Duty of care owed by A&E receptionist

Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

Executive summary

The Supreme Court has reversed the earlier decision of the Court of Appeal and held that a receptionist working within an Accident and Emergency department does owe a duty of care to a patient to take reasonable care when providing information as to the period of time within which medical attention is likely to be available.

The facts

Mr Darnley (“the appellant”) attended A&E at Mayday Hospital on 17 May 2010 at 8.26 p.m. complaining of head pain following an assault earlier that day. He was advised by a receptionist that he would have to wait up to four or five hours before he would be medically assessed.

The appellant was feeling unwell and decided to leave A&E after 19 minutes and return home to take paracetamol. At approximately 9.30 p.m. he became increasingly unwell and was taken to Mayday Hospital by ambulance at 10.38 p.m. He underwent surgery several hours later for the evacuation of a haematoma.

The appellant brought proceedings against the hospital (“the respondent”) alleging a breach of duty by the receptionist in providing inaccurate information on waiting times and failing to prioritize his triage.

First instance

The High Court concluded that the appellant would have stayed in A&E had he known that he would be seen within 30 minutes. Furthermore, had he remained on the premises, he would have undergone surgery more quickly following his collapse and made a very near full recovery.

Despite this, the High Court held that A&E receptionists do not owe a duty of care to patients in relation to communication of waiting times, even if they could have guarded against harm by providing full and accurate information about such times.

There had not been any breach by the respondent in failing to ensure the appellant was triaged within the 19 minutes he remained at the hospital.

First appeal

The appellant unsuccessfully appealed to the Court of Appeal which held, by a majority, that neither a receptionist nor the respondent, vicariously, owed a duty of care to the appellant to advise on waiting times and any damage suffered by the appellant was outside the scope of any duty owed.

It would not be fair, just or reasonable for the appellant’s claim to succeed in circumstances where the information had been provided by non-medically qualified staff.

Judgment

The Supreme Court had to determine whether a duty of care existed and if so, whether there had been a breach. If there had been a breach then causation would fall to be considered.

In relation to the duty of care, the question was whether the respondent owed a duty to take reasonable care when providing, by its receptionists, information as to the period of time within which medical attention is likely to be available.

The court held that this was not a novel set of circumstances requiring determination as to whether a duty of care was owed: on the contrary, the facts fell squarely within an established category of duty to take reasonable care not to cause physical injury to the patient (established in Barnett v Chelsea and Kensington Hospital Management Committee [1969]).

Once the appellant had “booked in”, he had at that point entered into a patient and health care provider relationship and the existing duty of care was established and owed to him.

It was not appropriate to distinguish between non-medical and medical staff as the non-medical staff had been charged with providing patients with accurate information.

Having established that a duty of care was owed to the appellant, the Supreme Court considered whether the respondent, through its receptionists, had breached that duty.

The receptionists on duty at the time of the appellant’s initial visit were well aware that the hospital’s standard procedure meant that the appellant would have been assessed by a triage nurse within 30 minutes of arrival as he was complaining about a head injury. No explanation was provided in evidence as to why that information had not been conveyed to the appellant.

The standard of care expected from the receptionists was that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care. It included a requirement not to provide misleading information on timescales for medical assistance to the appellant.

The Supreme Court held that the provision of misleading information about the length of time it would take for the appellant to be seen was negligent.

As a result of the misleading information, it was reasonably foreseeable that the appellant may leave A&E rather than wait up to five hours for medical assistance.

Whilst A&E departments operate in very difficult circumstances and under pressure, the Supreme Court held that the undesirable social cost of imposing a duty of care in these circumstances was “considerably overstated”.

Comment

Following this decision, hospitals need to ensure that visitors to A&E are provided with reasonably accurate information and this extends to the information provided by receptionists and other non-clinical staff from first arrival.

Trusts need to review their procedures and ensure that all frontline staff are trained and provided with accurate information to enable them to fulfil this duty. This may also include ensuring that waiting patients are kept up to date as to any change in waiting times.

Many trusts already use leaflets and notices, including electronic notices, to communicate waiting times and it will be important to ensure that these provide reasonably accurate information at all times.

What is reasonable may vary according to the acknowledged "very difficult circumstances and colossal pressure" under which many A&E departments work, so at a time of particularly great pressure (a major incident for example) the accuracy of the information provided may be less than would be expected in normal circumstances.

Both clinical and non-clinical staff must be made aware that A&E waiting time information provided to patients is not provided as a mere courtesy: it may have legal consequences if it is misleading and relied upon by the patient or their family.