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A New Legal Duty for Clinicians

ABC v St George’s Healthcare NHS Trust[1] has established a new legal duty of care upon clinicians to consider disclosing confidential information without consent, if another person is felt to be at risk of serious harm.  Clinicians were previously and shall remain bound by professional guidelines to disclose such information, but this is the first time that they will owe a legal duty to balance the rights and interests of at-risk third parties.

Background

ABC (the Claimant) is the daughter of a man referred to as XX. XX shot and killed ABC’s mother in 2007 and was sentenced under the Mental Health Act 1983 to a Hospital Order with restrictions. Crucially, XX was suffering from Huntington’s Disease, a genetic condition which ABC had a 50% chance of inheriting. The clinicians responsible for the care of XX were aware that ABC had fallen pregnant and wanted to inform her of the heritable genetic risk. However, XX refused to consent to the disclosure of this information to ABC and as such no disclosure was made. ABC stated that had she been made aware of the genetic risk she would have terminated her pregnancy, arguing that the clinicians owed her a legal duty of care which outweighed the duty of confidentially to XX.

Decision

ABC lost her case in the High Court on the basis that she was unable to establish that she would have had a termination had she been informed of the risks to her unborn baby. However, Mrs Justice Yip held that clinicians now owed a new legal duty of care to perform a detailed balancing exercise between the interests of the patient in keeping their information confidential, and those of an at-risk third party.

Close relationship

The new legal duty extends only to circumstances in which there is a close proximity between the clinicians and the at-risk third party. A sufficiently close relationship is likely only to be established where the clinicians have met and become aware of the circumstances of both parties. Simply being alerted to the circumstances of the at-risk party will not be enough to give rise to the new legal duty to consider disclosure.

At-Risk?

It is important to note that Mrs Justice Yip made it explicitly clear that this new legal duty is not confined to heritable genetic risk cases. Instead, it applies to all cases where information should potentially be disclosed to prevent serious harm, so long as, as stated above, there is a sufficiently proximate relationship between the clinicians and the at-risk third party.

Existing Professional Guidance

Existing professional guidance already advises clinicians to carry out a very similar balancing exercise to decide whether to exercise a discretion to disclose confidential information to a third party in the public interest in order to prevent serious harm. Unlike the new legal duty, such a decision to make disclosure in the public interest is not confined to those situations where the clinicians have a close relationship with the at-risk third party.

This decision therefore, in practice, should not be considered particularly onerous for any clinician. Clinicians should already be conforming to professional standards; this case simply translates this existing professional duty into a legal duty of care in limited situations where a close relationship is established between the clinician and the at-risk party. The practical implications of this decision shall only become apparent if such a consideration is not made: what was once solely a breach of professional obligation can now also be considered a breach from a legal perspective.

Clinicians may wish to seek advice from us regarding their professional and legal obligations in the light of this case.

[1] [2020] 2 WLUK 400


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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