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1 Preface Table of Cases Table of Legislation List of Abbreviations List of Tables List of Figures Notes on Mode of Citation and Style Contents PART I: Setting the Context xiii xv xxxiii xli xlv xlvii xlix 1 The Book: An Overview 3 A INTRODUCTION 3 B THE COVERAGE OF THE BOOK 4 1. Claims arising out of physical injury to the non-patient 4 2. Claims arising out of non-physical injury to the non-patient 5 C WHY THE TOPIC IS IMPORTANt 6 1. No neat and tidy boundaries 6 2. An area of increasing appellate and extra-jurisdictional consideration 8 3. Legislative and human rights impacts The potential to give rise to group/class actions 11 (a) The current position 11 (b) The winds of reform? The contrast with other patient-centric contexts 13 D SCENARIOS AND CLAIMS OUTSIDE THE AMBIT OF THE BOOK General exclusions Tri-partite scenarios involving patients as claimants Non-patient claims for compensation for violation of a Convention right 16 E CONCLUSION 17 2 Establishing Negligence in Novel Non-Patient Scenarios 27 A INTRODUCTION 27 B THE NEGLIGENCE ACTION IN THE CONTEXT OF NON-PATIENT CLAIMs 27 C THE LEGAL FRAMEWORK FOR ESTABLISHING A DUTY OF CARE: SOME PRELIMINARY COMMENts The relevant application of the Caparo test to non-patient suits 28 (a) Reasonable foreseeability of harm 29 (b) The role of proximity and public policy 30 (c) The proximity basket 31 (d) Relevant policy factors 32 Copyrighted v Material

2 vi Medical Negligence: Non-Patient and Third Party Claims 2. The assumption of responsibility/reliance test 34 (a) Proving an assumption of responsibility by the healthcare professional 35 (b) Proving reliance by the non-patient The incremental test in the context of non-patients 38 D SOME COMMON THEMES OF DIFFICULTY IN NON-PATIENT CLAIMs Derivative liability versus independent liability The duty of confidentiality owed to a patient Omissions to act The size of the non-patient class How the duty of care is framed, and how the standard of care is set 47 E CAUSATION CONUNDRUMS ARISING IN SOME NON-PATIENT SCENarios Causation and omissions to act 49 (a) How can omissions cause the non-patient s harm? 49 (b) Pure omissions require a hypothetical scenario to prove causation Long chains of causation/intervening acts 52 F CONCLUSION 53 Part II: Actual or Potential Negligence Liability for Physical Injuries to Non-Patients 3 Injuries to Non-Patients Caused by Physically-impaired or Mentally-ill Patients 63 A INTRODUCTION 63 B THE POTENTIAL SCENarios Injuries to non-patients caused by mentally-ill patients Injuries to non-patients caused by physically-impaired patients Injuries to non-patients by reason of medically-caused physical injury to the patient 69 C CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF care Reasonable foreseeability of harm The requisite proximity between healthcare professional and non-patient The relevant policy factors in the context of dangerous patients How would Tarasoff be decided in English law today? Patients who kill a non-patient, and art 2 of the Convention 86 D THE TREATMENT OF TARASOFF IN THE UNITED STATES: LESSONS FOR ENGLAND? What does a Tarasoff-type duty actually require a healthcare professional to do? A matter for statute? Judicial rejection of the Tarasoff principle: policy and distinctions Other expansions of the Tarasoff principle What responsibility (if any) should the non-patient bear? Defining the trigger for the Tarasoff duty The problem of proving breach in a Tarasoff scenario Proving a causal link may be difficult 102 E CONCLUSION 103

