ABC v St George's Healthcare Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] EWHC 455 (QB) |
| Docket Number | Case No: QB-2013-009529 |
| Court | Queen's Bench Division |
[2020] EWHC 455 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Handed down in Preston Combined Court Centre
Mrs Justice Yip DBE
Case No: QB-2013-009529
Ms E.A Gumbel QC (instructed by Fieldfisher) for the Claimant
Mr P Havers QC & Ms H Noyce (instructed by Capsticks LLP) for the Defendant
Hearing dates: 18, 20, 21, 22, 25 November 2019 & 15 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
By this claim brought against three NHS trusts, the claimant contends that the defendants breached a duty of care owed to her and/or acted contrary to her rights under Article 8 of the European Convention on Human Rights in failing to alert her to the risk that she had inherited the gene for Huntington's disease in time for her to terminate her pregnancy. The claimant seeks damages for the continuation of her pregnancy, psychiatric damage and consequential losses. The parties have narrowed the issues for the court's determination by agreeing that if the court finds an actionable breach of duty on the part of the defendants (or any of them) and that, but for that breach, the claimant would have terminated her pregnancy, the claimant should recover damages in the sum of £345,000.
The genetic risk had been revealed to the defendants through diagnosis of the claimant's father. He declined to consent to disclosure of the information to the claimant and the defendants' clinicians took the view that they should not override his confidentiality. The defendants deny that, as a matter of law, they owed any relevant duty of care to the claimant. Even if such a duty was owed, they contend, on the facts of the case, that they did not breach that duty. Further, they maintain that even if there was a breach of duty, it did not cause the claimant any injury because the evidence does not establish that she would have had a termination but for the breach. The defendants say that the claim under the Human Rights Act 1998 fails for the same reasons as the common law claim.
Procedural history
At an early stage in the proceedings, the defendants applied to strike out the claim on the 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 others [2017] EWCA Civ 336.)
Anonymity
As is apparent, this is an acutely sensitive case. Nicol J made an anonymity order when the matter came before him. I entirely agree with his reasons for doing so, expressed at paragraph 44 of his judgment. I would add that the Article 8 rights of the claimant's sister, are also engaged.
Nicol J's order included provision for an application by the press to set aside or vary the restrictions he imposed. No such application was made, and the anonymity order was continued through the Court of Appeal proceedings. I continued the anonymity order at the outset of the trial, no representations having been made to the contrary. I consider that the balance remains in favour of protecting the privacy of the claimant, her daughter and other immediate family members. It follows that the claimant continues to be referred to only as ABC for the purpose of this claim. The claimant's father is referred to as XX. Consistent with the principles of open justice, the identities of the trusts and the professionals involved may be reported.
Factual background
The facts giving rise to the claim are both tragic and unusual. In 2007, the claimant's father killed her mother. He was convicted of manslaughter by reason of diminished responsibility and made subject of a restricted Hospital Order pursuant to section 37 and section 41 of the Mental Health Act 1983. XX was detained at the Shaftsbury Clinic, Springfield Hospital (“Springfield”) which is run by the second defendant. He received care and treatment through a multi-disciplinary team, including psychiatrists, psychologists, other therapists and social workers. XX's responsible clinician was initially Professor Eastman. In 2009, he was transferred into the care of the team headed by Dr Olumoroti, a consultant forensic psychiatrist.
From early in his admission, suspicions were raised that there might be an unspecified organic explanation for some of XX's symptoms. He underwent MRI scans in 2007 and 2008 but no progressive changes were seen in the brain. On 28 April 2009, XX was referred by the psychiatric team to the neurological department at St George's Hospital (which falls within the first defendant's responsibility). The referral letter stated:
“Our main concern at the moment is that [XX] has gait difficulties. He has a non-progressive choreiform limb movement and an abnormal wide based gait with motor restlessness on sitting still.”
XX was seen by Dr Marion, consultant neurologist, on 24 June 2009. She found a clinical picture of hereditary choreic syndrome, which she said was likely to be Huntington's chorea. She planned to refer XX to Dr McEntagart in the genetic department as St George's. XX apparently agreed to genetic testing at the time. However, it is clear from the medical records that he later became hostile to any suggestion that he had Huntingdon's disease and refused to undergo genetic testing. His intransigence about this appears from various entries in his medical records in July and August 2009. XX made it clear that he did not want the claimant and her sister to know that he was thought to have Huntington's disease. He was aware that such knowledge could impact on their decision about whether to have children or not. Both daughters were in their 30s; neither had started a family.
Huntington's disease (“HD”), also known as Huntington's chorea (“HC”) is a neurodegenerative disorder of genetic origin. Although I shall refer to “the Huntington's gene” as a shorthand, strictly it arises from a genetic mutation. It is an autosomal dominant trait so that the child of someone with the condition has a 50% chance of being affected. The clinical features of the condition include abnormalities of movement, cognitive problems and psychiatric symptoms. It is an incurable disease and sufferers have a reduced life expectancy. Symptoms do not appear until adulthood, typically between the ages of 30 and 50 years.
The first defendant's clinical team recognised that the likelihood that XX had Huntington's disease had significant implications for his daughters, who were known to them. Despite struggling to come to terms with their own grief and the devastation of their family, the claimant and her sister continued to support their father. The claimant attended case conferences and planning meetings about XX. Family therapy was proposed, and the claimant commenced attending sessions in March 2009. The claimant was aware that XX had been referred for a neurological opinion but, given XX's stance, the outcome of the appointment was not shared with her.
By August 2009, the second defendant's clinical team had recognised that the situation was very difficult. Their discussions also involved Mary Davies, a social worker in the community team, for whom the third defendant is responsible. On 20 August, Dr Roberts (SHO to Dr Olumoroti) wrote to Dr McEntagart seeking her advice on managing the situation. I shall return to consider that letter and Dr McEntagart's response.
By unhappy coincidence, the claimant became pregnant in July 2009, that is around the time that it emerged that XX probably had Huntington's disease. She was not in a settled relationship and was initially ambivalent about the pregnancy continuing.
A multidisciplinary team meeting took place on 2 September 2009. The claimant attended. Unusually, she was asked to remain outside, and it became apparent that the meeting was proceeding without her. In advance of the meeting, the claimant had told a social worker that she was pregnant but had not decided what to do. When invited into the room, the claimant was asked by Dr Olumoroti whether she had children. She was taken aback and did not share the news of her pregnancy. However, after the meeting, she did tell her father. He shared the news with his psychologist, Ms Gill, at a session the next day. He remained adamant that he did not want to tell his daughters about the Huntington's disease diagnosis and “so jeopardise the pregnancy.” Ms Gill reported the development to the clinical team.
Having discovered that the claimant was pregnant and following further discussions within the clinical team, Dr Roberts wrote again to Dr McEntagart on 18 September 2009, sending the letter by fax. She acknowledged that a diagnosis of Huntington's disease would impact on “his daughter's decision about whether to continue with her pregnancy” and sought urgent advice in view of the pregnancy. Having received that letter, Dr McEntegart discussed XX's case with Dr Olumoroti by telephone and followed up with a letter dated 25 September 2009.
I shall return to a detailed consideration of the contents of those letters and what happened thereafter. In short, XX continued to insist that his daughters were not told, suggesting that the doctors would be acting illegally if they did so. XX had shared the information about Huntington's disease with his brother and, in October 2009, the brother attended Springfield for a discussion of the options. After that meeting, XX agreed to be seen...
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