Consent and Medical Care – Gallardo v Imperial College Healthcare NHS Trust
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The nature of a doctor’s duty to advise patients changed significantly with the Supreme Court decision in Montgomery v Lanarkshire Health Board .
The test of whether a doctor has provided adequate advice is no longer whether a responsible body of doctors would have given similar advice but related to what a reasonable patient would expect to be told in similar circumstances.
Raul Guiu Gallardo v Imperial College Healthcare NHS Trust   EWHC 3147 (QB)
Gallardo is a further case illustrating some of the implications of that decision. It considers how the duty relates not just to advice about future treatment but to information treatment and investigations which have already been done, as well as to information about prognosis and the need for further monitoring. It considers the nature of that duty, the timing of advice and whether the duty can be delegated.
Mr Gallardo was treated for a gastric ulcer in November 2000 at Charing Cross Hospital. In January 2001 he was re-admitted. A CT scan of 30th January 2001 was reported as showing a probable gastrointestinal stromal tumour (GIST). The following day, his surgeon, Mr Theodorou, operated to remove the tumour. Unfortunately Mr Gallardo suffered complications. He had a ruptured appendix and peritonitis for which he needed further surgery. He was then admitted to ITU. In the meantime a histopathology report of 16th February 2001 confirmed the diagnosis of GIST. On 5th March 2001 he returned the ward. He initially suffered a wound infection but gradually regained strength. On 30th March 2001 he was moved to a private wing under his medical insurance. He was finally discharged on 9th April 2001. He saw Mr Theodorou at an out-patient appointment on 23rd April 2001 and then again 3 more times over the next year.
On his account of events he was not told of the malignancy. His understanding was that his surgery had been for a gastric ulcer. He did not know that he had a condition which should be monitored. No arrangements were made for follow-up.
In 2010 he was seen at 2 hospitals in his native Spain and diagnosed with a rare abdominal cancer, pseudomyxoma peritonei. He doubted the diagnosed and consulted the Christie Hospital in Manchester. The Christie Hospital wanted to see his earlier medical records and asked Charing Cross Hospital. That led to Mr Theodorou approaching Mr Gallardo by email for permission to disclose his private records. Mr Theodorou’s email referred to the diagnosis of GIST. According to Mr Gallardo, this was the first time he became aware of the diagnosis.
The tumour in fact proved to be a recurrence of the GIST and in June 2011 he underwent further surgery in Spain. In 2016 he developed metastatic disease for which he will need further surgery. His condition appears to be amenable to treatment.
Mr Gallardo brought a claim against Imperial College Healthcare NHS Trust (which is responsible for Charing Cross Hospital). He alleged that the hospital had been negligent in failing to inform him of the diagnosis of GIST, refer him for follow-up and provide clinical surveillance. The case came to trial in October and November 2017.
On various issues of fact the court found for the Claimant. It found that Mr Gallardo had not in fact been told of the diagnosis and did not know of it until he received Mr Theodorou’s email in 2010. It accepted his medical evidence what with monitoring the recurrence would have been detected earlier and that the outcome would have been better.
The case raised issues about the implications of the decision in Montgomery and the nature of the duty to advise patients. The key issues here were:
1. Who should have informed him of the diagnosis? Once he had become a private patient, did the duty pass from the NHS Trust to his private surgeon?
2. When should he have been informed?
The Trust’s case was that there was no requirement for the discussion to take place before Mr Gallardo became a private patient, when the duty passed to Mr Theodorou personally.
What should the Claimant have been advised?
The Supreme Court in Montgomery had reformulated the nature of a doctor’s duty to advise a patient. A patient has the right to decide which of the available forms of treatment to undergo. In making that decision she must be informed of the material risks of both the proposed treatment and any reasonable alternative options. Only in exceptional circumstances can a doctor withhold that information.
The decision in Montgomery concerned management in the immediate future – whether to manage the birth of Mrs Montgomery’s baby by vaginal delivery or caesarean section. Because of risk factors particular to her, there was an unusually high risk of shoulder dystocia which could harm both her and her baby. Most of the legal cases following Montgomery have concerned future management.
