1st Round Problem (moot of 2004/2005)
In the House of Lords
Greenfield v Allen and Miller
John Greenfield was married to Avril Greenfield in 1996. He separated from his wife in late 1997. They reconciled in early 2000, and started living together again.
In April 2000, he tested positive for the Human Immunodeficiency Virus (HIV) at a genito-urinary medicine (GUM) clinic. He had attended the clinic after he had been contacted as a result of a partner notification scheme. It transpired that he had been an intravenous drug user at various points in 1998 and 1999, and had contracted HIV as a result of needle-sharing. He informed the consultant at the GUM clinic (Dr Allen) that he was now living with his wife again, that they were currently engaging in protected sex (that is, using condoms) but that his wife was keen to try for a child in the near future. He was advised that he should disclose his HIV-positive status to his wife in order that she could be appropriately counselled on the risks and treatment options involved, but stated that he did not feel able to disclose to her. He indicated that he could not guarantee that he would not engage in unprotected sexual intercourse with his wife without disclosure.
With Mr Greenfield’s consent, his HIV-positive status and circumstances were disclosed to his GP (Dr Miller) in June 2000. Dr Miller was also Mrs Greenfield’s GP. Mrs Greenfield discussed the possibility of conceiving at a consultation in July 2000, and gave no indication that she was aware of her husband’s HIV-positive status. Dr Miller did not feel able to disclose this fact to her. He had a consultation with Mr Greenfield in July 2000, in which Mr Greenfield indicated that he did not intend to disclose his HIV-positive status to his wife, but intended to engage in unprotected sexual intercourse with a view to conceiving, in line with her request. Dr Miller strongly advised Mr Greenfield to disclose to his wife, but took no further action, and did not in fact have any further consultations with either Mr or Mrs Greenfield before moving to a different practice in late 2000.
Mrs Greenfield subsequently contracted HIV and brought an action for damages against both Drs Allen and Miller. It was not disputed that (a) Mrs Greenfield had contracted HIV subsequent to July 2000 and (b) that this would not have occurred had either Dr Allen or Dr Miller disclosed Mr Greenfield’s HIV status to her directly, as she would not have engaged in unprotected sexual intercourse with him in light of that knowledge.
Drayton J held that both Drs Allen and Miller were liable to Mrs Greenfield in negligence, which was upheld by the Court of Appeal.
Drs Allen and Miller now appeal against the decision of the Court of Appeal on the following grounds:
(i) No duty of care was owed by Dr Allen to Mrs Greenfield.
(ii) The duty of care owed by Dr Miller to Mrs Greenfield (and any duty of care owed by Dr Allen, should submission (I) be rejected) had been discharged by the provision of appropriate advice to Mr Greenfield. The duty of care did not require the breach of the doctors’ duties of confidentiality owed to Mr Greenfield.
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