Negligence, Genetics and Families A Duty To Disclose Actionable Risks, Fay, Michae

DATE DOWNLOADED: Wed Sep 13 00:32:59 2023
SOURCE: Content Downloaded from HeinOnline
Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.
Bluebook 21st ed.

Michael Fay, Negligence, Genetics and Families: A Duty to Disclose Actionable Risks,
16 MED. L. INT'l 115 (2016).
ALWD 7th ed.

Michael Fay, Negligence, Genetics and Families: A Duty to Disclose Actionable Risks,
16 Med. L. Int'l 115 (2016).
APA 7th ed.

Fay, M. (2016). Negligence, genetics and families: duty to disclose actionable risks.
Medical Law International, 16(3-4), 115-142.
Chicago 17th ed.

Michael Fay, "Negligence, Genetics and Families: A Duty to Disclose Actionable
Risks," Medical Law International 16, no. 3-4 (September - December 2016): 115-142
McGill Guide 9th ed.

Michael Fay, "Negligence, Genetics and Families: A Duty to Disclose Actionable Risks"
(2016) 16:3-4 Med L Int'l 115.
AGLC 4th ed.

Michael Fay, 'Negligence, Genetics and Families: A Duty to Disclose Actionable Risks'
(2016) 16(3-4) Medical Law International 115
MLA 9th ed.

Fay, Michael. "Negligence, Genetics and Families: A Duty to Disclose Actionable
Risks." Medical Law International, vol. 16, no. 3-4, September - December 2016, pp.
115-142. HeinOnline.
OSCOLA 4th ed.

Michael Fay, 'Negligence, Genetics and Families: A Duty to Disclose Actionable Risks'
(2016) 16 Med L Int'l 115 Please note: citations are provided as a
general guideline. Users should consult their preferred citation format's style
manual for proper citation formatting.
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
MEDICAL LAW
Article INTERNATIONAL
Medical Law International

2016, Vol. 16(3-4) 115-142
Negligence, genetics andK)TeAtos)21 @The Author(s) 2016
Reprints and permission:
sagepub.co.ukl/journalsPermissions.nav
DOI: 10.1177/0968533216664113
actionable risks journals.sagepub.com/home/mli
OSAGE
Michael Fay
Keele University, UK
Abstract
Genetic testing can reveal information significant to patients' relatives. This familial
aspect raises an important question: should clinicians owe a duty to disclose genetic risk
to patients' blood relations? In ABC v. St George's Healthcare NHS Trust and Smith and
Another v. University of Leicester NHS Trust, the High Court rejected claims by relatives
regarding genetic information. Both cases are being appealed. The High Court's analysis
of duty was restrictive; foreseeable harm and proximity thus far receiving minimal
scrutiny. A detailed analysis indicates harm and proximity are important in defining the
scope of a duty. The foreseeable harm is argued as medically actionable genetic condi-
tions. Proximity could be demonstrated by claimants establishing themselves as identi-
fiable victims of non-disclosure that ought to be in defendants' contemplation as so
affected. It is also argued a duty is not prohibited by the policy reasons relied upon in
ABC: incremental development, confidentiality, a right not to know and psychiatric harm.
Keywords
Disclosure, duty, family, genetics, negligence, risks
Introduction
Genetic information is increasingly becoming a source of litigation before the courts of
England and Wales. In 2015, the High Court was presented with the case of ABC v. St
George's Healthcare NHS Trust;' in 2016, it has decided Smith and Another v.
1. [2015] EWHC 1394 (QB).
Corresponding author:
Michael Fay, School of Law, Keele University, Keele ST5 5BG, UK.
Email: m.fay@keele.ac.uk
II 6 Medical Law International 16(3-4)
University ofLeicesterNHS Trust.2 ABC involved a diagnosis of Huntington's disease, a

neurodegenerative genetic disorder.3 The claimant's father was convicted of the man-
slaughter of his wife (her mother) on grounds of diminished responsibility and sentenced
to a hospital order under the Mental Health Act 1983. He was diagnosed with
Huntington's disease 2 years later but refused to allow this information to be com-
municated to his daughter, who was pregnant at the time. The claimant argued non-
disclosure was negligent; had her father's condition been disclosed she would have
undergone testing and, after receiving a positive result, aborted her pregnancy.
Smith concerned adrenoleukodystrophy (ALD) 4 and genetic information that may
have resulted in better outcomes for the claimant's brothers, one of whom had died.
This case went further than ABC. ABC concerned genetic information the defendant
possessed; in Smith, the claimants alleged negligence because of a failure to con-
duct a test on their second cousin, which would have expedited diagnosis of his
suffering the adult version of ALD. This diagnosis would have been disclosed,
facilitating screening of the wider family, prompting earlier diagnosis and poten-
tially better outcomes for the claimants.
A conundrum is posed by genetic information. Parents impart genes - the fundamen-
tal unit of hereditary - to their children. Consequentially, descendants from a common
gene pool share a percentage of their genetic heritage, which can include deleterious
genetic traits. Thus, 'faulty' genes can promulgate through generations of a family;
though it is important to recognize genetic information is not a unitary class of infor-
mation. 6 This shared heritage is significant when an individual undergoes genetic test-
ing. A person's results simultaneously reveal information about them and their family.
For example, if a patient possesses BRCA1 gene mutation - increasing their risk of breast
cancer by 50-80% - the chance of their parents, siblings and children also possessing the
mutation is one in two. Huntington's disease likewise has a one in two chance of
transmission and is almost 100% penetrant;" ALD is an X-linked disorder, also with a
9
one in two chance of transmission.
2. [2016] EWHC 817 (QB).

3. Huntington's affects muscle coordination and leads to mental decline and behavioural
symptoms.
4. Adrenoleukodystrophy destroys myelin, which acts as a protective sheath around neurons,
nerves responsible for muscle control and thought. It effects concentration, can cause
seizures, blindness, deafness, loss of muscle control and progressive dementia.
5. Adrenomyeloneuropathy.
6. There are differences in predictability between monogenic (single gene) and polygenic
(multi-gene) disorders and multifactorial conditions (which involve the interrelations of a
genetic predisposition with external factors). However, the position adopted here is that
medically actionable genetic risks should be disclosed and a rigid distinction between the
different types of genetic disorders is not argued for.
7. BRCA mutations are examples of dominant inheritance.
8. Meaning the phenotype is virtually certain to manifest.
9. An X-linked disorder is associated with the X chromosome. These primarily occur in males.
A woman receiving the faulty gene is usually an asymptomatic carrier, as in Smith. This is to
Fay S117
The presence of a deleterious gene in a patient is therefore indicative of the prospec-

tive health of blood relations. A clinician possessing genetic information is thus aware of
risks pertinent to both their patient and that patient's family. The question is: how should
this information be treated? A paradigm of confidentiality is problematic; confidentiality
is traditionally premised on information being relevant only to the patient, which is
categorically not true of genetic information. Confidentiality is not absolute, a breach
can be justifiable if it is in the public interest,10 but the traditional paradigm does not
recognize relatives' interests in genetic information. It is argued these deserve recogni-
tion and an appropriate way of doing so is a common law duty to disclose."
The High Court in ABC and Smith resisted attempts to use negligence to protect
familial interests in genetic information, striking out both claims and confirming com-
mentators' predictions that only a 'slim chance' exists of English law imposing a duty to
disclose. 1 2 This resistance is an opportunity missed. With ABC scheduled for substantive
appeal in March 2017,13 the Court of Appeal has an opportunity to accept the claimant's
application and allow full consideration of a duty to disclose at trial. The position of
blood relations is an important issue with genetic testing increasingly part of mainstream
healthcare and further incorporation of genomic medicine within the National Health
Service (NHS) inevitable. 14 Increasingly inexpensive methods of sequencing human
genomes are being continually sought, thus genetic information is becoming more
accessible." To provide a sense of the tumbling figures, the estimated cost of the Human
be contrasted with dominant disorders, which occur when one copy of a faulty gene is present
in a pair of chromosomes, and recessive disorders that require two copies of a faulty gene in a
pair of chromosomes. Recessive disorders typically have a one in four chance of affecting an
individual and a one in two chance of that person being an asymptomatic carrier.
10. Wv. Egdell [1990] Ch 359, CA.
11. M. Fay, 'Informing the Family: A Geneticist's Duty to Disclose Genetic Risks to Relatives of
the Proband', Journal of ProfessionalNegligence 27(2) (2011), p. 97.
12. R. Gilbar and C. Foster, 'Doctor's Liability to the Patient's Relatives in Genetic Medicine',
Medical Law Review 24(1) (2015), pp. 112-123; G. Laurie, Genetic Privacy:A Challenge to
Medico-legal Norms (Cambridge: Cambridge University Press, 2002), p. 270; M. Brazier,
'Do No Harm - Do Patients have Responsibilities Too?', CambridgeLaw Journal65 (2006),
p. 397, 413; R. Mulheron, Medical Negligence: Non-patients and Third Party Claims
(Ashgate, Farnham: 2010), p. 134. Cf. Fay, 'Informing the Family'.
13. Smith, 22.
14. Human Genomics Strategy Group, Building on Our Inheritance: Genomic Technology in
Healthcare(London: Department of Health, 2012); House of Lords Science and Technology
Committee, Genomic Medicine (London: HMSO, 2009); BBC News, 'Newborn screening to
be extended in pilot study' 8 April 2012; Royal Brompton & Harefield NHS Foundation
Trust, "'Next Generation" Gene Sequencer to determine the genetic links of heart disease',
Available at: http://www.rbht.nhs.uk/media/press-releases/archive/gene-sequencer-to-
determine-the-genetic-links-of-heart-disease/(accessed 15 November 2010).
15. The development of cheaper sequencing techniques has been highly incentivized. The
Archon X-Prize offered a US$10,000,000 prize to the first company that could sequence
100 genomes in 10 days for US$10,000 or less: BBC News 'US$10 m prize for super genetic
test', 4 October 2006. A further US$10,000,000 prize was announced in 2012 requiring the
II8 Medical Law International 16(3-4)
Genome Project is between US$2 billion and US$3 billion; the cost of sequencing James
Watson's genome in 2007 was $1 million; 6 routine sequencing of cancer genomes has
been estimated as costing US$30,000; and, in 2009, a company stated it would be
capable of sequencing entire genomes for US$5000. 17 The US National Library of
Medicine presently identifies the cost of genetic testing as ranging from under
US$100 to in excess of US$2000. 1 In the United Kingdom, private companies offer a
range of genetic test costing from £720 to £2150.19 As testing becomes increasingly
inexpensive and commonplace, the legal position of blood relations grows ever more
critical.
This article will challenge the High Court's rejection of a duty to disclose and propose
how a duty to disclose genetic risks could be developed through the tort of negligence. It
will argue a duty to disclose is an incremental development of pre-existing principles of
negligence. It will also offer a definition of what harm is foreseeable if deleterious
genetic traits are not disclosed and argue that sufficient proximity can be established
between clinician and family members, drawing upon caselaw from the United Kingdom
and United States. Both harm and proximity were conceded as demonstrable in ABC,
while the defendant was prepared to proceed on the basis injury was reasonably foresee-
able in Smith. Thus the caselaw has yet to fully analyse the elements of the Caparo2 0 test
in the context of genetic non-disclosure; this lacuna is critical because what harm is
reasonably foreseeable and who is sufficiently proximate will shape the scope of any
duty. Finally, this article will argue the policy reasons cited in ABC as to why a duty was
not fair, just and reasonable 21 do not prohibit an obligation to blood relations.
A radical or incremental development?

