Patients’ compliance with treatment
An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.
Clinical plans can be complicated, and on occasion go awry. Usually, if arrangements do not fall into place as planned, misunderstandings can be rectified.
Regrettably, in the case of Shaheen & Daish [2025] EWHC 3056 KB Mr Ahmed, a 49-year-old smoker died of lung cancer, four years after presenting with worsening breathlessness and chest and upper back pain to his general practitioner in February 2019. During that consultation the doctor prescribed Symbicort and salbutamol inhalers and advised that Mr Ahmed return for a review in two weeks. Whilst the doctor told the court she had advised Mr Ahmed that in the intervening two weeks he would need to go for a chest x-ray that she had arranged, Mr Ahmed’s family alleged that he was not told of this arrangement; nor where he had to go for this investigation. The doctor’s request necessitated his attendance at a local walk-in radiology department. The preceding year, Mr Ahmed had successfully attended for blood tests following similar arrangements.
Both the family and the general practitioner accepted that if a chest x-ray had been obtained in February 2019, that would have led to the diagnosis of lung cancer, although the doctor did not agree with the family’s claim that the diagnosis at this stage would have altered Mr Ahmed’s outcome.
Mr Ahmed did not attend his follow up appointment with his general practitioner; his next contact with the practice was in the winter of 2019, with worsening chest symptoms. An x-ray on 6th January 2020 led to his cancer diagnosis. The court found as a fact both that he was not told in 2019 that an x-ray request had been made on his behalf; nor that he needed to attend the local walk-in radiology department in order for the x-ray to be taken. The court also found that he would have attended for the chest x-ray if he had been told that one had been arranged for him.
Those representing the general practitioner surprisingly contended that Mr Ahmed’s failure to attend the review appointment (which would have revealed that the chest X ray had not been obtained and provided an opportunity for re-arrangement) meant that he shared some responsibility for the x-ray not being performed. An allegation by a defendant doctor of ‘contributory negligence’ by the claimant patient is very rare in common law…and must contain evidence that the aggrieved patient understood the significance of a failure to follow the advice of the doctor… but nevertheless deliberately ran that risk. No such evidence emerged in this case; the ‘defence’ of contributory negligence was dismissed.
The court was told that there has only been one case, Pidgeon v Doncaster HA [2002] LR Med 130, where contributory negligence has been successfully pleaded. This involved the delayed diagnosis of cervical cancer due to a mistakenly negative cytology report. The delay had led to the necessity for more invasive surgery. Ms Pidgeon had been urged over a seven-year period to undergo a repeat cervical smear, but she declined the procedure whilst acknowledging the potential risks of non-compliance. Although the Health Authority remained liable for the original cytological reporting error, Ms Pidgeon’s damages were substantially reduced due to her concession that her lack of engagement contributed to the delay in diagnosis.
These cases provide context for clinical practice. Whilst patients may occasionally not comply with investigations and management as one would ideally wish, it would be a rare event for them to deliberately undermine therapeutic intention. Where a capacitous patient is ostensibly acting contrary to ‘the plan’, this should raise the much more likely possibility that they for some reason misunderstand or are fearful of the clinical approach. In those circumstances, the disclosure relating to consent should be urgently revisited. The benefits, risks and alternatives of treatments flowing from their diagnosis can once again be discussed, and the clinical management either reaffirmed by explanation or revised.
Mr Robert Wheeler
Department of clinical law
June 2026