A Legal Duty of Genetic Recontact in Canada

Health Law in Canada, 2019

Posted: 17 Dec 2019

See all articles by Adrian Thorogood

Adrian Thorogood

McGill University - Centre for Genomics and Policy

Alexander Bernier

affiliation not provided to SSRN

Ma'n H. Zawati

McGill University - Centre of Genomics and Policy

Bartha Maria Knoppers

Centre of Genomics and Policy

Date Written: September 10, 2019

Abstract

Our understanding of the clinical significance of genomic data is rapidly evolving. The meaning of a patient’s test results can therefore change over time. Reanalysis of genomic data over time and patient recontact offer an opportunity to improve patient health. But are physicians legally responsible to do so? Professional associations worldwide are outlining best practices for genetic recontact. To inform Canadian guidelines and courts faced with this issue, we review Canadian case law to determine if there is a likely doctrinal basis for judicial recognition of a duty to recontact in genetics. Foreign guidelines or malpractice case law may not adequately reflect the peculiarities of Canada’s diverse legal and public health systems. A threshold consideration is the duration of the physician-patient relationship, seeing as physicians do not generally owe legal duties to former patients. This legal relationship endures according to the need for continued care as well as the subjective perspectives of both physician and patient. Satisfying these criteria in genetics can be difficult because of interpretative uncertainty or the absence of definitive intervention. Moreover, coordination of genetic analysis, communication, and follow-up care between healthcare professionals is complex, leading to problems of incomplete hand-off between laboratories, specialists, and primary care providers. The key challenge for plaintiffs will be to establish fault, that is, breach of a duty. Physicians in Canada traditionally have duties to diagnose, inform, follow-up and of confidentiality. We conclude that a legal duty of genetic recontact is only likely in specific circumstances where physicians acquire updated genetic information of clear health significance. This remains unlikely unless health systems or laboratories commit to systemic and adaptive reanalysis. This may change with the confluence of whole genome testing and advanced health information technologies (HIT). Whole genome sequences include millions of individual genetic variants and in turn, millions of opportunities for adaptive reinterpretation. HIT enables data sharing between laboratories, automated reanalysis of genomic test results, and new lines of communication with physicians and patients. Fundamentally, it is only health systems or institutions that can provide the infrastructure needed to adapt patient care in step with an evolving genetic knowledgebase.

Keywords: legal, recontact, genetics

Suggested Citation

Thorogood, Adrian and Bernier, Alexander and Zawati, Ma'n H. and Knoppers, Bartha Maria, A Legal Duty of Genetic Recontact in Canada (September 10, 2019). Health Law in Canada, 2019, Available at SSRN: https://ssrn.com/abstract=3495702

Adrian Thorogood

McGill University - Centre for Genomics and Policy ( email )

740 Dr. Penfield Avenue, Suite 5200
Montreal, Quebec H3A 0G1
Canada

Alexander Bernier

affiliation not provided to SSRN

Ma'n H. Zawati (Contact Author)

McGill University - Centre of Genomics and Policy ( email )

740 Dr. Penfield Avenue, Suite 5200
Montreal, Quebec H3A 0G1
Canada

Bartha Maria Knoppers

Centre of Genomics and Policy ( email )

3640 rue University
Rm W-315, Strathcona Anatomy & Dentistry Building
Montréal, QC H3A 0C7
Canada

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