The United Kingdom Supreme Court has handed down a decision in Darnley v Croydon Health Services NHS Trust  UKSC 50 (and thank you Bill Madden’s WordPress for bringing this to my attention). This case dealt with the standard of care that can be expected from the NHS Trust and the no clinical staff in a busy emergency department.
On 17 May 2010, Mr Darnley was assaulted. He rang his friend, Mr Tubman, and told him about the assault. He reported that ‘he had a headache and that it was getting worse’ (). The Mr Tubman drove Mr Darnley to the Mayday Hospital at Croydon. They arrived at 8:26pm.
Mr Tubman accompanied the appellant at the A & E department and was a witness to the conversation with the female A & E receptionist. The trial judge accepted Mr Tubman’s account of the conversation which took place. The appellant provided his personal details. He informed the receptionist that he had been assaulted by being struck over the back of the head and he thought that he had a head injury, that he was feeling very unwell and that his head was hurting. The receptionist did not have a helpful attitude and was more concerned about how the injury occurred. She asked the appellant if the Police were involved. The appellant and Mr Tubman both told the receptionist that the appellant was really unwell and they were worried that he had a head injury and needed urgent attention. The receptionist told the appellant that he would have to go and sit down and that he would have to wait up to four to five hours before somebody looked at him. The appellant 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 the appellant did collapse he would be treated as an emergency.
After 19 minutes Mr Darnley and Mr Tubman left the A&E department and went to the home of Mr Darnley’s mother. At about 9:30pm the appellant became distressed and an ambulance was called. Mr Darnley was transported back to the Mayday Hospital by ambulance arriving at 10:38pm. A CT scan ‘identified a large extra-dural haematoma’. He was transferred to another hospital and underwent surgery at 1:00am (). As the court noted (at ) Mr Darnley ‘suffered permanent brain damage in the form of a severe and very disabling left hemiplegia’.
Mr Darnley brought an action against the NHS Trust alleging that there was a breach of the duty of care ‘by the non-clinical reception staff concerning the information he was given about the time he would have to wait before being seen by a clinician and also a failure to assess the appellant for priority triage’ ().
There were two clerical staff on duty that night. Neither Mr Darnley nor Mr Tubman could identify who they had spoken to and neither of the clerical staff could recall Mr Darnley or their conversation with him or Mr Tubman. They gave evidence of their ‘normal practice’. One said ‘that when a person with a head injury asked about waiting times… she would tell them that they could expect to be seen by a triage nurse within 30 minutes of arrival and it would be quite incorrect to tell them that they would have to wait up to four to five hours before being seen’. The other ‘stated that she would tell them that the triage nurse would be informed and they would be seen as soon as possible’ ().
The trial judge found in favour of the NHS Trust. The judge’s reasoning was summarised at . The trial judge found that there was nothing in Mr Darnley’s presentation to suggest that he needed immediate attention but had he been told that he would be seen within 30 minutes he would not have left the hospital. ‘The appellant’s decision to leave the A & E department was, in part at least, made on the basis of information provided by the receptionist which was inaccurate or incomplete’.
Even so, it was not the role of reception staff to try to ensure people stayed in the department. ‘The harm suffered in this case was outside the scope of any duty or obligation owed by the respondent by its reception staff’ and, further, the alleged negligence in providing inaccurate information about the process in the department did not cause Mr Darnley’s injuries or make it worse by increasing the time to treatment:
The connection between the alleged inadequacies of the information provided and the harm suffered was broken because the decision to leave was one that was ultimately the decision of the appellant.
Mr Darnley appealed to the UK Court of Appeal. The Court of Appeal upheld, by at 2:1 majority, the trial judge’s finding that there was no duty to advise the patient of waiting times. The Supreme Court (at ) summarised Jackson LJ’s view as holding that the law did not impose:
… a duty not to provide inaccurate information about waiting times. To do so would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts. Moreover, even if the receptionist were in breach of duty by giving incorrect information to the appellant, the scope of that duty could not extend to liability for the consequences of a patient walking out without telling staff that he was about to leave. The appellant should accept responsibility for his own actions.
Sales LJ too the view ’that information as to likely waiting times was provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public’ and did not give rise to a legal obligation to be accurate ().
McCombe LJ (at ) disagreed. He considered that:
… it is the duty of the hospital not to provide misinformation to patients, whether it is 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 the appellant 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 the appellant’s injury.’
