Genetics and familial risk : establishing the clinician's duty to disclose

The increasing accessibility of personal genetic information creates new challenges for the English Legal System. One of these challenges is the familial nature of genetic information, as screening one individual reveals information about their family unit as a whole. There are potential benefits to disclosing this information, the most important of which is facilitating access to preventative therapies and early treatment. This thesis considers whether clinicians should be subject to a duty to disclose genetic information to those members of a patient’s family who are at the highest risk of sharing genetically transmissible conditions. It is suggested that such a duty could be created through the Tort of Negligence and that such a duty would be consistent with the underlying aims of the tort. This thesis considers the constituent parts of a claim in Negligence – duty, breach and causation – and suggests how these components might be interpreted to, firstly, create a duty to disclose and then, secondly, to give meaningful content to any such a duty. The thesis considers both domestic case law and jurisprudence from America, where a duty to disclose has been created by the courts, and considers whether a similar approach is permissible in English Law. It also examines the current paradigm of confidentiality and data protection and explains why the present legal framework is inadequate and does not provide sufficient legal protection for the relatives of patients harmed as a consequence of nondisclosure. It is the aim of this thesis to advance the debate on the legal implications of the familial aspect of genetic diagnosis and the role of the common law in tackling this challenge. It is also the first work to provide an in depth analysis of a potential duty to disclose genetic risks to the families of patients