Informed consent: extension of Montgomery principles
Gallardo v Imperial College Healthcare NHS Trust [08.12.17]
Gallardo represents an extension of the ‘Montgomery principles’ in the context of the giving of information, including diagnosis and treatment options, post-operatively. It also re-affirms that the duty owed by an NHS Trust is a non-delegable one.
The 46 year old Spanish claimant underwent major abdominal surgery at the Charing Cross Hospital in 2001 to remove a malignant gastrointestinal stromal tumour (GIST). In the post-operative period, he was moved from the NHS into a private room at the hospital and was thereafter treated as a private patient.
The cancer recurred and in 2011 he underwent further major surgery. His condition is now closely monitored.
Sitting in the High Court, Judge Peter Hughes QC held:
- The claimant should have been informed by the NHS Trust of the malignancy, the risk that it might re-occur and that he would need regular monitoring before he became a private patient.
- The surgery had been carried out on the NHS and the duty arose as a consequence of this treatment. This duty had not been discharged by the time the claimant had moved to the private wing of the hospital.
Gallardo is a sober warning not to ignore the Montgomery principles once treatment has taken place.
It must be one of the first reported cases to apply those principles to post-treatment discussions and suggests that clinicians will need to pay as much attention to discussions on follow-up care and treatment options as to the consenting process. Particular care is needed where there is a rapid discharge from NHS care and it would be imprudent to rely on any subsequent treating clinician to pick up on any shortcoming in the post-treatment debrief.
Overall, the following questions remain pivotal to the clinician’s role in ensuring informed consent is obtained (and best practice is executed):
What are the best treatment options available to the patient?
Clinicians should distil what information is truly relevant and material to the patient in making a decision. It is the job of the clinician to be aware of, and understand, all information relevant to the patient’s condition in order to determine what the best treatment options are – particularly where the medical issues are difficult.
Will the information assist the patient in their decision-making?
Whilst a patient is autonomous, the information provided needs to be able to assist the patient in coming to a conclusion. Treatment options must be discussed with the patient in language the patient comprehends, including a discussion of the risks and benefits, in order to facilitate a genuinely informed choice.