There was a further appeal to the UK Supreme Court. In the Supreme Court, all five judges (Lord Lloyd-Jones with whom Lady Hale, Lord Reed, Lord Kerr and Lord Hodge agreed) held that the appeal should be allowed.
The existence of a duty of are care was not in issue
The Supreme Court held that this case was not about whether or not there was a duty of care.
It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 428, per Nield J at pp 435-436). 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… 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.
(For further discussion on Barnett v Chelsea and Kensington Hospital Management Committee see:
- Victorian Paramedics treating patients inside the A+E (June 12, 2015);
- Treatment in a Victorian hospital carpark (August 19, 2015); and
- Hospital nurse calling an ambulance for someone else (August 9, 2018)).
The NHS Trust owed the duty of care, not particular staff. It was not necessary to consider or distinguish between the duty of the clinical and non-clinical staff. The Trust operated via its staff and it was the Trust’s duty to ensure that the patient was not provided with misleading information. What may be expected from different staff may go to the question of whether there had been a breach of duty, but not whether a duty of care existed.
Further suggestions that hospitals ‘could close down this area of risk altogether by instructing reception staff to say nothing to patients apart from asking for their details’ or withdraw ‘information which is generally helpful to the public’ was overstated. Although A&E departments are busy and complex it would still be up to any plaintiff to prove their case and the duty only requires that a response to enquiries be reasonable.
It is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty.
The Supreme Court was of the view that this case did not raise any new or novel questions about duty of care. Rather the issue was whether there had been a negligent breach of that duty.
Breach of duty
There was no allegation that there was negligence in having non-clinical staff as the first point of contact with the A & E department nor was there a suggestion that the staff had to give accurate information about when a person would be seen. Lord Lloyd-Jones said (at -, emphasis added):
Anyone who has any experience of A & E departments will know that this would be impossible. The pressures on medical staff are enormous, the demand for attention is constantly fluctuating and priorities are likely to change. However, it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance…
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.
Responding to requests for information as to the usual system of operation of the A & E department was well within the area of responsibility of the receptionists. The two receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury would be seen by a triage nurse and they accepted that the usual practice was that such a patient would be told that they would be seen by a triage nurse within 30 minutes of arrival … or as soon as possible… No reason has been suggested as to why the appellant was not told of the standard procedure. The hospital was operating within the acceptable range of triage timing agreed by the experts and the actual position was that the appellant, had he remained, would have been seen by a triage nurse within 30 minutes because he was complaining of a head injury…
However, instead the appellant 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… The appellant was misinformed as to the true position and, as a result, misled as to the availability of medical assistance. 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 I have 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.
Lord Lloyd-Jones (at ) found that there was a link between the negligent advice and the ultimate injuries.
Far from constituting a break in the chain of causation, the appellant’s decision to leave was reasonably foreseeable and was made, at least in part, on the basis of the misleading information that he would have to wait for up to four or five hours before being seen by a doctor. In this regard it is also relevant that the appellant had just sustained what was later discovered to be a very grave head injury. Both the appellant and Mr Tubman had told the receptionist that the appellant was really unwell and needed urgent attention. The appellant told her that he felt as if he was about to collapse. He was in a particularly vulnerable condition and did, in fact, collapse as a result of his injury within an hour of leaving the hospital. In these circumstances, one can readily appreciate how the judge came to his conclusion that the appellant’s departure was reasonably foreseeable.
The result was that the Croydon Health Services NHS Trust was found to have been negligent and the matter was sent back to the trial court to assess the value of the damages.
Wang v Central Sydney Area Health Service
This case is very similar to the earlier decision in Wang v Central Sydney Area Health Service  NSWSC 515. Mr Wang was also assaulted and attended casualty at Sydney’s Royal Prince Alfred Hospital. He arrived at hospital at 9.25pm and left to seek treatment at a 24 hour medical centre at about 11pm. During that time the plaintiff and his witnesses said that Mr Wang ‘was not examined by a doctor or a nurse’. In this case however, the clinical notes indicated otherwise and showed that he had been seen by the triage nurse. The triage nurse ‘placed him at the top of the list bar one… In the meantime, she had the plaintiff sit in the waiting area, where she could observe him in case there was any deterioration in his condition’ ().
As with Mr Darnley, Mr Wang ended up at home where his condition deteriorated. Had he remained at hospital he would have received more prompt treatment and would have made a ‘good recovery’ () rather than end up with his permanent disabilities.
