ABC v St George's Healthcare NHS Trust and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Nicol
Judgment Date19 May 2015
Neutral Citation[2015] EWHC 1394 (QB)
Docket NumberCase No: HQ13X04208
Date19 May 2015

[2015] EWHC 1394 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Nicol

Case No: HQ13X04208

Between:
ABC
Claimant
and
(1) St George's Healthcare NHS Trust
(2) South West London and St George's Mental Health NHS Trust
(3) Sussex Partnership NHS Foundation Trust
Defendants

Philip Havers QC and Hannah Noyce (instructed by Capsticks) for the Defendants

Elizabeth Anne Gumbel QC and Henry Witcomb (instructed by Field Fisher) for the Claimant

Hearing dates: 7 th May 2015

Mr Justice Nicol
1

The essential facts of this claim are short and tragic. In 2007 the Claimant's father ('F') shot and killed the Claimant's mother. He was convicted of manslaughter on grounds of diminished responsibility and sentenced to a Hospital Order under the Mental Health Act 1983 s.37 and made subject to a Restriction Order in accordance with s.41 of the same Act. He was detained at the Shaftesbury Clinic which is part of Springfield University Hospital which in turn is run by the Second Defendant. In 2009 it was suspected that he was suffering from Huntington's Disease and he was referred to St George's Hospital which is the responsibility of the First Defendant. While he was at the Shaftesbury Clinic he was also seen by a social worker who was employed by the Third Defendant. For present purposes I can refer to all three Defendants collectively. It is not necessary to distinguish between them. In November 2009 it was confirmed that F did indeed have Huntington's Disease.

2

Huntington's Disease is an extremely serious condition. It is also genetic in origin. If a parent has it, there is a 50% chance that his or her child will have it as well. For good reason therefore, the various health professionals sought F's consent to disclose the diagnosis to his daughter. As it happens, the Claimant was pregnant at this time. It is pleaded that the Defendants were aware of this and aware that the Claimant would be very concerned about having a child who might also have Huntington's Disease. F refused to allow the medical staff to tell his daughter about this diagnosis. They did not do so and F's daughter ('C') was born in April 2010. In August 2010 the Claimant was told accidentally by one of her father's doctors that he had Huntington's Disease. In January 2013 the Claimant herself was diagnosed with the same condition. It is too early to tell whether C also has Huntington's Disease since it is not usual to test for it until adulthood. In her Amended Particulars of Claim the Claimant alleges that the failure to tell her of her father's condition was (a) actionable negligence on the part of the Defendants and (b) a violation of her rights under Article 8 of the European Convention on Human Rights. She pleads that if she had been informed of her father's condition, she would have undergone a test to see whether she had it as well. Once that showed positive, she would have terminated her pregnancy. She says she has suffered psychiatric damage because of the Defendant's failure to inform her, and, if her daughter does have the disease, the Claimant says she will also incur additional expense which would otherwise have been avoided.

3

The claim is at an early stage. The Claim Form has been issued and Particulars of Claim have been served. Draft Amendments to the Particulars have been proposed. The Defendants apply, however, to bring the claim to an end. They submit I should strike it out because it discloses no reasonable cause of action. They have also sought summary judgment but, Mr Havers QC on their behalf, accepted that this added nothing to the strike out application.

4

In short, Mr Havers submits that, even if all the factual allegations in the Draft Amended Particulars of Claim are proved, it is plain that the Claimant will not be able to establish a relevant duty of care on the part of the Defendants and she does not have an arguable claim that her rights under the Convention have been violated.

5

I need to add a little more detail from the pleadings (for simplicity I will refer to the Draft Amended Particulars of Claim as 'POC'). The Claimant and her sister from time to time attended the Springfield Clinic for family therapy. I can see from the medical records that this was suggested to F in January 2009. There was a meeting between a representative of the family therapy team, F and the Claimant in March 2009 and further meetings between the three of them in October, November and December 2009. The Claimant pleads as well that she attended multi-disciplinary meetings relating to her father's care. In August 2009 one of the doctors noted that F had said that he had told his brother of what would then have been a possible diagnosis of Huntington's Disease. There was discussion among the medical staff as to whether the Claimant should be told about the diagnosis (particularly in view of her pregnancy) but the prevailing view seems to have been that the confidentiality of the information should be respected and should not be overridden. The notes record that F "was concerned that his daughters should not be informed about the possibility of HD as he felt they might get upset, kill themselves or have an abortion." The notes record the professionals' concern as to the wisdom of his decision.

