ABC v St George's Healthcare NHS Trust & Ors

A novel negligence claim concerning disclosure of genetic information should not be struck out where it is arguable that a clinician owed an identified relative a duty to conduct and act on a proper confidentiality balancing exercise. The absence of an existing authority imposing that precise duty is not decisive.

Where foreseeability and proximity are established, whether it is fair, just and reasonable to impose a duty requires careful examination of the competing interests in patient confidentiality, the relative’s autonomy, and the particular character of reliable familial genetic information. The issue may require expert evidence and trial.

The claimant’s father was diagnosed with Huntington’s disease while detained and treated by the respondents. The respondents knew that the claimant, his pregnant daughter, had a 50 per cent risk of inheriting the condition. They decided not to disclose the diagnosis because the father refused consent. The claimant was later told accidentally, tested positive, and alleged that timely disclosure would have led her to seek testing and terminate her pregnancy.

Nicol J struck out the common-law claim and the alternative claim under the Human Rights Act 1998: [2015] EWHC 1394 (QB). The appeal concerned whether it was arguable that clinicians owed an identified relative a duty to disclose, or take reasonable steps to disclose, genetic information despite the patient’s refusal of consent.

1. Appeal allowed. The order striking out the claim was quashed and the claim remitted for trial. The court did not determine that a duty of care was owed. It held that the pleaded duty was properly arguable and could not be dismissed as having no real prospect of success.

2. The first two limbs of the Caparo inquiry were conceded for strike-out purposes: injury from non-disclosure was foreseeable and there was sufficient proximity. The central issue was whether a duty would be fair, just and reasonable. The professional genetic guidance did not impose a simple duty always to disclose. It required a balancing exercise. Where that exercise properly favoured disclosure, however, a professional obligation arose; it was arguable that breach of that obligation could be actionable.

3. The respondents’ policy objections, including confidentiality, conflicting duties, defensive medicine and a possible extension beyond genetics, did not make the claim unarguable. Clinical genetics was arguably distinct because clinicians may acquire definite, reliable and critical information about identified relatives, who may need advice, testing or treatment. The competing effects on public confidence and clinical practice could require authoritative expert evidence.

4. If a duty were established, breach would be assessed by the ordinary professional-negligence standards in Bolam, subject to the requirement of reasonable professional opinion in Bolitho. The common law may develop incrementally to address such issues; lack of legislation did not require the court to leave the matter untouched.

5. The pleaded assumption-of-responsibility case based on family therapy had no present foundation, but could be advanced after remittal if evidence justified it. The court was unconvinced that Article 8 added to the common-law claim, but did not preclude further argument at trial.

• Court of Appeal (Civil Division): allowed the appeal, quashed the strike-out order and remitted the claim for trial: [2017] EWCA Civ 336.
• High Court (Queen’s Bench Division): Nicol J struck out the common-law claim as disclosing no reasonably arguable duty of care, and struck out the alternative Article 8 claim: [2015] EWHC 1394 (QB).