In ABC and Smith, it was argued a duty to patients' relatives was a significant extension
of a doctor's obligations and 'contrary to the incremental way in which the law of
negligence ought to progress'.2 2 In Smith, the claimant relied on Selwood v. Durham
County Council,2 3 which involved non-disclosure of a risk of physical violence, but
genomes of 100 centenarians tobe sequenced in 30 days at a cost no greater than US$1000 a
genome: BBC News 'Genetic entrepreneur to compete in genomics X prize', 24 July 2012.
16. P. Aldhous, 'Genome Sequencing Falls to US$5000' New Scientist (6 February 2009).
17. Op. cit.
18. US National Library of Medicine, Genetic Home Reference, 'What is the Cost of Genetic
Testing and How Long Does it Take to Get the Results', Available at: https://ghr.nlm.nih.
gov/primer/testing/costresults (accessed 14 June 2016).
19. See GeneHealth UK. Available at: https://www.genehealthuk.com/cancer-genetic-testing-
prices (accessed 1 July 2016).
20. Caparo v. Dickman [1990] 2AC 605, HL. The test requires foreseeable harm, proximity and
a duty to be fair, just and reasonable.
21. Broadly, these were confidentiality, a right not to know and a potential for psychiatric harm.
22. ABC, 13.
23. [2012] EWCA Civ 979.
Fay I 19
McKenna J rejected the analogy because he considered the factual matrix very differ-
ent. 24 In ABC, the claimant unhelpfully relied on A v. East Kent Hospitals University
NHS FoundationTrust25 and Angela P v. St James and Seacroft University HospitalNHS
Trust,2 6 which both involved doctor-patient duties, not duties to non-patient third par-
ties. These cases did not provide 'a springboard or stepping stone to the very different
duty' the claimant was contending.27 Both judges considered the duty an example of a
giant step that Lord Toulson in Michael v. Chief Constable of South Wales Police
contrasted with the proper development of negligence. 28
It is, however, possible to cast doubt on this point of view. As Lord Toulson accepted
in Michael, incremental analogy is only a part of the analysis. Giant steps are not
categorically excluded because it may be that an 'earlier limitation is no longer logically
or socially justifiable'. 2 9 However, the emphasis his Lordship places on incrementalism
means inferences regarding possible giant steps in the development of negligence must
be drawn cautiously. The claimant in ABC also relied on unhelpfully weak caselaw,
while the analysis of Selwood in Smith was frustratingly superficial, focusing on the
factual matrix.
A point overlooked in ABC is that negligence already deals with non-disclosure.
These disputes occur within a doctor-patient relationship and flow from an act analogous
to that alleged as negligent in genetic non-disclosure: a failure to warn of a risk of harm.
The recent Supreme Court ruling in Montgomery v. LanarkshireHealth Board3 0 held
doctors owe a duty to disclose material risks to patients; material risks are ones which
in the circumstances of the particular case, a reasonable person in the patient's position
would be likely to attach significance to the risk, or the doctor is or should reasonably be
aware that the particular patient would be likely to attach significance to it. 31
The Montgomery duty is 'understood, within the traditional framework of negligence,

as a duty of care to avoid exposing a person to a risk of injury which she would otherwise
have avoided'. 32 An argument for extension by analogy may be advanced on the basis a
failure to warn of known risks is already subject to a duty in tort; extending the duty to
blood relations directly affected by those same risks might therefore be an incremental
development. But this argument is problematic because patient and relatives' claims may
be sufficiently distinct to not be analogous. Non-disclosure within a pre-existing rela-
tionship is not necessarily on all fours with non-disclosure to parties beyond that rela-
tionship. An alternate perspective is that patient claims focus on negligently obtained
24. Smith, 27.

25. [2015] EWHC 1038 (QB).
26. [2001] EWCA Civ 560.
27. Smith, 25.
28. [2015] UKSC 2, 102.
29. Op. cit.
30. [2015] UKSC 11.
31. Op. cit., 87.
32. Op. cit., 82.
I120 Medical Law International 16(3-4)
consent; non-disclosure of genetic information concerns a failure to disclose a risk.

However, both duties involve the non-receipt of information that would have altered a
claimant's conduct, casting at least some doubt on whether these claims are completely
distinct.
But if relying on doctor-patient claims is problematic, support for the incremental
nature of a duty to disclose must be drawn from elsewhere. ABC was the first UK
decision on tort and genetics but negligence has been applied to disclosure in other
circumstances. In the United States, a duty to disclose to non-patients in defined cir-
cumstances has developed following the seminal judgement of Tarasoffv. The Regents
of the University of California.3 3 Significantly, post-Tarasoff caselaw has addressed
issues of tort, disclosure and genetic information. But though a duty to disclose to
non-patient third parties has been developed, American tort law has not devalued con-
fidentiality.3 4 US caselaw is therefore a useful comparator, and an instructive steer, when
considering how English law could recognize a duty to disclose genetic information.
Tarasoff concerned the murder of the claimant's daughter by her ex-lover, a former
psychiatric patient of the defendants. During his treatment, he had repeatedly intimated an
intention to kill the victim upon release, but no attempt was made to disclose the threat he
posed. The Supreme Court of California upheld a duty to wam the victim, stating that when a
medical professional determined a patient presented a serious dangerto another 'he incurs an
obligation to use reasonable care to protect the intended victim against such danger'.35
A Tarasoffscenario has yet to be litigated in the United Kingdom, though analogous
circumstances arose in Palmerv. Tees Health Authority.3 6 The claimant's daughter had
been abducted and murdered by a former patient of the defendants, who previously
confessed during therapy to having sexual feelings towards children. The patient was
released as an outpatient but persistently failed to attend hospital appointments. He also
resided in the same street as his victim. However, the Court of Appeal found insufficient
proximity between the parties. The victim was perceived to be at no greater risk than any
other child, placing her within a potentially indeterminate class of 'at risk' individuals.
Stuart-Smith LJ suggested it was 'at least necessary for the victim to be identifiable . .
to establish proximity' since a duty could not otherwise be discharged because the
defendant would not know who to warn.37 He was, however, careful to hold back his
position on identifiable victims. 3 8 Pill LJ thought there was force in the argument that
knowledge of the victim's identity should not determine whether a duty exists, but 'the
extent and measures necessary to discharge it'. 3 9 Yet if knowledge of a victim's identity
is not determinative, it must very strongly inform the fundamental question 'who, then,
in law is my neighbour?' 40 When a defendant knows of a risk directed at a specific
33. 529 P 2d 55 (Cal. 1974), 551 P 2d 334 (Cal. 1976).

34. People of the State of New York v. Robert Bierenbaum, Indictment #8295/99.
35. Op. cit., 431.
36. [2000] PIQR Pl.
37. Op. cit., 12-13.
38. Op. cit.
39. Op. cit., 19.
40. Donoghue v. Stevenson [1932] AC 562, per Lord Atkin at 580.
Fay I2I
individual (or finite class), it follows that person(s) are closely and directly affected by
non-disclosure and ought reasonably to be in the defendant's contemplation as being so
affected.4 1
Palmermay be distinguished from the US decision in Tarasoffbecause it involved an
indeterminate class, making a duty to disclose extremely difficult to discharge because
the defendant would not know who to warn. Rejection of a duty on these facts, however,
may not be inconsistent with American doctrine. In another US judgement, Thompson v.
County of Alameda,42 a juvenile offender was temporarily released into his mother's
custody and murdered a young boy. The offender previously told his doctors he would
kill one of the children living in his neighbourhood if released, but never identified a
specific victim, only geographical proximity. In a conclusion somewhat analogous to
Palmer, the Supreme Court of California held a duty to warn could not be owed to an
unidentifiable victim, even if it was known from what locality they would be drawn. The
victim was not identifiable, and proximity was not established, by virtue of his residence
in a specified location. Similarly, the victim in Palmer was not proximate merely
because she resided in the same street as her killer.
Thompson and Palmer might appear at odds with an earlier American decision,
Durflinger v. Artiles,4 3 where a duty to warn was owed to a class of victims. But
Durflinger only extended the duty to an identifiable group - in this instance, a family
unit known to be at risk from the perpetrator - not a subset of the wider public (e.g.
children). The distinction is pragmatic, reflecting the practicability of discharging a duty.
A threat directed against an identified victim(s) means doctors can discharge their
obligation by warning that person(s), whereas a threat to murder a child resident in
London makes the duty potentially impossible to discharge. It is possible that if the
claimant's daughter in Palmer had herself been identified, a duty to warn may have
arisen.
The suggestion an identifiable victim would have succeeded in Palmeris leant further
credence by Bromley v. United Kingdom44 and K v. Secretary of State for the Home
Department.4 5 In K, Smith J dismissed a pre-action application for disclosure under the
41. Op. cit.

