In Connor Smith v University of Leicester NHS Trust  EWHC 817 (QB) HHJ McKenna sitting as a Judge in the High Court struck out claims by or on behalf of two second cousins of a patient, Mr Craven, who had adrenomyeloneuropathy (AMN) a genetic condition. It was alleged that there had been negligent delay in diagnosing the AMN with the result that his two infant second cousins were late in being diagnosed and treated. One had died by the time the action was brought.
The Judge applied the High Court decision in ABC v St Georges Healthcare NHS Trust  EWHC 1394 (QB), a decision of Nicol J, which is under appeal, in which a patient with Huntington's Disease had refused permission to the Defendant Trust to notify his daughter of the diagnosis. She was pregnant at the time. She later gave birth and a doctor accidentally told her of her father's condition. She was found to have the disease herself but it was not yet known whether her child had it. The claim was struck out.
In Connor Smith, the Claimant sought to distinguish ABC on the grounds that Mr Craven would readily have consented to his diagnosis being shared with family members. There was no issue of confidentiality. HHJ McKenna was not swayed by that argument and found that the Claimants' claim would mark a very significant departure from the current law.
|Relatives are often closely involved in treatment decisions|
He noted the case of Selwood v Durham CC  EWCA Civ 979 in which the Court of Appeal held that it was possible for the court to find that an NHS Trust owed a duty of care to a social worker who was in contact with a psychiatric patient, to protect her from harm from that patient. He found that the facts in Selwood were very different from those in Smith.
Floodgates, as we all know, are meant to remain closed. If second cousins could have valid claims then potentially so would all manner of relatives in similar cases. But perhaps there will be other situations which would test the courts' commitment to restricting the scope of duty. Suppose a patient was wrongly discharged home harbouring a contagious infection which was transmitted to a family member living with them. A patient might injure a spouse when suffering a seizure when driving a car after a failure to diagnose a serious head injury. Some decisions to discharge a patient place a heavy onus on a spouse or other carer at home, for example the discharge of a psychiatric patient who, even though in the community, needs considerable care and supervision. Suppose it was known, or ought to have been known, that the carer would have considerable difficulty carrying out the role of carer or supervisor, and that they went on to suffer psychiatric or physical injury themselves because of having to look after the patient. If it was negligent to have discharged that patient, should the Trust be liable for the injury to the carer?
In some cases there may be conflicts, or potential conflicts of interest between the patient and the potential claimant. In others, their interests will fully coincide. In some cases the claimant will not be known to the healthcare professionals, in others they will be well known and have had repeated contact with the Defendant, its employees and agents. In some cases the harm to the claimant will have arisen in unlikely circumstances, in others it will have been readily foreseeable, It is easy to imagine circumstances in which there was considerable proximity between defendant and the (non-patient) claimant, and in which the harm was readily foreseeable. Will the policy remain against widening the scope of the duty of care or will the three Caparo principles be found to apply?
The current trend in restricting secondary victim claims has been particularly telling in clinical negligence cases where there is often a distance in time between the negligence and the "event" that causes nervous shock/psychiatric injury to the claimant. Given the courts' current attitude to such claims, the prospect of expanding the scope of the duty of care to any non-patients might seem remote. We can expect more judicial guidance following the appeal in ABC which is apparently due for hearing in early 2017.