In this blog Vanessa Cashman of 12KBW considers Darnley v Croydon Health Services NHS Trust where the Court of Appeal considered what, if any duty, is owed by a receptionist of an A&E department to a patient in respect of the provision of information. By a majority it was held that no duty is owed to provide correct information about waiting times.
On 17 May 2010 the claimant was the victim of an assault, in the course of which he received a violent blow to the head. He was taken to A&E by a friend and they arrived at 8.26pm. On speaking to the receptionist on his arrival, she told him that he might not be seen for up to 4 or 5 hours. The claimant was in significant pain and after 19 minutes of waiting, he decided to go home and take paracetamol. He left at 8.45pm, without notifying the receptionist.
Later that night his condition deteriorated. At 9.42pm an ambulance was called and the claimant was taken back to the defendants’ hospital. It was discovered that he had an extradural haemotoma (a collection of blood between the skull and the outer surface of the brain). Despite treatment, he suffered permanent injury in the form of left hemiplegia. His disabilities were severe.
The tragedy was that the claimant was called into triage within 30 minutes. He, of course, had gone home by that time.
The claimant’s case
It was agreed that the NICE guidelines entitled “Head injury. Triage, assessment, investigation and early management of head injury in infants, children and adults” applied. Those guidelines set out that all patients presenting with a head injury should be assessed within a maximum of 15 minutes after arrival at hospital.
The claimant’s case was as follows:
- That the hospital had delayed too long before assessing him.
- That the hospital staff had given him incorrect information about waiting time.
- That had he been told that he would only have to wait 30 minutes, he would have waited.
- That had he been seen at that point, he would have been prioritised, received treatment and would have avoided all injury.
The ultimate issue was conceded by the defendant.
The defendant’s case
The defendant denied that it had taken an unreasonable length of time to see the claimant and it denied that the receptionist had any duty to provide information about waiting times.
The first instance decision
HHJ Robinson, sitting as a judge of the High Court, gave judgment in July 2016. It was agreed between the consultants in emergency medicine that the claimant should have been triaged within 30 minutes of arrival at the hospital. It was accepted by both that the NICE standard of 15 minutes was not always achievable but the “longstop” was 30 minutes.
The judge found that:
- The claimant’s condition on arrival was not so severe that the receptionist ought to have realised he needed priority triage;
- The failure to triage within 15 minutes was not a breach of duty;
- He should have been triaged within 30 minutes but he left the hospital before that period expired. Had he been told that he would be seen within 30 minutes he would not have left;
- It was not part of the receptionist’s duties to give information about waiting times;
- It was not fair, just and reasonable to impose a duty of care on the receptionist to give a patient accurate information about waiting times or not to provide inaccurate information on waiting times;
- Causation could not be made out in any event. The claimant decided to leave and he must accept responsibility for that decision. However, he also found that it was reasonably foreseeable that a person who believes it may be 4 or 5 hours before they will be seen by a doctor may decide to leave, in circumstances where that person would have stayed if they believed they would be seen much sooner by a triage nurse.
The claim was accordingly dismissed. The claimant appealed. That appeal was heard in the Court of Appeal on 16 February 2017 before LJJ Jackson, McCombe and Sales. The judgment was handed down on 23 March 2017.
The claimant appealed on four grounds. The first two grounds were against findings of fact, namely that the failure to assess the claimant within 15 minutes (or in any event before he left) amounted to a breach of duty and that the claimant’s presentation on arrival warranted priority triage.
Those two grounds were dismissed by all three Lord Justices as being findings of fact which had been open to the judge after hearing all of the evidence. They were not findings with which they could interfere.
The appeal centred around grounds 3 and 4. These were firstly that the judge had erred in assessing the scope of the duty of care owed by the receptionist and secondly that the judge had erred in his application of the “fair, just and reasonable” test.
Jackson LJ’s judgment
Jackson LJ dismissed the appeal. He reviewed relevant cases on the imposition and scope of the duty of care including Caparo Industries PLC v Dickman & Ors  2 AC 605, Rahman v Arearose  QB 351, Kent v Griffiths  QB 36 and Michael v Chief Constable of South Wales Police  UKSC 2.
- There is no general duty upon civilian receptionists to keep patients informed about likely waiting times.
- There is an important distinction between a telephonist in the ambulance service and an A&E receptionist. The function of the latter is simply to record details of new arrivals, to tell them where to wait and to pass on relevant details to triage nurses. Contrast with the former category, in which they have to pass on information to paramedics and patients so that they can act on that information. There is thus a duty to take reasonable care to pass on correct information in the ambulance service.
- The incorrect information given by this receptionist was not an actionable misstatement. She was not assuming responsibility to the claimant when she told him he might have to wait 4 or 5 hours.
- Foreseeability alone is not sufficient to give rise to a duty of care.
- Nor is there a duty not to provide inaccurate information about waiting times.
- There is a floodgate issue; discussions in A&E could provide fertile ground for litigation by claimants.
- Even if she was in breach of duty, the scope of that duty cannot extend to liability for the consequences of a patient walking out without telling the staff he was going to leave.
- People must accept responsibility for their own actions, in this case the claimant.
McCombe LJ’s judgment
McCombe LJ disagreed with Jackson LJ and allowed the appeal. He made it clear that it was only on the particular facts of the appeal that he did so. In essence he said:
- There can be no distinction between an ambulance service telephonist and an A&E receptionist.
- The functions of the hospital cannot be divided into those of receptionists and medical staff. It is the duty of the hospital not to provide misinformation to patients. That includes the clerical staff.
- There is no doubt that the hospital would have been liable had it been a member of medical staff that had reacted to the claimant in the manner in which the receptionist did.
- It was not beyond the hospital’s reasonable resources to tell patients that head injuries would normally be initially assessed by a trained member of medical staff within 30 minutes.
- The information given to the claimant was incomplete and inaccurate information. It had been imparted negligently.
- Had the claimant been given the correct information he would not have suffered his injury.
Sales LJ’s judgment
Sales LJ agreed with Jackson LJ and dismissed the appeal. He said that it was not fair, just or reasonable to impose a duty of fine-grained perfection regarding the information provided. The core function of a civilian receptionist is to admit individuals into A&E. If a receptionist told someone that A&E was closed, without reasonable grounds for doing so, that might well be capable of founding a claim in tort. However, providing information about how long things might take to occur is peripheral to the core function. Provision of information in the general spirit of trying to be helpful to the public is not subject to a duty of care in law to the
extent that compensation must be paid if a mistake is made.
This appears to be a harsh decision for the claimant. He had successfully proven (a) that the information he was given was not accurate; (b) that had he been given the correct information i.e. that he would be seen within 30 minutes, he would not have left A&E and (c) that had he not left A&E and had been seen he would have avoided all injury. It was accepted that it was foreseeable that people given a lengthy waiting time may leave and that head injuries potentially carry very serious consequences.
In those circumstances it is difficult to see why the receptionist, as employee, servant and agent of the defendant Trust ought not to have a duty imposed upon her to provide correct information. On the other hand, it must be accepted that things which are said in a chaotic and busy A&E waiting area, possibly after a heated exchange, should not be subject to the imposition of a legal duty not to be erroneous. There may be difficult practical implications as to what information should be provided, how it should be provided and at what point it should be provided, all of which would be threatened by the looming possibility of litigation if any information is omitted.
One wonders what the outcome would have been if the claimant had told the receptionist, prior to his departure, that he was planning to leave if he wasn’t going to be seen in the near future.
A differently-constituted Court of Appeal might well have decided the case the other way.
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