Failure to tell pregnant daughter of her father’s genetic illness: Wrongful birth claim duty of care?

The DLA Piper newsletter today highlights the recent decision in ABC v St Georges Healthcare NHS Trust & Ors [2015] EWHC 1394 (QB).

The claimant’s father had been diagnosed with a dominant genetic illness, Huntington’s Disease. He was also detained at a hospital, having been convicted of manslaughter but with diminished responsibility.The father refused to consent to medical staff telling his pregnant daughter of his diagnosis (at [2]). The judgment at [18] noted that despite his detention, the father did not lack capacity to make decisions about his health information.

The claimant daughter gave birth. She later learned of her father’s condition. She was tested and found to be afflicted with the same genetic mutation; her child had not yet been tested. The claimant daughter pleaded 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 (at [2]).

The defendants asserted that even if the various factual allegations were proved, the claimant could  not succeed as there was no relevant duty of care (at [4]). The court at [27] noted the novelty of the proposed duty of care and ultimately concluded that no duty existed, striking out the claim.

The court at [9] had noted the General Medical Council’s 2009 guidance:

“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….. 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.”

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