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The Supreme Court in Montgomery v Lanarkshire Health Board changed the law in relation to a doctor’s duty to advise patients[2]. It substituted a patient-centred test for a doctor-centred one. The adequacy of advice is no longer measured by whether a responsible body of doctors would have said the same but what a reasonable patient (like this patient) would want to know[3]. The most recent case that draws implications from Montgomery is Gallardo v Imperial College Healthcare NHS Trust. The case takes Montgomery further by considering the duty in relation to information about diagnosis and the need for monitoring rather than – as in Montgomery and most other cases – treatment. It also considers when advice should be given and whether the duty can be delegated once a patient moves from NHS to private treatment.
Mr Gallardo developed what was thought to be a gastric ulcer in November 2000 and was admitted to Charing Cross Hospital. His symptoms recurred and, in January 2001, he was admitted again. On 30 January 2001, a CT scan was said to show a probable gastrointestinal stromal tumour (GIST). The next day, Mr Theodorou, his surgeon, performed a gastrectomy to remove the tumour. Mr Gallardo’s post-operative course was stormy. He suffered a ruptured appendix and peritonitis. He needed more surgery. Mr Gallardo had to be admitted to ITU and, when back on the ward, developed a wound infection. In the meantime, histopathology was said on 16 February 2001 to confirm the diagnosis of GIST. Realising that he had private medical insurance, he arranged to be transferred to a private wing where Mr Theodorou continued to treat him, now as a private patient. He was not discharged until 9 April 2001. Mr Gallardo had three outpatient appointments with Mr Theodorou over the next year.
On his evidence, Mr Gallardo had not been told of the diagnosis of GIST. He still thought his problems had been caused by a gastric ulcer. No one suggested his condition should be monitored, and there were no arrangements for follow-up.
Mr Gallardo’s symptoms recurred in 2010, by which time he was living in Spain. He was investigated there and thought to have a rare abdominal cancer, pseudomyxoma peritonei. He approached the Christie Hospital in Manchester for a further opinion. They asked Charing Cross Hospital for the records from 2001. Following that approach, Mr Theodorou emailed Mr Gallardo to ask whether he was authorised to disclose his private records to the Christie Hospital. The email referred to the diagnosis of GIST, which, according to Mr Gallardo, was the first time he knew of it.
Investigations established that the tumour was recurrent GIST and he had more surgery in Spain. By 2016, the disease had spread and he needed surgery.
Mr Gallardo sought damages from Imperial College Healthcare NHS Trust (which runs Charing Cross Hospital). His claim was that the hospital negligently failed to tell him of the diagnosis of GIST. He also claimed that he should have been followed up and monitored. Had he been, the recurrence would have been diagnosed and treated earlier, with a better outcome.
The claim was contested and the trial took place in October and November 2017.
There were a number of factual matters in dispute, but the judge preferred the claimant’s evidence: he had not been told of the diagnosis and remained unaware of it until Mr Theodorou emailed him in 2010. The judge also preferred the claimant’s medical expert evidence: with monitoring, the recurrence would have been diagnosed earlier, the tumour would have been significantly smaller, and treatment then would have achieved a better outcome.
The case also raised other questions of potential legal significance for other claims. These questions explore some of the implications of Montgomery and the duty on doctors in advising patients.
The defendant claimed that there was no need for the advice to be given before 30 March 2001, when Mr Gallardo switched to private care and that, at this stage, Mr Theodorou alone (in his private capacity) was under the duty.
In Montgomery, the Supreme Court redefined the duty on doctors to advise patients. The context was a woman giving birth and at an increased risk of shoulder dystocia, a condition which risked harm both to her and to her baby. In the Montgomery case, the obstetrician failed to explain the risk or invite the patient to consider caesarean section (which would have avoided the risk). The complication arose and her baby suffered cerebral palsy from hypoxia as a result.
The Supreme Court rejected the application of the Bolam test to advice and consent. The test of whether advice was adequate was not whether it accorded with the practice of a responsible body of doctors practising that particular specialism (in this case, obstetrics). Instead, the test was a patient-centred one. It is for the patient to decide which of the available forms of treatment to undergo, and his/her consent must be obtained before treatment. To enable the patient to decide, he or she must be advised of the material risks of the proposed treatment and of any reasonable alternative options.
Montgomery, and most of the cases since, have concerned treatment options. Unusually in Gallardo, the issue was diagnosis and the implications of that diagnosis for future management. The key information needed to make the diagnosis became available after the operation of 30 January 2001 and then when histopathology confirmed that diagnosis on 16 February 2001.
