Who's the patient?

The law around the doctor/patient relationship has seen significant change over the last few years, in particular in the way the courts treat cases concerning issues of confidentiality and the selection of treatment options.

Following Montgomery v Lanarkshire Health Board [2015] UKSC 11, the patient/doctor relationship, the information patients need to make treatment decisions, and the implications of that approach have most recently been touched on in the groundbreaking decision of the Court of Appeal in ABC v St George’s Healthcare NHS Trust [2017] EWCA Civ 336. This case has brought further understanding of the nature of the relationship that should exist between patients and doctors, and who clinicians owe a duty to.

Individual autonomy

Montgomery established a departure from the well-established principles of Bolam v Friern Hospital Management Committee [1957] 1WLR 583, which measures the actions of the doctor against a ‘reasonable body of like clinicians’, to an approach requiring doctors to not only apply the objective test of what would be the ‘reasonable patient’ but also to take account of the subjective perceptions and beliefs of the ‘individual patient’. Arguably, these cases are demonstrating the ascent of the primacy of patient autonomy.

However, the recent decision in ABC has placed the primacy of the autonomy of the individual centre stage, and used it to argue that in limited circumstances a doctor not only owes a duty of care to their patient, but to a third party, whereby not telling the third party information about the patient would reduce the third party’s autonomy because it would withhold from them information they would need to make an informed decision about their healthcare and treatment options.

In ABC the claimant’s father was diagnosed with Huntington’s disease, a genetic disease for which there is no cure. In light of that diagnosis, the claimant’s prospect of having Huntington’s disease herself was 50 per cent, and if she had the condition the prospect of any child of hers also having the condition was again 50 per cent.

Despite the obvious importance of the claimant being made aware of her father’s diagnosis, he refused to consent to his clinicians informing her. The father’s clinicians subsequently became aware that the claimant was pregnant and so the decision about whether to tell her now concerned not just her, but also her unborn child. The patient continued to withhold his consent and his clinicians did not inform the claimant of his diagnosis. Following the birth of her child the claimant was accidentally informed of her father’s diagnosis. On undergoing testing, the claimant discovered that she also had the condition. It is not yet known whether her child has the disease.

The claimant argued that the doctors who treated her father also owed her a legal duty of care to have given her information about her father’s condition, without which she was deprived of the information necessary to choose whether to terminate her pregnancy because of the risk of passing on a life-threatening hereditary disease.

The case was struck out at first instance on the basis there was ‘no reasonably arguable duty of care’ owed by the clinicians to her. However, the Court of Appeal has overturned that decision, ruling that it is at least arguable that doctors do owe duties of care to third parties in the context of genetic medicine. The case is now remitted back to the High Court for trial at first instance.

Professional and legal duties

The judgment of the Court of Appeal examined whether there are grounds for finding that a doctor practising genetic medicine can or should owe a duty of care to a third party who is connected to their patient. The court noted that a clinician practising in this particular field already has a professional duty of care to a third party who is genetically connected to their patient to consider whether or not they should be informed of the patient’s diagnosis, even where consent for such disclosure has been refused.

The court suggested that if there is a professional duty to consider the interests of the third party relative, there was no obvious reason why there should not also be a similar legal duty. One of the major issues at trial will therefore be whether an existing professional duty of disclosure gives rise to a co-existing legal duty. As such, ABC has huge significance in terms of linking professional practice with establishing a legal duty, and recognising the dynamic role of precedent in evolving our case law in line with societal change.

The respondents in ABC argued that if the court found that such a legal duty existed, this might later lead to the finding of a much wider duty of care by imposing a duty on doctors to third parties outside of the field of genetics. If that happened, would it render exercise of their duty of confidentiality unmanageable?

However, the Court of Appeal indicated that ABC should not be seen as a decision that could be used to create a duty of care to third parties in other circumstances, suggesting that ‘it is only in the field of genetics that the clinicians acquire definite, reliable and critical medical information about a third party, often meaning that the third party should become a patient’. It also made the point again that in practice clinicians working in this field already operated as though under such a duty, as set out in their own professional guidance.

It seems, therefore, that some very strict criteria will have to apply to plead a third-party duty of care successfully, not least that the third party will have to have a close genetic connection to the patient. Consequently, at this stage in proceedings, we do not think that ABC is likely to become an authority for arguing a general extension of the principles of the duty of care to third parties, and Caparo v Hickman [1990] 1 All ER 568 on proximity remains pertinent law in this instance.

Caron Heyes is a senior associate and Christina Gardiner a solicitor at Fieldfisher

@FieldfisherPI

www.fieldfisher.com/personalinjury