In her judgement at the end of February, Justice Yip established such a balance should now be made as a legal necessity. Previously, clinicians were bound by professional guidelines to perform such an exercise.
The new legal duty applies to any situation where a patient reveals to a doctor something that potentially puts the third party (with legal proximity to the clinicians) at risk and, according to Jonathan Zimmern, may well impact future psychiatric care as well as medical.
Despite this important development in the law, on findings of fact, Jonathan's client ABC lost her case for damages. Justice Yip did not agree that the psychiatrist treating ABC's father had breached the duty he owed separately to her, nor that she would have terminated her pregnancy had clinicians treating her father revealed his condition.
Jonathan told the Observer:
"We are very disappointed that ABC did not succeed in her claim as the Judge found against her in relation to breach of duty and causation, concluding that her father's doctors did not breach their duty to her by failing to disclose his Huntington's diagnosis during her pregnancy."
He did say, however, that is was a very important decision in that the judgment establishes a new legal duty of care owed by clinicians to third parties, in respect of information which reveals a serious risk to that third party.
"Contrary to concerns raised by some commentators during the life time of this case, the duty sought by the Claimant and ultimately found by the judge is not a free-standing duty of disclosure nor is it a broad duty of care owed to all relatives in respect of genetic (or relevant other) information. "Instead, the duty recognises and runs parallel to established professional duties. It is to be exercised by reference to the Bolam principles and in particular the guidance of the GMC and other specialist medical bodies and is further limited by a requirement that there be close relationship between the clinician and the third party.
"While ABC is clearly very upset by the decision, the new duty of care should help to ensure that the interests of other people in similar situations will automatically be considered by doctors."
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