6

A person who is detained as F was must be discharged if a tribunal so orders. In the past the Tribunal in question was the Mental Health Review Tribunal. Now it is the First Tier Tribunal (Health Education and Social Care Chamber) Mental Health. On 5 th August 2010 the Tribunal made a conditional order for F's discharge. On 9 th December 2010 it confirmed that the conditions were in place and discharge could proceed on the previously specified conditions.

7

The Claimant placed considerable reliance on a report of a Joint Committee of the Royal College of Physicians, the Royal College of Pathologists and the British Society for Human Genetics. This was published in April 2006 and was entitled, "Consent and Confidentiality in Genetic Practice: Guidance on Genetic Testing and Sharing Genetic Information." One section of the report dealt with disclosure of information. At paragraph 2.5.3 the Report discussed the position where consent to release information had been refused. It said,

"The Human Genetics Commission, the Nuffield Council on Bioethics and the GMC have all expressed the view that the rule of confidentiality is not absolute. In special circumstances it may be justified to break confidence where the aversion of harm by the disclosure substantially outweighs the patient's claim to confidentiality. Examples may include a person declining to inform relatives of a genetic risk of which they may be unaware, or to allow the release of information to allow specific genetic testing to be undertaken.

Before disclosure is made in such circumstances, an attempt should be made to persuade the patient in question to consent to disclosure; the benefit to those at risk should be so considerable as to outweigh any distress which disclosure would cause the patient; and the information should be anonymised and restricted as far as possible to that which is strictly necessary for the communication of risk.

We recommend that before disclosure is made when consent has been withheld, the situation should be discussed with professional colleagues and the reasons for disclosure documented. Current GMC guidance states that the individual should generally be informed before disclosing the information."

8

The reference to the GMC was to its report in 2004 on Confidentiality. Updated Guidance was published by the GMC in 2009. This identifies as one of the principles to be applied that,

"Confidentiality is central to the trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to seek medical attention or to give doctors the information they need in order to provide good care. But appropriate information sharing is essential to the efficient provision of safe, effective care, both for the individual patient and for the wider community of patients."

9

The Guidance recognises that the duty of confidentiality is not absolute. Disclosure may, for instance, be permitted in the public interest. Under the heading, "Disclosure to Protect Others" the Guidance says,

"Disclosure of personal information about a patient without consent may be justified in the public interest if failure to disclose may expose others to a risk of death or serious harm. You should still seek the patient's consent to disclosure if practicable and consider any reasons given for refusal.

Such a situation might arise, for example, when a disclosure would be likely to assist in the prevention, detection or prosecution of serious crime, especially crimes against the person. When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons, or from domestic violence when children or others may be at risk.

If a patient's refusal to consent to disclosure leaves others exposed to a risk so serious that it outweighs the patient's and the public interest in maintaining confidentiality, or if it is not practicable or safe to seek the patient's consent, you should disclose information promptly to an appropriate person or authority. You should inform the patient before disclosing the information, if practicable and safe, even if you intend to disclose without their consent."

10

It is convenient to address first the question as to whether the Claimant's claim in negligence should be struck out before considering the claim under the Convention.

The Defendants' submissions: negligence

11

Mr Havers referred to the familiar tripartite test of a duty of care in Caparo v Dickman [1990] 2 AC 605. For the...

To continue reading

Request your trial
3 cases
2 firm's commentaries
  • Wrongful birth: Provision of information about genetic risks (UK)
    • United Kingdom
    • LexBlog United Kingdom
    • 29 February 2020
    ...ground that it disclosed no reasonable cause of action. Nicol J acceded to that application (ABC v St George’s Healthcare and others [2015] EWHC 1394 (QB)). The Court of Appeal overturned his decision and ordered that the matter should proceed to trial (ABC v St George’s Healthcare and othe......
  • Doctors, The DVLA, And A Duty To Disclose?
    • United Kingdom
    • Mondaq UK
    • 22 December 2015
    ...of the guidance will be published later in the year. Doctors should remember the decision in ABC v St George's Healthcare NHS Trust [2015] EWHC 1394 (QB); the duty of confidentiality owed to the patient is not absolute and disclosure can be made in the public interest. If a doctor concludes......
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT