is an incurable neurodegenerative disorder of genetic origin. The symptoms include movement abnormalities, cognitive difficulties and psychiatric problems, and life expectation is usually reduced. Typically, symptoms first appear between age 30 and 50. Importantly for present purposes and for the case of ABC, a child of a parent with Huntington’s disease has a 50/50 chance of inheriting it.
In those circumstances the claimant, who was by now in her thirties, had an obvious and very real interest in being told of her father’s diagnosis, not least because soon after the diagnosis had been made she became pregnant. This raised the question obviously whether she had inherited the disease/the gene and, if she had, her unborn child may also have inherited it. However, her father refused to tell her himself of the diagnosis and, what’s more, refused to permit his doctors to do so – he said that he didn’t want to jeopardise her pregnancy – and, as a result, the doctors had to consider whether they had a duty to breach his confidence and notify her against his express wishes or to maintain the duty of confidence and, having considered it, they ultimately decided that they did not have a duty to breach that confidence and so she wasn’t told. So, she continued with her pregnancy and in due course gave birth to a daughter unaware of her father’s diagnosis. No doubt, and the evidence in the case from the experts was that, in due course, she would probably have found out about it at some stage, but in fact she did so much sooner because a few months later her father’s treating psychiatrist accidentally let it slip. As a result, albeit some time later, she herself was tested and was found to have inherited the gene and thus her daughter, still only a young child, has a 50/50 chance of having inherited it as well.
I add as a footnote that after finding out that her father had Huntington’s disease, the claimant decided that she did not want his diagnosis to be disclosed to her sister even though by now she too was pregnant and so her sister did not learn of her father’s diagnosis until after her baby had been born. Happily, the sister was subsequently tested and found not to have inherited the gene.
I turn to the claim brought by the daughter against the doctors or rather the NHS Trust which employed them. What she alleged was this. First, that they owed her a legal duty of care to tell her of her father’s diagnosis notwithstanding the duty of confidence which they plainly owed to her father and, secondly, that they were in breach of that duty in failing to tell her. She claimed that if they had done so she would have terminated the pregnancy. Indeed, she went so far as to say she would have done so without testing the child to see if the child had inherited the gene.
As originally formulated, the alleged duty of care was very broadly framed and was advanced on the simple basis that the doctors knew that a diagnosis of Huntington’s disease would have a direct effect on her health and welfare and thus owed her a duty of care in respect of any medical information which was relevant to her health and welfare, in this case specifically her father’s diagnosis with Huntington’s disease and her 50/50 chance of having inherited the gene. The relevance of the information having been genetic in nature was relied upon initially in this way. What she alleged was that the doctors assumed responsibility for her and/or there was some special relationship between her and the doctors because the doctors held genetic information which was relevant not just to her father but also to her.
As the judge ultimately accepted, this was a truly novel claim and so the doctors or rather the Trust whom I represented applied to strike it out. We succeeded at first instance but then lost in the Court of Appeal, but by this stage, probably anticipating the difficulties involved in advancing such a broad claim, the claimant had sought to amend her claim so as to advance the further but narrower argument that because she had taken part in several family therapy sessions held by the therapists, sessions involving her, her father and her sister, as a result she had herself become a patient of the Trust and, by the time that the case came to trial, the contention that the Trust and the doctors owed her a duty of care had become very fact specific. Indeed, the most important point in the case that I described a little earlier had by now been relegated to third place in the three potential routes to a duty of care identified by the claimant, behind the conventional route based on the claimant being herself a patient of the doctors and, secondly, the doctors having assumed a responsibility for her welfare because of the family therapy.
