ABC v St George's Healthcare NHS Trust
A woman sued a hospital for failing to disclose her genetic risk for Huntington's disease to her.
In 2015, the UK High Court ruled in favor of the hospital, stating that the duty of care did not require the doctor to disclose the woman's father's diagnosis of Huntington's disease to her. The court reasoned that the doctor did not owe the woman a duty to disclose the information because the doctor was not treating her father at the time and because the woman did not ask for the information directly. The court also held that the disclosure of the information could have caused serious harm to the woman's psychological health.
However, in 2018, the UK Court of Appeal overturned the High Court's decision and ruled in favor of the woman. The court held that the doctor had a duty to disclose the information to the woman, as she was entitled to know her own medical information and the potential risks to her future health. The court also rejected the hospital's argument that the disclosure of the information could have caused harm to the woman, stating that the woman had a right to make an informed decision about her own health.
״לֵאמֹר״, אָמַר רַבִּי (מוּסְיָא בַּר בְּרֵיהּ דְּרַבִּי מַסְיָא מִשְּׁמֵיהּ דְּרַבִּי מוּסְיָא) רַבָּה: מִנַּיִין לָאוֹמֵר דָּבָר לַחֲבֵירוֹ שֶׁהוּא בְּבַל יֹאמַר עַד שֶׁיֹּאמַר לוֹ: לֵךְ אֱמוֹר — שֶׁנֶּאֱמַר: ״וַיְדַבֵּר ה׳ אֵלָיו מֵאֹהֶל מוֹעֵד לֵאמֹר״.
With regard to the term concluding the verse: “Saying,” Rabbi Musya, grandson of Rabbi Masya, said in the name of Rabbi Musya the Great: From where is it derived with regard to one who tells another some matter, that it is incumbent upon the latter not to say it to others until the former explicitly says to him: Go and tell others? As it is stated: “And the Lord spoke to him from within the Tent of Meeting, saying [lemor].” Lemor is a contraction of lo emor, meaning: Do not say. One must be given permission before transmitting information.
The Sages taught in a baraita: From where is it derived that when the judge leaves he should not say: I deemed you exempt and my colleagues deemed you liable, but what can I do, as my colleagues outnumbered me and consequently you were deemed liable? The verse states: “You shall not go as a talebearer among your people” (Leviticus 19:16), and it says: “One who goes about as a talebearer reveals secrets” (Proverbs 11:13).
פּתחי תשובה או"ח סי' קנ"ו
כל ספרי המוסר מרעישים את העולם על עון לשון הרע ואני מרעיש את העולם להיפּוך עון גדול מזה וגם הוא מצוי יותר והוא מניעת עצמו מלדבר במקום שנצרך להציל...
Pischei Teshuva Orach Chaim 156
(1813-1868, Russia)
All the Mussar Seforim exhort massively about the Mitzvah of Loshon Haroh (telling tales) and I exhort massively on the opposite - an even greater sin and that is preventing himself from speaking in a case where it is necessary to save the exploited from exploitation.. with regard to financial affairs it is the mitzvah of Hashavas Aveidah (returning lost property).. with matters of Shidduch if he knows the man is bad and a no-gooder and it is wrong to marry him it is within the Mitzvah of Hashavas Aveidah with the body and possessions.
(With regard to a man who had trouble getting married because his father was not Jewish:) When he came before Rav Yehuda, he (Rav Yehuda) advised him: go and hide (i.e. go somewhere where they don't know you and marry a girl whose father is also Jewish for if they know you they won't let her marry you) or marry another like yourself.
Sefer Chasidim (Rav Yehudah HaChasid, 1150-1217, Germany)
"One should not cover up the blemishes of his household. If his children or relatives are looking to get married, if they have a condition that were others to know about they would avoid marrying them, he must inform them about the condition, otherwise the marriage may be on false pretenses and therefore null."
Chofetz Chaim Hilchot Rechilut 9:6 (Rav Yisrael Meir Kagan 1839-1933)
If the groom has tremendous deficiencies, that is to say if the deficiency is because of a physical illness, and the mechutan does not know it because it is internal and not apparent, it is clear that one who reveals does not transgress the prohibition of tale bearing.
The required conditions are:
a) There is a real disease of the body, not just a weak constitution
b) There mustn't be any exaggeration
c) The motive must be concern for the mechutan, not hatred of the groom
d) Only if they might listen and call off the shidduch
Tzitz Eliezer 16:4 (Rav Waldenberg, Jerusalem 1915-2006)
Instructs a doctor to reveal that a woman has no uterus and cannot have children to her fiancee. He basis his decision on the sources above. With regard to the physician's oath he quotes Rema (Rav Moshe Isserles, 1520-1572, Poland) that any oath not to reveal something which would save his friend from loss is null as it transgresses a mitzvah. Rav Waldenberg suggests that the doctor first tries to convince her to explain her condition herself.
Rav Shlomo Zalman Auerbach (Jerusalem 1910-1995)
Perhaps there is no obligation to reveal regarding such diseases, perhaps the Chofetz Chaim only allows it, without obligating it.
וְכִֽי־תִמְכְּר֤וּ מִמְכָּר֙ לַעֲמִיתֶ֔ךָ א֥וֹ קָנֹ֖ה מִיַּ֣ד עֲמִיתֶ֑ךָ אַל־תּוֹנ֖וּ אִ֥ישׁ אֶת־אָחִֽיו
Leviticus 25:14
When you buy or sell land, do not cheat one another.
Rav Moshe Feinstein E.H IV 73:2 (Lithuania-New York 1895-1986)
With regard to a 25 year old man with Marfan Syndrome who had required a heart operation and was blind in one eye.. and half his children on average would be affected.. he writes: "He certainly has to tell the woman before he gets engaged to her so that it will not be kidushei taus - a marriage on false pretenses, which is null - and besides, the prohibition of ona'ah, cheating, applies to marriage just as much as to a sale, if not more so."
American case law: Tarasoff v. Regents of the University of California
A woman was killed by her stalker after he had confided his intention of killing her to his therapist. The court concluded that a physician or therapist has a duty to warn if: (1) he or she has a special relationship with either the person who may cause the harm or the potential victim, (2) the person at risk is identifiable, and (3) the harm is foreseeable and serious.
General Medical Council, UK, Confidentiality Guidance
"If a patient refuses consent to disclosure, you will need to balance your duty to make the care of your patient your first concern against your duty to help protect the other person from serious harm."