James Byrne's article on Broadening the duty of care to patient’s families - Smith & Another v University of Leicester NHS Trust
There have been a recent spate of cases where the Courts have been willing to broaden when a duty of care is owed to give increased protection to those who are potentially the victims of the negligence of others (see the recent vicarious liability cases as an example). Just how far the Courts were willing to expand the law was once again tested in the case of Smith.
The case was founded on unusual facts. Neil Caven was a patient of the Trust. In 2003 he was under the care of a Consultant Neurologist at the Trust who, as part of diagnostic work up, requested that a chain of Mr Caven's fatty acids be tested. This was not done by the Trust. If it had been, it would have been likely to reveal that Mr Caven was suffering a rare, but treatable, genetic disease, Adrenomyleoneuropathy ('AMN' for short).
Some three years later, Mr Caven's second cousin, a 4 year old boy called Callum Smith, was diagnosed with suffering Adrenoleukodystrophy (ALD), the childhood version AMN. As a result Callum's older brother, Connor, also underwent testing for the condition and he too was diagnosed with ALD.
Following Connor and Callum's diagnosis, Mr Craven was again seen by his Consultant Neurologist who noted the Trust's failure to carry out the fatty acids test. He insisted the Trust carry out the test and the results confirmed Mr Craven had AMN. Mr Craven's test results advised: “other members of his family are at high risk of this disorder. We strongly recommend referral to the genetic counselling services where the implications of this report and testing of other family members if required can be discussed.”
Tragically, by the time Callum had been diagnosed his condition was so advanced that effective treatment was no longer possible. He died on 26 April 2012. Connor's condition was not as advanced and he was able to receive effective treatment, though he suffered from significant intellectual and neuropsychological problems.
Claims were brought against the Trust on behalf of Connor and by Callum's estate on the basis that had the Trust carried out the fatty acid test on Mr Craven, when it is was ordered in 2003, it would have been positive for AMN leading inevitably to testing of the wider family which would have included the Claimants. This would have led to their diagnosis some three years earlier, which would have materially improved the outcome for both.
The Claim raised a fundamental question; should the Court impose a duty of care on the Trust in respect of Claimants who are not its patients? The Court once again said ‘No’.
The case was struck out by HHJ McKenna sitting in the High Court. He reasoned that to extend the duty of care to Callum and Connor would go well beyond the existing law, failing the test of what is “fair, just and reasonable” (the third limb of Caparo Industries PLC v Dickman and others  2 AC 605) since it was not a case where the Claimants could show that a novel duty of care would be but an incremental development from the some well established duty. It would, on the contrary, be a radical departure to impose liability in the circumstances of the case.
This is not the first time that a Court has been asked to extend the duty to non-patients. The Defence brought the judge's attention to a number of cases including D v East Berkshire NHS Trust  2 AC 373 and Powell v Boladz  Lloyds Rep. Med 116. They also relied on the more recent decision of Mr Justice Nicols in ABC v St Georges Healthcare and others  EWHC 1394 (QB), a case where the Claimant's father had been diagnosed with Huntington's Disease but had refused to tell his child in circumstances where the Trust had wanted to inform her because of the high genetic risk they she was also a sufferer. All these cases were struck out, but interestingly ABC has been given permission to appeal and the case is due to be heard in March 2017, so expect more on this topic soon.
The Claimants sought to rely on Selwood v Durham County Council and others  EWCA Civ 979. A case where the factual matrix was very different to the Claimants’ case as that case related to a situation where the Court of Appeal allowed an appeal against a strike out order made in a PI claim brought by a social worker against her employer and the NHS who she argued had assumed responsibility to protect her against a dangerous patient. HHJ McKenna was unconvinced that by the comparisons the Claimants sought to draw to their present situation, no doubt because of the potential employment relationships in Selwood.
Third parties will continue to contest the boundaries of when a duty between a hospital and themselves exists, but presently the Courts appear steadfast in their approach, despite being more willing to adopt a generous approach to expanding duties in other areas of life, i.e. employment situations. There are very good arguments why the Courts should continue with this. If the duty is expanded it will likely open the floodgates alongside putting clinicians in terrible positions where there is a conflicting duty to their patient's wishes for confidentiality, against a competing demand of others. We, however, await the outcome of ABC with interest.