ABC v St George’s Healthcare NHS Foundation Trust: The Repercussions for Clinical Negligence

10th July 2020

Jane Harper, ATE Technician at DAS UK Group looks at the ABC v St George’s Healthcare NHS Foundation Trust case which will have huge repercussions for clinical negligence. DAS UK provided Fieldfisher, the claimant’s solicitors, with its ATE Clinical Negligence product to help fund the case.

Earlier this year we saw the judgment of ABC v St George’s Healthcare NHS Foundation Trust and others, a high profile and widely debated clinical negligence case concerning whether there was a duty to disclose a patient’s hereditary disease to his child.

The factual background was one of great family tragedy. The claimant was ABC and the claimant’s father had shot and killed her mother. The father was convicted of manslaughter by reason of diminished responsibility and made subject to a hospital order under the Mental Health Act. The father received care from a multidisciplinary team. Despite the impact of her father’s offence, the claimant continued to be involved in his care and attended family therapy sessions.

In 2009, ABC informed her father that she was pregnant. During the father’s detention he was diagnosed with Huntington’s disease, meaning his daughters each had a 50% chance of having inherited the disease.Huntington’s Disease is a condition that progressively stops part of the brain working properly. The brain gradually deteriorates over time and is generally fatal after a period of up to 20 years.

ABC brought a claim against three NHS Trusts. She argued that they had breached a duty of care owed to her and / or acted contrary to her rights under Article 8 of the European Convention on Human Rights. The allegation being that they failed to alert her to the risk she had inherited the gene for Huntington disease in time for her to terminate her pregnancy.

Within the High Court Judgment Mrs Justice Yip, considered four questions:

  1. Did any or all of the defendants owe ABC a duty of care?
  2. If so, was there a duty to disclose to ABC the Huntington’s diagnosis?
  3. Did the defendants breach this duty in not disclosing the diagnosis to her?
  4. If there was a breach, did she suffer loss and damages by not having the opportunity to obtain genetic testing and terminate her pregnancy?

The case is an important one as, for the first time, the court has recognised that clinicians can owe legal duties of care to people other than their patients.

If a doctor is under a duty to perform tests, there is no point in those tests being completed but no action being taken in response.

Mrs Justice Yip

Unfortunately, the claim failed on the particular facts but Mrs Justice Yip’s decision means that clinicians now have a legal duty to consider whether to disclose confidential information about their patient to certain third parties, where that information reveals a serious risk to the third party. She described this as a duty to perform a detailed balancing exercise between the interests of the third party with whom the medical professional has a sufficiently close relationship and the original patient’s interest in confidentiality.

Mrs Justice Yip concluded at paragraphs 188 and 189 that: “…it is fair, just and reasonable to impose on the second defendant a legal duty to the claimant to balance her 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. It would be irrational to hold otherwise. If a doctor is under a duty to perform tests, there is no point in those tests being completed but no action being taken in response. The same is true of the balancing exercise.”

Furthermore, Mrs Justice Yip did not limit this duty to just cases involving genetic information, but rather to any kind of health confidentiality. This case therefore, has significant implications on UK clinicians in a range of areas. It has opened the door for other cases to succeed based on their particular facts where the balancing exercise would fall in favour of disclosure and a failure to do so might give rise to an action.

Importantly for practitioners though, in recognising a legal duty in these terms, the law is not imposing a new obligation on doctors or hospital trusts. Rather, the legal duty recognises and runs parallel to the professional duty to undertake a proper balancing exercise which all the experts in this case agreed already exists.

Although ABC lost her claim, it should in many respects be considered a victory as the judge found the new duty that we sought from the beginning. Without DAS UK’s willingness to support difficult cases, we could not have proceeded.

Jonathan Zimmern, Fieldfisher

Jonathan Zimmern from Fieldfisher told us: “We are very disappointed that ABC did not succeed in her claim. However, this was a very important decision which has created a new legal duty of care. Whilst ABC is clearly very upset by the decision, the new duty of care should help to ensure that the interests of other people in similar situations will automatically be considered by doctors.

“Both ABC and Fieldfisher are very grateful for DAS’s support in this groundbreaking case. Although ABC lost her claim, it should in many respects be considered a victory as the judge found the new duty that we sought from the beginning. Without DAS UK’s willingness to support difficult cases, we could not have proceeded. I do not think every ATE insurer would have agreed to work with us to take the case forward.”

DAS UK strives to do the right thing for its solicitor business partners and their clients. Although we share the disappointment of the outcome with our business partner, we are happy to have supported a claim that has resulted in a change of law that will potentially assist others in the future.

For further information on our clinical negligence products and services contact

DAS UK Group wins Simply Business partnership

DAS UK Group, the UK’s leading specialist legal expenses insurer, has announced a partnership with Simply Business, one of the UK’s largest small business and landlord insurance providers.

July 2020 Learn more
LEI: the UK’s most important insurance cover?

Legal expenses insurance has a major part to play in giving people and SMEs everyday peace of mind, now more than ever before.

June 2020 Learn more

Share this:

Legal articles The Return to Work from Covid: How businesses can stay on the right side of the law

Although lockdown restrictions are easing for many businesses across the country, health & safety and social distancing measures still apply.

May 2021
Agricultural Fly tipping: what you need to know

Fly-tipping is the only crime where the victims (private landowners) have a legal responsibility to dispose of the waste. Mark Woodman looks at the laws around this modern day scourge.

July 2021
Family New school year brings new clashes over school uniforms

Strict school uniform rules have angered parents who believe their children should be allowed some flexibility when it comes to uniforms. But where does the law stand and what can parents do if they disagree with school rules?

September 2023
Employment issues Don’t get a red card while watching the World Cup at work

If you are planning on watching World Cup matches at work there are a number of important things to consider.

August 2023
Landlord and tenant Airbnb and holiday lettings: What to do with the staycation boom

Bethan Mack, a solicitor at DAS Law, answers the most important questions for existing Airbnb hosts and those thinking of renting out their properties.

April 2023
Running a business Workplace stress: your responsibilities as an employer

Commenting on Stress Awareness Week, Simon Roberts, Solicitor at DAS Law, takes a look at what the law says employers needs to do about stress.

April 2023
Consumer rights Compensation rules for lost or damaged luggage

If you have your luggage damaged or lost altogether, you may be able to claim compensation from the airline or through your travel insurance provider.

August 2023
Home and property disputes How to ensure your relationship with your neighbours doesn’t become hot and bothered

Sahib Ullah Raj from DAS Law explores the various disputes between neighbours and explains the legal options available.

September 2023
ATE , 2023 Empowering smaller legal practices: The success of the Optimise scheme

The Optimise scheme, launched by DAS and Maxima, has supported over 100 clients over the past two years, transforming the landscape for clinical negligence and personal injury cases.

October 2023
ATE , 2023 The pros and cons of a Low Damages FRC (LD FRC) process in clinical negligence

Lisa O’Dwyer from Action against Medical Accidents looks at how the LDFRC process will affect Clinical Negligence claims.

September 2023
Consumer rights Make sure your car is safe when you use valet parking

Elisa Ribeiro has guidance on how you can avoid bad valet parking practices when you book your summer holiday.

July 2023
Landlord and tenant 4 ways to limit disrepair claims from your tenants

Faye Schneider, Principal Associate overseeing the Landlord and Tenant Team at DAS Law, shares how you can best protect your agency and your landlord against an allegation of disrepair.

February 2023
Family Motoring offences: drivers need to keep up to speed on the rules of the road

Breaking any speed limit (including temporary speed limits) is an offence, and it is the driver’s responsibility to be aware of the law.

April 2023