The erosion of patient confidentiality?

Published 1 June 2017 Summary

In a potentially far-reaching judgment which appears to extend the recent trend in emphasis on patient autonomy to potential patients, the Court of Appeal has recently confirmed that, in certain circumstances, doctors may owe a legal duty of care to override a patient's confidentiality and disclose information about that patient to a third party.

Clinicians are familiar with their professional duties of confidentiality, including the balancing act they need to carry out when considering whether breaching a patient's confidentiality to prevent serious harm to others can be justified in the particular circumstances of the case. The question in the case of ABC v (1) St George's Healthcare NHS Trust, (2) South West London and St George's Mental Health NHS Trust and (3) Sussex Partnership NHS Foundation Trust (2017), however, was whether the law should go one step further to provide that clinicians/Trusts can be sued for failing to breach confidentiality where the balance falls in favour of disclosure.

In this briefing we look at the potential impact of this case and what happens next. What was the case about?

The Claimant's father had been convicted of manslaughter on the grounds of diminished responsibility after he had killed the Claimant's mother in 2007. 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 1983 Act.

In 2009, it was suspected (and subsequently confirmed) that the Claimant's father might be suffering from Huntington's Disease, an inherited condition that causes damage to brain cells, giving rise to disruption of movement, cognition and behaviour. The condition is progressive and fatal, and a child of a parent with Huntington's Disease has a 50 per cent chance of developing the condition.

On several occasions those treating the Claimant's father considered overriding his patient confidentiality and informing his daughters, one of which was the Claimant, of the diagnosis because of the potential implications for them. On each occasion the father's express wish to keep the diagnosis confidential was respected. However, in August 2010 the Claimant, who had informed her father that she was pregnant in September 2009, was accidentally informed about her father's diagnosis. Subsequent testing revealed in January 2013 that the Claimant herself was also suffering from Huntington's Disease.

The Claimant brought a "wrongful birth" claim against the NHS organisations involved on the basis that she should, against her father's wishes and his patient confidentiality, have been informed of her father's diagnosis and that if she had been, 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 also inherit the disease.

The NHS organisations involved applied to have the Claimant's claim struck-out on the basis that, under existing law, they did not owe a legal duty of care to her. Whilst it was accepted that the first two limbs of the three-part legal test for duty of care were made out - (1) that the Claimant's injury was reasonably foreseeable; and (2) that the relationship between the Claimant and Defendants was sufficiently proximate - the Trusts' case on the third limb was that it was not 'fair, just and reasonable' to impose on them a duty of care towards the Claimant in these circumstances What did the Court decide?

When initially considered by the High Court, the strike-out application was successful, with the Judge being persuaded by various policy reasons advanced by the Trusts involved; including that to impose such a duty of disclosure to third parties would subject doctors to conflicting and irreconcilable duties - i.e. they would be liable to be sued by the patient if they disclosed confidential information, but liable to be sued by a third party (such as the Claimant) if they failed to disclose information which they should have revealed.

On appeal, however, the Court of Appeal ruled that there is at least an arguable case that the existing law, about who clinicians owe duties of care to, should be extended to introduce what would in effect be a legal duty to disclose information in certain circumstances to third parties who would otherwise be at risk of serious harm. In reaching this conclusion, the Court of Appeal highlighted that:

It was common ground between the parties that there are professional obligations towards those who, although not in existing doctor/patient relationships with a clinician, have a vital interest in genetic information which the clinician has obtained; and The erosion of patient confidentiality?

Published 1 June 2017 Summary

In a potentially far-reaching judgment which appears to extend the recent trend in emphasis on patient autonomy to potential patients, the Court of Appeal has recently confirmed that, in certain circumstances, doctors may owe a legal duty of care to override a patient's confidentiality and disclose information about that patient to a third party.

Clinicians are familiar with their professional duties of confidentiality, including the balancing act they need to carry out when considering whether breaching a patient's confidentiality to prevent serious harm to others can be justified in the particular circumstances of the case. The question in the case of ABC v (1) St George's Healthcare NHS Trust, (2) South West London and St George's Mental Health NHS Trust and (3) Sussex Partnership NHS Foundation Trust (2017), however, was whether the law should go one step further to provide that clinicians/Trusts can be sued for failing to breach confidentiality where the balance falls in favour of disclosure.

In this briefing we look at the potential impact of this case and what happens next. What was the case about?

The Claimant's father had been convicted of manslaughter on the grounds of diminished responsibility after he had killed the Claimant's mother in 2007. 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 1983 Act.

In 2009, it was suspected (and subsequently confirmed) that the Claimant's father might be suffering from Huntington's Disease, an inherited condition that causes damage to brain cells, giving rise to disruption of movement, cognition and behaviour. The condition is progressive and fatal, and a child of a parent with Huntington's Disease has a 50 per cent chance of developing the condition.

