Appeal against the decision of Nicol J given on 19 May 2015. J struck out the claim at common law on the ground that there was “no reasonably arguable duty of care”… He also struck out a claim formulated under the Human Rights Act 1998… (paragraph 1)
In 2007, the Claimant’s father shot and killed her mother. He was convicted of manslaughter on the grounds of diminished responsibility. He was sentenced to a hospital order… (paragraph 4)
The father’s diagnosis [Huntington’s Disease] was confirmed during 2009. (paragraph 4)
On 23 August 2010, the Claimant was accidentally informed about the father’s diagnosis. She subsequently underwent testing, and in January 2013 was herself diagnosed as suffering from Huntington’s Disease. (paragraph 14)
The Claimant alleges that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father’s diagnosis, in the light of her pregnancy. This was her first and only child. If informed of her father’s diagnosis she would have sought to be tested for Huntington’s Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy… Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a “wrongful birth” claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case… (paragraph 15)
[The Claimant referred to professional guidance on confidentiality.]
…if the clinician conducts the requisite balancing exercise, and concludes that it falls in favour of disclosure then a professional obligation arises. The question is whether a breach of that obligation is actionable. (paragraph 23)
…the Claimant’s case is arguable. I would allow the appeal, quash the Order striking out the claim, and remit the case for trial. (paragraph 66)
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