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ABC v St George Healthcare [2015][2017] - Analysis of the Law

November 10, 2017

Abstract(1)

A client’s father has Huntington’s disease and she has 50% chance of inheriting it. A meeting in 2009 decided not to override the father’s confidentiality by disclosing to his daughter (the client). The daughter was discovered to be pregnant on the same day. She discovered her father’s diagnosis later on after about five months of pregnancy. She gave birth to the baby who was diagnosed to have Huntington’s disease as well. She claimed that she would carry out termination of pregnancy if she knew it earlier. Although the father was detained under restricted hospital order because he killed his wife, the case was struck out at the Queen’s Bench in 2015. The daughter made the appeal in 2017. This is the analysis of the case based on consent and confidentiality.

 

Analysis of the Law

The most arguing point in this case is about the consent rather than confidentiality. The issue of confidentiality is straightforward here. We can break the confidentiality in the following situations:

  1. if the client may be an immediate danger to the heath care provider or public;

  2. if the client causes danger to the children or the elderly;

  3. if it is required by law or the court; or

  4. if it is authorized by the patient.

The issue of consent, whether the father should consent to disclose the information, is the arguing point here. As I learnt, consent is not transitive. It means that we will not consent to what we cannot predict. In the other words, we will/will not consent to it if we can predict it or we are provided with enough information on it. In this case, the father knew that her daughter has a risk of having Huntington’s disease and he would have predicted that her daughter would carry out the termination of pregnancy if she knew her disease and got pregnant later on. It is because the father predicted about the adverse consequence of termination of pregnancy and he refused to consent to the disclosure. The fact is the father himself knew that his heir will have a 50% chance of inheriting the disease but he did not ask her wife to terminate the pregnancy. Otherwise, he will have no heir and such kind of argument won’t even exist.

Consent is opaque. This means that if I don’t know the consequence or I am not provided with enough information on the possible consequences of the event, I will refuse to consent to it. This is another arguing point for this case. If the father is really not clever enough to predict the adverse consequence of termination of pregnancy, he can still refuse to consent for disclosure based on the reason that the unknown consequences of the disclosure. Maybe, her daughter attempts suicide because of the detrimental consequence of the disease. All of you know that it can lead to uncontrolled movements of whole body. Do you think the father will blame himself for the rest of his life if this happens?

Consent is rescindable. It means that the father has to be very sure about the consequence of his consent. Even if the father is unsure about the consequences of the consent, he can still refuse or rescind the consent due to uncertainty of the consequences of disclosure. It is the worst case scenario for someone to be diagnosed with Huntington’s disease. There is no treatment for it. A lot of uncertainties happen if the daughter knows the diagnosis. As explained above, she can kill herself or even others out of rage. The father has the rights to refuse to consent in this case.

 

Significance for the Professional Practice

It is easy to break the confidentiality. But we need to consider fully why the patient refused to consent for disclosure so that we can make a sound judgment when we decided to break the confidentiality. If the patient refused to consent based these three rationales, we better respect their choice and not to break the confidentiality (unless it fulfills the criteria stated above):

  1. the patient refuses to consent because he/she predicts an unwanted consequences of the disclosure;

  2. the patient refuses to consent because he/she does not know the consequences of the disclosure;

  3. the patient refuses to consent because he/she is not sure about the consequences of the disclosure.

Please do remember that breaking the confidentiality can lead to many detrimental consequences to the patient, the family, and the society. So, do consider carefully the rationales behind the refusal of consent to disclosure first.

 

Recommendations and Options

With reference to this case, it is recommended that we should assess the patient’s mental capacity before deciding on the grounds for refusal of consent to disclosure is valid or not. We cannot say the father is detained under hospital order so he is mentally incompetent. As refer to the case Re C(2) in which a Schizophrenic patient seeking an injunction to prevent the amputation of his gangrenous foot without his written consent, the judge was satisfied that the patient has understood and retained the relevant information and he is mentally competent in making such a decision. The injunction was granted. In assessing mental capacity of the patient, we need to make sure these three points being satisfied:

  1. whether the patient can take in and retain the information;

  2. whether the patient believes the information; and

  3. whether the patient weights and balances the risks and needs.

With reference to this case, I believe the judge must trust that the father is mentally competent when making such a decision of refusal to disclosure and the decision made by the hospital management was a correct decision. That’s why the case was struck out at the Queen’s Bench.

The daughter sought the appeal based on the rationale of ‘wrongful birth’ because it is difficult for her, as a sick person, to look after her child as a single mother. However, as I explained in the section of breaking the confidentiality, we can only break the confidentiality if it is required by law or the court. Based on the decision of Queen’s Bench, the father is mentally competent which means the act of killing his wife is a criminal offence. This opens to another option, there is a system of precognition in the Scotland. It means in case of a criminal offence, we can have limited disclosure that is related to patient’s pre-existing condition or health even without patient’s express consent. But again, this is only limited to the criminal trial. This can be the basis for the daughter’s appeal.

 

Citation

1. http://www.mentalhealthlaw.co.uk, 18 May 2017.

2. http://www.4pb.com, 2017

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