A recent Supreme Court decision, Darnley v Croydon Health Services NHS Trust  UKSC 50, has raised questions about the role of non-clinical staff in patient care. The judgment criticised the actions of a receptionist in an Accident and Emergency (A&E) department – Joseph McCaughley, litigation solicitor at Dental Protection, looks at the ramifications of the case
The claimant, Mr Darnley, was assaulted early in the evening of 17 May 2010. He attended A&E with a head injury and was booked in by the reception staff at approximately 8.26pm. A receptionist told him that he would have to wait up to four to five hours to be seen when he should have been told that a triage nurse would see him within 30 minutes. He decided to leave the hospital after 19 minutes, but was later rushed back to hospital where an extra-dural haematoma was discovered. Mr Darnley was left with severe and disabling left hemiplegia.
Supreme Court decision
The Supreme Court, overturning the decisions of both the Court of Appeal and, before that, the High Court, agreed unanimously that NHS trusts owe a duty to take reasonable care not to cause physical injury to individuals presenting to A&E complaining of illness or injury. The receptionists were the first point of contact and were responsible for providing accurate information. It was not unreasonable to expect the Trust to take reasonable care not to provide misleading information about the likely availability and wait for medical assistance.
The Supreme Court (by a 5:0 majority) allowed the claimant’s appeal finding that:
- This was not a novel situation and fell within the established category of duty of care. A duty is owed by those who provide and run an A&E department to individuals presenting complaining of illness or injury, and before they are treated or received into care.
- The scope of the duty to take reasonable care not to cause physical injury extends to a duty to take reasonable care not to provide misleading information that may foreseeably cause physical injury. Once a patient presents at A&E and is ‘booked in’, he/she enters into a patient/healthcare provider relationship, which is a recognisable situation in which a duty of care exists.
- Where misleading information was provided about the time when medical attention might be available, it is not appropriate to distinguish between medical and non-medical staff. The Trust had charged its non-medical staff with being the first point of contact and, as a result, they had a responsibility to provide accurate information about the availability of medical assistance.
- The claimant was provided with incomplete information and misled about the availability of medical assistance. The trial judge found that it was reasonably foreseeable that a person who believed they may have to wait four or five hours to see a doctor might decide to leave and, as such, the provision of such misleading information by a receptionist was negligent.
- By leaving when he did, the claimant had not broken the chain of causation. The trial judge had found as a matter of fact that had the claimant been told that he would be triaged within 30 minutes he would not have left A&E. His collapse would have occurred at hospital, he would have undergone surgery earlier than he did, and as a result he would have made an almost complete recovery.
Points for practitioners: commentary from Dental Protection
At first glance, the Trust’s arguments about the floodgates opening if the claimant’s case succeeded would appear, superficially at least, quite persuasive. In reality, this case turns on quite unusual and specific facts.
The receptionist had provided information about waiting times to the claimant that was plainly wrong. The Chief Executive of the Trust, in a letter to the claimant, referred to the information as “completely incorrect”. The judge at first instance had found that if the correct information had been relayed to the claimant he would have stayed, been triaged, and avoided injury. The Trust’s own policy, in line with NICE guidance, was for patients presenting with a head injury to be seen by a trained member of staff within 15 minutes of arrival at hospital, although the experts considered that triage within 30 minutes would be reasonable. The provision of such basic information does not in itself appear to amount to an unreasonable or overly cumbersome demand on non-medically qualified staff.
As the Supreme Court pointed out, the evidential burden will be on the claimant to prove the case: they will have to prove breach of duty and causation, and these factors will operate as control mechanisms to filter unmeritorious cases. It appears much more likely that NHS trusts will face claims relating to, for example, failing to triage a patient with a head injury who remains at A&E within a reasonable time, leading to an otherwise avoidable injury or exacerbation of injury, rather than those arising out of the provision of incorrect information about waiting times. It seems unlikely that this case will lead to a surge in claims against NHS trusts.
Undoubtedly, however, given the findings of the court, NHS trusts will need to take steps to minimise risk. This may take the form of information boards or leaflets, as well as ensuring staff are adequately trained.
Given that patients with such acute injuries typically present at A&E, it is not anticipated that Darnley should have particular ramifications for members save in very limited circumstances. GDP receptionists questioning a patient on whether the need for a consultation is urgent or not when booking appointments is a potential area where issues could arise but, again, given the control mechanisms this may be unlikely.
What will be interesting, and may well enable us to judge the ramifications of Darnley further, will be the cases that follow.