Striking a balance: Resolving conflicts between the duty of confidentiality and duties to third parties in genetics
Cambridge University Press / Society of Legal Scholars
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Currently under an indefinite embargo pending publication by CUP. No embargo required on publication.
Genetic information is relevant not only to the patient, but also to their family. Where a patient refuses to share that information with family members, then their legal rights may conflict. This paper focuses on that conflict between the rights of individuals and the rights of third parties. We first examine the nature of the duty of confidence as it applies in these circumstances, and the extent to which it can appropriately accommodate the familial nature of genetic information. We then consider the situations in which a health care practitioner might owe a third party family member a tortious duty of care. We conclude that in most cases, there will be no duty owed to third parties, but that in certain limited circumstances, a duty of care should arise.
The authors are grateful to Professor Anneke Lucassen, Dr Daniele Carrier, Dr Sandi Dheensa and the Recontacting in Mainstreaming Genetics project team, Professor Andrea Lista, Professor Charlotte Waelde, Professor Christian Witting, Dr Paula Boddington and members of the Science, Culture and the Law research group at the University of Exeter Law School for comments on earlier drafts of this paper. Naomi Hawkins is supported by the ESRC (grant codes ES/K009575/1 and ES/L002868/1).
This is the author accepted manuscript.
Awaiting citation and DOI