42. 614 P 2d 728 (Cal. 1980).
43. (1984) 727 F 2d 888.
44. (Unreported) ECHR 23 November 1999. The claimant's daughter was murdered by a man
who had failed to return to prison after home leave. It was alleged the prison service were
negligent in permitting home leave and by failing to capture the prisoner after he absconded.
The domestic court struck out the claim as the claimant's daughter was an ordinary member
of the public, chosen at random by her murderer, and thus the claimant could not establish
either foreseeability or proximity. It was held that the court's decision to strike out the claim
on these grounds did not amount to a violation of Article 6 ECHR.
45. [2001] CP Rep 39. A man detained subject to a deportation order, who had a history of
violent and sexual offences, was inexplicably released into the community and raped the
claimant at knifepoint at the premises where she worked as a cleaner. The claimant brought
an action against the Secretary of State, alleging that the offender's release and the failure to
discharge his deportation order amounted to negligence and a breach of duty.
Civil Procedure Rules, explaining the claimant could not demonstrate the defendant
'should have been any more aware of her, as a potential victim ... than any other
member of the public'. 46 Holland J agreed at first instance 'the claimant could not be
identified as a potential "victim" and consequently was outwith the proximity that is a
key element of a duty of care situation'. 47 In the Court of Appeal, Laws LJ appeared to
imply that an identifiable victim might have succeeded. He explained that in cases
involving third parties
the law in principle looks for a 'special relationship' between claimant and defendant before
it will find a duty of care ... [Where] the damage which the claimant suffers is directly
occasioned by the defendant's acts or omissions, such a nexus will generally be taken to be
present ... [otherwise] the nexus will have to be found on the particular facts. 48
The 'particular facts' his lordship alludes to must logically include where the identity
of the claimant is known in advance, suggesting in such cases a court might find a 'true
nexus' between the claimant and the defendant. 49 Laws LJ further explained a defendant
is not the 'world's insurer' against general danger from a third party,o implying a
potentially different outcome where the danger is specific. However, in contradiction,
he cited Pill LJ's comments regarding the identity of the victim in Palmer, before
acknowledging proximity depends on the facts pleaded;" it is argued knowledge of the
victim's identity is important in establishing neighbourhood. Arden LJ also suggested an
identifiable victim might succeed when he said proximity cannot be established by
showing knowledge on the part of the respondent 'of a glaring danger to the public'.52
A duty to disclose to an identifiable victim a risk to their physical integrity potentially
arose in Selwood. The case possesses some similarities to Tarasoffand was relied upon
by the claimants in Smith.5 3 The claimant was a social worker for the local authority,
which collaborated closely with two NHS trusts to provide integrated social care and
mental health services. The claimant was assigned a case concerning a young girl whose
father suffered from mental health problems and had a history of violent behaviour. The
father was a patient of the NHS trusts and, during treatment, told his doctors that he
wished to harm the social worker involved in his daughter's case. He later stated he
would 'kill her on the spot' if he saw her. Despite the severity of the threat and the
patient's history of violence, neither the claimant nor her employer was apprised. When
the patient was temporarily discharged from hospital, he attacked the claimant with a
knife, inflicting serious injuries. The claimant sued her employer and the NHS trusts in
negligence, but it was held at first instance neither trust owed her a duty of care in respect
46. K v. SOS Home Department.

47. (Unreported) 3 May 2001, 9.
48. [2002] EWCA Civ. 775, 26.
49. Op. cit., 30.
50. Op. cit., 29.
51. Op. cit.
52. Op. cit., 35.
53. Smith at 27.
Fay 123
of the actions of a third party. The Court of Appeal allowed the claimant's appeal and
sent the matter to trial. Dame Smith concluded the judge at first instance had erred,
explaining the 'appellant was not one of the world at large; she was one of a small
group of social workers, working in close proximity and cooperation with the second
and third defendants' own employees'. 5 4 The claimant's membership of a finite group
meant she occupied a 'special position'. The claimant argued she was owed a duty
because she occupied a position of quasi-employment with the NHS because of
collaborations with Durham Council. However, as the specific target of threats, the
claimant might also be attributed the label of identifiable victim and comparisons
drawn with the murder victim in Tarasoff Dame Smith concluded it was open to a
trial judge to decide whether a duty was fair, just and reasonable, noting 'the point is
arguable'. 6 Certainly a view can be formed that the NHS trusts owed a duty because
the trusts (and only the trusts) were in a position to take the most effective precaution:
to issue a warning to the identified victim and her employer. This is a contrast to
Palmer where a warning could not be given because the victim was one of an
indeterminate class.
Analogous caselaw can therefore be put forward suggesting a duty to disclose is an
incremental as opposed to radical development. But in ABC and Smith, the High Court
indicated policy considerations had previously led to a refusal 'to impose a duty to on
clinicians to identifiable third parties'. The judges relied upon X v. Bedfordshire
County Council 59 and D v. East Berkshire NHS Trust,60 both involving claims for
psychiatric injury by parents wrongfully suspected of child abuse. The parents' claims
failed, 'the courts accepting the contention that clinicians should not face conflicting
duties'.6 1 The House of Lords in D identified that when abuse is suspected, 'a doctor
must be able to act single-mindedly in the interests of the child ... [not] have at the back
of his mind an awareness ... he may be exposed to claims by a distressed parent'. 62 The
intention was to 'protect weaker members of society (children) from harm done to them
by others', 63 thus parents wrongly suspect of abuse were owed no duty as it conflicted
with the relevant statutory social welfare scheme.
In ABC, it was noted that considerable stress was laid on the danger of creating
conflicting duties, implying an analogy between the conflicts in X and D and patient
confidentiality and disclosure to non-patients. But confidentiality is not absolute and
54. Selwood., 456.

55. Op. cit.
56. Op. cit.
57. Selwood was eventually settled out of court: 'Social Worker Who Nearly Bled to Death After
Being Stabbed by a Psychiatric Patient Who had Warned He Would Kill Her if Released
from Hospital Wins Compensation Battle' Daily Mail, 25 March 2014.
58. Gilbar and Foster, 'Doctor's Liability', p. 116.
59. [1995] 2AC 663.
60. [2005] 2AC 373.
62. D, per Lord Nicholls, 85.
63. X, per Lord Browne-Wilkinson, 751.
doctors can be subject to conflicting duties regarding information.64 Thus, an analogy

with X and D is problematic. Furthermore, parents were only owed no duty when they
were the suspected abuser, a duty has been imposed when the interests of parents and
children are similar, that is, when the abuser is a third party.6 ' The argument follows that
where relatives share the same interest in 'reducing the risk of developing hereditary
diseases, ensuring early diagnosis, and making informed decisions' the duties to patient
and relatives are not necessarily in conflict.6 6
Gilbar and Foster propose another line of judgements are 'a better parallel to the case
of ABC' than D and X.6 The cases concerned the legal duty on local authorities and
clinicians to disclose information about foster children's behavioural problems and
histories of violence to potential foster and adoptive parents.6 8 The justification for
disclosure is to allow informed decision-making and allow the taking of 'measures to
avoid the risks of harm the child may create'. 69 In W & Others v. Essex County
Council,70 a 15-year-old boy placed in the claimants' household by the defendant
sexually abused his foster parents' biological children. The parents had previously stated
they would not foster any child suspected of, or known to commit, sexual abuse and the
defendant provided assurances no such child would be placed with them. However, the
defendant failed to disclose the boy had been cautioned for indecent assault and was
being investigated on suspicion of rape. This failure meant the foster parents could not
take measures to avoid risks of physical and psychiatric harm.
The local authority accepted the abused children had an arguable claim but applied to
strike out the parents claim for psychiatric injury. There are two points regarding the
case: first, the position of the biological children might be analogous to the US case of
Durflinger, in that they were identifiable victims of the local authority's non-disclosure.
Their abuser resided with them at the defendant's behest. Had the boy's history been
disclosed, the victims' parents could have obviated the risk by refusing to foster the
child. Furthermore, unlike Palmer, the defendant could have exercised the most effective
precaution because they knew to whom to disclose. Second, the local authority and
clinicians are subject to conflicting duties: the child's confidentiality and a duty to
disclose to the foster family. Here confidentiality is restricted insofar as is necessary
to prevent harm to others. This logic applies to genetic information: the confidentiality of
a patient yielding insofar as is appropriate to avoid or minimize harm to blood relations.
Generally 'people may be subject to a number of duties, at least provided that they are
not irreconcilable'. 7 1 Therefore a clinician can potentially owe a duty to a third party,
providing the duty's 'scope is not similar to the scope of the duty the clinician owes to the
64. W v. Egdell.
65. Gilbar and Foster, 'Doctor's Liability', p. 117. See also Merthyr v. Tydfil CBC v. C [2010]
EWHC 869, QB.
66. Op. cit.
67. Op. cit.
68. Op. cit. See also Lambert v. Cardiff CC [2007] EWHC 869.
69. Op. cit.
70. [2001] 2 AC 592 (HL).
Fay I125
patient and . . does not depend on the duty the clinician owes to the patient'. 72 As
Gilbar and Foster argue, '[t]his would seem to apply in the context of genetic medicine,
where the scope of the clinician's duty to relatives is very specific and limited'. 73
A duty to disclose genetic risks is therefore argued as an incremental development of
negligence rather than a giant step. The cited caselaw suggests that parallels exist
certainly to the case of ABC, if not Smith, where a central pillar of the claim was a
failure to conduct a diagnostic test. The Court of Appeal was careful to withhold whether
an identifiable victim would have succeeded in Palmer, but Selwood suggest persons in a
special position may be owed a duty to disclose. These cases may act as a springboard for
a duty comparable to that articulated in the American judgement of Safer v. Estate of
Pack.74 Here the claimant discovered her father had died from retroperitoneal cancer, a
condition she was undergoing treatment for. The condition was hereditary and it was
contended such was known at the time the defendant was treating the claimant's father. It
was alleged the doctor was required 'to warn those at risk so that they might have the
benefits of early examination, monitoring, detection and treatment, that would provide
opportunity to avoid the most baneful consequences of the condition'. The court
concluded:
We see no impediment, legal or otherwise, to recognizing a physician's duty to warn those

known to be at risk of avoidable harm from a genetically transmissible condition.7 6
Safer has been superseded by the New Jersey Genetic Privacy Act, which prohibits
disclosure of genetic information without consent of the individual. However, the
Genetic Privacy Act only prohibits disclosure of the identity of the patient undergoing
a test or disclosure of information in a manner that permits identification. Thus, the
decision in Safer may continue to be relevant where genetic information is disclosed
without permitting identification. 78 The Federal Health Insurance Portability and
Accountability Act Privacy Rule (effective since 2003) also raises questions about the
continued applicability of Safer, but disclosure continues to be permitted where it is in
the public interest or required by law.7 9 Safer may therefore continue to have a role to
play in American doctrine.
Importantly, the paucity of litigation in the United Kingdom addressing genetic
information and the family means Safer is an invaluable (if only persuasive) precedent
regarding a duty to disclose genetic risks.
72. Op. cit. See also Merthyr, 31.

