ABC v St George’s Healthcare NHS Trust: a new duty at the intersection of healthcare confidentiality and harm to others

 

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Image: Flickr – Miki Yoshihito

The duty of confidentiality is crucial to building relationships of trust and confidence between patients and healthcare professionals, and to effective  healthcare systems more broadly. However, the law recognises that the duty of confidentiality is not absolute and sometimes needs to yield to other public interests. A recent UK case, ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB), concerned the need to balance the public interest in protecting the confidentiality of health information against the public interest in preventing serious harm to others.

The case arose out of a tragic set of facts. In 2007, ABC’s father shot and killed her mother. He was convicted of manslaughter by reason of diminished responsibility and detained under the UK’s Mental Health Act 1983 at a clinic at Springfield Hospital. The father (referred to as XX in the judgment) received care from a multidisciplinary team, headed by Dr Olumoroti, a consultant forensic psychiatrist. Despite the devastating impact of her father’s offence, ABC continued to be involved in her father’s care, and attended family therapy sessions at Springfield Hospital.

During his detention, XX was diagnosed with Huntington’s Disease (a genetic condition that ABC had a 50% chance of inheriting). XX refused to disclose the diagnosis to ABC or her sister, despite learning in September 2009 that the claimant was pregnant. The Springfield clinical team was informed of the claimant’s pregnancy but disagreed as to whether she should be told about her father’s diagnosis. Ultimately, Dr Omuloroti – as XX’s responsible physician – decided against disclosure.

ABC had her baby in April 2010, and in August of that year, a Mental Health Tribunal directed XX’s discharge. Dr Olumoroti and a social worker visited the claimant’s home, where Dr Olumoroti accidentally disclosed XX’s diagnosis. In a twist of fate, ABC’s sister was then in the early stages of her first pregnancy, but ABC did not want XX’s diagnosis disclosed to her.

In 2013, ABC tested positive for the genetic mutation for Huntington’s Disease. She developed a psychiatric illness as a result and was greatly concerned for her daughter’s future.

ABC brought actions against three healthcare trusts responsible for the clinicians involved in XX’s care, including the Springfield Hospital clinical team. ABC argued that the three defendants had been negligent in failing to alert her to the risk she had inherited the gene for Huntington’s Disease in time to terminate her pregnancy. She also argued there had been a breach of the UK Human Rights Act 1998, but this played a minor role in the case. ABC sought damages for the continuation of her pregnancy, psychiatric harm, and consequential loss.

The case was initially struck out, a ruling that was overturned by the UK Court of Appeal, and the case was finally heard by Justice Yip in the UK High Court. ABC was ultimately unsuccessful against all three defendants, but perhaps surprisingly, Justice Yip held that Springfield Hospital owed her a duty of care in negligence. That duty is the focus of this post.

Justice Yip held that the negligence complained of fell outside of any pre-existing duty of care. However, Her Honour was prepared to create a new duty, based on the application of the Caparo test, the UK’s test for creating a novel duty of care in negligence.

First, harm to the claimant (i.e., psychological harm and the loss of the opportunity to terminate her pregnancy) was clearly foreseeable and had actually been foreseen by the clinical team, as was apparent from the evidence at trial and medical records.

Second, there was a relationship of sufficient proximity between ABC and Springfield Hospital, central to which was the claimant’s participation in family therapy. This created a patient-practitioner relationship between ABC and the hospital (in respect of those sessions), a well-established duty of care. Although the duty didn’t require disclosure of the diagnosis, the relationship meant that the hospital held a significant amount of information about ABC. For example, the clinical team knew she had suffered psychological harm as a result of her father’s offence and were working with her to help her come to terms with it. Had they wished to disclose the diagnosis to her, the family therapy sessions provided an avenue for doing so.

On the third limb of the test, Justice Yip concluded that it was fair, just and reasonable to impose on Springfield Hospital a duty to:

… balance [ABC’s] interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally… The scope of the duty extends not only to conducting the necessary balancing exercise but also to acting in accordance with its outcome. [188]-[189]

Justice Yip framed this duty of care not as one to simply disclose confidential information when a patient has refused consent, but as a duty to balance the interests the individual concerned against those of the patient, an exercise which may or may not lead to disclosure.