The unusual feature of Mr Gallardo’s case was that the information withheld concerned not so much what might happen in the future as what had happened in the past. In particular it concerned what his diagnosis actually was, based on the findings at surgery and then the histopathology results. The initial view of his clinicians was that he had a gastric ulcer and that was what he thought the diagnosis in fact was. However, the actual diagnosis was GIST.
The trial judge, found that the Montgomery duty applied to information post-treatment:
‘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’ .
This seems obviously correct. It is difficult to see how one rule should apply to advice about treatment and another about diagnosis. Indeed in Spencer v Hillingdon Hospital NHS Trust – although the case is not referred to in Gallardo – the court had applied the duty to advice about post-operative management following hernia surgery. There the Claimant had not been warned to look out for symptoms of deep vein thrombosis and pulmonary embolism and as a result had not recognised their onset.
When should the Claimant have been advised?
The complicating factor here was the Claimant’s complicated post-operative history leading to his admission to ITU and then a period when he remained unwell on the ward, prior to being moved to a private wing. The Trust argued that it was appropriate to withhold advice until Mr Gallardo was well enough, which was not until after 30th March 2001 when he became a private patient.
The court accepted that when to give advice is a matter of judgment. The timing of advice before treatment may be constrained by the urgency of treatment. There may be less urgency afterwards and a more flexible approach may be appropriate. Various factors then affect the timing of that advice including: how anxious the patient is to be told; the seriousness of the information to be given; and whether family members are available to support the patient when difficult news is given. In some circumstances it may be appropriate to give the information in 2 stages: a broader discussion followed by a more specific one.
The court accepted that different approaches were possible. However, in deciding what timing was appropriate the test was not what a responsible body of doctors would do (the Bolam test) but involves due regard to the patient’s right to be told (in line with Montgomery).
The judge commented,
‘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 risks losing the patient’s trust and confidence, and the patient’s right to be informed is not respected.’
In most cases, little turns on the timing of advice. However, in Gallardo the Trust argued that it had no duty to tell Mr Gallardo of his diagnosis before he became a private patient. At that stage, the duty passed to his surgeon.
The judge, however, found that the discussion should have taken place as soon as Mr Gallardo was well enough to take in what he needed to be told and participate in the discussion. This was before he became a private patient.
Could the duty have been delegated?
The Trust argued that its duty to advise came to an end once Mr Gallardo became a private patient. In effect it then delegated its duty. The judge rejected that submission. As the Supreme Court had said in Armes v Nottinghamshire County Council some duties go beyond taking personal care in performing a function but are to ensure that care is taken. They cannot be discharged by exercising reasonable care in selecting someone to whom to delegate the duty. They can only be discharged by ensuring the job is done. In Gallardo, the judge regarded the duty to advise as one that could not be delegated. The fact that Mr Theodorou took over Mr Gallardo’s care privately rather than on the NHS on 30th March 2001 did not absolve the Trust of its duty.
As the judge said,
‘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’ .
He 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’ .
Montgomery v Lanarkshire Health Board changed the legal landscape in March 2015. It substituted a patient-centred test of adequate consent for one that was clinician-centred. The implications of that decision have been explored in a number of cases of which Gallardo v Imperial College Healthcare NHS Trust is the most recent.
Gallardo demonstrates that the duty applies not just to advice leading to treatment – matters in the future – but to advice about diagnosis once treatment has taken place – matters in the past, but which of course have implications for future management. Given that any other decision would have been illogical, this is not surprising and Spencer v Hillingdon Hospital NHS Trust had already applied the duty to advice about post-operative management.
The case also raises an interesting point as to whether the duty to advise patients can be delegated to third parties. In particular, if responsibility for a patient’s care passes from a NHS trust to a private surgeon, is the trust then free of its duty to advice. The decision in Gallardo was that it is not. The duty is not one that can be delegated.