73. Op. cit.
74. 677 A 2d 1188 (New Jersey Superior Court Appellate Division 1996).
75. Op. cit., 623.
76. Op. cit., 626.
77. New Jersey Genetic Privacy Act, C10:5-47.
78. See G. Suthers et al., 'Letting the Family Know: Balancing Ethics and Effectiveness when
Notifying Relatives about Genetic Testing for a Familial Disorder', Journal of Medical
Genetics 43 (2006), p. 665.
79. HPIAA Privacy Rule, 45 CFR ss164.512; 45 CFR ssl64.512(a).
A duty to disclose
If a duty to disclose is an incremental development of negligence, the next question is
can a duty be established using the three-part test in Caparo. Foreseeable harm was
conceded in both ABC and Smith, while proximity was also conceded in ABC, but this
article will examine how these aspects of duty could be argued either on appeal or at full
trial. Exclusion of these criteria from the analysis in ABC and Smith was unhelpful
because foreseeable harm and proximity will be instrumental in shaping the scope of
any duty. What harm is foreseeable will define the scope of liability in respect of the
range of possible interferences caused by non-disclosure; proximity will draw bound-
aries in respect of who is owed a duty of care. These concepts are influenced by policy
considerations, thus it is also important to consider the arguments advanced in ABC as to
why a duty was not fair, just and reasonable. It is argued here that on full analysis of the
duty concept, the claimant's application in ABC is arguable - although the intractable
nature of Huntington's is problematic - but the rejection in Smith was correct.
Foreseeable harm
Negligence is actionable upon proof of harm; it 'completes the cause of action'.so The
first question in establishing a new duty is what is the foreseeable harm a defendant
should owe a duty against? Harm can take the form of a setback to a variety of interest,
common examples in negligence including physical, psychiatric and financial. At the
duty stage, foreseeability of harm is important as a threshold concept, for 'without it
there is no need to go further because no duty of care will be owed'. Injury must
therefore surpass a minimum threshold; Stapleton labels this minimum 'gist damage'. 8
2
Recovery is not restricted to the gist damage but it forms the nub of the action. Thus
physical injury may be gist damage - that is, a broken leg - but consequential financial
losses and mental and emotional trauma are also compensable.
Chico 83 and Brownsword8 4 have attempted to define gist damage in relation to a
range of potential tort claims. Chico proposes the courts recognize autonomy as a new
head of damage and this would form the gist of claims, while Brownsword advances an
interest in human dignity as a basis for genetic torts. Both autonomy and dignity enjoy
limited recognition in negligence, thus a cautionary approach to definitions of harm
based on self-determination is necessary. A further criticism is the focus of these for-
mulations of harm on self-determination rather than physical and psychiatric burdens of
80. D. Nolan, 'New Forms of Damage in Negligence', Modern Law Review 70(1) (2007), pp.
59-88, 59; see also V. Chico, Genomic Negligence: An Interest in Autonomy as the Basisfor
Novel Negligence Claims Generatedby Genetic Technology (London: Routledge-Cavendish,
2011); J. Stapleton, 'The Gist of Negligence', Law QuarterlyReview 104 (1988), p. 213.
81. C. Whitting, Street on Torts. 14th ed. (Oxford: OUP, 2015), p. 37.
82. Stapleton, 'Gist of Negligence'.
83. Chico, Genomic Negligence.
84. R. Brownsword, 'An Interest in Human Dignity as the Basis for Genomic Torts', Washburn
Law Journal 42 (2000), p. 413.
Fay I27
genetic disorders. If compensation were awarded when a claimant's ability to choose is

frustrated, the damages may not recognize the debilitating effects of a condition." The
disease eventuating is arguably more damaging than restricting the ability to exercise choice.
It is 'well recognised that the interest which the law of negligence protects is a
person's interest in their own physical and psychiatric integrity'. 6 A duty to guard
against harms to these recognized interests has a greater chance of success than one
requiring a new head of damage. The question is what physical or psychiatric harm is the
gist of a non-disclosure claim. The claimant in ABC argued wrongful birth, psychiatric
injury and economic loss in the event her daughter had Huntington's disease. In Smith,
harm was the inability to receive earlier diagnosis and treatment. This article will not
consider economic loss. In relation to wrongful birth, the authorities show the birth of a
healthy child is not harm, 8 7 although an award can be made in recognition of the
frustration of reproductive autonomy. 88 The question is whether a child with a late onset
disorder could possibly fall within the scope of caselaw on the birth of unhealthy
children.8 9 The problem with such is children are not routinely tested for late onset
disorders. Thus a claimant must show harm to herself; therefore, the assertion in ABC
of psychiatric harm is crucial, although whether it is sufficient to form the gist of an
action is unclear as no evidence of a recognized psychiatric disorder was submitted. In
Smith, the harm was physical: the death of one brother, the baneful consequences of the
ALD experienced by the other.
It has been argued a genetic condition is not harm because 'the HCP in no way causes the
condition from which the relatives might suffer'. 90 In plain terms, non-disclosure does not
cause the condition; it is caused (or influenced) by the claimant's genome. This logic initially
appears compelling but it fails to address that foreseeable harm is not necessarily dependant on
being caused by a defendant's conduct. A useful analogy can be lifted from the case of
SAAMCO, where Lord Hoffmann discussed the example of a mountaineer recuperating from
an injury to his leg. 91 Imagine a physician negligently fails to disclose a weakness in the
mountaineer's leg and he is injured while climbing because his leg collapses. If treatment is
presumed not to be negligent, it cannot be said the doctor caused the weakness in the leg, but
the injury sustained as a result of that undisclosed weakness forms the crux of an action in
negligence. The eventuating risk that could have been minimized by disclosure constitutes the
85. A limitation strongly alluded to by Rees, where a conventional sum of £15,000 was awarded
in recognition of an interference with reproductive autonomy. Arguably the award did not
reflect the 'burdens' of the negligent sterilization.
86. Montgomery, per Lady Hale, 108. Lady Hale also noted 'an important feature of [a person's
physical integrity] ... is their autonomy, their freedom to decide what shall and shall not be
done with their body', suggesting that autonomy is not necessarily a freestanding interest but
incorporated into the established interest in physical integrity.
87. McFarlane v. Tayside Health Board [2000] 2AC 59.
88. Rees v. DarlingtonMemorial Hospital NHS Trust [2003] UKHL 52.
89. Farrajand Another v. King's College NHS Trust and Another [2009] EWCA Civ 1203.
90. G. Laurie, 'Obligations Arising from Genetic Information - Negligence and the Protection of
Familial Interests', Child and Family Law Quarterly 11(2) (1999), pp. 109-124.
91. South Australia Asset Management Corp v. York Montague [ 1997] AC 191, 213.
gist damage. Substituting the weakness for a treatable genetic condition - say, breast cancer
-
arguably leads to the same conclusion: the doctor does not create the deleterious trait, but non-
disclosure allows it to eventuate. Chester v. Afshar92 illustrates this point.
In Chester, the claimant was exposed to a (statistically slight) risk of spinal injury
in a non-negligent operation. The risk was not disclosed prior to the procedure, it
eventuated, and the claimant successfully recovered for her physical injuries. The
House of Lords tried to characterize the foreseeable harm against which a duty was
owed as a loss of autonomy, which non-disclosure infringed. There is some merit to
this rationale because the purpose of a duty to disclose is 'to enable adult patients of
sound mind to make for themselves decisions intimately affecting their own lives
and bodies'. 93 But the majority might be accused of attempting to make their
decision 'more palatable' 94 by defining harm in terms of autonomy. The reality is
few claims presently succeed in the absence of physical injury. 95 When autonomy is
actionable because physical or psychiatric injury occurs it is that injury, not auton-
omy, that is the gist of the claim.
A genetic disease can thus constitute harm, despite non-disclosure not causing the injury
directly. The negligence in Chesterwas the failure to disclose the risk, the gist of the claim
the non-consensual physical injury. Comparable with the spinal injury in Chester, genetic
diseases are adverse physical outcomes. Where medically treatment is available for a
disease, harm can be 'grounded in the deterrence of outcomes injurious to physical integrity,
which . . [is] uncontroversially protected by the tort of negligence'. 96 Disclosure would
have facilitated access to early diagnosis and treatment, allowing the claimant to avoid or
mitigate the disease's physical consequences. This was essentially the point advanced in
Smith. Where the condition is intractable, as in ABC, the claimant could articulate psychia-
tric injury, but disclosure in the absence of therapy is problematic. 97 Furthermore, psychia-
tric injury from receiving bad news does not typically create liability. 98 A fear of the future
argument may be appropriate where the claimant does not know whether they have passed a
deleterious treat to their children, 99 but such is restrictively provided for.
92. [2004] UKHL 41.

