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Duty calls: What information should be provided to patients following treatment?

31 January 2018. Published by Florence Page, Senior Associate

In December 2017, the UK High Court handed down judgment in a case concerning the duty to inform a patient of treatment outcomes and the requirement for follow-up, further treatment, or monitoring.

Informed consent remains a hot topic in the medical field. Subscribers to this blog will have read our commentary on the recent Court of Appeal case of Shaw v Kovac and University Hospitals of Leicester NHS Trust [2017] in which it was unanimously decided that there is no independent cause of action against a doctor for failing to obtain informed consent to treatment. In case you missed it, the blog can be found here.


But what obligations arise following treatment? In December 2017, the High Court handed down judgment in the case of Gallardo-v-Imperial College Healthcare Trust which considered just that.


The Facts


Mr Gallardo underwent major abdominal surgery at Charing Cross Hospital in January 2001. During the operation a malignant gastrointestinal stromal tumour ("GIST") was removed. Following the operation, Mr Gallardo spent some time in intensive care before being moved to the private wing of the hospital and discharged in April 2001. He was seen privately by his treating surgeon as an out-patient on more than one occasion in 2001/2. His treating surgeon died in 2014 and played no part in the proceedings.


Mr Gallardo sued the Trust which runs Charing Cross Hospital; he argued that he was not told that the tumour was malignant, that there was a risk that the cancer could recur, or that he would need regular CT scans and monitoring. The cancer did recur, and in 2011 Mr Gallardo underwent further major surgery.


The defendant Trust argued that Mr Gallardo was properly informed of the malignancy and risk of recurrence following his operation; however, the question of liability was somewhat complicated by the fact that post-operatively Mr Gallardo moved from being treated as an NHS patient to being treated as a private patient. The Trust contended it had no continuing responsibility for Mr Gallardo after he became a private patient. Any breach of duty occurred when Mr Gallardo was a private patient, and so was not the responsibility of the Trust. Further, it was argued (unattractively) that Mr Gallardo failed to make appropriate arrangements for his own follow-up and monitoring.


The Decision


The Court found that Mr Gallardo's treatment and prognosis, the significant risk of recurrence, and the need for regular CT scans and monitoring were not properly explained to him in 2001.


In considering when Mr Gallardo should have been told about his condition, and the need for follow-up monitoring, the Court applied the principles set out in the Supreme Court decision in Montgomery that a patient has the right to be informed of the treatment outcome, prognosis, and the follow-up care and treatment options. Whilst a number of factors may affect the timing of such a discussion (e.g. the patient's condition and ability to participate), these must be balanced against the patient's right to be informed.


The Court held that such a discussion should not be unduly delayed and should take place as soon as the patient is well enough to participate fully and to understand what he/she needs to be told. In this case, the discussion with Mr Gallardo should have taken place following his discharge from the intensive care unit, before his move to the private wing.


The Trust's argument that it had no continuing responsibility for Mr Gallardo after he became a private patient was rejected. The Court found that the Trust owed Mr Gallardo a duty to advise him of the outcome of his surgery, his prognosis, and the need for follow-up. It was a continuing duty, and one which the Trust failed to discharge.


As to causation, it was found that if CT scans been done annually after the first 2 years, the recurrence of the tumour is likely to have been diagnosed 4 years earlier. As such, the surgery would not have been as extensive or difficult as it proved to be in 2011.


The decision is a cautionary tale for those in the medical field, re-emphasising the importance of the role of the patient as an active participant in their treatment.


It also has significance for the current debate about the relationship between the NHS and the private sector; the NHS cannot 'wash its hands' of a patient who seeks private treatment