In the result of a legal challenge, the court would review the balancing exercise undertaken by the healthcare professional(s) concerned. There will only be a breach of the duty if the balancing exercise was not conducted properly and if it had been conducted properly, the defendant would have disclosed. The court will also set aside the defendant’s decision if the balancing exercise was conducted properly and the defendant would not have disclosed, but the decision is one that no responsible body of medical opinion would support.

The court’s role in cases involving this duty almost resembles a form of judicial review, where the court reviews whether the decision was reached by the correct procedure, rather than the correctness of the decision per se – unless the decision is completely unsupported by responsible medical opinion.

Generally speaking, it is uncommon (but not unheard of) for healthcare professionals to owe a duty to third parties outside the patient/practitioner relationship. But additionally, the duty in this case conflicts with the obligation of confidence owed to the patient themselves. Justice Yip pointed out that professional guidance (and existing legal authorities) already recognize that the obligation of confidence is not absolute and require a similar balancing exercise. Also, clinicians would be given considerable latitude in this balancing exercise by the courts.

Justice Yip was careful to stress that she was only deciding whether a duty of care arose on the particular facts of the case before her, which were unusual and created a relationship of close proximity between the defendant and the claimant – a central component in finding the duty existed. She was not creating a general duty of care owed by healthcare professionals to anyone who was not their patient, nor would the duty require healthcare professionals to chase down all the genetic relatives of their patient.

However, Justice Yip did not limit the duty to cases involving genetic information, but extended it any kind of confidential health information. Accordingly, it has significant ramifications for UK healthcare professionals in a range of fields.

Australia is yet to see a similar case which creates something resembling a legal obligation to consider whether to disclose confidential information to at risk individuals, when patients refuse consent (Australian legal authorities and professional guidelines permit – but don’t require – disclosure in these circumstances). Such a duty seems unlikely in the near future, given the unusual factual matrix in ABC v St George’s Healthcare NHS Trust, the different legal context in Australia, and our own High Court’s reluctance to create novel duties of care in negligence.

Immigration department breaches the privacy rights of asylum seekers

Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children
Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children

An article in The Guardian today claims that the Department of Immigration has sought access to confidential medical records of asylum seekers for ‘political purposes.’

The article reports on a briefing document written by a senior clinician at International Health and Medical Services (which delivers health services at mainland and offshore detention centres), which appears to show that the IHMS has disclosed asylum seekers’ health records to the immigration department for reasons not related to the health and welfare of individuals in detention.

As the article points out, this practice potentially breaches the Commonwealth Privacy Act, which prohibits the disclosure of health information to third parties (without the consent of the individual concerned), unless the disclosure is directly related to treatment of the individual (or in certain permitted circumstances, such as preventing a threat to public health or safety).

Further, the disclosure breaches clinicians’ duty of confidence towards their patients, and may also violate professional guidelines and codes of practice, such as the Medical Board of Australia’s Good Medical Practice code of conduct for doctors. Under the code, good medical practice includes protecting patients’ privacy and confidentiality, and ‘appropriately sharing information about patients for their health care.’

Disclosure of asylum seekers’ health records may seem like a relatively minor issue considering the many documented abuses perpetrated against individuals in detention.   But, privacy is an important underpinning to personal autonomy, and the right to control information about one’s self is key to self-determination. The unauthorised disclosure of asylum seekers’ medical records represents a significant infringement of asylum seekers’ rights, and forms part of a broader trend towards dehumanising people in detention centres.

In part, the Privacy Act was enacted to give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights, which states that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation’ [sic]. The unauthorised disclosure of asylum seeker’s health records puts Australia at odds with its international human rights commitments, as well as breaching domestic privacy laws.

The disclosure of medical records for ‘political purposes’ (whatever that may mean) illustrates the Catch-22 situation faced by clinicians working in detention centres. Health professionals working in these centres must deal with the tension between their ethical and legal duties to patients, and pressure from government and private employers to act in ways that compromise the health and wellbeing of asylum seekers. This issue also raises serious questions about the immigration department’s approach to privacy and its management of highly personal, and potentially very sensitive, health information.