You may recall this case, heard by the Court of Appeal last year, where Mr Darnley, who had been assaulted about the head and who then attended an A&E department, left without being seen after about 19 minutes, having been told, wrongly, he would have to wait between four and five hours. Having left without telling anyone, he collapsed at home about an hour later, and sustained permanent, disabling brain damage. The court at first instance, and the Court of Appeal dismissed his claims in negligence against the NHS Hospital.
Commenting on it at the time NHS Resolution said:
“The court decided that there was no general duty upon receptionists to keep patients informed about likely waiting times. Their function was to record new arrivals, tell them where to wait and pass on relevant details to the triage nurse. It was not their function to give any wider advice to patients and it was not fair, just or reasonable to extend their responsibility in this way. Litigation about what was said in A&E departments could proliferate and healthcare providers might react by telling receptionists to do nothing other than ask patients for details. That would be undesirable.
“The court also observed that any duty owed by receptionists could not extend to liability for the consequences of a patient walking out without notice.
“The claim was a novel one which we considered important to resist in the interests of the NHS. Roughly 100,000 patients visit A&E departments in England every week, so opening up receptionists to negligence claims of this kind would have had very serious consequences for the NHS.”
The matter came to the Supreme Court in June 2018. Its decision was given on the 10 October 2018, finding for Mr Darnley (ie, reversing the decisions of the High Court and Court of Appeal) and remitting the case back to the High Court for an assessment of damages.
It had not been disputed that Mr Darnley, and his friend who accompanied him to A&E, both told the receptionist that Mr Darnley was really unwell and they were worried that he had a head injury and needed urgent attention. The receptionist told Mr Darnley that he would have to wait up to four to five hours before somebody looked at him. Mr Darnley told the receptionist that he could not wait that long as he felt as if he was about to collapse. The receptionist replied that if he did collapse he would be treated as an emergency. After waiting a short time Mr Darnley decided to leave because he felt too unwell to remain. The judge found that he left after 19 minutes at 20:45, without informing anyone.
Mr Darnley went home and to bed, calling for assistance at about 21:30. An ambulance was called at 21:44. The ambulance was re-routed and a second ambulance was called arriving at 22:05. He was taken by ambulance back to the A&E department at Mayday Hospital. During the journey he became hypertensive, his Glasgow Coma Scale was recorded as 9/15 and he projectile vomited. He arrived at the Mayday Hospital A&E department at 22:38. A CT scan (reported at 00:15 on 18 May 2010) identified a large extra-dural haematoma overlying the left temporal lobe and inferior parietal lobe with a marked midline shift. He was intubated and ventilated and transferred from Mayday Hospital by ambulance into the care of neurosurgeons at St George’s Hospital, Tooting arriving at 00:55. He was transferred to the operating theatre at 01:00 and underwent an operation for the evacuation of the haematoma. Unfortunately, he has suffered permanent brain damage in the form of a severe and very disabling left hemiplegia.
The dissenting judgment of the Court of Appeal was that the hospital was in breach of a duty of care. The information provided to Mr Darnley by the receptionist could only have given him the false impression that he would not be seen or assessed by anyone sooner than the indicated period of up to four or five hours, short of something like a collapse. That dissenting judgment also rejected the suggestion that the functions of a hospital can be divided into those of receptionists and those of medical staff. It was the clear duty of the hospital not to provide misinformation to patients, whether it was provided by reception staff or medical staff. Incomplete and inaccurate information had been provided negligently. The failure to impart the reality of the triage system to Mr Darnley on his arrival was, on the facts of this case, a breach of duty by the hospital. Furthermore, that breach of duty was causative of his injury.
On the issue of the duty of care, the Supreme Court considered the approach of the majority of the Court of Appeal to be flawed in a number of respects. First, this was not a novel situation giving rise to an extension of the duty of care, but a duty to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee (1969)). They held that as soon as Mr Darnley attended the 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.
They decided that the scope of the duty to take reasonable care not to act in such a way as to cause such a patient to sustain physical injury extended to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury. While no authority was cited that dealt specifically with misleading information provided by a receptionist in an A&E department causing physical injury, it was not necessary to address, in every instance where the precise factual situation has not previously been the subject of a reported judicial decision, whether it would be fair, just and reasonable to impose a duty of care. It was sufficient that the case fell within an established category in which the law imposed a duty of care.
Secondly, the duty of care was owed by the hospital Trust and it was not appropriate to distinguish between medical and non-medical staff.
In Kent v Griffiths [2001] QB 36 the London Ambulance Service was held liable in negligence for its delay in responding to an emergency call as a result of which the claimant suffered brain damage. The Court of Appeal upheld the judge’s decision on the ground that the ambulance had not arrived in a reasonable time.
