Discovery of genetic information

46.18 Professor Mark Rothstein has commented:

Conceivably, in every case in which the plaintiff seeks to recover for permanent or long-term disability or lost future earnings, regardless of the legal theory of the case, the defendant could seek to discover the plaintiff’s risk of premature incapacity or mortality by obtaining genetic records or performing genetic testing.^[15]

46.19 In the United States, negligence suits have been brought in relation to children born with health defects as a result of their parents’ exposure to toxic substances. In a number of these cases the courts have ordered the production of

personal records (such as employment, education and medical records), as well as physical and mental examinations of the person bringing the claim, as well as his or her relatives.^[16]

46.20 The use of discovery procedures to seek access to a party’s genetic test results or other genetic information has important implications. If a court were to order a plaintiff (and potentially, his or her relatives) to submit to genetic testing, this could have significant privacy implications, potentially undermining their ‘right not to know’ certain genetic information about themselves. Unless properly scrutinised by the courts, requests for discovery of genetic information could amount to a ‘fishing expedition’; and the potential impact of discovery on plaintiffs and their relatives could be a significant deterrent to bringing legitimate actions.^[17]