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2. the requisite proximity between healthcare professional and non-patient 71 3. the relevant policy factors in the context of dangerous patients 80 4. how would Tarasoff be decided in english law today? 85 5. 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? 88

1. What does a Tarasoff-type duty actually require a healthcare professional to do? 88

2. a matter for statute? 94

3. Judicial rejection of the Tarasoff principle: policy and distinctions 96

4. other expansions of the Tarasoff principle 97

5. What responsibility (if any) should the non-patient bear? 100

6. Defining the trigger for the Tarasoff duty 100 7. the problem of proving breach in a Tarasoff scenario 101

8. Proving a causal link may be difficult 102

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4 Contraction or Inheritance of Disease by non-Patients from Patients 117

a iNtroductioN 117

1. introducing the two facets of disease liability 117

2. What the chapter does not cover 118

B releVaNt disease-related sceNarios 119

1. contagious or communicable diseases 119

2. sexually-transmitted diseases 123

3. inherited diseases and conditions 125

c the Key duty oF care QuestioN 126

1. the weak form of duty 127

2. 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 130

3. the particular problem of genetic information: the case against any

duty of care at all 131

4. summary: weak or robust form of duty? 134

d coNstructiNg (aNd decoNstructiNg) a duty oF care 135

1. Proximity factors 135

2. Public policy considerations 139

e Particular causatioN coNuNdruMs iN disease-related

sceNarios 143

1. No positive act by the healthcare professional regarding the inheritance or

spread of disease 143

2. 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 146

5 ‘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 158

1. the no-duty-to-assist rule illustrated in medical scenarios 159

2. reasons for the no-duty-to-assist rule 160

3. 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 168

1. requests for medical treatment at a&e facilities 169

2. An emergency request, an affirmative undertaking, and reliance 171

3. 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

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Medical Negligence: Non-Patient and Third Party Claims viii

1. the Northern territory 182

2. the state of Vermont 183

3. continental europe 185

4. a ‘Bad samaritan’ statute for england? 186

e causatioN coNuNdruMs 188

1. how does ‘doing nothing’ cause the victim’s harm? 188 2. hypothetical scenario: what would the healthcare professional have done? 189

F coNclusioN 189

6 ‘good Samaritan’ Liability: Intervening to Assist non-Patients 201

a iNtroductioN 201

B JudgiNg the good saMaritaN at coMMoN laW 202

1. some illustrative medical scenarios 202

2. a duty of care owed by the healthcare professional to a stranger 203 3. 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 206

4. 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 209

5. conclusion 209

c good saMaritaN legislatioN: aNy lessoNs For eNglaNd? 210 1. the desirability of good samaritan legislation: law reform opinion 210 2. the legislative position in australia, canada and the united states 211 3. 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 238

1. the failed sterilisation/failed abortion cases 238

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(b) Joint and solo claims 239

(c) Failed sterilisation and future sexual partners 242

(d) Failed sterilisation and siblings 242

(e) summary 242

2. Wrongful birth scenarios 243

(a) relevant cases 243

(b) Joint and solo claims 243

3. the costs of caring for a negligently-treated patient 245

4. 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 247

1. reasonable foreseeability of economic injury or harm 248 2. the requisite proximity between healthcare professional and third party 249

3. relevant policy factors 253

d coNclusioN 259

8 Pure Psychiatric Injury Claims by Third Parties Associated with the Patient 265

a iNtroductioN 265

B settiNg the coNteXt 266

1. some preliminary points 266

2. 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 275

1. Proving that the non-patient was a ‘participant’ 275 2. elevating an apparent secondary victim to primary victim status 276 3. 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 281

1. can a non-patient be both ‘primary’ and ‘secondary’ victim? 282 2. 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,

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Medical Negligence: Non-Patient and Third Party Claims x

1. recovery under Caparo principles 294

2. Negligent misstatement 295

g coNclusioN 296

9 ‘fear-of-the-future’ Claims by non-Patients 309

a iNtroductioN 309

B Fear-oF-the-Future claiMs iN Medical sceNarios 310

1. the english position 310

2. relevant case law from elsewhere 311

c ProViNg a legally-recogNisaBle iNJury 314

1. Why a ‘genuine psychiatric illness’ should be mandatory for fear-of-the-future

claimants 314

2. 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 322

1. denying fear-of-the-future claimants primary victim status 322

2. 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 326

3. 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 329

1. exposure to the disease-causing agent 330

(a) the options: actual or possible exposure 330

(b) the arguments for and against 331

2. Proving that the anxiety was objectively reasonable 332

F coNclusioN 334

10 Wrongfully-Accused Third Parties in neglect or Abuse Cases 345

a iNtroductioN 345

B the child claiMaNt 346

1. the early days 346

(a) the no-duty viewpoint 347

(b) the pro-duty viewpoint 348

2. Key interim developments 350

(a) the Phelps and Barrett shifts in view 350

(b) some interim successes in strasbourg 353

3. the East Berkshire (ca) decision 354

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1. the East Berkshire (hl) decision 356

2. some applications of the rule in East Berkshire (hl) 361 d the iMPact oF the echr oN the WroNgFully-accused’s

legal PositioN 364

1. the East Berkshire rule and art 6 364

2. recovery by the wrongfully-accused under art 8 365 3. 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

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