ABC v St George's Healthcare NHS Trust & Ors

A healthcare provider may owe a duty of care to a person outside the immediate doctor-patient relationship where there is a close proximal relationship and harm from non-disclosure is foreseeable. The duty is not a free-standing duty to disclose confidential genetic information. It requires the clinician to balance the at-risk person’s interests against the patient’s confidentiality and the wider public interest in medical confidentiality, and to act in accordance with the result. The standard is judged by relevant professional guidance and the Bolam/Bolitho principles. Considerable latitude is allowed where the decision is finely balanced. A reasonable decision not to disclose, supported by a responsible body of medical opinion, is not negligent. Article 8 adds no separate basis for liability on these facts.

The claimant sued three NHS trusts, alleging negligence and breach of Article 8 of the European Convention on Human Rights. She claimed that clinicians had failed to alert her, during pregnancy, to the risk that she had inherited Huntington’s disease from her father, who had refused consent to disclosure. She alleged that, if informed, she would have undergone genetic testing and terminated the pregnancy.

The claim followed an unsuccessful strike-out decision by Nicol J, reported at [2015] EWHC 1394 (QB), which was overturned by the Court of Appeal at [2017] EWCA Civ 336. At trial, the central issues were whether any defendant owed a relevant duty, whether that duty was breached by non-disclosure, and whether the claimant would probably have undergone a termination.

1. Duty of care. The second defendant owed the claimant a duty of care arising from the close relationship created by her participation in family therapy and the clinicians’ knowledge of her circumstances. The claimant was a patient, or alternatively directly analogous to a patient, for the limited purpose of receiving family therapy. That established duty did not itself require disclosure of confidential information obtained while treating her father.
2. The wider claim was novel. Applying established principles incrementally, the court held that the second defendant’s close proximity to the claimant and actual foresight of possible harm justified a duty to balance her interest in knowing of her genetic risk against her father’s confidentiality and the public interest in maintaining medical confidentiality. The duty was not a general duty to trace or inform relatives.
3. The duty extended both to conducting the balancing exercise and to acting in accordance with its outcome. Its standard was judged by contemporaneous professional guidance and the Bolam/Bolitho principles. The guidance did not mandate disclosure. Where a proper exercise reasonably resulted in non-disclosure, the duty was discharged, even though another responsible clinician might have reached a different conclusion. Courts should allow considerable latitude in difficult clinical decisions.
4. The second defendant’s records did not demonstrate a structured balancing exercise, and the decision-making process could be criticised. However, the evidence showed that the responsible clinician had considered the competing interests, obtained specialist genetic advice and reached a decision supported by a responsible body of medical opinion. The decision not to disclose was therefore not negligent.
5. No sufficient proximity was established between the claimant and the first defendant’s geneticists. No evidential basis remained for a claim against the third defendant. The alleged continuation of family therapy did not constitute a causative breach.
6. Independently, causation failed. The claimant had not proved that, if informed during pregnancy, she would probably have undergone testing and terminated the pregnancy. The common-law claim therefore failed on breach and causation.
7. Article 8 rights were engaged, including the claimant’s interest in information relevant to her health and reproductive autonomy and the father’s right to confidentiality. The interference was justified and proportionate. The Human Rights Act claim added no separate basis for recovery.
8. The claim was dismissed. The claimant was ordered to pay the defendants’ costs.

1. High Court (Queen’s Bench Division) The claim was dismissed following trial. The claimant was ordered to pay the defendants’ costs.
2. Court of Appeal Nicol J’s strike-out decision at [2015] EWHC 1394 (QB) was overturned and the claim was permitted to proceed to trial at [2017] EWCA Civ 336.