Powell and Another v Boldaz and Others

The Court of Appeal held that alleged post-death falsification of medical records disclosed no sustainable claim for psychiatric or economic loss. A doctor’s duty of care is ordinarily owed to the patient, not relatives. After death, a duty to relatives arises only if the doctor undertakes to treat them as patients. Communication of events and participation in a complaints process are insufficient. There is no free-standing duty of candour sounding in damages for personal injury outside a treating relationship. The Wilkinson v Downton tort requires the requisite intention, or conduct plainly calculated to cause the injury; reasonable foreseeability alone is insufficient. Unlawful-means conspiracy requires a directed course of conduct, foreseeable and actual injury, an actionable unlawful act and causation. The appeal was dismissed.

Mr and Mrs Powell sued the defendant general practitioners and a health authority after the death of their son, alleging negligent medical treatment and subsequent falsification or substitution of medical records. Claims concerning the original treatment and Mrs Powell’s psychiatric injury as a secondary victim were settled or discontinued. The remaining claims concerned post-death psychiatric injury, economic loss and alleged unlawful conduct.

On 24 June 1996, Butterfield J granted leave to re-amend the statement of claim and struck out the post-death allegations under Order 18 rule 19. The parents appealed with leave. The central issues were whether the alleged facts established a duty of care, an actionable wrong under Wilkinson v Downton, or unlawful-means conspiracy.

The appeal was dismissed. Stuart-Smith LJ gave the leading judgment, with Morritt and Schiemann LJJ agreeing. For the strike-out application, the pleaded facts were assumed to be true, but they still had to disclose a reasonable cause of action.

1. Negligence and proximity. Applying the three-part approach in Caparo Industries plc v Dickman [1990] 2 AC 605, the relevant questions were foreseeability, sufficient proximity and whether a duty was fair, just and reasonable. A doctor treating a child owes the duty to the child, not the parents, even though medical care may require advice to the parents. The principle in Sideaway v Gov. of Bethlem Royal Hospital [1985] AC 871 was applied.
2. After the child’s death, a duty to relatives could arise only if the doctor undertook to treat or heal them as patients. Merely telling relatives what had happened, providing emergency assistance, or remaining on the doctors’ register was insufficient. The alleged later conduct occurred in the confrontational setting of a complaint before a tribunal, not in a treating relationship. There was therefore no sufficient proximity.
3. There was no free-standing duty of candour, independent of a doctor-patient relationship in a healing or treating context. Within such a relationship, information given for treatment or advice had to be careful, truthful and candid, but the cited observations in Lee v South West Thames Regional Health Authority [1985] 1 W.L.R. 845 and Naylor v Preston Area Health Authority [1987] 1 W.L.R. 958 did not support the wider proposition.
4. The alleged psychiatric injury from the document substitution was not reasonably foreseeable. It was a mere possibility which would not occur to a reasonable person, particularly where the substituted document conveyed substantially the same message. Mrs Powell’s alleged exacerbation fell within her secondary-victim claim unless the later conduct was a novus actus interveniens; the pleaded facts did not establish one.
5. Wilkinson v Downton. The tort requires intentional conduct, including conduct from which intention may be imputed where the effect is plainly calculated to occur. Reasonable foreseeability alone was insufficient, and the pleading did not allege or establish the necessary degree of foresight.
6. Unlawful-means conspiracy. Although predominant purpose to injure was unnecessary, the conduct had to be aimed or directed at the claimants, with foreseeable and actual injury. The unlawful act also had to be actionable at their suit. The costs of the Secretary of State appeal were not caused by the alleged document substitution, since the appeal concerned the original medical treatment.

The claims in deceit and actionable interference had been correctly rejected, and the fiduciary-duty argument was abandoned. The appeal was dismissed with costs, payable from the legal aid fund, with the claimants’ contribution to be assessed.

• Court of Appeal (Civil Division): On 1 July 1997, the appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.
• High Court, Queen’s Bench Division: On 24 June 1996, Butterfield J granted leave to re-amend the statement of claim and struck out the post-death allegations under Order 18 rule 19. No citation for the decision is stated in the judgment.