93. Chester, per Lord Bingham at 5.
94. J. Murphy, Street on Torts. 13th ed. (Oxford: OUP, 2012), p. 158.
95. C. Purshouse, 'Judicial Reasoning and the Concept of Damage', Medical Law International
15(2-3) (2015), p. 155. Cf. Rees; J. Coggon, 'Varied and Principled Understandings of
Autonomy in English Law', Health Care Analysis 15(3) (2007), p. 235; T. Keren-Paz,
'Compensating Injury to Autonomy: A Conceptual and Normative Analysis' in K. Barker,
K. Fairweather, R. Grnatham (eds) PrivateLaw in the Twenty-First Century (Hart, Oxford:
forthcoming 2017).
96. Stapleton, 'Gist of Negligence', p. 443.
97. E. Almqvist et al., 'A Worldwide Assessment of the Frequency of Suicide, Suicide Attempts,
or Psychiatric Hospitalization after Predictive Testing for Huntington's Disease', American
Journal ofHuman Genetics 64 (1999), p. 1293.
98. Ravenscroft v. Transatlantic [1991] 3 All ER 73.
99. Group B Plaintiffs v. MedicalResearch Council [2000] Lloyd's Rep Med 161; Grieves v. FT
Everard [2007] UKHL 39.
Fay I29
It is argued here that treatable genetic diseases are the foreseeable harm against which
a duty to disclose guards. It is recognized genetic information is not unitary and pre-
dictability varies between disorders, but it is not argued that courts should draw rigid
distinctions between monogenic, polygenic and multifactorial conditions. 0 0 Harm is
argued as occurring when an undisclosed, clinically actionable risk eventuates.
Further support for this interpretation can be drawn from Birch v. University College
London Hospital NHS Trust,10 1 where the defendants failed to disclose the risk of a
stroke inherent in undergoing a catheter angiogram and the low risk alternative of a
Magnetic Resonance Imaging. The patient suffered a stroke and successfully sued. Like
Chester, the claim hinged on an adverse outcome; no claim would likely have arisen
without physical injury. Again the gist damage was the eventuating risk, which was
inherent in the angiogram, not a result of negligent conduct. The defendants did not
cause the stroke, just as they would not cause a genetic disease. Non-disclosure means a
claimant cannot avoid or minimize risk, the eventuation of said risk the foreseeable harm
against which a duty to disclose guards.
This line of reasoning finds support in cases concerning physical injuries inflicted by
third parties, where the risk of such was not disclosed. In these circumstances, the
defendants do not cause the harm, but a duty arises because the injuries eventuate from
an undisclosed risk. The eventuating risk is again the gist damage. The defendants in the
US decision of Tarasoffnegligently failed to disclose this risk posed by their patient to
his ex-girlfriend. As with Birch and Chester, it was the eventuating risk that was the
foreseeable harm. The patient killed the claimant's daughter, but non-disclosure meant
she could not minimize the danger. Individuals unaware of a genetic risk occupy an
analogous position: harm may be 'minimized by a timely and effective warning'.1 02
The failure to warn of the risk posed by a third party was again at issue in Selwood. The
defendants were not the source of the claimants' injuries, but those injuries were the gist of
the negligence action. Non-disclosure meant the claimant could not avoid or minimize the
risk. Non-disclosures of physical and medical risks are distinguishable in some ways,103
but the gist damage is consistently the eventuating risk. The adverse outcomes about which
claimants could have been forewarned create an action in negligence.
In claim for non-disclosure, foreseeable harm may therefore be the eventuating physical
burdens of a medically actionable genetic disease. US jurisprudence appeared to endorse
this proposition in Safer. The claimant was suffering a hereditary cancer which her father
had also suffered. It was alleged her father's doctor was required 'to warn those at risk so
that they might have the benefits of early examination, monitoring, detection and treat-
ment, that would provide opportunity to avoid the most baneful consequences of the
100. Monogenic conditions are caused by a single faulty gene. Polygenic conditions are caused
by the interrelations of multiple genes. Multifactorial conditions are caused by the
interrelations of genes and external factors.
101. [2008] EWHC 2237.
102. Safer, 1192.
103. Disclosure in Chester and Birch would have assisted the defendants in securing valid
consent, whereas disclosure in Tarasoff and Selwood would have facilitated the personal
safety of the victim.
condition'.1 04 The court concluded circumstances involving genetic conditions were ana-
logous to litigation involving contagious diseaseso' and duties to warn, stating:
In terms of foreseeability especially, there is no essential difference between the type of

genetic threat at issue here and the menace of infection, contagion or a threat of physical
106
harm.
The court did not analyse harm but equating genetic disease with infection, contagion
and physical harm is indicative of the eventuating risks being the gist damage. The
court's reference to 'substantial future harm'1 0 7 reinforces this point. The complaint was
couched in terms of avoiding 'the most baneful consequences of the condition', 08 thus
substantial future harm logically means the physical burdens of the condition.
Bradshaw v. Daniels1 09 further supports this interpretation of harm. A clinician owed
a duty to a patient's wife to warn her of the risks of exposure to the source of her
husband's disease - Rocky Mountain spotted fever.1 1 0 The disease was non-
contagious but the doctor negligently failed to disclose his wife was at the same epide-
miological risk; she later died. The doctor in Bradshaw did not cause the condition, but
he was 'in a position to know of a risk that may not be obvious to others'. Reversing
the appellate court's decision, the Supreme Court of Tennessee concluded it was appro-
priate 'to impose upon a physician an affirmative duty to warn identifiable third parties
in the patient's family against foreseeable risks emanating from the patient's illness'.1 12
The caselaw above demonstrates that eventuating risks can constitute foreseeable
harm though the defendant may not directly cause the injury. Eventuating risks have
stemmed from third parties such as patients and foster children,113 non-negligent oper-
ations,114 non-negligent exposure" and deleterious genetic traits. 1 Undisclosed risks
are foreseeable harm because defendants are 'in a position to know of a risk that may not
be obvious to others'. 1 1 7 Medically actionable genetic diseases are foreseeable harm
against which a duty should guard. Non-disclosure prevents claimants avoiding or mini-
mizing the physical (and potentially psychiatric) burdens of the condition. Safer found
104. Safer, 623.

105. E.g. Bradshaw v. Daniels 845 SW 2d 865 (Supreme Court of Tennessee 1993).
106. Safer, 626.
107. Op. cit.
108. Op. cit., 623.
109. 854 SW 2d 865 (Tenn. 1993).
110. A potentially fatal tick borne disease caused by the bacterium Rickettsia Rickettsii.
111. C. Parker, 'Camping Trips and Family Trees: Must Tennessee Physicians Warn their
Patient's Relatives of Genetic Risks?', Tennessee Law Review 65 (1998), p. 585, 597.
112. Bradshaw.
113. That is Tarasoff Selwood, W v. Others, A v. Essex.
114. Chester, Birch.
115. Bradshaw.
116. Safer.
117. Parker, 'Camping Trips'.
Fay I31I
no essential difference between genetic conditions and infection, contagion or threat of

physical harm;"" it is common to these that harm may be 'minimized by a timely and
effective warning'. 11 9 Disclosing a risk of genetic disease protects physical and psychia-
tric integrity, interests well recognized in tort.
A criticism of foreseeable harm defined as medically actionable genetic conditions is
it will restrict the scope of a duty. If the courts were to accept claims for injury to
autonomy, this may be advantageous in that it might not require an adverse outcome,
only frustration of the ability to choose, enabling recovery in a broader range of situa-
tions. 12 0 If the law were to develop this way, it may indirectly promote more widespread
disclosure of genetic risks. Having to 'wait' for a genetic condition to develop before a
valid claim arises restricts the volume of potential cases. Not every genetic risk even-
tuates, thus blood relations could only litigate in narrow circumstances. But it is neces-
sary to keep negligence within 'the bounds of common sense and practicality'. 12 1
Autonomy enjoys limited protection in negligence, requires a new head of damage, and
expansion may meet resistance because of the volume of claims it could create. Dis-
closures made in the absence of therapeutic response also risk causing psychiatric harm.
If the eventuating genetic disease is foreseeable harm, gist damage is grounded in
physical integrity 'an interest uncontroversially protected by the tort of negligence'. 12 2
Thus, a duty to disclose would be an extension of the protection for an established
interest. This being the case, the claimant in ABC is unlikely to be capable of demon-
strating foreseeable harm because Huntington's disease is intractable.
Proximity
Proximity is established where claimants are 'so closely and directly affected by my acts
that I ought reasonably to have them in contemplation as being so affected'. 12 3 A duty is
not owed to the world at large and traditionally physical closeness or pre-existing
relationships have defined the scope of potential liability. Neither is present in a claim
involving non-disclosure of genetic information and 'it is plainly not sufficient' that a
doctor-patient relationship 'exists between the defendant and [a] third party'. 1 2 4 In ABC,
though proximity was not considered, it is implied the claimant was attempting to
demonstrate a doctor-patient relationship based on engagement in 'family therapy'. 12 5
Establishing a doctor-patient relationship has been beneficial to claimants in previous
cases and, if this was the intent, reliance on A v. East Kent and Angela P make more
sense. But it is problematic to suggest 'the chances of succeeding in a claim depend on
118. Safer, 626.

119. Op. cit., 1192.
120. Chico, Genomic Negligence; Keren-Paz, 'Injury to Autonomy'.
121. Caparo,per Lord Oliver, 633A.
122. Stapleton, 'Gist of Negligence', p. 443.
123. Donoghue, 580.
124. Palmer, 12.
125. ABC, 5.
whether one can be defined as a patient'. 12 6 Such narrowly defines a duty; it also
presumes a bright division between patients and blood relations that may not exist in
this context. 12 7 It is therefore argued that to establish proximity a claimant should not
have to prove something akin to a doctor-patient relationship but that they are an
identifiable victim of non-disclosure, closely and directly affected the failure to warn
and ought reasonably to be 'in contemplation as being so affected'.12 8 A requirement of
an identifiable victim is logically necessary to establish proximity because claims by
unidentifiable victims have already failed before the courts because a duty to warn an
indefinite class is impossible to discharge. 12 9
The concept of an identifiable victim was first explored by the New York Court of
Appeals in Palsgrafv. Long Island Railway Co. 1 3 0 The claimant was injured while
waiting on the defendant's railway platform; the station guards negligently dropped a
box of fireworks on the tracks, which exploded, the resulting shockwave dislodging a set
of scales at the opposite end of the platform, striking the claimant as they fell. One reason
the court dismissed the action was because the claimant was not an identifiable victim of
the negligent act. Cardozo J explained a claimant needs to establish 'the act as to him had
possibilities of danger so many and so apparent as to entitle him to be protected against
the doing of it'. 13 1 The case of Tarasoffrelied on foreknowledge of the victim's identity
to uphold a duty to warn. This analysis was later extended to blood relations of patients
with hereditary diseases in Safer.
A comparable opinion is found in Palmer, Stuart-Smith LJ explaining 'it is at least
necessary for the victims to be identifiable . . to establish proximity'. 13 2 This point is
also implied in Bromley and K v. SoS Home Department. In the latter, Smith J observed
the claimant could not establish the defendant should have been aware of her 'as a
potential victim . . that any other member of the public'. 13 3 In cases involving foster
children, those at risk of harm are identifiable and ought to be in contemplation as so
affected when placing foster children. Selwood referenced the claimant's special rela-
tionship with the defendants, alluding her known identity was relevant. The claimant in
Smith relied on Selwood, but McKenna J rejected the analogy because he considered the
factual matrix distinct. 134 This is a narrow interpretation of Selwood; the case is arguably
an example of an identifiable victim closely and directly affected by an undisclosed risk.
The claimant's contention of quasi-employment status ostensibly influenced McKenna J,
but the US case of Safer provides a riposte. Herein genetic conditions were considered