However, it also founded liability on the alternative basis that the call handler had given misleading assurances that an ambulance would be arriving shortly. (See the reference to Kent v Griffiths by Lord Toulson in Michael v Chief Constable of South Wales Police at para 138.) In Kent v Griffiths Lord Woolf MR stated that the acceptance of the emergency call established a duty of care and that, if wrong information had not been given about the arrival of the ambulance, other means of transport could have been used.
On that point, therefore, the Supreme Court were in agreement with the dissenting view of the Court of Appeal.
“The duty of the respondent trust must be considered in the round. While it is not the function of reception staff to give wider advice or information in general to patients, it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff. In this regard, it is simply not appropriate to distinguish between medical and non-medical staff in the manner proposed by the respondent.”
In both Kent v Griffiths and the present case there had been provision of inaccurate information by non-medically qualified staff. There was a delay in the provision of urgently required medical attention with the result that serious physical injury was suffered. Accordingly the question under consideration was whether the hospital owed a duty to take reasonable care when providing, by its receptionists, information as to the period of time within which medical attention was likely to be available. More fundamentally these observations are concerned not with the existence of a duty of care but the question whether there had been a negligent breach of duty as a result of a failure to meet the standard reasonably expected.
The Supreme court rejected the submission that their decision would impact on the social cost of imposing such a duty of care, considering such fears misplaced.
Finally (on the issue of duty of care) the Supreme Court referred to a case note on the decision of the Court of Appeal in the present case by Professor James Goudkamp ((2017) CLJ 481) who also considered that the parties were within an established duty category and that the only question was whether the defendant hospital breached that duty. He observed that discussion as to what the reasonable person would have done in the circumstances indicated the dispute was about the breach element, that being the only element of the cause of action in negligence that is concerned with the “satisfactoriness of the defendant’s conduct”. He concluded:
“Accordingly, on traditional principles, Darnley is not, in fact, a duty of care case at all. Rather, properly understood, the issue was whether the defendant had breached its duty in giving, by its receptionist, inaccurate information to the claimant.”
The correct information that should have been provided was that a patient such as Mr Darnley would be told that they would be seen by a triage nurse within 30 minutes of arrival, or as soon as possible. The actual position was that had Mr Darnley remained, he would have been seen by a triage nurse within 30 minutes because he was complaining of a head injury. However, instead he was simply told that he would have to wait for up to four or five hours to see a doctor. That information was incomplete and misleading. Even the Chief Executive of the hospital Trust described it in his letter to Mr Darnley as “completely incorrect”.
The trial judge made the critical finding 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 that finding, the Supreme Court had no doubt that the provision of such misleading information by a receptionist as to the time within which medical assistance might be available, was negligent.
As to causation the appellant remained in the waiting area of the A & E department for only 19 minutes before deciding to leave because he felt too unwell to remain. He failed to tell any member of staff of his departure. In the Court of Appeal Jackson LJ concluded, in the alternative, that if he was wrong in his view that the defendant was in breach of a duty of care, the claim could still not succeed because the scope of that duty could not extend to liability for the consequences of a patient walking out without telling the staff that he was about to leave. In his view, echoing that of the trial judge, the appellant should accept responsibility for his own actions.
That reasoning failed to take account of the effect of the misleading information. The Supreme Court referred to three critical findings of the trial judge:
First, the judge found that, if the appellant had been told that he would be seen within 30 minutes, he would have stayed in the waiting area and would have been seen before he left. He would then have been admitted or told to wait. He would have waited and his later collapse would have occurred within a hospital setting.
Secondly, the judge found that Mr Darnley’s decision to leave was made, in part at least, on the basis of information provided to him by the receptionist which was inaccurate or incomplete.
Thirdly, the judge found 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 circumstances where that person would have stayed if he believed he would be seen much sooner by a triage nurse. The conclusion of the majority of the Court of Appeal on this point was inconsistent with those findings of fact. In this regard it was also relevant that the appellant had just sustained what was later discovered to be a very grave head injury. Both Mr Darnley and his friend had told the receptionist that he was really unwell and needed urgent attention. He had told her that he felt as if he was about to collapse. He was in a particularly vulnerable condition and did, in fact, collapse within an hour of leaving the hospital.
In those circumstances, one can readily appreciate how the judge came to his conclusion that the appellant’s departure was reasonably foreseeable.
The trial judge made a further finding of fact that had the appellant suffered the collapse at around 21:30 while at the Mayday Hospital, he would have been transferred to St George’s Hospital and would have undergone surgery earlier with the result that he would have made a very near full recovery.
In these circumstances, the case that the appellant’s unannounced departure from the A & E department broke the chain of causation was not made out.