So to the judgment. Put shortly, we won on the facts but lost on the law which, in a sense, was the worst possible outcome, not for my clients who were obviously delighted with the outcome because they won the case, but in terms of moving the case forwards to, as I had hoped, the Supreme Court. What the judge found was as follows. First, that the claimant was a patient of the family therapy team but that her participation in family therapy didn’t bring with it a right to receive confidential information about others who participated in that family therapy such as her father, so she wasn’t a patient for that purpose. Second, that her father’s treating clinicians did not assume responsibility for deciding whether she should be told of her father’s diagnosis, so no assumption of responsibility; so far so good from the doctors’ and the Trust’s point of view. However, thirdly, the judge found that within what she described variously as the factual matrix or the specific circumstances of this case – this is what judges often say when they are making new law; they say, “Oh no, this is only going to apply to very specific circumstances” – she held that the clinicians owed to her a legal duty properly to balance her interest in being told of her father’s diagnosis against his interest in preserving the confidentiality of his medical information and the public interest in upholding the duty of confidentiality.
Turning to the facts, she held that the decision not to disclose the diagnosis to the claimant was not a breach of that duty but, in any event, she found that the claimant had failed to prove on the facts that if she had been notified of her father’s diagnosis she would have gone on and terminated the pregnancy. So, we won on the facts both on breach of duty and on causation. It’s important, I think, to look at the reasons why the judge found a duty of care to have been owed in what she accepted was a novel case. She acknowledged that there were no cases in which a doctor had been found to owe a duty to a relative of a patient or to any third party outside the scope of the doctor-patient relationship, and she accepted that there are cases where the courts have expressly found that no duty was owed by doctors to a relative, but it did not follow, she said, that the court could never find that such a duty arose.
She accepted that since this was a novel claim, she had to apply the three-stage Caparo test, 3 which is a test that may be familiar to many of you, that is to say, stage one, was it reasonably foreseeable that the claimant might suffer some harm if she wasn’t told; stage two, was there a close proximal relationship between the claimant and the doctors; and stage three, would it be fair, just and reasonable for the law to impose such a duty of care? On the facts she had no difficulty in finding foreseeability and proximity and as to whether it would be fair, just and reasonable to impose this novel duty of care, she noted and very much relied upon the fact that there was relevant professional guidance already in existence which provided that in such circumstances the doctors should carry out a balancing exercise so that to impose a legal duty in addition to the professional duty set out in the guidance “would simply recognise and enforce the need for the balancing exercise already identified in the professional guidance”. She rejected our floodgates argument – floodgates arguments are almost always rejected but that doesn’t stop defendants advancing them – on the basis of what she said was the unusually close proximity between the claimant and the doctors in this particular case, and she said that such a legal duty was likely to arise and I quote, “only in limited factual circumstances, namely where there is close proximity between the at-risk person and the medical professionals and that even where such a duty does exist, the circumstances in which it will give rise to a cause of action will be rare”. Again, that’s what judges tend to say when they are making new law.
She gave three reasons for saying that. First, the standard of care will be measured by reference to the professional guidelines which don’t mandate a particular outcome; they simply require the doctors in question to carry out the balancing exercise. What’s more, she said that the guidelines take a conservative position and non-disclosure is the default position and, under the guidelines, the bar for breaching confidentiality she said is relatively high. Secondly, she said that the doctors will have the protection of Bolam, 4 that is to say a decision not to disclose which is supported by a responsible body of medical opinion will not be considered negligent even though others may not have reached the same decision. Finally, the courts will recognise the pressures of day-to-day clinical practice and will afford considerable latitude to clinicians taking difficult decisions in that context.
So, where are we now? First, there can be no doubt that the law in this field has changed and changed significantly because for the first time the court has held that a doctor may owe a legal duty of care to a third party notwithstanding that such a duty directly conflicts with the long-established duty of confidence which the doctor owes to his or her patient. Under the law as it was, it was acknowledged that in exceptional circumstances a doctor may be justified in breaching that duty of confidence but it was never suggested that he or she might have a legal duty to do so. Secondly, it is now the law that provided that the claimant can prove foreseeability and close proximity, a doctor owes a legal duty of care to a third party to carry out a proper balancing exercise as between her interest in being notified of the relevant medical information on the one hand and the patient’s interest and the public interest in maintaining the confidentiality of that information on the other hand. Finally, although it’s true that the duty is to carry out a proper balancing exercise and then to act in accordance with the outcome of that exercise and that, as it were, as the judge said, doctors will be “protected” by the Bolam principle, we all know, not just the lawyers in this room but no doubt some of the doctors as well, just how variable and uncertain that protection may turn out to be in practice.