127. A. Parker and A. Lucassen, 'Concerns for Families and Individuals in Clinical Genetics',
Journalof Medical Ethics 29 (2003), p. 70.
128. Donoghue, 580.
129. Palmer.
130. (1928) 248 NY 339.
131. Op. cit., 345.
132. Palmer, 12.
133. K, per Smith J (accessed online, pp. unavailable).
134. Smith, 27.
Fay I33
135
analogous to infection, contagion and threats of physical harm. Applying this logic,
Selwood is an appropriate case for claimants to rely upon and should not have been so
quickly dismissed on its factual matrix.
Knoppers argues cases like Tarasoff provided limited guidance on genetic non-
disclosure. Where the undisclosed risk is of physical violence, it is the patient's actions
which harm others; in respect of genetics, 'the patient is not putting relatives at risk by
carrying the gene mutation because the relatives already have the mutation or not'. 13 6
Laurie rejects this interpretation, suggesting these duties are analogous because both are
examples of when a defendant 'is privy to important information through the medium of
a patient which could be used to protect third parties from harm'. 1 3 7 The crucial point is
that in both types of claim, the defendant is the only source of a warning other than the
patient themselves.
US tort law supports Laurie's broader interpretation. A duty has been upheld in cases
involving contagiousl38 and non-contagious diseases 13 9 and genetic conditions. In Pate
v. Threlkel,1 4 0 the claimant alleged her mother's doctor was negligent for failing to
disclose her mother's medullary thyroid carcinoma was genetically transmissible. It was
argued non-disclosure prohibited early diagnosis and preventative therapies. The
Supreme Court of California rejected the claim. A clinician did not owe a duty to
disclose genetically transmissible conditions to blood relations. It held requiring clin-
icians 'to seek out and warn various members of a patient's family would often be
difficult or impractical and place a heavy burden upon the physician'. 1 4 1 A comparable
objection was raised in ABC: it was submitted a duty would be burdensome and distract
from treating patients. 142
Safer also concerned non-disclosure of a hereditary risk of cancer. Finding for the
claimant, the court concluded individuals or groups at risk of genetic conditions were
easily identified and substantial future harm 'minimized by a timely and effective warn-
ing'. 143 The doctor was therefore proximate to those relations 'known to be at risk of
144
avoidable harm from a genetically transmissible condition'.
135. Safer, 1192.

136. B. Knoppers et al., 'Professional Disclosure of Familial Genetic Information', American
Journal of Human Genetics 62 (1998), p. 474, 481.
137. Laurie, 'Obligations'.
138. See Edwards v. Lamb 45 A 480, 484 (NH 1899), where liability was upheld for failing to
warn the patient's wife of the risk of infection; Skillings v. Allen 173 NW 663 (Minn. 1919),
in which the clinician owed a duty to the parents of a patient with scarlet fever; Davis v.
Rodman 227 SW 612, 614 (Ark. 1921), where a clinician was held liable for the spread of
typhoid; Jones v. Stanko 160 NE 456, 458 (Ohio, 1928), in which a clinician was in breach
of his duty to disclose regarding black smallpox.
139. Bradshaw v. Daniels, 845 SW 2d 865 (Supreme Court of Tennessee 1993).
140. 661 So 2d 278 (Supreme Court of Florida 1995).
141. Pate, 282.
142. ABC, 13.
143. Safer, 1192.
144. Op. cit.
The wording 'relations known to be at risk of genetic conditions' strongly alludes to

immediate relatives. Thus, parents, siblings and children are the obvious staring point
when considering who is an identifiable victim of non-disclosure. The immediate family
shares the greatest degree of genetic commonality, therefore is at higher risk of sharing
genetic conditions. Focusing on the immediate family also limits the scope of the duty,
restricting the class of potential claimants. On this reading, the claimants in Smith remain
insufficiently proximate to their second cousin's doctor. To distinguish claims by
'straightforward reference to the degree of consanguinity' may be 'an unsophisticated
approach', 1 45 but making a disclosure to a patient's extended family 'might often be
difficult or impractical and place a heavy burden upon the physician'.146 Cascade screen-
ing will potentially facilitate transition from extended family to immediate relations
where it is conducted; a problem would arise in these circumstances when someone in
the family refuses testing, but in such circumstances, a defence to breach of confidence
may be available, allowing clinicians to disclose information to avoid harm.147
The court in Safer also considered the arguments in Pate concerning the burdens of a
duty. 148 These were felt unpersuasive, the earlier judgement expressly distinguished. It
was acknowledged 'an overly broad and general application of the physician's duty to
warn might lead to confusion, conflict or unfairness', but concluded a duty to disclose
genetic information, a family concern, was 'sufficiently narrow to serve the interests of
justice'. 1 49
Safer thus provides a riposte to the concerns raised in ABC regarding the burdens of a
duty. Proximity restricts claims to a narrow range of claimants, distinguishing genetic
non-disclosure from claims involving an indeterminate classes of victims like Palmer. If
an analogy with infection, contagion and physical threats is adopted, immediate relations
will be defined as identifiable victims of non-disclosure because they are 'known to be at
risk of ... harm from a genetically transmissible condition'. o Therefore the claimant
in ABC would be sufficiently proximate to her father's doctors, although a question
remains regarding disclosure of intractable diseases. While an entire family unit may
share a deleterious trait, it is the immediate relations who are at highest risk. Beyond the
parent-child-sibling triad, diversification of the gene pool reduces the possibility of
genes being shared. Extended family is therefore unlikely to be able to establish suffi-
cient proximity, which was the outcome in Smith. For a duty to be justifiable, it must not
be so burdensome it inhibits provision of healthcare. If those who are able to establish
proximity are limited to immediate relations, the categories of claimant will be 'suffi-
ciently narrow to serve the interests of justice'. 1 5 1 Thus, a duty would be a justifiable
burden.
145. G. Laurie, S. Harmon and G. Porter, Mason and McCall Smith's Law and Medical Ethics.
10th ed. (Oxford: OUP, 2016), p. 223.
146. Pate, 282.
147. W v. Egdell.
148. Pate, 282.
149. Safer, 1192.
150. Op. cit.
151. Op. cit.
Fay I35
Fair, just and reasonable

Foreseeable harm and proximity are two ingredients necessary to establish duty. The
final requirement is to prove a duty is fair, just and reasonable. Here courts take account
of policy factors for and against liability. 15 2 Critically, policy shapes all elements of
duty, determining whether foreseeability and proximity are construed restrictively or
expansively. It is therefore crucial to developing new duties. In ABC, the defendant
submitted nine reasons why a duty was not fair, just and reasonable. These submissions
covered five themes: confidentiality, psychiatric harm, an interest in not knowing, incre-
mental development and the potential burden of the duty. The final two themes have
already been discussed; here, attention is on the remaining three.
Confidentiality. Confidentiality is a cornerstones of doctor-patient relations. 15 3 Disclosing

