ABC v St George's Healthcare NHS Trust & Ors, Court of Appeal - Civil Division, May 16, 2017, [2017] EWCA Civ 336

Issuing Organization:Civil Division
Actores:ABC v St George's Healthcare NHS Trust & Ors
Resolution Date:May 16, 2017
 
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Case No: B3/2015/1816

Neutral Citation Number: [2017] EWCA Civ 336

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr Justice Nicol

[2015] EWHC 1394 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/05/2017

Before :

LADY JUSTICE GLOSTER

(Vice President of the Court of Appeal, Civil Division)

LORD JUSTICE UNDERHILL

and

LORD JUSTICE IRWIN

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Between :

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Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy (instructed by Fieldfisher LLP) for the Appellant

Philip Havers QC and Hannah Noyce (instructed by Capsticks Solicitors LLP) for the Respondents

Hearing dates: 28 and 29 March 2017

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JudgmentLord Justice Irwin :

Introduction

  1. This is an appeal against the decision of Nicol J given on 19 May 2015. The Judge acceded to the Defendant Respondents' application, and struck out the claim at common law on the ground that there was ``no reasonably arguable duty of care'' owed by the Respondents to the Appellant. He also struck out a claim formulated under the Human Rights Act 1998 on the basis that the Respondents had breached the Appellant's rights under Article 8 of the European Convention on Human Rights: ``even assuming Article 8 was engaged, any interference would plainly be justified under Article 8(2) for all of the reasons relied upon in answer to the common law claim'' (paragraph 35).

  2. For the reasons which I will now give, I would allow this appeal and remit the case for trial.

  3. For the sake of simplicity, I will refer hereafter simply to the ``Claimant'' and the ``Defendants''.

    The Facts

  4. As Nicol J rightly observed, the facts of this case are tragic. They can be summarised relatively shortly. In 2007, the Claimant's father shot and killed her mother. He was convicted of manslaughter on the grounds of diminished responsibility. He was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and subjected to a Restriction Order under Section 41 of the Act. He was detained at a clinic run by the Second Defendant. He was referred to St George's Hospital for exploration of his condition, that hospital being the responsibility of the First Defendant. Whilst resident in the clinic he was seen by a social worker for whom the Third Defendant is responsible. As the Judge rightly said, it is not necessary for present purposes to distinguish between the Defendants.

  5. In early 2009, it was suspected that the father might be suffering from Huntington's Disease. This condition is inherited. It is agreed that the child of a parent with Huntington's Disease has a 50 per cent chance of developing the condition. Huntington's Disease causes damage to brain cells, giving rise to disruption of movement, cognition and behaviour. It typically brings about personality change, irritability, altered behaviour, and often aggression. It is incurable and the progress of the disease cannot be reversed or slowed. The condition is progressive and fatal.

  6. The father's diagnosis was suspected and then confirmed during 2009. By late August of that year the Claimant's father had told his brother of the presumed diagnosis, but had not spoken to the Claimant or either of her two sisters.

  7. In the course of a multi-disciplinary meeting on 2 September 2009, those concerned with the father's care considered whether they should override his patient confidentiality and inform his daughters of the diagnosis, because of the implications for them, and because they ``may have a right to know''. The father's wish was that the diagnosis should be ``kept confidential'' so that his daughters are not additionally distressed. The care team agreed to keep this confidential.

  8. On the same day, the Claimant informed her father that she was pregnant.

  9. During the latter part of 2009, those responsible for the father's care considered whether they should inform his daughters of the provisional diagnosis and in particular whether they might choose themselves to undergo a predictive test for Huntington's Disease. However, the father remained opposed to that.

  10. In November 2009, genetic testing confirmed that the father did indeed have Huntington's Disease. In December the question of informing his family was again explored with the father. A social worker recorded that he ``does not want his daughters to know about it, especially the pregnant one until she gives birth some time in 2010''.

  11. Following further discussion with the father in January 2010, a Dr Olumoroti once more recorded the father's wish that his daughters should not be informed of the diagnosis ``as he felt they might get upset, kill themselves, or have an abortion''.

  12. In April 2010, the Claimant gave birth to a daughter.

  13. In June 2010, the father was seen by a forensic social worker, Victor McGill. Mr McGill recorded his view that the father's Huntington's Disease may have been a contributory factor to his mental state at the time of the killing. He went on to record:

    ``I do not think that [the father] is able to understand the implications of his illness, the possible speed of his deterioration, or the effects it will have, both on him and his family.''

  14. On 23 August 2010, the Claimant was accidentally informed by Dr Olumoroti about the father's diagnosis of Huntington's Disease. She subsequently underwent testing, and in January 2013 was herself diagnosed as suffering from Huntington's Disease.

    The Claim

  15. The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a ``wrongful birth'' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another.

  16. Part of the Claimant's case turns on the fact that during 2009 she and one of her sisters took part in family therapy, organised and facilitated by the Defendants. In the course of the hearing before this Court draft Re-Amended Particulars of Claim were submitted on behalf of the Claimant. As part of that pleading, the Claimant avers that her attendance at the clinic for family therapy was in the capacity of ``a patient of the Defendants'' and thus there existed a direct relationship giving rise to a duty of care.

  17. The basis of the claimed duty of care is pleaded broadly. It is said that the Defendants knew at all relevant times the Claimant was a daughter of her father, knew of the 50 per cent risk to her, and knew that such a diagnosis would have ``a direct effect on the health, welfare and life of the Claimant''. The facts gave rise to a special relationship between the Defendants and the Claimant. Alternatively, there was an assumption of responsibility by the Defendants to the Claimant. In either case there arose a duty of care. The Defendants had an obligation to care for the Claimant's ``welfare and psychological and/or physical well-being''. There was a duty to ``take reasonable steps to prevent the Claimant from suffering injury'' whilst undergoing the family therapy. The therapy had a ``therapeutic objective'' to address the facts of her mother's death, ``the role that her father played in it, and her future relationship with her father''.

  18. As a consequence of the duty of care it is said, in summary, that the Defendants should have provided the information as to the father's diagnosis ``in a timely manner when it was known, or ought to have been known, that the Claimant was pregnant'' and that following the provision of information, the Claimant should have been given the opportunity for ``urgent diagnosis and testing'' of her own condition, with further advice, support and termination of the pregnancy, if desired.

  19. The Claimant also relies on the guidance given by the Royal College of Physicians, the Royal College of Pathologists and the British Society of Human Genetics entitled ``Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information''. The relevant edition was published in April 2006. A central passage relied on by the Claimant reads as follows:

    ``2.5.3 Where consent to release information has been refused

    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 have been 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 necessary for the communication of the risk.

    We recommend that before disclosure is made when consent has been withheld the...

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