3 Contents vii 4 Contraction or Inheritance of Disease by Non-Patients from Patients 117 A INTRODUCTION Introducing the two facets of disease liability What the chapter does not cover 118 B RELEVANT DISEASE-RELATED SCENarios Contagious or communicable diseases Sexually-transmitted diseases Inherited diseases and conditions 125 C THE KEY DUTY OF CARE QUESTION The weak form of duty The robust form of duty 127 (a) A corresponding duty of confidentiality? 128 (b) The onerous task cast upon the healthcare professional 128 (c) A fragile or unwilling patient The particular problem of genetic information: the case against any duty of care at all Summary: weak or robust form of duty? 134 D CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF care Proximity factors Public policy considerations 139 E PARTICULAR CAUSATION CONUNDRUMS IN DISEASE-RELATED SCENarios No positive act by the healthcare professional regarding the inheritance or spread of disease The linear chain of causation 144 (a) The patient s own conduct 144 (b) The non-patient s conduct 145 (c) Infection from some other source 146 F CONCLUSION Bad Samaritan Liability: Failing to Assist Non-Patients 157 A INTRODUCTION 157 B NO COMMON LAW DUTY TO ASSIST A STRANGER IN A MEDICAL EMERGENcy The no-duty-to-assist rule illustrated in medical scenarios Reasons for the no-duty-to-assist rule The relationship between the Convention and the no-duty-to-assist rule 167 C EXCEPTIONAL SCENARIOS: A COMMON LAW DUTY TO ASSIST STRANGERS IN MEDICAL EMERGENcies Requests for medical treatment at A&E facilities An emergency request, an affirmative undertaking, and reliance An emergency request, and a refusal to assist 173 (a) The facts and reasoning in Lowns v Woods 173 (b) Reaction to Lowns v Woods 176 (c) Would English law follow Lowns v Woods? 177 D CRIMINAL LIABILITY FOR FAILING TO ASSIST: A SNAPSHOT FROM OTHER JURISDICTIONs 182

4 viii Medical Negligence: Non-Patient and Third Party Claims 1. The Northern Territory The state of Vermont Continental Europe A Bad Samaritan statute for England? 186 E CAUSATION CONUNDRUMs How does doing nothing cause the victim s harm? Hypothetical scenario: what would the healthcare professional have done? 189 F CONCLUSION Good Samaritan Liability: Intervening to Assist Non-Patients 201 A INTRODUCTION 201 B JUDGING THE GOOD SAMARITAN AT COMMON LAW Some illustrative medical scenarios A duty of care owed by the healthcare professional to a stranger Where is the legal standard of care set for the Good Samaritan? 204 (a) The effect of battle conditions 204 (b) No relevant specialism 205 (c) What does not suppress the standard of care How is breach assessed for a Good Samaritan? 206 (a) The Bolam test of breach 206 (b) The making it worse rule 207 (c) The gross negligence test Conclusion 209 C GOOD SAMARITAN LEGISLATION: ANY LESSONS FOR ENGLAND? The desirability of Good Samaritan legislation: law reform opinion The legislative position in Australia, Canada and the United States Drafting and interpretation problems under Good Samaritan statutes 215 (a) Bad faith/gross negligence 215 (b) No expectation of fee or reward 218 (c) Can a corporation be a good Samaritan? 220 (d) Rendering assistance 221 (e) Assistance rendered at a hospital/medical centre 222 (f) Emergency medical care 223 (g) Level of injury 225 (h) A voluntary act (the problem of a pre-existing duty to rescue/assist) 225 (i) The effect of inebriation on the part of the rescuer, etc. 226 (j) The type of healthcare professional protected 226 D CONCLUSION 227 PART III: Actual or Potential Negligence Liability for Non-physical Injuries To Non-patients 7 Pure Economic Loss Claims by Third Parties Associated with the Patient 237 A INTRODUCTION 237 B THE POTENTIAL SCENarios The failed sterilisation/failed abortion cases 238 (a) Relevant cases 238