genetic information will breach confidentiality, restricting patients' interests in informa-
tional secrecy. A breach of confidence is arguably justifiable, but concerns were raised in
ABC about its effect on the trust between doctor and patient.1 5 4 Courts have observed a
lack of respect for confidentiality could discredit clinicians because 'future patients will
not come forward if doctors are going to squeal on them'. 1 5 5 But confidentiality is not
absolute. Furthermore, research predicts approximately 88-94% of people would like to
be contacted about preventable genetic risks,1 5 6 and 90-96% are willing to forgo con-
fidentiality.1 5 7 An erosion of trust is therefore far from certain, in fact indications are that
people are generally happy for their genetic information to be shared.1 58
In certain circumstances, the public interest in preserving confidences can 'be out-
weighed by some other countervailing public interest which favours disclosure'. 1 5 9
Disclosure is therefore justifiable if it is supported by a public interest. In ABC it was
argued what was put against the public interest in confidentiality was a private inter-
est, 160 but prevention of harm has 'clear potential application in the context of genet-
ics' 16 and LCB v. United Kingdom indicates a possible application of Article 2 of
European Convention on Human Rights (ECHR) in cases involving treatable risks. 162
152. E.g. Hill v. Chief Constable of West Yorkshire [1989] AC 53; X & Others (minors) v.
Bedfordshire County Council [1995] 2AC 633, HL.
153. Laurie, 'Obligations'.
154. ABC, 13.
155. [1988] RPC 379, per Rose J, 386.
156. T. Heaton and V. Chico, 'Attitudes Towards the Sharing of Genetic Information with at
Risk Relatives: Results of a Quantitative Survey', Human Genetics 135 (2016), p. 109, 114.
157. Op. cit., 116.
158. Op. cit.; M. Parker and A. Lucassen, 'Confidentiality and Sharing Genetic Information with
Relatives', The Lancet 375 (2010), p. 1507; Suthers et al., 'Letting the Family Know'.
159. Attorney General v. GuardianNewspapers (No. 2) [1990] 1AC 109, HL, per Lord Goff,
282.; Wv. Egdell.
160. ABC, 13.
161. G. Laurie, Genetic Privacy:A Challenge to Medico-legal Norms (Cambridge: Cambridge
University Press, 2003), p. 231.
162. [1998] 27 EHRR 212.
Here the claimant was a woman diagnosed with leukaemia allegedly caused by her
father's - a former RAF serviceman - exposure to radiation during nuclear tests con-
ducted on Christmas Island in the late 1950s. The claimant alleged the British Govern-
ment was in breach of Article 2 because it failed 'to warn her parents of the potential
health risk to her by virtue of her father's presence at the nuclear testing'.1 6 3 The
question for the European Court of Human Rights was whether the State 'did all that
could have been required of it to prevent the applicant's life from being avoidably put at
risk'. 1 64 It dismissed the claim because a causal link between exposure and cancer was
not established. However, the judgement seemingly affirmed 'the state could have been
required to take steps to warn and advise if it had appeared likely at the time that the
165
irradiation of the father would endanger the health of a daughter not yet conceived'.
LCB indicates that when a state - through the medium of a public authority - is aware a
particular individual is likely at risk of harm,166 it incurs an obligation to take appropriate
steps to safeguard their right to life, providing these steps are not impossible or dispro-
portionately burdensome. The obligation arises when it is 'likely' that an individual's
Article 2 rights are endangered. Thus the claimant need only be vulnerable;1 6 7 harm does
not need to be certain. This is important in respect of genetics because there is no
guarantee that diseases will be shared by blood relations, only a statistical likelihood.
If the rationale from LCB is applied to genetic information, the argument forms that
once a deleterious trait is identified in the patient's genome, the NHS becomes aware of
the potential risks to the health of the patient's blood relations. The right to life is not a
right to exist - a fact demonstrated by litigation concerning the withdrawal of life-
sustaining treatment. 1 Instead Article 2 operates in the medical context to safeguard
the right to life through the provision of an appropriate standard of healthcare. 1 69 There-
fore, to protect the Article 2 rights of the patient's family, the NHS may be obliged to
disclose the patient's genetic information.
Disclosure may also be in the public interest if it improves access to, and develop-
ment of, genomic medicine. But a critical limitation is advancement of a public interest
163. R. Harvey and E. Mugnai. The 'Right to Life': Commentary on Article 2 (Children's Legal
Centre, 2002), p. 13.
164. LCB, 36.
165. L. Lester, L. Pannick and J. Herberg, Human Rights Law and Practice. 3rd ed. (London:
Butterworths, 2009), at 4.2.55.
166. Or, following LCB, a future individual, which raises interesting questions within the context
of genetic testing and reproductive decision-making and how these reconcile with the
interpretation of the right to life as existing only post-natal. These are beyond the scope
of this thesis.
167. In Rabone v. Pennine Care NHS Trust [2012] UKSC 2, Lord Dyson (at 23) 'observed that
the Strasbourg Court had repeatedly emphasized the vulnerability of the victim as a relevant
consideration'. D. Cobb, 'The Supreme Court and the State's Duty to Protect Vulnerable
Groups: The Effect of Rabone', Scots Law Times 75 (2012), p. 77.
168. For example, Airedale NHS Trust v. Bland [1993] AC 789.
169. Although what is meant by 'an appropriate standard' is unclear, see X v. Ireland (1974) 7
DR 78.
Fay 137
must not be achievable through means other than breaching confidentiality. Alternate
avenues for improving genomic medicine exist in the form of Genomics England 1 7 0
(presently overseeing the 100,000 Genome Project) and the Personal Genome Project:
UK, which invites 'willing participants to publicly share their personal data for the
greater good'.17 1
ABC did not analyse whether disclosure is a justifiable breach of confidentiality,
dismissing the claimant's interest as private. But if preventing harm and Article 2 rights
encompass clinically actionable genetic risks, infringing patients' confidentiality is jus-
tifiable by reference to a public interest. International law certainly envisages some
restrictions on patient rights. Article 26 of the European Convention of Biomedicine1 7 2
and its additional protocol on genetic testing1 7 3 recognize rights can be restricted 'for the
protection of public health'. Both are notably patient-centric, foregoing explicit mention
of family interests; however, Article 16(4) of the protocol does acknowledge that in
exceptional cases patients' rights can be legally restricted. This may include prevention
of injury to relatives, although whether such is an exceptional case is a matter of
perspective. UNESCO's Declaration on Human Genetic Data acknowledges disclosure
can be made 'for an important public interest reason', while Article 8(2) ECHR recog-
nizes 'the protection of public health' or 'the rights and freedoms of others' as legitimate
restrictions on individual's right to respect for privacy, providing a state can show an
interference is necessary and proportionate.
General Medical Council (GMC) guidelines also recognize confidentiality is not
absolute; patient information may be disclosed when non-disclosure exposes 'others
to risk of death or serious harm'. 17 4 But though the guidelines address genetic
information, it is for clinicians to balance their duties to patients against their duties
to help protect others from serious harm. 17 5 While the GMC acknowledge genetic
information may need to be disclosed, it is ostensibly a matter of clinical judgement.
The judiciary is well positioned to balance competing interests in genetic information,
a point reinforced by well-developed caselaw on confidentiality. The issue is not one the
courts are unfamiliar with and, arguably, they are the appropriate body because con-
fidentiality is rooted in common law. American caselaw indicates a balance can be struck
between disclosure and confidentiality, with patient interests restricted only 'to the
extent that disclosure is essential to avert danger to others'.1 7 6
The 'right' not to know. The possibility of psychiatric harm, ethical, moral or religious
factors may mean some relatives would rather not know about genetic risks. An interest
170. Available at: http://www.genomicsengland.co.uk (accessed 1 July 2016).

171. Available at: http://www.personalgenomes.org/uk (accessed 1 July 2016).
172. European Convention of Human Rights and Biomedicine (1997).
173. Additional Protocol on the Convention of Human Rights and Biomedicine, concerning
Genetic Testing for Health Purposes (27 November 2008).
174. General Medical Council, Confidentiality: Guidelines for Doctors (London, 2009),
paragraph 53, GMC.
175. Op. cit., para 69.
176. Tarasoff per Tobriner J.
in not knowing is recognized in Article 10(2) of the Convention on Biomedicine and

