3 March 2020
Healthcare professionals owe a new legal duty to consider disclosing confidential information without consent, if another person is at risk of serious harm. However, this legal duty is more limited than existing professional guidance and will only apply where there is a close relationship between professionals and the person at-risk.
On Friday the High Court ruled on the case of ABC v St George’s NHS Trust (and other NHS defendants). This is a significant decision with implications for a wide range of healthcare professionals facing a dilemma about whether to disclose confidential patient information which could reduce or prevent a risk of serious harm to another person.
The tragic facts of the case have been well reported elsewhere. In brief, ABC is the daughter of a man who was diagnosed with Huntington’s disease (a genetic condition she had a 50:50 of inheriting) while detained under the Mental Health Act for shooting and killing her mother. The teams of doctors caring for her father knew that ABC was pregnant and they wanted to inform her of the risk. However, he refused consent and no disclosure was made. She subsequently found out inadvertently and following testing, several years later, discovered that she had the same abnormal Huntington’s gene as her father.
ABC brought a claim of negligence against the NHS team who were caring for her father for their failure to inform her of the genetic risk. She alleged that these psychiatrists and other health care professionals (HCPs) owed her a ‘duty of care’ (a legal duty) to consider her rights and interests, and that these should have outweighed her father’s interest and the public interest in maintaining confidentiality in this case.
After losing an initial ruling, which was subsequently overturned by the Court of Appeal, the High Court held a full trial of facts and evidence. The judge, Mrs Justice Yip (‘Yip J’) concluded that HCPs do owe a legal duty to balance the rights and interests of another person with those of their patient (and the public interest) in preserving confidentiality, where disclosure could reduce or prevent a significant risk of serious harm, and where they have a close relationship with the at-risk person. However, in this case, Yip J concluded that the HCPs had carried out their balancing exercise to a reasonable standard (although they did not document the process) and that there had been no breach of the duty.
This decision establishes for the first time in UK law that healthcare professionals owe a legal duty, not only a professional obligation, to balance the rights and interests of at-risk individuals, such as a genetic relative, with those of a patient who has refused consent to disclosure of confidential information. This has updated the legal position to bring it into line with well-established professional guidance and provide sufficient respect for the rights and interests of others, as well as the patient.
One of the major surprises of this judgment is that although the context was a heritable genetic risk, the judge explicitly rejected the confining the duty to genetics cases. It applies to all HCPs and all forms of confidential information which may be disclosed to prevent serious harm, provided they have a close relationship with the person at risk.
For example, the duty may apply to psychiatrists if their patient disclosed intentions of violence towards a relative (the example Yip J provided). It could equally apply to GPs if they care for several members of the same family. Perhaps most obviously, it may apply to geneticists who frequently care for multiple family members. For example, if new information such as a confirmed pathogenic variant is discovered in one family member with implications for others.
Such dilemmas may also arise for specialists in areas other than ‘genetic medicine’, if they utilise genetic tests and diagnoses. For example, cardiac specialists who receive sequencing results confirming a serious heritable condition may not be as familiar with this scenario as geneticists. As genetic (or genomic) information becomes an increasingly common element of many health specialties, HCPs need to be aware of their duties in relation to confidential information and be able to obtain advice from specialist colleagues. Counselling should also be made available to patients and their families.
However, although this is a first in UK law, this is not a legal duty to chase up all relatives, wherever they are, nor is it an obligation or an invitation to disclose information without consent. It is simply an obligation to consider disclosure in limited circumstances, based on existing best practice and guidance and there are significant limitations to its practical consequences.
Crucially, the legal duty only applies when there is a relationship of close ‘proximity’ between HCPs and the at-risk family member. In this case, ABC was known to the psychiatric team, through being a patient of family therapy, her situation was known, and HCP’s had a route to disclose information to her if they had chosen to. By contrast, the genetics specialists never met the father or ABC and although they were consulted about the case and were made aware of the claimant’s circumstances, there was an insufficiently close relationship between them and claimant for a legal duty to arise.
The legal duty established in ABC is actually more limited than existing professional guidance from the GMC and other specialist bodies such as the Royal College of Psychiatrists and the Joint Committee on Genomics in Medicine. These already advise HCPs to carry out a balancing exercise when consent has been refused for disclosure of information which could reduce or prevent a risk of serious harm to another person. Unlike the legal duty, this isn’t limited to situations where there is a close relationship between the HCP and an at-risk individual, although whether they are identifiable or easily contactable is a consideration that may be taken into account.
Although this dilemma is much the same all over the world, the legal obligations that surround it are varied and look to remain so for some time to come. We'll be addressing international approaches to disclosure of genetic information in future work.