So, is this a satisfactory outcome in terms of the development of the law? I, for one, have a number of real concerns. First, true it is that the judge stressed repeatedly that her conclusion depended on the particular facts of the case which were likely to arise only rarely but, as I’ve said already, that is what judges usually say when they are extending the law or creating new law. The reality is that once the door has been pushed even only slightly ajar future cases will push it open wider and wider. Indeed, the judge expressly declined to “define the limits of any duty of care owed by doctors to those who were not their patients”, thereby leaving the door plainly open to further claims and, although in the Court of Appeal it was accepted that there was some force in our floodgates argument, she sidestepped that concern by saying that she didn’t accept that that would be the outcome of recognising the duty that she found to have existed on the facts of this particular case. That is my first concern.
My second concern is that although it’s true that the duty is only to carry out a proper balancing exercise and then to act in accordance with the outcome of that exercise, and that although the judge said that the doctors will, as it were, be “protected” by Bolam, we all know, as I’ve indicated, how unpredictable that protection may turn out to be.
My third concern is that there seems to me to be all the difference in the world between a professional duty to carry out a balancing exercise, i.e. the duty set out in the relevant guidance, and a legal duty to do so. It is one thing to have guidance to assist doctors in what may be a very difficult case but it is quite another thing, it seems to me, for doctors to have to grapple with those difficult decisions with the threat of legal proceedings hanging over them from whoever loses out on the decision. Such decisions are likely to be difficult enough as it is without that additional pressure.
Fourth, the law as now stands puts doctors into an almost impossible position. If they decide to breach their patient’s confidence then they are liable to be sued by the patient and, in this case of ABC, that is exactly what solicitors instructed by the claimant’s father subsequently threatened to do, they wrote to the relevant doctor threatening to sue him for breach of confidence, but if they decide not to breach confidence they are now liable to be sued by the third party, in this case the daughter, for having refused to do so.
My next concern is that there was no evidence before the court that the previous legal position was leading to doctors failing to disclose vitally important medical information to third parties such as family members to whom such information should have been disclosed. In other words there was nothing to suggest that the professional duty to carry out the balancing exercise needed to be strengthened by the imposition of a legal duty to do so. So why, I ask rhetorically, was there any need in this case to impose a legal duty in addition to the professional duty?
My sixth concern is, how are doctors necessarily to know in advance that the third party will wish to receive such information? There may be some who would much prefer not to be told. Take this case. There are many people who may have inherited Huntington’s disease who decline to be tested because they would prefer not to know in advance of the onset of symptoms whether in fact they have inherited it. Some of them would probably prefer not to know in advance that they were even at risk of having done so but, as a result of this decision, doctors may understandably conclude that the only safe course will be to tell them whether they wanted to be told about it or not because the consequences of failing to do so may turn out to be legal proceedings.
My seventh concern is this. What is the logical basis for restricting the duty to those in close proximity to the doctors? What if in the present case the claimant had had another sister who had fallen out with their father and gone to live as far away as she could, say in Australia, but who also became pregnant? She would have had no relationship, let alone a relationship of close proximity, with the doctors treating her father, but her interest in being told of his diagnosis would have been no less than that of the claimant and the doctors would not have owed her a duty of care to notify her. Indeed, that would be the case even if the judge had found that the doctors were, in this case, in breach of their duty of care to the claimant and should therefore have notified her. Where is the logic in that distinction? One answer might be that surely in those circumstances the claimant would notify her sister but that cannot be guaranteed. As I said, one of the striking features of the present case was that the claimant declined to do so in terms of telling her sister about the diagnosis even though, by that stage, her sister was also pregnant. This led to the obvious jury point which we made which was that it was a bit rich for the claimant to sue the doctors for not telling her when she had deliberately prevented her sister finding out when she too fell pregnant.
