England: landmark negligence case could impose duty of care breaking doctor-patient confidentiality

A woman whose father suffered from a hereditary brain disease is suing his doctors for failing to inform her before she gave birth to her daughter.

Ms M found out she has the same Huntington’s gene as her father and that her child, now five, has a 50 per cent chance of inheriting the incurable degenerative condition.

She has said she would not have given birth had she known about her father’s condition. He failed to tell her fearing she would commit suicide or have an abortion.

The woman has now been given permission to take her case to the Court of Appeal where judges will be asked to examine doctor-patient confidentiality and to decide whether medical staff are under a duty of care to let family members know they may be at risk of suffering from a serious disease in the future.

Ms M said: “I live every day knowing I’m gene positive. My young child also has a 50/50 chance of inheriting the disease and will have to live with this legacy. It will be her decision at 18 whether she wants to be tested but given the choice, I would never have inflicted this on her.

“Day by day, she is what makes life worth living and, at the moment, that life is great and we’re happy. But the future is a terrifying place.”

She added: “The doctors’ decision not to tell me meant all my choices were taken away from me.”

Several years ago the father began showing signs of aggression and shot and killed the woman’s mother. Two years after being convicted of manslaughter, he was diagnosed with Huntington’s disease.

He refused doctors permission to inform his daughter, who at the time was pregnant, about his condition.

Ms M found out about the condition when a doctor accidentally revealed the information.

Normally, the disease manifests itself in a person’s 30s or 40s, with sufferers experiencing gradual cognitive decline that can affect personality, movement and other functions.

Ms M’s compensation claim was rejected by a judge in the High Court who said to impose liability would be a “radical departure” and that he was unwilling to take that “giant step” by creating a new duty of care.

But her lawyers have been awarded leave to challenge the decision. They argue her rights under article 8 of the European Convention on Human Rightshave been violated.

Ms M’s lawyer, Jonathan Zimmern, from the firm Fieldfisher, told The Times: “I am delighted that Ms M has been allowed to question the extent to which a patient’s confidentiality should be upheld when failing to disclose relevant information that might cause significant harm to family members.”