On several occasions those treating the Claimant's father considered overriding his patient confidentiality and informing his daughters, one of which was the Claimant, of the diagnosis because of the potential implications for them. On each occasion the father's express wish to keep the diagnosis confidential was respected. However, in August 2010 the Claimant, who had informed her father that she was pregnant in September 2009, was accidentally informed about her father's diagnosis. Subsequent testing revealed in January 2013 that the Claimant herself was also suffering from Huntington's Disease.

The Claimant brought a "wrongful birth" claim against the NHS organisations involved on the basis that she should, against her father's wishes and his patient confidentiality, have been informed of her father's diagnosis and that if she had been, 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 also inherit the disease.

The NHS organisations involved applied to have the Claimant's claim struck-out on the basis that, under existing law, they did not owe a legal duty of care to her. Whilst it was accepted that the first two limbs of the three-part legal test for duty of care were made out - (1) that the Claimant's injury was reasonably foreseeable; and (2) that the relationship between the Claimant and Defendants was sufficiently proximate - the Trusts' case on the third limb was that it was not 'fair, just and reasonable' to impose on them a duty of care towards the Claimant in these circumstances What did the Court decide?

When initially considered by the High Court, the strike-out application was successful, with the Judge being persuaded by various policy reasons advanced by the Trusts involved; including that to impose such a duty of disclosure to third parties would subject doctors to conflicting and irreconcilable duties - i.e. they would be liable to be sued by the patient if they disclosed confidential information, but liable to be sued by a third party (such as the Claimant) if they failed to disclose information which they should have revealed.

On appeal, however, the Court of Appeal ruled that there is at least an arguable case that the existing law, about who clinicians owe duties of care to, should be extended to introduce what would in effect be a legal duty to disclose information in certain circumstances to third parties who would otherwise be at risk of serious harm. In reaching this conclusion, the Court of Appeal highlighted that:

It was common ground between the parties that there are professional obligations towards those who, although not in existing doctor/patient relationships with a clinician, have a vital interest in genetic information which the clinician has obtained; and There has been a strong recent trend in the field of clinical negligence (and healthcare generally) to emphasise the autonomy of the patient, and that (emphasis added) "it is at least arguable that it is irrational to emphasise the need to inform patients so that they may take their own decisions about treatment, whilst at the same time depriving of any legal remedy identified individuals in respect of whom a relevant doctor has specific information should cause them to become patients."

The Court of Appeal therefore reversed the strike-out, thereby allowing the daughter's claim to proceed, on the basis that her case on whether there was duty of care owed to her in these circumstances was, at the very least, arguable.

It is important to note that this is a case about the existence of a duty of care. It does not at this stage change the public interest disclosure exercise that clinicians must perform if there are conflicting interests. Even if a duty to third parties is found to exist, the case is yet to consider whether in these circumstances there has been a breach of that duty. The courts have historically protected patient confidence carefully and are likely to continue to do so. What next?

The immediate question following ABC is: will clinicians be subject to claims for damages in respect of their decision- making, in circumstances where a patient refuses consent and no public interest disclosure is made to relevant third parties?

Firstly, one must remember that a patient's confidentiality is not absolute in any event and can lawfully be breached where disclosure is justified in the overriding public interest - e.g. if failure to disclose may expose others to risk of death or serious harm. This is made clear in existing professional guidance cited by the Court of Appeal:

"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 breach confidence where the aversion of harm by the disclosure substantially outweighs the patient's claim to confidentiality." - Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information, 2006

The key question is how far (if at all) the potential to override a patient's confidentiality, when circumstances justify it now translates into a legal duty, to the people/third parties in need of the information? We do not yet have an answer to that question because, although the Court of Appeal decided that it is 'at least arguable' that such a duty should exist, it did not reach any definitive conclusions on this, and the case will now proceed to trial where the 'duty of care' issue may be fully argued and decided. Given the potentially far-reaching impact of extending duties of care to third parties in this way, we may well be waiting some time before the issue is finally settled.

A central issue likely to be debated in some detail once this matter comes substantively before the courts is the 'floodgates' argument - i.e. if there is a duty to disclose in the context of genetic diseases, might this not also extend to a myriad of other situations? For example, the Court of Appeal referred in its judgment to various examples put forward in the case; a patient suffering from a sexually transmitted disease who refuses to tell his or her previous sexual partners; a patient whose vasectomy has failed but who refuses to tell his sexual partner; a patient who is suffering from a contagious disease who refuses to tell family or friends; or a terminally ill patient who refuses to allow his pregnant partner to be told, for fear she might choose to terminate the pregnancy. It will be interesting to see how this 'floodgates' argument develops and, if the courts do end up deciding that there should be an extension of existing duties of care, whether they will attempt to somehow limit the boundaries of this, for example, just to genetic disease cases such as this one. Practical Impact

Given the nature of the appeal in ABC, there will be no change to the legal position for the time being.

