WARN?


“The claimant pursued a wrongful birth claim against the Trust arguing that… she should have been informed of her father’s diagnosis”


in recent clinical negligence case authority to emphasise patient autonomy. It would arguably be irrational to emphasise the need to inform patients so that they may take their own decisions about treatment, yet at the same time depriving of any legal remedy identified individuals about whom a relevant doctor has specific information which should cause them to become patients.


Undermining trust. It was arguable as per the defendants’ case that a duty to disclose information to third parties could undermine trust and confidence in the medical profession, but the court questioned the degree to which such a loss of confidence might be affected by a common law duty of care to the third party.


In the end the Court of Appeal ruled that it was arguable that clinicians treating a patient with Huntington’s disease had a duty to disclose the diagnosis to the patient’s daughter despite the specific request of the patient not to do so. The court in following guidance from the GMC on confidentiality, as well as specific guidance on genetic testing from two Royal Colleges and the British Society for Human Genetics, allowed the claimant’s case to be reinstated for a trial to consider the existence of a duty of care to third parties.


NO CHANGE AS YET It is important to appreciate that the Court of Appeal is


stating no more than the fact that the claimant has an arguable case that a duty of care should be extended to a third party and therefore the case is to proceed to a trial. There is no change to the current public interest disclosure exercise which clinicians must perform if there are conflicting interests between parties. The case can be seen as another example where, as with


the Montgomery decision on consent, the law is catching up with medical guidance. The Court of Appeal specifically referred to existing professional guidance stating that “The Human Genetics Commission, the Nuffield Council on Bioethics and the GMC have all expressed the view that the rule of confidentiality is not absolute. In special circumstances it may be justified to breach confidence where the aversion of harm by the disclosure substantially outweighs the patient’s claim to confidentiality.” It remains to be seen following the reinstated trial of this case if an actual legal duty is imposed, thereby potentially extending the scope of those who could argue that a doctor owes them a duty of care. There will be much debate about how far any such duty may erode the rights of the patient and the circumstances in which it may operate. Until then clinicians must continue to ensure: • existing professional guidance is followed • discussions are clearly documented • professional advice is sought where necessary.


Majid Hassan is a partner in the clinical law team at Capsticks Solicitors MDDUS INSIGHT / 13


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