My eighth concern is, how are doctors to define “close proximity” for these purposes? When is proximity sufficiently close to give rise to this duty of care? I don’t know and I’d be hard pressed to offer any sensible advice about it.
The ninth concern is that the imposition of such a duty will have a negative impact on the relationship of trust and confidence between doctors and their patients. The judge didn’t agree but patients expect, I think reasonably, a very high degree of confidentiality and this is critical to persuading them to make full disclosure to their doctors. Anything which undermines that relationship is surely contrary to their interests and to the public interest. No doubt all patients would accept that there may be truly exceptional circumstances where the doctor has no option but to breach their confidence, but if told that in some circumstances the doctor may have a legal duty to do so, some patients, I believe, may think twice about making full and frank disclosure, in particular about information which is embarrassing. It is one thing for them to be reassured that their doctor will be allowed to use his or her discretion as to whether or not to disclose such information but it is quite another thing if they are told that their doctor may be legally obliged to do so.
Next, I don’t think that the judge gave nearly enough weight to what the courts have described as the very high public interest in maintaining the confidentiality of such information. It is all too easy on the facts to focus on the potential harm to the particular patient from disclosure against his wishes and the potential harm to the third party, the claimant in the present case, from non-disclosure, but there is a third and crucially important factor which must be taken into account, that is to say the public interest in maintaining the confidentiality of medical information. If that public interest may be undermined by giving third parties the right to sue a doctor for failing to disclose information about his or her patient, then that is surely another important reason why no such right should be introduced.
Finally, it seems to me that, contrary to the view of the judge, she wasn’t developing the law incrementally as she was supposed to be doing. Indeed, she was, as I think I’ve already pointed out, unable to identify any cases in which a similar duty had been recognised by the courts and from which the duty contended for would constitute no more than an incremental step. The truth is that to impose such a duty in this case was a “giant step” which Lord Toulson, when sitting in the Appellate Committee of the House of Lords, warned against.
All these concerns must remain just concerns because, as I’ve explained, having won on breach and causation, and absent any appeal by the claimant, and she didn’t appeal against the decision, we, that is to say the doctors and the Trust, had no basis for appealing against her findings on the law. We’d won. So those concerns will have to await another claim.
Finally, what, you may ask, ultimately happened about the really interesting point that I began this talk with, that is to say whether genetic information falls into a different category to other medical information such that it “belongs” to all those who may have inherited the gene? The short answer is that the judge saw no reason to treat genetic information differently from other information which reveals a serious risk to another person. So, in that sense, the case didn’t turn out to be quite as interesting as I had hoped. Indeed, at the outset it had the Supreme Court, I thought, written all over it. That was not to be but it’s still a fascinating case to have argued. Thank you very much. (Applause)
Discussion
So, step one, make absolutely sure that you identify the relevant factors, take advice from those whom you should be taking advice from in terms of the potential damage to the patient from disclosing the information and the potential damage to, in this case, his daughter for not disclosing the information, and then record that decision in as much detail as you can, because all of that will make the decision less vulnerable to challenge by people like me. If there is an ethics committee – and there was in this case – then my advice would be to take the difficult cases to the ethics committee because that will ensure that you can show that the difficult decision was as widely considered and debated as was practical in the circumstances.
Those are the two key steps that I would strongly recommend in these cases unless it’s, as it were, an open and shut decision.
One interesting point did arise which was never resolved and it didn’t really feature other than as a passing issue. The doctors did consider once he’d been diagnosed with Huntington’s disease whether the Huntington’s disease may have played a part in his killing of his wife. In other words, whether it had already surfaced by then and had in some way affected his mind so as to give rise to the dreadful act, but that was never resolved and the doctors decided that there really wasn’t much point in trying to resolve it.