The Supreme Court has unanimously allowed the appeal of Michael Darnley in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, holding that a hospital receptionist owed a duty of care to a patient at A&E, which was breached by providing him with incorrect information as to how long he was likely to have to wait before being seen or triaged.
The case raised questions as to the existence and scope of the duty of care owed by hospitals to patients who attend and are dealt with non-medical staff. The decision has potential implications for all those who are booked in to A&E even if no-one has professionally assessed their need for care.
Background
Mr Darnley was taken to A&E by a friend having been assaulted earlier that day and suffering from a head injury. He was told by a receptionist that he would have to wait 4-5 hours. His friend told the receptionist that he could not wait that long because he was so unwell and that he was worried that he would collapse. The receptionist said that if he did collapse then he would be treated as an emergency. They left the hospital after a short time, at least in part, because of what they were told about the waiting time. He went to his mother’s house and did in fact collapse. He was left suffering from brain damage which had resulted in a severe left hemiplegia.
The trial judge had found that if the appellant had been told that he would be seen within 30 minutes he would have stayed and would have been seen before he left. He would have been admitted or told to wait. He also found that the Claimant would have waited and his later collapse would have occurred within a hospital setting, he would have been treated sooner and made a near full recovery.
The Court of Appeal had found that the Defendant did not owe any duty to advise about waiting times, that the damage was outside the scope of any duty owed, and/or there was no causal link between any breach of duty and the injury. Jackson LJ considered that when the receptionist told the appellant that he would have to wait for up to four or five hours, she was not assuming responsibility to the appellant for the catastrophic consequences which he might suffer if he simply walked out of the hospital.
The Court of Appeal considered that this case fell outside the existing categories of liabilities for NHS Trusts and that it was not fair, just and reasonable to impose upon the Defendant a duty not to provide inaccurate information about waiting times. As to the scope of any duty which did arise, this could not extend to liability for the consequences of a patient walking out without telling staff that he was about to leave. It was considered that the appellant should accept responsibility for his own actions.
The Supreme Court’s decision
This approach was overturned by the Supreme Court which held that this case did not create any new category of liability in negligence for NHS Trusts. In paragraph 16 Lord Lloyd Jones states:
… the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at pp 435-436). In the present case, as soon as the appellant had attended at the respondent’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the respondent of patient and health care provider.
Hence there was no reason to undertake a full Caparo analysis of whether it was fair just and reasonable to impose a duty of care in this case.
As to the fact the receptionist was non-medical, the Court gave this short shrift. The duty is the duty of the Defendant not to cause reasonably foreseeable injury by the provision of inaccurate or misleading information. It was the Defendant who had decided to charge the receptionist with giving this information out and their lack of medical training and limited involvement in the running of the A&E department were issues going to breach, not whether there was a duty of care in the first place. This approach was in accordance with previous authority dealing with the liability of the Ambulance service including call handlers for a failure to provide a reasonable standard of response and inaccurate information about waiting times.
Indeed the major flaw underlying the approach of the Court of Appeal according to Lord Lloyd Jones was to elide issues which were relevant to breach of duty with questions going to whether there was a duty of care at all. For this reason the Supreme Court rejected the Court of Appeal’s reliance on the difficulties which reception staff face in the context of a busy constantly changing A&E departments when waiting times are a moveable feast. The Court also rejected the Defendants reliance on the likely effects (social and financial) of recognizing a duty a care in these circumstance, since the balance of whether this was a fair conclusion had already been carried out in the case law establishing the liability of NHS Trusts for negligently caused injuries.
Analysis
The only crumbs of comfort for defendants in this judgment is the frank recognition in paragraph 22 that
it is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty.
Similarly, as to breach the Court ruled at paragraph 25 that
a receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.
This analysis is striking because the Supreme Court acknowledged that there was no case involving a receptionist or non-medical member of hospital staff giving rise to a negligence claim but it held that nonetheless this was not a new category of negligence.
This means that before resorting to the Caparo test it is necessary to analyse the case law at a conceptual level rather than merely by reference to facts which have given rise to previous cases. That said the Court also acknowledged that the search for such a unifying principle has long been abandoned (see paragraph 15 and the multitude of case law there cited).
The case is therefore best rationalized as holding that NHS trusts are liable in negligence for reasonably foreseeable injuries caused to patients as a result of conduct which fails the Bolam test. The Claimant was a patient, the Defendant was an NHS Trust and the injury was reasonably foreseeable on the facts found so the duty question is irrelevant; all that matters is whether it was breached.
On the facts the Supreme Court held that in light of the conclusions of the trial judge it had not been open to the Court of Appeal to hold that the Claimant should simply take responsibility for leaving the department without telling anyone because of the findings that the act of leaving was at least in part because of what he had been told (wrongly) about how long he would have to wait. The finding that it was reasonably foreseeable that someone might leave if they had been told this was enough to establish causation in this case.
It is hard to argue with this line of approach. It is difficult to see how the chain of causation is broken by the Claimant taking a course of action which was reasonably foreseeable. However, I do not read the Supreme Court’s judgment as ruling out a plea in contributory negligence for the Claimant’s actions. All they have decided in this case is that that course of action did not entirely negate the Defendant’s liability in negligence. No issue of contributory negligence is referred to in the Supreme Court’s judgment and it may not have been raised.
Owain Thomas QC is a barrister at One Crown Office Row.
Philip Havers QC of One Crown Office Row acted as lead counsel to the Defendant in this case. He was not involved in the writing of this article.
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