5 Contents ix (b) Joint and solo claims 239 (c) Failed sterilisation and future sexual partners 242 (d) Failed sterilisation and siblings 242 (e) Summary Wrongful birth scenarios 243 (a) Relevant cases 243 (b) Joint and solo claims The costs of caring for a negligently-treated patient Where third parties incur other financial losses brought about by a patient s negligent treatment 247 C CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF CARE IN PURE ECONOMIC LOSS SCENarios Reasonable foreseeability of economic injury or harm The requisite proximity between healthcare professional and third party Relevant policy factors 253 D CONCLUSION Pure Psychiatric Injury Claims by Third Parties Associated with the Patient 265 A INTRODUCTION 265 B SETTING THE CONTEXt Some preliminary points A genuine or recognised psychiatric illness 268 C ILLUSTRATIVE SCENARIOS OF NON-PATIENT CLAIMS FOR PURE PSYCHIATRIC INJury 270 D CLAIMS BY NON-PATIENTS AS PRIMARY VICTIMS AGAINST HEALTHCARE PROFESSIONals Proving that the non-patient was a participant Elevating an apparent secondary victim to primary victim status Proving a duty of care, as a primary victim in medical negligence scenarios 278 (a) The test of foreseeability of psychiatric injury 278 (b) The role of proximity 278 (c) No requirement that the non-patient is of normal fortitude 279 (d) Any requirement of shock? 280 (e) Public policy considerations 281 E CLAIMS BY NON-PATIENTS AS SECONDARY VICTIMS AGAINST HEALTHCARE PROFESSIONals Can a non-patient be both primary and secondary victim? Proving a duty of care, as a secondary victim in medical negligence scenarios 282 (a) Reasonable foreseeability of psychiatric harm 283 (b) Relationship proximity: close tie of love and affection 284 (c) Spatial and temporal proximity 285 (d) Direct perception of events 287 (e) Non-patient of normal fortitude 288 (f) Shock 289 (g) Public policy considerations 293 F NON-PATIENT CLAIMS FOR PSYCHIATRIC INJURY, VIA OTHER AVENues 294

6 x Medical Negligence: Non-Patient and Third Party Claims 1. Recovery under Caparo principles Negligent misstatement 295 G CONCLUSION Fear-of-the-Future Claims by Non-Patients 309 A INTRODUCTION 309 B FEAR-OF-THE-FUTURE CLAIMS IN MEDICAL SCENarios The English position Relevant case law from elsewhere 311 C PROVING A LEGALLY-RECOGNISABLE INJury Why a genuine psychiatric illness should be mandatory for fear-of-the-future claimants Falling short: the options 316 (a) A consequential fear-of-the-future claim 316 (b) Should anxiety about the future be sufficient? 320 (c) Conclusion 321 D PROVING THE DUTY IN ENGLISH LAW Denying fear-of-the-future claimants primary victim status Recovery under the Caparo test 323 (a) Reasonable foreseeability of psychiatric harm 324 (b) Proximity between healthcare professional and non-patient 325 (c) Public policy considerations The case for rethinking fear-of-the-future claims 326 (a) The zone-of-danger test 327 (b) The timing point 327 (c) Extending the Page v Smith principle to other scenarios 328 (d) The role of policy 328 E SOME AMERICAN INSIGHTS ABOUT FEAR-OF-THE-FUTURE LITIGATION Exposure to the disease-causing agent 330 (a) The options: actual or possible exposure 330 (b) The arguments for and against Proving that the anxiety was objectively reasonable 332 F CONCLUSION Wrongfully-Accused Third Parties in Neglect or Abuse Cases 345 A INTRODUCTION 345 B THE CHILD CLAIMANt The early days 346 (a) The no-duty viewpoint 347 (b) The pro-duty viewpoint Key interim developments 350 (a) The Phelps and Barrett shifts in view 350 (b) Some interim successes in Strasbourg The East Berkshire (CA) decision 354 C THE WRONGFULLY-ACCUSED CLAIMANt 356

7 Contents xi 1. The East Berkshire (HL) decision Some applications of the rule in East Berkshire (HL) 361 D THE IMPACT OF THE ECHR ON THE WRONGFULLY-ACCUSED S LEGAL POSITION The East Berkshire rule and art Recovery by the wrongfully-accused under art Does the common law need to change in light of art 8? 366 (a) The East Berkshire (HL) obiter dicta 366 (b) The Lawrence v Pembrokeshire ratio 367 E CONCLUSION 370 Appendix: Potential Liability to Non-Patients and Third Parties: A Synopsis for Healthcare Professionals 381 Bibliography 393 Index 411