It is well established and unarguable that doctors owe a duty of care to their patients. However, it is open to debate how, and in what circumstances, that duty of care can be extended to those outside the traditional doctor-patient relationship. The answer is ‘not much’, despite some ingenious attempts by claimants over the years to widen the doctor’s duty. Nevertheless, medical professionals should be alive to this issue and here we set out some pertinent examples.
With great risk often comes great reward. It is no surprise that my first example is taken from the world of football, where the Premier League’s combined revenue grew to €8.2 billion in 2020/2021[1], a year where most industries were suffering the effects of the Covid-19 pandemic.
In the case of West Bromwich Albion Football Club Ltd v El-Safty[2], an orthopaedic surgeon negligently recommended surgery for a posterior cruciate ligament injury. The player was left unable to play and successfully secured an award of £1.5m in damages from the surgeon. Of course, West Brom (‘the club’) found themselves without a valuable asset and subsequently attempted to sue the surgeon themselves, alleging the surgeon owed them duties in both contract and tort. In short, the club’s attempt to claim damages failed as the court held there was no direct or implied contract between the surgeon and the club and the surgeon owed no duty of care in tort in respect of any foreseeable economic loss to the club.
I have previously discussed this decision in more detail here, however the key findings were that:
The case went to the Court of Appeal[4], where the decision of first instance was upheld, and Lord Justice Rix fairly stated that if the club had wanted the surgeon’s advice for its own interests “it could have made that plain to him. He would then have been put in a position where he could choose to charge for that advice and the risks of giving it, and/or disclaiming liability”.[5]
My second example is an interesting judgment given by Mrs Justice Whipple in a strike out application[6]. The sad facts of the claim are that following the birth of her daughter, Mrs Bot suffered a deterioration of her mental health. She made some fairly sensational statements, including that she had been visited by a Cameroonian gang leader, had been assaulted by her uncle and had thoughts of hurting family members. Allegedly, the defendants to the claim provided Mrs Bot’s partner with negligent advice and incorrect information, which caused him to believe her delusions were based in fact. As a result the partner had Mrs Bot sectioned and sought to separate from her.
The partner, Mr Whitehead, sought to bring a claim against a consultant obstetrician, a consultant psychiatrist and a private hospital both in contract and tort. He claimed in excess of £2m, arguing he suffered mental distress, and sought future damages for loss of income for the cost of moving to Hampshire to care for his children.
Mrs Justice Whipple allowed an application to strike out Mr Whitehead’s case, finding that:
Mr Whitehead’s counsel sought to argue that the case “lay at the cutting edge of the law and should not be stifled at the preliminary stage, simply because there had not been any previous case quite like it[8]”. Rightly (in my view) Mrs Justice Whipple gave this short shrift, stating that “the principles are well established: the hospital and doctors treating [Mrs Bot] did not owe [Mr Whitehead] any duty, personal to him, to safeguard his welfare and health to protect him from economic loss[9]”.
My final example is the well-publicised case of ABC v St George’s Healthcare NHS Foundation Trust[10]. The claimant brought a claim against her deceased father’s clinical team both in negligence and under the Human Rights Act 1998[11], arguing they should have breached confidentiality to advise her that she, and her unborn child, had a risk of inheriting Huntington’s Disease.
The claimant sought to establish a duty of care via one of three routes:
i. Arising from the traditional doctor-patient relationship as the claimant was a patient of one of the defendants.
ii. Through the assumption of responsibility for the claimant by the forensic psychiatry unit of one of the defendants, in the context of providing family therapy and through the claimant’s long-standing relationship with the care team who cared for her father.
iii. Through the application of established principles to the facts of the case by incremental extension[12].
Mrs Justice Yip dismissed the claimant’s claim. Whilst it was found that the claimant was a patient of the family therapy team, there had been no breach of the duty to conduct the therapy with reasonable professional skill and, importantly, the claimant was not in a doctor-patient relationship with her father’s treating clinician, who had acquired the information about her father’s genetic diagnosis.
Similarly, Mrs Justice Yip held there was “no question of the claimant having relied on the defendants to undertake the balancing exercise as to whether she should be told of her father’s diagnosis[13]”.