Article 16(3) of the additional protocol. A right not to know is also recognized in
UNESCO's Declaration on the Human Genome and Human Rights,1 7 7 but declaration
and convention phrase this right in terms of patient choice, sidestepping relatives'
interest in not knowing. This omission is perpetuated by the GMC's confidentiality
guidelines, which ignore 'the possibility of relatives having an interest in not know-
ing'.1 7 8 The interest may arise under Article 8 ECHR, but there is no case in point.
A right not to know is problematic; though one is clearly envisaged, it has not been
sufficiently defined. The interest cannot be general, incorporating information without
foreshadowing, because it 'would expose health professionals to liability on the basis of
unpredictable individual evaluations of the desirability of the disclosure'. 1 7 9 Further-
more, 'there cannot be a coexisting interest in knowing and ... not knowing', 18 0
although an interest in remaining ignorant may exist where an individual has previously
indicated 'in a way readily discoverable by health professionals, that she does not want to
know information about her genetic risks'. 8 An interest in not knowing may also exist
when knowledge is offered but rejected.
But in the absence of an opt-out,1 82 the practicability of a right not to know is
questionable, because 'in the very process of asking "Do you want to know whether
you're at risk... ?" the geneticist has already made the essence of the information
known'. 183 A right not to know has been characterized as inconsistent with personal
autonomy, since 'to choose meaningfully we require full information about the range of
options available and ... this paradigm breaks down in the context of an interest in not
knowing'.184 But the position is not clear-cut; why must choosing not to know amount to
a lesser expression of autonomy than opting to receive information? Furthermore, dis-
closing information to an individual who did not want to know could be a breach of their
85
right to respect for privacy.
To fully respect relatives' interest in not knowing it may be necessary to presume
relations do not wish to know about genetic risks. But this approach is incompatible with
the proposed duty. However, the situation may not be one of a clash between irreconcil-
able interests. If it is accepted that some people may not want to know genetic
177. Universal Declaration on the Human Genome and Human Rights, Article 5(c).
178. Laurie et al., Law and Medical Ethics, p. 224.
179. Chico, Genomic Negligence, p. 177.
180. Op. cit.
181. Op. cit., p. 179.
182. See American College of Medical Genetics and Genomics, 'AMCG Updates
Recommendations on "opt out" for Genome Sequencing Return of Results' (AMCG,
Bethesda: 2014).
183. D. Wertz and J. Fletcher, 'Privacy and Disclosure in Medical Genetics Examined in an
Ethic of Care', Bioethics 5 (1991), p. 212, 221.
184. Laurie et al., Law and Medical Ethics, p. 225.
185. For a more complete discussion of the conceptual and legal implications of a right not to
know, see G. Laurie, 'Recognizing the Right Not to Know: Conceptual, Professional, and
Legal Implications', JournalofLaw, Medicine and Ethics 42(1) (2014), p. 53.
Fay I39
information, disclosure would need robust justification. Thus, the treatability of condi-
tions would continue to play an important role. The Convention on Biomedicine and
declaration on Human Genetic Data opt for a middle ground, allowing restriction of the
right not to know to protect public health 1 6 or another 'important public interest'. 1 "7 If
these restrictions apply only insofar as necessary, the question is not about which is
superior among irreconcilable interests but how to strike an effective balance. If disclo-
sure is justified to prevent of harm or protect Article 2 rights when conditions are
clinically actionable, the interest in not knowing may yield insofar as necessary to further
the countervailing interest.
Furthermore, research suggests in cases of treatable disease, clinicians 'should not be
too concerned about giving information that people might not want to know because very
few people have such a desire'. 8 8 A 2006 Australian study also concluded relatives
considered it neither a breach of privacy or autonomy to receive information stating they
may be genetically predisposed to cancer, even when respondents declined any further
information.1 89 Furthermore, disclosure by clinicians doubled uptake of genetic testing
(46%) compared with when no contact was attempted (23%), or where contact was
attempted indirectly via the patient (26%). Disclosure by clinicians may therefore effect
response and uptake of testing, which, in turn, may increase the accessibility of pre-
ventative therapies and further public interests in preventing harm and protecting Article
2 rights.
However, 25-40% of people may not want to receive information about non-
preventable conditions,1 90 meaning the right not to know is an important consideration
in cases of intractable conditions, like ABC. But if no treatments are available the role of
a duty is unclear, since disclosure may itself be mentally harmful. In this situation, the
right not to know and prevention of harm may align, meaning non-disclosure would not
breach a duty if one existed.
Psychiatric harm. Disclosing genetic information to patients' relatives can be positive, but
'exposure to unsolicited information concerning future ill health . . can result in
significant mental trauma'.1 91 This risk is illustrated by the abortive attempt to screen
newborns for alpha 1 -antitrypsin deficiency (A AD) in Sweden between 1972 and 1974.
A1 AD is a recessive disorder caused by deficient production of alpha1 -antitrypsin, a
protein inhibitor that protects tissue (primarily in the lungs and liver) from effects of the
enzymes of 'inflammatory cells', which break down bacteria and host tissue. The con-
dition typically manifests as asthma-like symptoms. In later life it can lead to emphy-
sema, chronic obstructive pulmonary disease, degradation of lung tissue, cirrhosis and
liver failure. The Swedish programme intended to identify children with A AD at an
186. European Convention on Human Rights and Biomedicine (1997), Article 26(1).
187. Universal Declaration on Human Genetic Data, Article 14(b).
188. Heaton and Chico, 'Attitudes', p. 115.
189. Suthers et al., 'Letting the Family Know'. Of 351 family members contacted, 25
respondents indicated a wish not to receive any further information.
190. Heaton and Chico, 'Attitudes', p. 115.
191. Laurie, 'Genetic Privacy', p. 261.
early stage; to provide counselling to the parents regarding their child's condition; and to
protect 'affected children from concentrated air pollutants (mainly cigarette smoke), in
the hope of preventing or postponing lung disease in adulthood'. 192
By 1974, 200,000 newborns had undergone screening, but A AD screening ulti-
mately proved unsuccessful and was discontinued. Follow-up studies indicated 'more
than half of the families with affected children suffered adverse psychological conse-
quences'.193 The majority of parents 'reacted negatively (usually with fear and anxiety)
to the first news of the child alpha, deficiency', these reactions 'were typically strong
and long lasting' and, significantly, neonatal diagnosis did not 'have a desirable effect on
... parental smoking'. 1 94 In fact, if anything, it increased it. 195 A follow-up conducted
5-7 years after screening found approximately 50% of mothers and 33% of fathers had
made a poor emotional adjustment to their child's condition. Mothers also 'reported
significantly poorer mental and physical health'.1 96
Potential psychological reactions to genetic information range from anxiety to sui-
cide. A study in 1999 found suicide rates among individuals genetically positive for
Huntington's disease was 10 times the US national average. 197 The Danish Council of
Bioethics has also warned of 'morbidification': 'the notion of "falling victim" to some
inescapable "fate" uncovered by genetic examination'. 198 But these examples contrast
with the success of neonatal screening for Duchenne's muscular dystrophy in Wales,1 99
suggesting psychiatric harm flows as much from how the information is communicated,
and the support available, as it does the content of the information.2 00
Where disclosure may cause psychiatric harm, it is potentially inconsistent with
public interests in preventing harm or Article 2 rights. The risk of psychological harm
must be countervailed by the benefits of disclosure. 2 0 1 Thus prevention or management
must be possible, for 'availability of a cure carries with it the certainty that disclosure can
incontrovertibly avert harm ... [and] this can only be seen as a good thing for the third
192. T. McNeil et al., 'Psychosocial Effects of Screening for Somatic Risk: The Swedish al-
Antitrypsin Experience', Thorax 43 (1988), p. 505.
194. McNeil, 'Psychosocial Effects', pp. 505-506.
195. Op. cit., p. 506: 'one or both of the parents smoked in more than half of the homes
concerned; mothers of children with the deficiency smoked as frequently as control
mothers, whereas fathers of these children smoked twice as frequently as control fathers'.
196. Op. cit., p. 505.
197. Almqvist, 'The frequency of suicide, after predictive testing for Huntington's disease'. The
results extrapolate to 138 per 100,000 compared to 12-13 per 100,000. The significance of
the study was that it focused on the two years immediately after predictive genetic testing.
198. Danish Council of Bioethics, Ethics and Mappingthe Human Genome (Copenhagen, 1993),
p. 60.
199. See E. Parsons et al. 'Disclosure of Duchenne Muscular Dystrophy after Newborn
Screening', Archives of Disease in Childhood 74 (1996), p. 550.
200. M. Fay, 'Negligence and the Communication of Neonatal Genetic Information to Parents',
Medical Law Review 20(4) (2012), p. 604.
201. This point appears to have already been countenanced by the courts: see Re YZ [2013]
EWHC Fam 935.
Fay 141
party to whom the disclosure is made'.2 02 But if treatment 'is ineffective, painful or
difficult to come by, the grounds are less firm'.2 03 If disclosure is made to facilitate
preparedness not treatment, 'there is less of a guarantee that the harm in question will . .
be avoided'. 204 Treatment would appear essential for a duty to be fair, just and reason-
able. A duty to engender preparedness is suspect because 'it is far from clear that these
ends are achievable, and indeed disclosure . . might lead to additional harms'. 2 0 5
Conclusions
Genetic information is a conundrum because of its familial dimension. ABC and Smith
have seen this issue adjudicated from two perspectives in court, and both claims were
rejected, but neither case provides a complete analysis of the Caparotest, thus harm did
not receive attention in both cases, and proximity was also eschewed in ABC. The Court
of Appeal will be presented an opportunity to more completely consider duty when it
hears both cases on appeal in 2017 and it is argued the matter should be sent to trial. Full
consideration of a duty to relatives is essential against a backdrop of increasing acces-
sibility of genetic information.
The High Court resisted both claims, concluding such a duty was a giant step incon-
sistent with incremental development of negligence, but caselaw is indicative a duty to
disclose is actually an incremental development. Cases on non-disclosure of risk may
form a springboard for a duty and would constitute more appropriate analogies than the
doctor-patient caselaw cited in ABC. Reliance on Selwood in Smith was also deserving
of greater analysis; instead the court distinguished the cases on their factual matrix.
If the proposed duty is accepted as an incremental development, claimants must then
overcome the Caparo test. It is argued foreseeable harm and proximity are critical con-
siderations when defining the scope of the duty and lack of discussion in ABC is a missed
opportunity. The foreseeable harm is proposed as undisclosed, medically actionable con-
ditions that eventuate. This constitutes an interference with physical integrity which is an
interest protected by tort and US and UK caselaw on undisclosed risks indicate directly
causing harm is not a prerequisite of liability. Proximity will pose a problem because there is
no pre-existing relationship between clinicians and relatives. However, relying on caselaw
concerning risks of infection, contagion and physical harm, claimants may be able to
demonstrate they were identifiable victims of non-disclosure and should have been in the
defendants' contemplation as so affected. If identifiable victims are defined as immediate
relatives, the scope ofthe duty and number ofpotential claimants will be limited, providing a
rejoinder to concerns regarding an overly burdensome obligation.
Furthermore, the policy issues relied on in ABC do not prevent a duty being fair, just
and reasonable. Confidentiality is not absolute; the public interest in maintaining con-
fidences can be countervailed by another public interest, and prevention of harm and
protecting Article 2 rights both have application to genetic information. Erosion of

203. Op. cit.
204. Op. cit.
205. Op. cit., p. 261.
doctor-patient trust is a valid concern but research is indicative of greater than 90% of
people being willing to forgo confidentiality in cases of actionable conditions. A right
not to know is also reconcilable with a duty if individuals have previously indicated they
do not want to receive information about their genetic risks.2 06 Furthermore, research
indicates a preference for disclosure in cases of medically actionable conditions, mean-
ing reliance on a right not to know in ABC was questionable. Psychiatric harm caused by
disclosure also does not prohibit a duty providing the condition is medically actionable,
because treatment means disclosure can avert harm. Therapeutic interventions counter-
balance potential risks of psychiatric harm; where no treatment is available, whether
disclosure is beneficial is a moot point. Disclosure made to engender preparedness is
suspect because it is unclear harm would be avoided.
While ABC and Smith both rejected a duty to disclose, an opportunity to send the
matter to trial will come before the Court of Appeal in 2017. Smith represents a step too
far in terms of duties to third parties, but it is at least arguable a duty should be owed in
ABC, though the intractable nature of Huntington's disease is problematic. Since Hun-
tington's is not treatable, foreseeable harm will be difficult to prove. Furthermore, the
benefits of disclosure in the absence of therapeutic responses are debatable. In the event a
duty is accepted, breach and causation remain moot points.
Acknowledgement
I would like to thank Laura Pritchard-Jones for her helpful comments on earlier drafts of this piece.
Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this
article.
206. Chico, Genomic Negligence, p. 179.

Negligence, Genetics and Families A Duty To Disclose Actionable Risks, Fay, Michae

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Negligence, Genetics and Families A Duty To Disclose Actionable Risks, Fay, Michae

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Wed Sep 13 00:32:59 2023

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

Medical Law International

1. [2015] EWHC 1394 (QB).

University ofLeicesterNHS Trust.2 ABC involved a diagnosis of Huntington's disease, a

2. [2016] EWHC 817 (QB).

The presence of a deleterious gene in a patient is therefore indicative of the prospec-

A radical or incremental development?

The Montgomery duty is 'understood, within the traditional framework of negligence,

24. Smith, 27.

consent; non-disclosure of genetic information concerns a failure to disclose a risk.

33. 529 P 2d 55 (Cal. 1974), 551 P 2d 334 (Cal. 1976).

41. Op. cit.

46. K v. SOS Home Department.

54. Selwood., 456.

doctors can be subject to conflicting duties regarding information.64 Thus, an analogy

We see no impediment, legal or otherwise, to recognizing a physician's duty to warn those

72. Op. cit. See also Merthyr, 31.

genetic disorders. If compensation were awarded when a claimant's ability to choose is

92. [2004] UKHL 41.

In terms of foreseeability especially, there is no essential difference between the type of

104. Safer, 623.

no essential difference between genetic conditions and infection, contagion or threat of

118. Safer, 626.

126. Gilbar and Foster, 'Doctor's Liability', p. 114.

135. Safer, 1192.

The wording 'relations known to be at risk of genetic conditions' strongly alludes to

Fair, just and reasonable

Confidentiality. Confidentiality is a cornerstones of doctor-patient relations. 15 3 Disclosing

170. Available at: http://www.genomicsengland.co.uk (accessed 1 July 2016).

in not knowing is recognized in Article 10(2) of the Convention on Biomedicine and

202. Laurie, 'Genetic Privacy', p. 122.

Declaration of Conflicting Interests

206. Chico, Genomic Negligence, p. 179.

You might also like