Today’s question came as a comment on the post Transport to the closest hospital, or the one the patient wants to go to? (July 2, 2021) but it’s not really on the point of that post, so I thought I’d give it a separate answer.  The question is:

If you get a concussion and are taken to hospital then looked at then sent home with a fact sheet and the next day you have all the symptoms that is on the fact sheet so ring the hospital and tell them bad migraine and they call for an ambulance then they take you to hospital and they tell you to go and wait with the rest of the people in the emergency department is that right and let me walk out left to fend for myself with no care at all from the hospital staff

A hospital that operates an emergency department owes a duty of care to all who present at that department for treatment (see Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 both discussed in Treating patients whilst ambulances are ramped (December 28, 2018) and see also the posts here https://australianemergencylaw.com/?s=barnett)

The duty is a duty to provide reasonable care but what is reasonable depends on all the circumstances including the number of staff on duty, the needs of other patients and the assessments made by the triage nurse to assign relative treatment priorities.  There is not, and has never been, a guarantee that arriving by ambulance will get someone into ED faster than arriving by car.  And one would have to be living in a news vacuum to be unaware of the pressures on hospital emergency departments.

Whether it was ‘reasonable’ to direct a patient to ‘go and wait with the rest of the people’ depends on all those circumstances – how did the patient present, what facilities were available, what were the needs of others seeking treatment? If the patient collapsed and died or suffered severe brain injury, success at litigation would depend on competing expert views trying to assess the ‘reasonableness’ of decision making at the time the decision was made and before the outcome was known.

A patient’s own assessment of their needs, and their demand to be seen does not impose a duty to see them ahead of other patient’s – see Patient’s demands do not create a duty to treat (April 11, 2020). A person cannot move ahead in the triage queue by insisting that they are a priority.

Where the patient has no adverse outcome, a patient may want to complain to the health service about what they perceive to be a lack of service, but there is no claim for compensation. A claim in negligence requires proof both of negligence and that the negligence caused damage. Where there is no damage, there is no cause of action.

As for the claim they ‘let me walk out left to fend for myself with no care at all from the hospital staff’ it has to be remembered that the hospital cannot stop a person from walking out (see No power to detain a patient just because it’s good for them (January 22, 2023)).  If a patient is planning to walk out before they can be seen by medical staff there may be a duty to try and warn them of the consequences of that action – see Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018) and in particular the discussion of the Australian case, Wang v Central Sydney Area Health Service [2000] NSWSC 515.  But again what could be done, and whether the level of observation was reasonable and would and could identify that the patient was leaving cannot be answered in the abstract.   In this particular case, the advice that should have been given may have been no more than to give the fact sheet the patient already had in which case a failure to give it again may not amount to a breach of duty.  And again if the patient suffered no adverse consequence there can be no legal cause of action.

Conclusion

It is well known that the public health system, and emergency departments in particular are under extreme stress.  My correspondent may not have received the level of care they expect or perhaps that health practitioners want to give but we cannot address that here.

Whether there was any legal error – a breach of a duty of care or a breach of professional standards – cannot be determined without many, many more facts.  I can say with a high degree of confidence that it is not axiomatically wrong to ask a patient that arrived by ambulance to wait in the general waiting area, that there may be delays in being seen and that a patient is allowed to leave at any time should they wish to do so.  It is not an issue that the hospital ‘lets’ a person leave, a hospital cannot stop a competent patient leaving if they want to.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.