However, the claimant did succeed in establishing a duty of care via the third route. Mrs Justice Yip held it was fair, just and reasonable to impose a legal duty on one of the defendants to “balance her interest in being informed of her genetic risk against [her father’s] interest in preserving confidentiality… and the public interest in maintaining medical confidentiality generally[14]”.
Whilst Mrs Justice Yip went on to find there was no breach of duty, as an appropriate balancing exercise between the duty to warn and the duty to preserve confidentiality had been carried out, this decision is important as it shows there will be occasions where clinicians have a legal duty to balance a third party’s interest in being informed against a patient’s right to confidentiality.
Although this case has been reported as creating a new legal duty to disclose personal information to those at risk of serious harm, in reality it is in line with existing GMC Guidance and is only likely to apply in very limited circumstances, where there is a close relationship between the medical professional who holds the confidential information and the third party who is potentially at risk of harm. Of note, the claimant in this case was being treated by her father’s psychiatric team and thus a close proximal relationship was established.
There is no doubt courts appear to be reluctant to extend the duty of care owed by medical professionals to third parties who are outside of the traditional doctor-patient relationship. The key considerations for courts seem to continue to be those set out in Caparo v Dickman[15]:
i. The loss suffered should be reasonably foreseeable;
ii. There should be sufficient proximity between the parties to the claim; and
iii. It is fair, just and reasonable to impose the duty of care.
Where a third party is impacted by alleged negligent care provided by a medical practitioner to a patient (not the third party), it is often found that the necessary proximity or foreseeability does not exist to establish that a duty of care is owed. This can be contrasted with the approach taken when assessing duties owed by public authorities, such as the police. For example, it is well recognised that an innocent bystander who is injured during a negligently conducted arrest by the police can establish a duty of care[16]. Arguably, this sort of harm is foreseeable arising from the physical proximity of the parties. Furthermore, from a policy perspective, police are expected to ‘protect the public at large’.
My view is that courts are right to exercise caution when adjudicating attempts to widen the duty of care owed in a medical context. The clinician’s sole focus should be on treating their patient, rather than assessing which other parties may be impacted by the treatment decisions and weighing their interests against their patient’s. That is not to mention the time constraints most doctors are working under, particularly in the NHS context, where such wider analysis would be impossible from a practical perspective.
It's also important to note that, if clinicians are forced to consider each episode of patient care to address a possible risk that they may cause harm to a third party, their focus may arguably shift from the all-important patient relationship, creating a more defensive approach to medicine.
[1] Deloitte Football Money League 2023 | Deloitte UK
[2] West Bromwich Albion Football Club Limited v Mr M.M. El-Safty [2005] EWHC 2866 (QB)
[3] ALL ER 568, 2AC 605
[4] West Bromwich Albion Football Club v Mohamed El-Safty [2006] EWCA Civ 1299
[5] West Bromwich Albion Football Club Limited v Mohamed El-Safty [2006] EWCA Civ 1299, para 63
[6] Sue (Susan) Bot (1) Keith Whitehead (2) v Mr Christian Barnick (1) Dr Julius Bourke (2) HCA International Ltd (3) [2018] EWHC 3132 (QB)
[7] Sue (Susan) Bot (1) Keith Whitehead (2) v Mr Christian Barnick (1) Dr Julius Bourke (2) HCA International Ltd (3) [2018] EWHC 3132 (QB), para 20
[8] Sue (Susan) Bot (1) Keith Whitehead (2) v Mr Christian Barnick (1) Dr Julius Bourke (2) HCA International Ltd (3) [2018] EWHC 3132 (QB), para 30
[9] Sue (Susan) Bot (1) Keith Whitehead (2) v Mr Christian Barnick (1) Dr Julius Bourke (2) HCA International Ltd (3) [2018] EWHC 3132 (QB), para 32
[10] [2020] EWHC 455 (QB)
[11] For breach of Article 8 of the ECHR
[12] As explained by Caparo v Dickman and Robinson v Chief Constable of West Yorkshire.
[13] ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB), para 154
[14] ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB), para 188
[15] ALL ER 568, 2AC 605
[16] Robinson v West Yorkshire Police [2018] UKSC 4
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