nurse in a Well Woman Clinic who examined a woman for breast cancer and did not refer her to a doctor when she complained of a lump in her breast was held liable for negligence. A doctor using a healthy volunteer for research is not in a therapeutic relationship but he will be liable if he negligently causes damage to the volunteer.
As will be discussed in Chapter 3, there is no blanket obligation in law to give the patient information about himself, but it is likely that courts would hold a doctor negligent if, having discovered in the course of screening that a worker was showing signs of susceptibility to a substance, he did not at least warn the patient to avoid further exposure. Only if the worker’s condition were incurable, could not be treated and could not be passed on to others might there be justification for the doctor’s silence. In one incident, a part‐time OH physician passing through the factory chanced to see a worker stripped to the waist. He noticed swelling of glands and other clearly visible symptoms of Hodgkin’s disease. He obtained the man’s consent to writing a letter to his GP, who in his turn sent him to a consultant who confirmed the diagnosis and commenced immediate treatment. Would the OH physician have been acting negligently if he had not at least advised the man that he should consult his own doctor? What if a doctor acting as an impartial medical examiner for an insurance company discovers such symptoms? Even though the company expressly forbids him to discuss his report with the applicant, it would be negligent (and, as a mere lawyer, I should have thought unethical) for the doctor not to indicate to him that he should seek further medical advice (one possibility is to obtain the applicant’s agreement to sending a confidential letter to his GP).
What, then, is the difference between the therapeutic and the other relationships? As you would expect, it is the existence or absence of a duty to give treatment. The doctor or nurse who examines an applicant for a job undertakes only to assess his medical suitability. He has no further obligation. He can say: ‘I have been asked to examine you by the employer. These are the examinations I propose to do. I shall only perform them with your agreement and I shall only give the results to the employer with your consent. If you refuse consent I cannot write a report about you and in that case I don’t think you have much chance of the job, but that is your decision.’
There is no doubt that the OH professional does owe a duty of care to employees in employment and this is discussed in the next section. It is important to note that the duty of confidence arises in any situation, pre‐employment, in employment, or if the doctor is an independent medical examiner, where the patient confides in the physician. It is not dependent on the presence or absence of a duty of care.
2.4 Liability to the workers
OH professionals have a two‐fold duty to the work‐force. Since they have no contract with the employees (the contract is with the employer) their duty flows only from the law of tort (delict in Scotland). In the first place, they assume a broad obligation towards all those employed by the employer while at work. The OH professional is in one sense like a general practitioner who has accepted patients on to his list. The list comprises all the workers in that part of the workplace over which he has jurisdiction. He only undertakes to care for the workers while they are at work and he does not usually promise to provide treatment other than in an emergency. Lest this be thought so onerous a duty as to deter any from the practice of occupational medicine, remember that the duty is to take reasonable care, the care that an average professional would take in all the circumstances, taking into account available resources and the degree of risk. A doctor who only visits a factory for one afternoon a week cannot be reasonably expected to monitor the health of the entire workforce in every particular. In medical negligence suits, the ability of the doctor to bring evidence that he is supported by the opinion and practice of other doctors even if there is an opposing school of thought is very good evidence that he has acted with reasonable care (Maynard v. W. Midlands RHA (1985)).
What if the doctor or nurse becomes aware that an employee is suffering from a disease which he may communicate to other workers or is in some other way a danger – a disturbed patient who is threatening violence, or a driver who is taking addictive drugs? The health professional may have a positive duty to breach confidence for the protection of others and may be liable in negligence if he does not do so. Just as the physician had a duty to warn Mr Stokes about the cancer‐inducing mineral oil, he might have a duty to tell him (or at least the human resources department) that the man working next to him in the factory is an unpredictable alcoholic (Chapter 3).
The American courts have held a doctor, employed in a university counselling service, liable for not warning a young woman student that one of his patients had murderous intentions towards her, which he had confided to the doctor. After she was murdered by the patient, her parents sued the doctor. The court held that he was negligent in not breaking his patient’s confidence (Tarasoff v. University of California (1976)). In English law, by contrast, a doctor is not usually responsible for the wrongful acts of an adult. For example, in Palmer v. Tees HA (1999) a mentally ill patient who was receiving out‐patient treatment at the defendant hospital brutalised and murdered a little girl. The mother sued the hospital for negligently failing to confine, supervise or otherwise control the patient concerned, but the hospital was held to have owed her no duty of care in the circumstances. The choice of the victim was fortuitous and therefore there was no proximity between the hospital and the child. There may, however, be a special case where, as in Tarasoff, the potential victim is identifiable. In the Canadian case of Pittman Estate v. Bain (1994) a doctor was held liable to the wife of a patient for failing to warn the patient that he was HIV‐positive, with the result that his wife also contracted HIV. Would the answer have been the same had the doctor informed the husband of his HIV status, but knew that the husband was keeping the information from his wife? Would the doctor be under a duty to breach the husband’s confidence in order to protect the wife? It is unclear what attitude the English courts would adopt to such a situation. Certainly, our courts would probably not hold a doctor liable for breach of confidence if he did decide to disclose the fact of her husband’s HIV status to his wife, because that would be a disclosure in the public interest (Chapter 3).
In ABC v. St George’s Healthcare NHS Trust (2017) a patient was diagnosed with Huntington’s disease, a genetic condition that is invariably fatal. A child of a carrier has a 50 per cent chance of inheriting it. The patient forbade the doctor to inform his children of his illness and the doctor respected his confidence. After giving birth to a child, the patient’s daughter discovered the situation by chance, was tested and was found also to be a carrier. She sued the hospital stating that, had she known the truth, she would have aborted the child. The Court of Appeal found that it was arguable on principle that the doctor owed a duty to the daughter to inform her of the situation even if that involved breaching her father’s confidence. The case was therefore allowed to proceed to a trial of the facts. If the claimant succeeds, the principle that in some cases a doctor has a legal duty to breach patient confidentiality where there is proximity between the parties may be established.
If a doctor knows that a worker is carrying HIV, is he negligent if he does not reveal it to those with whom the worker comes into contact? The medical evidence is that it is virtually impossible to transmit the virus through normal contact, so that in almost every case it will not constitute negligence if management and fellow workers are kept in ignorance. Only if there is a real risk of contact with contaminated blood or body fluids which cannot be avoided by standard hygiene procedures employed in every case, as with exposure‐prone medical and surgical procedures, should the health professional consider breaching confidence in the interests of others to whom they owe a duty of care.
Whether or not there is a legal duty to warn third parties, there may be an ethical duty. Suppose that a doctor or nurse becomes aware that a colleague is a risk to patients? The General Medical Council (GMC) in Good Medical Practice 2019, paragraph
