NEGLIGENCE AND THE COMMUNICATION OF NEONATAL GENETIC INFORMATION TO PARENTS

Abstract

It is inevitable that neonatal genetic information will be communicated to parents and a potential for psychiatric injury exists where the communication is negligent. An important question in this regard is whether a health-care provider may owe a duty of care to parents when communicating accurate genetic information, or whether the courts might treat it as merely the receipt of distressing news, which hitherto attracts no liability in English Tort Law. The important role of genetic counselling in this context will likely be determinative in deciding whether communicating accurate genetic information is actionable because it arguably distinguishes the parent-physician relationship from that of messenger-recipient. If communication is accepted as being something more than the receipt of distressing news and is capable of causing 'shock', then parents will need to establish themselves as either primary or secondary victims if claims are to be reconciled with the Alcock paradigm. Claims by parents as secondary victims will be unlikely to succeed because the neonate does not fulfil the role of primary victim, although parents may be owed a duty as elevated primary victims as a result of the lack of an immediate victim. Elevating claimants to primary victim status is not without criticism and may serve to further complicate a difficult area of tort law. Alternatively, it may be open to parents to demonstrate that a duty exists subsequent to an assumption of responsibility, as the provision of genetic counselling during and after neonatal screening is indicative of health-care providers assuming responsibility for the parents' mental health. If parents are able to establish that a duty of care exists, then success of their claims will be determined by reference to breach and causation. The potential difficulties and solutions, particularly with regard to causation, are also briefly considered. It is suggested that breach will likely be determined by reference to a responsible body of medical opinion, while it is proposed that the courts adopt a material increase analysis when assessing causation.