As existing national/professional guidance on patient confidentiality makes clear, breaching patient confidentiality to prevent serious harm to others may be legally justifiable if the correct balancing exercise is carried out. However, the law does not currently go as far as to impose a duty to disclose such information. Should that change, the balancing exercise itself will remain, but the implications of getting it wrong will escalate, with the possibility of claims for damages from third parties.

However, the Court of Appeal's ruling leaves the door open for such a duty to be established. All eyes will therefore be on the substantive court case when/if it happens.

Until then, it is anticipated that similar Defendant strike-out applications in similar situations based on duty of care arguments will also be unsuccessful.

For further information, or to discuss this matter in more detail, please contact Gill Weatherill on +44 (0)191 404 4045 or at [email protected].

Authors

Gill Weatherill Stuart Keyden Newcastle Bristol +44 (0)191 404 4045 +44 (0)117 918 2790 [email protected] [email protected] There has been a strong recent trend in the field of clinical negligence (and healthcare generally) to emphasise the autonomy of the patient, and that (emphasis added) "it is at least arguable that it is irrational to emphasise the need to inform patients so that they may take their own decisions about treatment, whilst at the same time depriving of any legal remedy identified individuals in respect of whom a relevant doctor has specific information should cause them to become patients."

The Court of Appeal therefore reversed the strike-out, thereby allowing the daughter's claim to proceed, on the basis that her case on whether there was duty of care owed to her in these circumstances was, at the very least, arguable.

It is important to note that this is a case about the existence of a duty of care. It does not at this stage change the public interest disclosure exercise that clinicians must perform if there are conflicting interests. Even if a duty to third parties is found to exist, the case is yet to consider whether in these circumstances there has been a breach of that duty. The courts have historically protected patient confidence carefully and are likely to continue to do so. What next?

The immediate question following ABC is: will clinicians be subject to claims for damages in respect of their decision- making, in circumstances where a patient refuses consent and no public interest disclosure is made to relevant third parties?

Firstly, one must remember that a patient's confidentiality is not absolute in any event and can lawfully be breached where disclosure is justified in the overriding public interest - e.g. if failure to disclose may expose others to risk of death or serious harm. This is made clear in existing professional guidance cited by the Court of Appeal:

"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 breach confidence where the aversion of harm by the disclosure substantially outweighs the patient's claim to confidentiality." - Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information, 2006

The key question is how far (if at all) the potential to override a patient's confidentiality, when circumstances justify it now translates into a legal duty, to the people/third parties in need of the information? We do not yet have an answer to that question because, although the Court of Appeal decided that it is 'at least arguable' that such a duty should exist, it did not reach any definitive conclusions on this, and the case will now proceed to trial where the 'duty of care' issue may be fully argued and decided. Given the potentially far-reaching impact of extending duties of care to third parties in this way, we may well be waiting some time before the issue is finally settled.

A central issue likely to be debated in some detail once this matter comes substantively before the courts is the 'floodgates' argument - i.e. if there is a duty to disclose in the context of genetic diseases, might this not also extend to a myriad of other situations? For example, the Court of Appeal referred in its judgment to various examples put forward in the case; a patient suffering from a sexually transmitted disease who refuses to tell his or her previous sexual partners; a patient whose vasectomy has failed but who refuses to tell his sexual partner; a patient who is suffering from a contagious disease who refuses to tell family or friends; or a terminally ill patient who refuses to allow his pregnant partner to be told, for fear she might choose to terminate the pregnancy. It will be interesting to see how this 'floodgates' argument develops and, if the courts do end up deciding that there should be an extension of existing duties of care, whether they will attempt to somehow limit the boundaries of this, for example, just to genetic disease cases such as this one. Practical Impact

Given the nature of the appeal in ABC, there will be no change to the legal position for the time being.

As existing national/professional guidance on patient confidentiality makes clear, breaching patient confidentiality to prevent serious harm to others may be legally justifiable if the correct balancing exercise is carried out. However, the law does not currently go as far as to impose a duty to disclose such information. Should that change, the balancing exercise itself will remain, but the implications of getting it wrong will escalate, with the possibility of claims for damages from third parties.

However, the Court of Appeal's ruling leaves the door open for such a duty to be established. All eyes will therefore be on the substantive court case when/if it happens.

Until then, it is anticipated that similar Defendant strike-out applications in similar situations based on duty of care arguments will also be unsuccessful.

For further information, or to discuss this matter in more detail, please contact Gill Weatherill on +44 (0)191 404 4045 or at [email protected].

Authors

Gill Weatherill Stuart Keyden Newcastle Bristol +44 (0)191 404 4045 +44 (0)117 918 2790 [email protected] [email protected]