Doctors’ Duty to Advise: widening the duty

What is the extent of a doctor’s duty to advise? An important ruling of the High Court has redefined and extended the duty of doctors to advise patients.

What’s the background?
The medical background in Gallardo v Imperial College Healthcare NHS Trust[1] is relatively lengthy and complex. The claimant, a Spanish man aged 46, had a gastric ulcer and, following various courses of treatment, underwent a gastrectomy. A malignant gastrointestinal stromal tumour (GIST) was also removed.

He suffered serious complications leading to further surgery, and more investigations – finally being discharged and seen as an outpatient on a number of occasions over the following year. However, he understood the surgery to have been for a gastric ulcer, and that he was not told that the tumour was malignant. No arrangements were made for his follow-up.

The following year, the claimant went to hospital twice while in Spain and was diagnosed with a rare form of abdominal cancer. On receiving his medical records from his UK hospital on request, he discovered reference to the diagnosis of the GIST (which had by now recurred) - the first time he became aware of the diagnosis. He then had further surgery in Spain, and in 2016 he developed metastatic disease.

He brought a negligence claim, arguing that the hospital had failed to inform him of the GIST diagnosis, and had not referred him for follow up appointments, or been monitored. He claimed that if he had been, the recurrence of the GIST would have been diagnosed meaning earlier treatment and a better prognosis.

What did the Court decide?
The High Court rejected the application of the Bolam test as to advice and consent in this case. The new test propounded by the Court is: what would a reasonable patient like this patient expect to be told? The test is essentially a patient centred one, not a Bolam medic centred test.

The Court found on the facts that the claimant had not been informed of the diagnosis, nor did he know of it until the doctor’s email was disclosed. At issue was who should have told the claimant about the diagnosis, and did the duty to tell him pass from the NHS trust to his private doctors? And when should he have been told?

The Court stated that it is the patient’s right to be told, and stated: “It ought not to be postponed for longer than necessary without good reason. Otherwise the doctor risks losing the patient’s trust and confidence, and the patient’s right to be informed is not respected. The approach is in danger of becoming unduly paternalistic.” Such a discussion did not take place in this case – yet it ought to take place as soon as the patient is well enough to take in what he or she needs to be told, and to participate fully in the discussion.

The Trust’s argument that it had no duty to tell the claimant before he went private was rejected. The duty applies both to advice leading to treatment, and to advice about diagnosis when treatment has taken place. Any other decision would be illogical. The Trust had therefore breached its duty to the claimant.

As for the extent of the defendant’s duty, the SC ruled: “The Defendant owed the Claimant a duty to advise him of the outcome of his surgery, of his prognosis, and of the need for follow-up. The surgery had been 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.”

Delegation of this duty
The High Court also decided that this duty cannot be delegated to third parties - in this case, from the NHS Trust to a private doctor. The judge said: “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 late.” It was a personal duty, and not a delegable one.

Crucially, the Bolam test of what a responsible body of doctors would advise is no longer good law, and the ruling represents a further refining of the law on the duty of doctors since the ruling of the Supreme Court in Montgomery v Lanarkshire Health Board (that the patient has the right to decide what, if any treatment, to consent to).

Practitioners are urged to read the judgment in full for its helpful analysis of the authorities and its interpretation of the issues of the duty of doctors to their patients.

[1] Raul Guiu Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB)



Back to the SOLICITORS group News

Media Centre

“The Solicitors Group online directory is an established and respected channel for legal professionals, meaning I can talk to my existing and future customers about products and services both quickly and easily.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Reaching our niche market can sometimes be challenging, however we find promoting our legal training courses on an excellent way of contacting both existing and new customers. The service we receive from The Solicitors Group is both professional and relevant to our core activities and we would recommend their services to others.”


“I must say that to date we have been very pleased with the referrals we are getting from your site.”

Paul West
Orchid Cellmark

“The Newsdesk feature on is ideal for us. Its prominent location on the site provides a great platform to communicate key messages to existing and potential clients.”

Neil Phillips
Marketing Manager
Countrywide Legal Indemnities

"We are very happy with the referrals we are getting from The Solicitors Group web-site."

C.A. Bishop
Technical Director
Wickham Laboratories Ltd

“We received 419 click-throughs to our site from advertising with”

Legal Prospects

“Putting myself in my potential client's shoes, I consider to offer perhaps the clearest and most user-friendly listing of expert witnesses, especially in its choice of index terms.”

Ivan Vince
ASK Consultants

“The banner ad looks great”

Samantha Dawson
The Bundle Business Limited

“The Solicitors Group has been fantastic in helping us to raise awareness about bowel cancer, which kills 16,000 people every year in the UK. Bowel Cancer UK aims to save lives by raising awareness of bowel cancer, campaigning for best treatment and care and providing practical support and advice. Without the support of organisations such as the Solicitors Group we would be unable to carry out this vital work. We are very grateful to the team at the Solicitors Group for their support and assistance.”

Tamara Matthews
Legacy Officer
Bowel Cancer UK

“As a result of Law London, we have registered 208 new companies/firms to the website, generating £20,797 GWP to date, as well as reinforcing our presence in this very profitable marketplace.”


“The event was well put together and executed, and the traffic of potential customers for us was high. We had a number of enquiries regarding our services after the event and we feel our attendance there was important to our overall brand exposure. We feel a Law event of this size without Euromoney Legal Training present could potentially be hurtful to us as a business. We would recommend you to attend and shall ourselves be there again in 2008.”


“Many thanks for the prompt service.”

Martin Gibbs MBE
Director / Investigator
Griffin Forensics Ltd

“A targeted email to key customers is an invaluable method of communication, endorse this with the Solicitors Group branding, relevant editorial content and you have created a winning combination! We look forward to reading the next edition.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Talking directly to Property Lawyers is critical to us as they are key customers or potentially could be for all of our products, The Solicitors Group offer a perfect solution to get our messages right to the right people”

Carole Hatton
Marketing Manager
Landmark Information Group

“Thank you for having a useful and informative site, it is good to see a comprehensive and friendly portal.”

Stefan Fann
UK Probate Services

“Cadogans aims to keep its brand image in front of lawyers who may be looking for engineering experts. A check on Google analytics showed that referrals to our website from The Solicitors Group website were above average.”

Daphne Wassermann
Technical Director