Does a clinically unqualified A&E receptionist owe a duty of care in giving information about waiting time? On 10 October, in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, the Supreme Court said yes.
Facts
Just before 8.30 pm Mr Darnley arrived at a hectic A & E department, having received a violent blow to the head. He complained of considerable pain, but when the reception desk simply told him he would have a 4-5 hour wait he went home without telling anyone at the hospital, later deteriorating and suffering permanent brain damage.
But he would ordinarily have been triaged by a qualified nurse within 30 minutes. He would have stayed if he had been told that, and the resulting priority treatment would have meant a very near full recovery.
Previously
The trial judge recorded the above but ruled that for an unqualified A & E receptionist it was a courtesy, but not a duty, to give information about waiting time, and it was not “fair, just and reasonable” to impose one. Potential liability could mean all such staff being told never to give any indication on timing.
Their role was clerical and confined to obtaining accurate details and relaying those to qualified colleagues. Waiting time was a matter of clinical judgment for the medical team. There was no breach in the reception desk either failing to provide accurate information or providing inaccurate information, and in any case the cause of the Claimant’s brain injury was his own uncommunicated departure.
By a 2:1 majority the Court of Appeal agreed.
To place a duty on A&E receptionists not to provide inaccurate information about waiting time would add a new layer of responsibility for clerical staff. It would create wider potential liability and might lead to increased contest over what was said across the desk.
The reception here had not assumed responsibility for the consequences of the Claimant’s decision to leave, which alone was the cause of his major injury.
Decision
A unanimous Supreme Court reversed this, ruling that:
- Rather than opening new avenues of liability or expanding the duty of care, the case came within an established category for an A&E department. That was to take reasonable care not to cause physical injury to a patient, and included a matching duty not to provide misleading information which could foreseeably do that;
- The duty not to provide such misinformation did not depend on whether medical or non-medical staff were involved, though that might sometimes be relevant as to whether there had been a breach of duty;
- Here the standard was that of an averagely competent and well-informed A&E receptionist, and it was negligent to have misguided the Claimant as to when he would first get medical help;
- That had caused the Claimant’s permanent brain injury. His leaving was at least partly based on a misleading implication that he would have to wait 4-5 hours before being seen by a doctor, when he would have stayed (and thus been successfully treated) if he had known the true position of qualified triage usually within 30 minutes.
Commentary
At first blush this decision signposts the information given by an A&E reception desk – and perhaps others – an additional claims target. However, it is submitted that it does not and that the ruling should not encourage focus on what might have been said at reception, by switchboard or via any other first point of contact.
All will depend on what happened. The dissenting Court of Appeal opinion was expressly “fact specific”, and while the Supreme Court was less emphatic on that there is nothing to suggest a boundless duty to provide, update and otherwise correct information on waiting time. Such will vary according to demand and emerging priority, and a reception desk cannot be expected to keep patients continually posted.
The “question … is whether [there is] a duty to take reasonable care when providing … information as to the period of time within which medical attention is likely to be available”. Precision on that had not been suggested and would be impossible.
This case emphasises a duty not to mislead, but it would be unwise and probably unworkable to seek refuge in silence. As the Supreme Court hinted, this risk area might best be addressed by a suitable notice or leaflet – taking account of experience and relevant guidelines – on the nature of possibly unfamiliar triage and its normal waiting time.
If you would like to know more about this matter, please speak to your contact at Plexus Law:
Dr. Julian Morris, Partner
T: 020 7220 5873 | M: 07584 101 584 | E: julian.morris@plexuslaw.co.uk
Peninsular House | 30-36 Monument Street | London | EC3R 8NB
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