In this case there were allegations regarding the assessment of Mr Wang and the failure of the triage nurse to respond to Mr Wang’s friends insistence that he was unwell and needed to see a doctor. With respect to the examination Hidden J said (-):
Given that her note demonstrates that she obtained a history from the plaintiff, it is inconceivable that [the triage nurse] would not also have undertaken the brief physical examination which she described. From the whole of the expert evidence, it is clear that it was an examination of a basic kind which any medical professional would have performed…
it was no part of … [her]function to treat the plaintiff. From the whole of the expert evidence, it is clear that her task as triage sister was to make a primary assessment of him with a view to assessing the urgency of his need for treatment. That assessment had to be made in the light of the other demands upon the Department at the time and the available professional resources.
[Her] … other responsibility was to keep the plaintiff under observation in the waiting area in case his condition worsened…
What must be understood, however, is that the observation of the plaintiff … is different from formal neurological observations which might have been maintained if he had progressed to the treatment area.
As to the demands from Mr Wang’s friends (at ):
The pleas of the plaintiff’s companions that he be treated urgently … were well motivated and entirely understandable. Nevertheless, they could not influence, let alone dictate, the priority to which he was entitled. That was a matter to be assessed by the hospital staff…
Even so, the court found that the hospital was negligent in not attempting to communicate the need to stay at the hospital. The ‘plaintiff was free to leave and the hospital staff had no power to restrain him’ () but even so they could advise him or the risk of leaving. Mr Wang was supported by a number of friends and collectively they made the decision to seek treatment elsewhere. Hidden J said (at ):
I have no doubt that they joined in a decision to leave the hospital not through any sense of personal inconvenience, but because they believed it was necessary to ensure that the plaintiff received the treatment which he needed.
Further (at ):
If the benefits of remaining at the hospital had been explained to Mr Ng, I am satisfied that he would have conveyed that advice to the plaintiff and counselled him to [remain]… Equally… I am satisfied that the plaintiff would have done so and would have been supported in that decision by his two flatmates… They had spent about an hour and a half at that institution and, despite several expressions of concern about the plaintiff’s condition, they were told no more than they would have to wait.
As in Darnley’s case, Hidden J had no doubt that the hospital owed Mr Wang a duty of care even though he had not been admitted as a patient. At - he said:
Clearly, the primary duty which the hospital owed to the plaintiff was to assign him his appropriate priority through the triage system and to observe him in the waiting area in case his condition deteriorated. I am content to assume that no duty to provide him with medical services arose until he could be accommodated in the treatment area.
In my view, that duty extended to furnishing the plaintiff with appropriate advice when it was intimated that he might leave the hospital. The hospital failed to discharge that duty, and the plaintiff’s present condition is attributable to that failure.
Compare and contrast
These two cases have similarities and differences. The similarities are that they confirmed that a hospital that operates an A&E Department owes a duty of care to those that attend seeking medical care and that duty arises from the time they arrive, not from the time they are admitted as a patient.
The duty extends to giving relevant, and not inaccurate or misleading advice.
The difference is that in Darnley’s case the information given was inaccurate. In Wang, the advice that he should stay was not given when Mr Wang’s friends indicated they would leave. So in one case inaccurate advice was given, in the other no relevant advice was given.
That distinction is relevant to the argument in Darnley’s case that hospitals ‘could close down this area of risk altogether by instructing reception staff to say nothing to patients apart from asking for their details’ or withdraw ‘information which is generally helpful to the public’. In Wang’s case the liability arise from failing to give relevant advice. Merely refusing to give advice may be no protection from liability.
What is required is that staff give reasonable advice. It is not a case that it has be accurate to the minute or hour (ie it doesn’t have to be ‘you will be seen in 1 hour 10 minutes) but it has to be not obviously incorrect or absent all-together.
In both cases however the court was satisfied that had the patient’s been advised of the true state of affairs –
- In Mr Darnley’s case that he would be seen within 30 minutes;
- In Mr Wang’s case that he had been triaged and subject to no other more urgent case coming in he was the next to be seen or at least that the triage nurse shared his friends concerns that he may have a head injury and he would be best advised to stay;
They would have stayed and their head injuries diagnosed and even if that did not happen, they would have collapsed within the hospital and received immediate care with better outcomes. In both cases the hospital were found to have breached the duty owed to those seeking assistance and was liable.