Genetic Risks, Disclosure and Foreseeable Harm: An unanswered question after ABC v St George's Healthcare

Abstract

ABC v St George’s Healthcare NHS Trust was a missed opportunity. The case was a first opportunity for the UK courts to engage with a duty to disclose genetic risks to patients’ relatives, but Nicol J’s judgment focused on whether a duty was fair, just and reasonable and ignored issues of harm and proximity. This paper offers an answer to what the foreseeable harm, or gist damage, is in a claim of genetic nondisclosure. It considers intangible harms such as autonomy, dignity and preparedness but rejects these as formulations of harm as they fail to sufficiently recognise physical burdens of genetic conditions. The paper also explores tangible harms drawn from existing principles of tort. Loss of a chance is discussed and rejected because of the difficulties of the all or nothing approach on a balance of probabilities. It is instead proposed that eventuating genetic conditions are the gist of the action and an argument is put forward as to why it is not fatal to a negligence claim that defendants do not directly cause genetic diseases.