24 MAY 2016
Connor Smith (By His Mother & Litigation Friend Nicola Smith) and Another v University of Leicester NHS Trust  EWHC 817 (QB)
Clinical negligence - duty of care to third parties - diagnosis
15 April 2016
High Court, Queen's Bench Division: His Honour Judge McKenna
It would not be fair and reasonable on policy grounds for the court to impose a duty of care on NHS trusts in respect of individuals who are not patients. To do so would be to extend the common law by a 'giant step' as the well-established position is that the law is opposed to granting remedies to third parties for the effects of injuries to other people.
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This was a novel case whereby the claimants asserted that the defendant NHS trust was in breach of its duty of care for failing to diagnose the conditions of both claimants earlier than it had. This was because the trust was caring for the second cousin of the claimants and the trust should have identified the genetic condition sooner, which could have led to a significantly better outcome for both claimants.
Neil Caven was under the care of the NHS trust, and suffered from a long-standing genetic disease: Adrenomyeloneuropathy (AMN). Diagnostic tests were undertaken in 2003, and a further rest of very long chain fatty acids was requested. This was not undertaken until 2006 following the first claimant (the second cousin of Mr Caven) being diagnosed with Adrenoleukodystrophy (ALD); this is the childhood version of AMN. Genetic testing later confirmed that the family members all had the same disease and genetic counselling was recommended.
The defendant trust submitted that they did not owe the claimants a duty of care as it would not be fair and reasonable on policy grounds as they were not treating the claimants as patients. To extend the duty and provide an exception to the current position in law would be an improper extension to the common law of negligence which develops by way of incremental steps and not 'giant leaps'.
In considering the case, the court was asked to take into account a number of previous decisions, including Powell v Boladz; X v Bedfordshire County Council and D v East Berkshire NHS Trusts. In all cases the courts had considered it unfair to impose a third party duty on NHS trusts. A more recent decision in ABC v St George's Healthcare and Others confirmed the same thought process of the courts, but is now subject to appeal. Claimant counsel sought to distinguish ABC from the current case, arguing that the refusal to extend the duty of care was based on confidentiality because the patient had refused to allow his treating clinicians to tell his family of his condition.
The judge concluded that ABC expressly found that there was no duty between doctor/hospital and someone who is not a patient (ie a third party) and the confidentiality point was supplementary to this key principle. He could not therefore find a duty existed as it would cause him to go well beyond the existing law and fails the test of what is just, fair and reasonable.
Sandra de Souza and Amy Wedgwood, Anthony Gold