ABC: A duty to balance conflicting interests

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

An eagerly awaited case has been decided. You may recall the story of ABC, whose father, XX, killed her mother, leading to his detention in a psychiatric facility. His clinicians tested him for Huntington’s disease, which proved positive. He had capacity, and agreed to the testing only on the basis that his results were not shared with his family.

In the meantime, ABC fell pregnant. Her father’s doctors knew about the pregnancy and wanted to disclose XX’s diagnosis to his daughter; from the time of his diagnosis, there would have been a window of two months during which termination of her pregnancy was feasible. XX refused to disclose, aware that such knowledge might have an impact on his two daughters’ reproductive decision-making.

ABC discovered her father’s diagnosis during a clinical visit when her baby was four months of age. Shortly afterwards, she decided that her father’s diagnosis should not be disclosed to her sister, now in the early stages of her own pregnancy.

Four years later, ABC tested positive for Huntington’s. Feeling that it was unfair to bring a child into the world in these tragic circumstances, she claimed that the doctors should have breached her father’s confidentiality and told her of his diagnosis while she had a chance to choose whether she would undergo termination. In making this claim, she asserted that she was owed a duty of care by the doctors who also had a duty to respect her father’s confidentiality.

The claimant told the court that the clinicians had a ‘...duty to balance the claimant’s interest in being informed of her risk of a genetic disorder against her father’s interest in having the confidentiality of that diagnosis preserved’. The court noted that if on that basis the clinicians properly considered and balanced the conflicting interests, but decided not to disclose, they would have fulfilled their obligation, provided their conclusion not to disclose the information was reasonable. The judge concluded that it was just, fair and reasonable to impose a legal duty to balance ABC’s interest in being informed against XX’s interest in maintaining his confidentiality, relating to both his diagnosis and the public interest in maintaining medical confidentiality generally.

The court noted that no new obligation was being imposed on doctors or hospital trusts. Instead, the ruling simply ‘...recognised and ran parallel to a professional duty to undertake a proper balancing exercise which all the experts in the case agreed already exists’. The judge reflected that this duty would rarely act as foundation for litigation. At least in part because the legal duty to perform a balancing exercise would only arise in the rare circumstances when there was close proximity between the at-risk person and the clinician, and that reasonable doctors would often reach different conclusions as a result the of duty to balance.

As it turned out, the claimant’s expert evidence accepted that if a proper balancing exercise had been performed for ABC/XX, reasonable and responsible clinicians could have decided not to disclose the diagnosis to ABC. This concession effectively ended ABC’s claim that the newly established duty to balance had been breached. Furthermore, the judge reflected, ‘It does seem to me that it would have been unduly harsh to hold (the defendant Trust) liable ... for reaching the same decision as the claimant did in relation to her sister'. Finally, the court found that the claimant did not prove that she would have undergone a termination if notified of the risk during her pregnancy. For these reasons, ABC lost her claim.

The judge could ‘...not see why genetic information should be treated differently from other information which reveals a serious risk to another person’. Accordingly, she gave a clear indication that she intended the duty to apply to any circumstances in which professional guidelines direct clinicians to consider the conflicting interests of their patient and a third party when serious harm is envisaged. The proviso is that there must be sufficient proximity, in other words a close relationship, with the non-patient (who will often be a family member) at risk.

Robert Wheeler
Department of clinical law
March 2020