The question in Gallardo was whether the duty as defined in Montgomery applied only to information about treatment or also to diagnosis. The trial judge found that it did, and it is hard to see how any other decision would have been appropriate: there is no reason in principle why the same standard should not apply to all medical advice. As the judge said,
“By analogy, the same principle applies to the post-treatment discussion. It is the patient’s right to be informed of the outcome of treatment, the prognosis and what the follow-up care and treatment options are[4].”
A previous case had considered an analogous issue, although the case was not mentioned in the judgment in Gallardo. In Spencer v Hillingdon Hospital NHS Trust[5], a patient had not been warned of the risk of DVT following a hernia operation. He was not told to look out for certain symptoms and therefore did not recognise the onset of the condition. The Court found that the Montgomery duty applied to advice in these circumstances and that he should have been warned.
The course of events after Mr Gallardo’s surgery in January 2001 was complex, and he had been in a poor state. Mr Gallardo spent some time in ITU and, even after his discharge to the ward, he had a wound infection. The Trust’s case was that it was reasonable during this period not to discuss his diagnosis with him, and it was only once he had become a private patient that he was well enough to receive the advice.
The judge accepted that the timing of advice is a matter of judgment and different doctors may take different views. Some advice – particularly before treatment – may be urgent. Other advice may be less so. A patient may be unwell, anxious to hear news, suffering a serious diagnosis and perhaps needing family support before hearing bad news. All these factors must be taken into account in deciding when to advise. At times, it may be best to have an early, broad discussion and a later, more detailed one. A range of factors came into play and different approaches may be reasonable.
But the judge added:
“Plainly, though, it is a discussion which must be held. It ought not to be postponed for longer than necessary without good reason. Otherwise the doctors risk losing the patient’s trust and confidence, and the patient’s right to be informed is not respected[6].”
On the facts of this case, the judge found that the advice should have been given before Mr Gallardo became a private patient on 30 March 2001. There was therefore a breach of duty by the Trust in failing to provide that advice.
The judge had, of course, rejected the Trust’s case that it had not been under a duty to advise while Mr Gallardo was under its care. However, the Trust also claimed that its duty to advise ended when Mr Gallardo transferred from NHS to private care. The argument was that it had delegated the duty to his private surgeon, Mr Theodorou. The point became academic once its primary case failed but the judge nevertheless addressed it in a point which is therefore said in passing.
The judge disagreed with the contention that the duty to advise can be delegated. In Armes v Nottinghamshire County Council[7], the Supreme Court had distinguished between duties that can be delegated and those which cannot. If a duty can be delegated, it is enough to take reasonable care to select an appropriate third party to whom the duty is delegated. But some duties go beyond selecting the right third party. You must ensure that appropriate care is actually taken even if someone else is carrying out the task. These duties cannot be delegated. They can only be discharged by ensuring that that the task is properly carried out.
The judge found that a doctor’s duty to advise is a non-delegable one. Once the Trust clinicians came under a duty to advise Mr Gallardo – ie, once he was well enough to be given that advice – they remained under the same duty despite their patient subsequently moving to private care.
“The Defendant owed the Claimant a duty to advise him of the outcome of surgery, of his prognosis, and of the need for follow-up. The surgery was carried out on the NHS. The histopathology report had been obtained on the NHS. The duty arose in consequence of his treatment. It was a necessary concomitant of it[8].”
The judge added, ‘It remained the Defendant’s duty to provide him with the appropriate advice, regardless of whether it could have been given before the move or whether it was reasonable to postpone it until later[9].”
There has been a significant change in the nature of a doctor’s duty to advise patients following the decision in Montgomery v Lanarkshire Health Board in March 2015. A new patient-centred test has replaced a clinician-centred. Advice is generally appropriate if it accords with what a reasonable patient (like this patient) would want to know, rather than what a reasonable doctor of a particular specialism would say.
Following a major change in the law, it takes time to work through the implications. There were a number of decisions during 2017 which considered the impact of Montgomery. Gallardo v Imperial College Healthcare NHS Trust is the latest.
The Gallardo case confirms that the Montgomery duty applies not just to advice about treatment but to advice about diagnosis and the implications of that diagnosis for future management. It provides some helpful guidance on the timing of advice and identifies various factors relevant to the decision as to when patients should be told. It also raises an unusual point, clarifying that the duty to advise cannot be delegated.
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[1] Raul Guiu Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB)
[2] Montgomery v Lanarkshire Health Board [2015] UKSC 11
[3] “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment inferring with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of a particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would attach significance to it.” Ibid, para 87.
[4] Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB), para 70
[5] Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058
[6] Ibid, para 80
[7] Armes v Nottinghamshire County Council [2017] UKSC 60
[8] Gallardo v Imperial College Healthcare NHS Trust, para 90
[9] Ibid, para 94
