The much anticipated decision in ABC v St George’s Healthcare NHS Trust & Ors [2017] EWCA Civ 336 saw the Court of Appeal (England & Wales) allow an appeal from an interlocutory decision which had struck out the claim by ABC on the basis that there was no reasonably arguable duty of care owed by the care team, requiring disclosure of genetic information to a third party (family member).

The claim arose in circumstances where the father of ABC was diagnosed with Huntington’s disease but refused his consent for doctors to inform ABC, his daughter. The care team resolved to adhere to his wishes of confidentiality, even though the daughter was later known to be pregnant.

Lord Justice Irwin wrote the judgment of the Court of Appeal, emphasising that he had reached no final conclusion on the merits, only on whether the strike-out of the case was appropriate on the ground that the case is unarguable and cannot succeed.

The Court held that the claim of ABC was arguable and should be remitted for trial. At [61] there was express discussion as to whether recognition of such a duty should be left to Parliament.

Lord Justice Irwin said at [62] – [63]:The ambit and content of the duty of care in such cases has long been a matter of common law, developed by judicial decision. If that were to cease to be so, the law would ossify in this area. It has not done so, as demonstrated by the leading authorities in the field, such as Sidaway and Bolitho have shown. This point was made with characteristic elegance by Lord Bingham in his dissenting judgment in D v East Berkshire Community Health NHS Trust[2005] UKHL 23:

“[50] … But the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution.”

A similar point was made by Lord Kerr and Lord Reed, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agreed, in Montgomery v Lanarkshire Health Board (General Medical Council Intervening) [2015] 2 All ER 1031:

“[93] The first of these points has been addressed in para 85 above. In relation to the second, the guidance issued by the General Medical Council has long required a broadly similar approach. It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1 was no doubt received in a similar way by the manufacturers of bottled drinks.”

 

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