In Darnley v Croydon Health Services NHS Trust (2018), the Supreme Court held that an NHS hospital trust’s duty of care extended to providing accurate waiting times to patients attending A&E. Will Marshal and Alice Courtauld review the Supreme Court’s decision and its implications for the medical profession.
Michael Darnley, the claimant, was assaulted in the afternoon of 17 May 2010 and sustained a closed head injury. He contacted a friend who accompanied him to A&E at Mayday Hospital, Croydon. They arrived at 20:26 hours when the claimant was informed by a receptionist that he faced a waiting time of about four to five hours before he would be seen. At 20:45 hours, 19 minutes after their arrival, the claimant and his friend left the Hospital and returned home.
Upon returning home, the claimant's condition worsened and he collapsed. He was taken back to hospital by an ambulance the same evening. On examination, an extra dual haematoma was diagnosed, that required urgent neurosurgery. Unfortunately, the claimant suffered permanent brain damage.
The claimant brought legal proceedings against the NHS Trust alleging breaches of duty by both the clinical and non-clinical staff. He alleged that the reception staff had provided inaccurate information about the length of time that he would have to wait, that he was not assessed as a priority triage and that the clinical staff failed to assess him during his time at the hospital. He further alleged that he was told by the receptionist (incorrectly) that he would have to wait 4 to 5 hours to be seen and that if he had been told that he would actually be assessed by a triage nurse within 30 minutes he would have stayed at the hospital.
High Court and Court of Appeal judgments
The case was heard in the High Court in 2016. The trial judge rejected the claimant's claim, concluding that it would not be “fair, just and reasonable” to impose a liability on a defendant hospital for the receptionist not giving full and accurate information about waiting times. The receptionist’s task was to complete registration forms and the provision of waiting times was a courtesy.
In 2017 the Court of Appeal upheld the decision, with a majority finding that an imposition of a duty in this context would be unreasonable, far-reaching and would make the role of a civilian receptionist burdensome. To find otherwise risked adding a new area of liability to NHS health trusts and would open up 'floodgates'. Jackson LJ considered that there comes a point when people "must accept responsibility for their own actions".
However, this decision was not unanimous and, in a significant dissenting judgment, McCombe LJ did not accept that the functions of a hospital could be divided up into those of receptionists and medical staff. His view was that the duty of a hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact.
The claimant appealed this decision and the case came before the Supreme Court in October 2018 where it overturned the previous courts' judgments to find that the defendant Trust was liable.
Supreme Court findings
Duty of care and role of the receptionist
On the issue of duty of care and the role of the receptionist the Supreme Court considered that the majority opinion of the Court of Appeal was flawed. It held that in such a situation, a duty of care was well established because as soon as the claimant attended the A&E department seeking medical attention for the injury, he had entered into a relationship with the Trust. This relationship was one of patient and health care provider, thus there was a duty to take reasonable care not to cause physical injury to the patient.
The Supreme Court also held that the Court of Appeal had erred in making a distinction between medical staff and civilians employed by the Trust. The correct approach is to consider the Trust as a whole, and the Trust owed a well-established duty of care.
The third error that the Supreme Court identified in the Court of Appeal’s judgment was that it had conflated issues of duty of care and negligence. In its judgment, the Court of Appeal was concerned with A&E being a busy place and was too worried about imposing a duty of care in this context. The Supreme Court held that the Court of Appeal’s “floodgates” argument was overstated because, after all, the burden of proof will always be on the claimant to prove all the elements of the existence of a tort.
The Supreme Court found that a duty of care existed.
Was there a breach of the duty of care?
The Supreme Court emphasised that the particular role fulfilled by the individual will have a bearing on whether there is a duty of care. On consideration of the facts in this case there was a legitimate expectation from the patient that an individual employed by a hospital trust would exercise a degree of skill and care in relation to their particular role. The Supreme Court held that although a receptionist is not expected to give medical advice, they ought to exercise reasonable care in not providing misleading advice in relation to the availability of medical assistance. On the facts, the Supreme Court found that the information given had indeed been misleading. Lord Lloyd-Jones also pointed out that it was reasonably foreseeable that a person who believes that it may be four or five hours before he will be seen by a doctor may decide to leave.
In the light of this finding, the Supreme Court established that the provision of misleading information by a receptionist as to the time within which a patient may be seen by a medical professional, was indeed negligent.
The claimant waited in the A&E department for only 19 minutes before deciding to leave, without informing a member of staff. In the Court of Appeal Jackson LJ upheld that the claim could not succeed because the scope of any potential duty could not extend to imposing liability in a situation where a patient makes a decision to walk out without mentioning his departure to any staff.
The Supreme Court, however, found that if the claimant had been given the correct information, namely that he would be seen within 30 minutes, he would have remained in the waiting area and his collapse would have occurred while he was still at the hospital. In any event, the Supreme Court considered that any break in the chain of causation was artificial because the claimant's decision to leave the A&E department was a result of the negligence of the Trust.
Conclusively, the Supreme Court held that causation was established.
Comment and practical implications
A concern of the Court of Appeal and the trial judge was that extending the duty of care in this context would make it difficult for hospital trusts to advise receptionists on how to act. At paragraph 26 of the judgment the Supreme Court considered that “it is not unreasonable to require that patients in the position of the appellant should be provided on arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that they would normally be seen by a triage nurse within 30 minutes”. Whilst this offers guidance in relation to head injuries it poses the question whether there should be leaflets for every type of injury? The training of hospital staff and the scope of their responsibility is something that hospital trusts will now have to consider.
Furthermore, in considering the breach of the receptionist’s duty the Supreme Court dismissed the use of the Bolam test. Instead, it employed a general approach to negligence, therefore the question to be asked is “What would be expected of a competent receptionist”? It follows that whoever is in the role, the standard has been set and it is unlikely to vary depending on the level of the individual. This begs the question as to what constitutes a “competent receptionist” in a healthcare context? If this implies at least a rudimentary familiarity with the clinical context, then arguably healthcare providers should be looking to deploy qualified nursing staff to replace civilian receptionists as a first point of contact. This may be easily achieved in an acute hospital context but raises obvious resource implications for smaller clinics and healthcare providers.
The Supreme Court’s analysis of duty seems to fly in the face of recent high profile decisions, such as Montgomery, in which the court judgments have reflected the importance of clinicians recognising the autonomy of patients, and encouraging them to take ownership of their own treatment. In this case, the claimant exercised an autonomous decision, albeit as a result of misinformation that was given by the receptionist. That said, it is notable that the Trust in this case was unable to offer an explanation as to why the misinformation had been given; one would hope that inaccurate information is not given often.
A further point to consider relates to evidential issues in establishing who said what at an A&E reception desk. In this case, neither of the two receptionists on duty at the time could recall the conversation which took place. Clinical negligence claims are often not brought until months or even years after the event. A claimant is potentially more likely to have a better recollection of what was said in their individual case than a busy receptionist dealing with multiple patients.
This judgment highlights that if a healthcare provider makes the decision to delegate A&E reception roles to non-medically trained individual, they will potentially be liable for any harm caused by the negligence of those staff where it results in foreseeable damage. This duty extends to situations where untreated patients leave of their own accord, where their decision is said to be the result of misinformation given by A&E staff.