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the duty of the A&E receptionist: an analysis of the recent Supreme Court decision in Darnley v Croydon health services NHS trust

11 October 2018

In a far reaching and highly significant decision the Supreme Court upheld the Claimant’s appeal in the controversial case of Darnley v Croydon Health Services NHS Trust, overturning the first instance judgment and the Court of Appeal on whether an A+E receptionist owed a duty of care to a patient to provide accurate information about waiting times.

The facts

The Claimant attended A&E for treatment of a head injury and was informed, by the A+E receptionist, that the wait time to be seen was 4-5 hours. This information was misleading, the Trust’s system at the time was that a triage nurse would have examined the Claimant within 30 minutes and a referral to a Doctor made depending on the urgency of the case. The Claimant waited 19 minutes then left the A&E department to go home because he felt too unwell to remain and wanted to take some paracetamol. Unfortunately, his condition deteriorated and he was rushed back to the A&E department by ambulance. However, despite neurosurgical intervention it was too late to prevent the Claimant suffering a permanent brain injury and long term disabilities.

The decision on appeal

The Supreme Court, in a unanimous decision, accepted the Claimant’s argument that the Defendant owed a duty of care to not provide inaccurate, incomplete or misleading information about waiting times. The Court stated that this duty was neither new nor novel and fell squarely within the established category of cases imposing a duty to take reasonable care not to cause physical injury to a patient.

Importantly, in reaching their conclusion regarding whether a duty was owed, the Court confirmed there should be no distinction between clinical and non-clinical staff. The duty to provide accurate information rested with the hospital. Once the patient was 'booked in' and was accepted onto the system a relationship of 'patient and health care provider' was created. Whilst the Court found that there should be no distinction between medically qualified staff and administrative staff in determining whether a duty was owed to the patient, this distinction might be relevant when considering whether that duty was breached. In those circumstances the degree of skill that can reasonably expected of a person performing the role in question will likely depend upon the responsibility they have been charged with.

The Court rejected the Defendant’s arguments that allowing this appeal would open the flood gates to new claims stating that this was not a new head of liability and that sufficient protection for the NHS already existed because any claimant would have to prove breach of duty and causation and this, in itself, will act as a 'control factor'. However, the Court did recognise that, in similar cases, the difficult circumstances or pressures prevailing at the time when the information was provided may be highly influential when assessing if a breach of duty occurred.

Comment

Despite this reassurance the implications of the judgment on healthcare providers is significant. All organisations will need to ensure that any information provided is complete, accurate and not misleading. Care is particularly required where the provision of such information might foreseeably result in a patient suffering harm if relied upon.

Practically, healthcare providers will need to review their current policies and training regarding the information that their staff provide, ensuring that this is as accurate and up to date as possible. Critical information, such as waiting times, might be publicly displayed so that both patients and staff have easy access to it. Care will be needed where the waiting time is dynamic, reflecting the changing priorities in a busy department. At the very least some public display of the process for triage etc. may offer some protection. It will also be vital to ensure that that staff are reminded about accurate record keeping when providing information to patients. The court noted “it is not unreasonable to require that patients in the position of the appellant should be provided on arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that they would normally be seen by a triage nurse within 30 minutes"

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