Abstract
Introduction
The trusts applied to strike out this claim on the basis that there was no reasonable prospect of the claimant establishing that it would be fair, just or reasonable to impose a duty of care in the circumstances. The judge made an anonymity order in relation to the claimant, her father and daughter but not in respect of the trusts involved.
In 2007, the claimant’s father (F) shot and killed the claimant’s mother. He was convicted of manslaughter on the grounds of diminished responsibility and detained at a clinic run by the second defendant. In 2009, it was suspected that he was suffering from Huntington’s disease and he was referred to St George’s Hospital, the responsibility of the first defendant. He had also been seen by a social worker employed by the third defendant. In November 2009, it was confirmed that F did indeed have Huntington’s disease.
This disease is genetic in origin and, if a parent has it, there is a 50% chance that his or her child will do so too. Various health professionals therefore sought F’s consent to disclose the diagnosis to his daughter, the claimant, who was pregnant at the time. F refused permission. In January 2013, the claimant herself was diagnosed with the same condition but it was too early to tell whether her daughter (C) also had the disease.
Allegations
The claimant maintained that if she had been informed of her father’s condition while pregnant, she would have undergone a test to see whether she had it as well. Had that proven positive, she would have terminated her pregnancy. She also claimed to have suffered psychiatric damage because of the trusts’ failure to inform her, and maintained that if C also has the disease she will incur additional expense.
In applying to strike out the claim the trusts accepted, for the purposes of the application, that the first two elements of the tripartite test in Caparo v Dickman [1990] 2 AC 605 would be established, i.e. reasonable foreseeability of injury and sufficient proximity between claimant and defendants for a duty of care to arise. However, they argued that there was no reasonable prospect of the claimant establishing that it would be fair, just or reasonable to impose a duty of care towards the claimant.
On behalf of the claimant, it was emphasised that the court should exercise caution when dealing with a strike-out application. The claim should not be dismissed unless it was clear that it was doomed to failure. Furthermore, the claimant was not just any third party but F’s daughter. Additionally, the claimant herself had been undergoing family therapy with the defendants and, in that sense, was their patient like her father. GMC Guidance contemplated that doctors would not just be at liberty on occasions to disclose confidential information, but might be under a positive duty to do so.
Discussion
It was not disputed by the claimant that the starting point was that clinicians were obliged to respect the confidentiality of F’s medical information. That was a qualified duty. It could not, for instance, prevent the defendants from reporting relevant matters to the First Tier Tribunal, and indeed they did disclose the fact of F’s diagnosis. It was thought that this might have had some bearing on the killing.
Although the conviction of manslaughter on the grounds of diminished responsibility implied acceptance that F was, at least in 2007, suffering from a disease of the mind, that did not mean that he lacked capacity to give or withhold his consent to his daughter being told of the diagnosis. The Mental Capacity Act 2005 states that a person is assumed to have capacity until the contrary is established. Capacity is to be determined by issue.
Although the claimant pleaded that she was undergoing family therapy with the defendants, the court was not persuaded that this significantly affected the viability of her case. None of the defendants were obliged to disclose to some family members information, which they held under a duty of confidence to another family member.
The duty of care which the claimant was trying to construct was entirely novel. On the other hand, the defendants pointed to authorities which strongly suggested that no such duty would be owed. For example, in D v East Berkshire NHS Trust [2005] 2 AC 373, the House of Lords dismissed claims from parents wrongly suspected of child abuse in situations where their children were the patients.
This was not a case where the claimant could show that a novel duty of care would be but an incremental development from some well-established duty. It would, on the contrary, be a radical departure to impose liability in circumstances such as these.
The submission that there was a special relationship between the defendants and the claimant would be rejected. Cumulatively, the defendants’ submissions provided a formidable argument as to why it would not be fair, just or reasonable to find a duty of care of the type for which the claimant contended.
While there had been numerous judicial warnings about the caution which must be exercised before striking out a claim at the pleadings stage, if it was plain and certain that the pleaded facts did not disclose a reasonable cause of action, it was to the advantage of all concerned that the claim should not proceed to what would be a costly but inevitably fruitless trial. The court had reached the clear conclusion that this was how the claimant’s cause of action in negligence should be described. The claim was bound to fail and should be struck out.
The claimant had added a claim under the Human Rights Act (Article 8 – right to respect for private and family life) as an afterthought. The trusts argued that even assuming Article 8 was engaged, any interference would plainly be justified under Article 8 (2). For all the reasons set out in the context of the common law claim, the balance came down decisively against the claimant. The convention did not assist her.
It followed that the application to strike out was successful.
Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Field Fisher) appeared for the claimant. Philip Havers QC (instructed by Capsticks) appeared for the defendants.
Comment
This was an extremely unusual and interesting case. The law of medical confidentially is not rigid, i.e. there are certain circumstances in which a clinician may disclose confidential information. For example, it may be in the public interest to disclose if failure to do so may expose others to a risk of death or serious harm. Here, however, there was no public interest in disclosure but only a private interest. While it is impossible not to have tremendous sympathy for the claimant, given her tragic circumstances, the fact is that the duty of care for which she contended, as a non-patient, had not been made out in any decided case and the judge concluded that it was bound to fail. Given that this is potentially such a ground-breaking claim, it is conceivable that there will be an appeal.
Learning points
The defendant has a very high hurdle to jump in trying to strike out a claim prior to a full trial. While incremental changes to the law of negligence have occurred for hundreds of years, radical departures from established law are extremely difficult to achieve via the courts, as opposed to via parliament.