Written By: Roy Gilbar, Netanya Academic College, Israel, and Charles Foster
In the recent case of ABC v St. George’s Healthcare NHS Trust and others,1 [http://www.bailii.org/ew/cases/EWHC/QB/2015/1394.html] a High Court judge decided that:
(a) where the defendants (referred to here jointly as ‘X’) knew that Y, a prisoner, was suffering from Huntingdon’s Disease (‘HD’); and
(b) X knew that Y had refused permission to tell Y’s daughter, Z (the claimant), that he had HD (and accordingly that there was a 50% chance that Z had it (and that if Z had it there was, correspondingly, a 50% chance that the fetus she was then carrying would have HD),
X had no duty to tell Z that Y was suffering from HD. Z said that if she had known of Y’s condition, she would have had an abortion.
This case brings into sharp focus:
(a) the traditionally narrow view of the doctor-patient relationship in the English law of tort;
(b) the inconsistency between that narrow view (which pertains throughout most of the law of clinical negligence), and the apparently much wider scope of the doctor’s obligation in cases relating to consent: see, for instance, Montgomery v Lanarkshire Health Board2 – in which the main consideration governing the ambit of the duty is not what a responsible body of medical opinion would do, but the crucial importance of respecting patient autonomy.
(c) the law’s failure, or refusal, to adopt the ‘joint account’ model of genetic information.3
We think, with respect, that the court in ABC was wrong.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.