Darnley v Croydon Health Services NHS Trust and the Supreme Court

I have previously written about the case of Darnley following both the High Court judgment (in a LexisNexis article in August 2015 [1]) and the Court of Appeal judgment (in a blog in April 2017 [2]), with the defendant being successful in both instances on the basis that there was no duty of care owed by an A&E receptionist to a patient with respect to the need to provide accurate waiting time information to that patient. In both of those articles I expressed some sympathy with the claimant’s position and, latterly, wondered with interest whether the case would be appealed further than the Court of Appeal. The claimant’s case was in fact appealed to the Supreme Court and the appeal was heard on 7 June 2018. Judgment was handed down on 10 October 2018 [3]. The only judgment was by Lord Lloyd-Jones with the other four judges agreeing.

The claimant succeeded in his appeal and some interesting points come out of the relatively brief judgment.

In a nutshell, the case concerns whether an A&E receptionist should or should not be found negligent for providing very inaccurate waiting time information to a patient who, in reliance upon that information, left A&E and, as a result, suffered harm; had the claimant not left A&E, he would have developed his extradural haematoma in hospital and could have been successfully operated upon thereby avoiding his severe and disabling hemiplegia.

Duty of care

With respect to the duty of care, the court held that the case fell “squarely within an established category of duty of care” and that no new head of liability for NHS health trusts was being established, which had been a fear expressed by Lord Justice Jackson giving the leading judgment in the Court of Appeal. Lord Lloyd-Jones stated in clear terms in paragraph 16: “In the present case, as soon as the appellant had attended at the respondent’s 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. The damage complained of is physical injury and not economic loss. This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.” This was no new duty of care.

Importantly, his Lordship went on to say at paragraph 17 that this, “duty of care is owed by the hospital trust and it is not appropriate to distinguish, in this regard, between medical and non-medical staff. In the specific context of this case, where misleading information was provided as to the time within which medical attention might be available, it is not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care” and “…questions as to the existence and scope of a duty of care owed by the trust should not depend on whether the misleading information was provided by a person who was or was not medically qualified”. Thus, with respect to the scope of the duty, at paragraph 19: “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”. The duty, therefore, extends to administrative staff having to take sufficient care not to give misinformation to patients.

The Supreme Court also considered that the resource arguments, namely the “undesirable consequences of imposing the duty” deployed by the defendant NHS Trust and about which the majority in the Court of Appeal was so concerned, had been “considerably over-stated” and that there were sufficient control factors to burdensome litigation merely in the requirements of proving negligence and causation. As the Court noted, “the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure … is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty”. This still provides a hook upon which defendants can hang resource and pressure of work arguments.

The Supreme Court further considered that the key issue was really not a duty of care issue at all, but rather an issue as to whether the defendant had breached an already established duty in giving, by its receptionist, inaccurate information to the claimant (citing Professor James Goudkamp ([2017] CLJ 481, at p 482)).

Standard of care

Having elucidated that no new duty was being created, the Court went on to say (paragraph 25) that: “A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care”.

The Court considered on the facts that it was not unreasonable to require that patients should be provided on arrival with accurate waiting time information (whether by leaflet or prominent notice). In this case, the claimant was misinformed and the provision of this misinformation, which critically was information upon which foreseeably the claimant relied in choosing to leave the A&E, was negligent.

Causation  

Finally, on causation, the Supreme Court was not impressed with the majority in the Court of Appeal concluding that the claimant should take responsibility for his own actions in leaving after 19 minutes in A&E. The Court considered that that view was to ignore three critical factual findings of the trial judge. First, that the claimant would have stayed if he had not been misinformed and he would then have been admitted or told to wait and he would have waited and his collapse would have been in a hospital setting. Secondly, the claimant’s decision to leave was, at least in part, due to the misinformation. Thirdly, it was reasonably foreseeable that a person who was told they might have to wait 4-5 hours to see a doctor would leave, whereas they would have stayed if they believed they would see a triage nurse much sooner.

The claimant leaving was, therefore, reasonably foreseeable and was, at least in part, made because of the misleading information. The claimant had also just sustained a serious head injury and had told the reception he needed urgent attention and was about to collapse. If he had collapsed in hospital, he would have been transferred to a tertiary referral hospital, had surgery and made a near full recovery. The Court concluded that a break in the chain of causation by the claimant leaving A&E just could not be made out.

Conclusion

The claimant succeeded in his appeal, the Court concluding that no new duty of care was being created: “the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury”. Although the facts of this case are applicable specifically to A&E receptionists, there are plenty of other factual scenarios to which the duty is likely to apply (GP receptionists to name but one) and it will be fascinating to see how the case law now develops.

[1] https://www.lexisnexis.com/uk/lexispsl/personalinjury/document/412012/5GPS-8961-DYW7-W16H-00000-00/Waiting-times-and-duties-of-care

[2] https://www.anthonygold.co.uk/latest/blog/duty-ae-receptionist-revisited/

[3] https://www.supremecourt.uk/cases/docs/uksc-2017-0070-judgment.pdf