Waiting Times and Duty of Care

For some, the Supreme Court’s decision in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 came as a surprise, but it was nothing more than an application of well-established principles.

Facts

The facts of the case were relatively simple. Mr Darnley was assaulted by an unknown assailant and was struck on the head. He called a friend, Mr Tubham, who took him to A&E at Mayday Hospital in Croydon, which was the responsibility of the Defendant Trust.

Mr Darnley was booked in at reception, explaining that he had suffered a head injury and that he was feeling unwell. The receptionist had a less than helpful attitude, appearing to be more concerned about the assault than the injury itself. She told the Claimant to sit down and, most importantly, that he would have to wait up to four or five hours to be seen. The Claimant explained that he could not wait that long as he felt so unwell and thought he would collapse. He was told that if he did collapse, he would be treated as an emergency.

After waiting in A&E for 19 minutes Mr Darnley left, without telling reception, to go home for some paracetamol and to lie down. Within an hour he collapsed and was rushed back to Mayday Hospital by ambulance. He was subsequently transferred to St George’s Hospital where he underwent an operation to evacuate a large extra-dural haematoma. Unfortunately, Mr Darnley suffered permanent brain damage in the form of severe left hemiplegia.

Trial

At trial the specific receptionist who spoke to Mr Darnley could not be identified, but the two that had been on duty at the time both gave evidence. Neither could specifically recall the conversation but explained their normal procedure would have been to state that a triage nurse would see him within 30 minutes (one receptionist) or as soon as possible (other receptionist).

The judge (HHJ Robinson sitting as a High Court judge) found that:

If Mr Darnley had been told that he would be seen within 30 minutes he would not have left after 19 minutes and would have been seen before he left

He left, in part, because of the inaccurate or incomplete information he was given by the receptionist

It was reasonably foreseeable that some patients will leave A&E without being seen and will suffer injury as a result

It was reasonably foreseeable that a patient may leave A&E if they believe that they will have to wait for four or five hours in circumstances where they would have stayed if they had known they would be seen within 30 minutes

Had the Claimant not left the collapse would have occurred within a hospital setting, he would have received treatment sooner and would have made a near complete recovery

However, the judge also found that:

A&E receptionists were not under a duty to guard patients against harm that might be suffered by their failure to wait, even if they would have waited if accurate information had been provided

The harm in this case was outside the scope of any duty owed by the Defendant or its receptionists

It would not be fair, just or reasonable to impose liability on the Defendant for the failure of the receptionists to provide accurate information as to waiting times

The chain of causation was broken by the decision of the Claimant to leave A&E

The Claimant’s claim was therefore dismissed.

Court of Appeal

The Claimant’s appeal to the Court of Appeal was also dismissed by a majority (McCombe LJ dissenting) on the grounds that:

The Defendant did not owe a duty to advise on waiting times

Alternatively, the damage was outside the scope of any duty owed

Alternatively, there was no causal link between the breach and the injury

It was also considered that the provision of inaccurate information was not an actionable mis-statement; that the receptionist was not assuming responsibility for the catastrophic consequences that might arise if the Claimant left; that it would not be fair, just and reasonable to impose such a duty; that to impose such a duty would add a new layer of responsibility and new head of liability to the NHS; and that the Claimant was responsible for his injuries through leaving A&E.

Supreme Court

The Supreme Court was unanimous in allowing the appeal and remitting the case to the High Court for determination of quantum. The only judgment (with which all other justices agreed) was delivered by Lord Lloyd-Jones.

The judgment identified faults in the analysis of the Court of Appeal in terms of duty of care and breach of that duty.

Importantly, it was considered that the claim did not give rise to a duty of care in a novel situation. It was held that the case fell within an established category of duty of care, being the duty on hospitals to take reasonable care not to cause physical injury to the patient, which in this case arose as soon as the Claimant had provided information to the receptionist and was booked into the system, giving rise to a relationship between Claimant and Trust. It was also confirmed that the scope of the duty included a duty to take reasonable care not to provide misleading information which might foreseeably cause physical injury.

Equally importantly, it was confirmed that the duty was owed by the Trust, and it was not therefore appropriate to distinguish between medical and non-medical staff. This is easily understandable in the context of this case, as it is likely that it would be the non-medical administrative staff that would have better or more information about waiting times than the medical staff. However, the implication of this could be very wide, impacting upon other non-medical staff working within the NHS as well as receptionists and other non-medical staff working in other healthcare settings, such as GP practices, dental surgeries, walk-in clinics, sexual health clinics and even pharmacies etc.

However, it was recognised that whilst the role which an individual filled within the Trust did not impact upon whether a duty was owed, it did impact upon the assessment of whether that duty had been breached, as “the degree of skill which can reasonably be expected of a person will be likely to depend on the responsibility with which he or she is charged.” In the present case it was “an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.” It was also recognised that A&E receptions were not “havens of tranquillity”, but often operate in very difficult circumstances and under colossal pressure, and that might be highly influential in assessing whether there had been a negligent breach of duty.

Finally, in considering whether the Claimant had broken the chain of causation the Supreme Court recognised (and accepted the judge’s findings at first instance) that it was reasonably foreseeable that a person might leave an A&E department if they had been given misleading information that they would have to wait four to five hours before being seen. It was also considered relevant that the Claimant had suffered a very grave head injury, and as such was in a very vulnerable condition.

Comment

Upon reading the judgment it should come as no surprise that the Supreme Court allowed the appeal. Well known and clearly established principles were applied to the case. There was concern raised by the Defendant about the potential implications of the judgment. Indeed, the judgment recorded Jackson LJ’s comment in the Court of Appeal “that litigation about who said what to whom in the waiting rooms of A&E departments could become a fertile area for claimants and their representatives.” We shall have to wait and see whether those concerns are realised, or whether Trusts (and other healthcare providers) put measures in place to ensure that misleading information is not provided by its frontline staff. Further training is likely to follow, and that is no bad thing. Information sheets and notices setting out normal procedures within an A&E department are also likely to become more prominent and readily available. Again, this is no bad thing. Hopefully we will avoid McDonalds or Argos style display boards telling patients how long it will be until they are seen.