Should I tell my client she’s dying?
Bad news: will knowing that her cancer is terminal affect a client's decision making?
Q. I am acting for a client in connection with a personal injury claim. At the time of the accident, the client was being treated for cancer.
We have just received the medical report, and in the covering letter, the doctor has advised us that the client’s cancer is at an advanced stage and she is terminal, but states that the information should not be passed on to the client because it is likely to adversely affect her mental state.
Do I have a duty to pass this information on to her?
A. It depends on whether the information affects the retainer. Rule 4.02 of the Solicitors’ Code of Conduct 2007 requires you to disclose to your client any information which you personally know about if that information is material to your client’s retainer – i.e. information which might reasonably be expected to affect the client’s decision-making in connection with the retainer in a significant way (see rule 4, guidance note 24).
However, there are exceptions to the duty to disclose. One of these is where you reasonably believe that disclosure may be harmful to the client because of the client’s physical or mental condition (rule 4.02(b)(iii) and guidance note20).
If the information is material, therefore, you will need to consider the extent to which disclosure may harm her mental state. You may need to seek further information from the doctor.
Ultimately, it is a matter of judgement for you. The doctor’s view, whilst clearly important, is not binding. You will need to take into account the extent to which the client’s ability to give informed instructions would be impaired and whether you would still be able to act in the client’s best interests.
You should also consider what the wider implications might be – for example, depending on the client’s circumstances and the time she may have left, the client might prefer to go for a quick settlement, even if this meant accepting a reduced sum, to avoid the stress of further litigation or to free up the monies now. Another consideration might be the fact that if the client were subsequently to discover that you had withheld information, it might undermine the trust the client has in you.
If you decide not to disclose the information, bear in mind that if the client subsequently complains, you will need to demonstrate that you had reasonable grounds for believing that the information would harm her mental state. Bear in mind also that whilst you can omit giving information to your client, you cannot lie to your client.
If you decide that the information is not material to the retainer, then rule 4.02 will not apply, but you may still wish to consider whether to disclose the information based on the above points.
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