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Non clinical medical negligence? A review of Darnley v Croydon Health Services NHS Trust

Medical negligence solicitor Michael Roberts looks at the implications of a recent case where a hospital trust was found liable for the information given by reception staff in A&E about waiting times

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Mike Roberts is a medical negligence solicitor who specialises in a range of medical injury claims including brain injury and heart cases.  He tweets as @MikeRobertsLD
In Darnley v Croydon Health Services NHS Trust, the Supreme Court found a hospital Trust liable for “incomplete and inaccurate” information given by a receptionist about A&E triage time. The judgment has created a stir in medico-legal circles, but are its implications being overstated?

The facts in brief

Mr Darnley attended Mayday Hospital A&E after being assaulted and suffering an injury to the back of his head. He explained this to the receptionist and said that he was feeling very unwell. The receptionist advised him that he would have to wait up to four or five hours before somebody would look at him, although in fact he would have been seen within 30 minutes.
 
Mr Darnley sat for 19 minutes before deciding to leave the A&E department as he felt too unwell to remain and wanted to take painkillers and rest. Unfortunately, soon after going to bed, his condition deteriorated. He was taken by ambulance back to A&E and he was found to have suffered a large extra-dural haematoma. Although this was urgently operated on, he suffered severe and permanent brain damage.
 
Mr Darnley brought a case against the Trust for the advice given by the A&E reception staff regarding the time he would have to wait.

Trial – High Court

At the initial trial, the High Court judge found that, had Mr Darnley been given the standard advice for head injuries – that he would have been seen by a triage nurse within 30 minutes – he would have remained at A&E and he either would have avoided his collapse or would have been treated quickly enough after his collapse to have made a very near full recovery. 
 
However, the judge found against Mr Darnley on two legal grounds:
 
  • Firstly, that the A&E receptionists were not under a duty to guard patients against the harm caused in this case (even if it was agreed that harm would have been prevented by the provision of accurate information about waiting times). 
  • Secondly, that any causal connection between the advice given and the harm suffered was broken by Mr Darnley’s voluntary decision to leave the A&E department. 

Mr Darnley appealed both of the judge’s legal findings.

Court of Appeal

By a majority of 2-1, the Court of Appeal judges dismissed Mr Darnley’s appeal. 
 
The majority decision was based on the reasoning that imposing a duty of care on the receptionists would create “a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts”. They also found that the causal link between the information given and the injury sustained had been broken when Mr Darnley left and, in effect, took his health into his own hands.
 
One appeal judge dissented on the basis that the Trust’s duty of care included a duty not to provide misinformation and it was irrelevant whether that was imparted by clinical or non-clinical staff.  This judge also considered that the causal link was not broken when Mr Darnley left because his reason for leaving was as a direct consequence of the misinformation provided.

Supreme Court

The case was appealed further and went to the Supreme Court, where the judges unanimously agreed that the majority decision of the Court of Appeal was flawed for a number of reasons.

Existence of a duty of care

Firstly, the Court of Appeal was wrong to treat this case as one requiring a new duty of care to be established. It was already firmly established in law that a duty of care is owed by an A&E department to its patients once the patient had presented and been “booked in” to the A&E system. 
 
Secondly, the Court of appeal was incorrect to distinguish between medical and non-medical staff when deciding on whether or not a duty of care existed. The Trust owed a duty to take reasonable steps not to provide misleading information and it did not matter whether that information was imparted by medical or non-medical staff (this distinction may be highly relevant to the question of whether or not that duty was breached, but that is a separate issue).
 
Thirdly, and following on from the above, the Court of Appeal had erroneously conflated the issues of the [1] existence of a duty of care and [2] the breach of that duty of care. The majority judgment in the Court of Appeal was founded largely on considerations of what should and should not be expected of a busy A&E department. However relevant these considerations may have been when considering whether the actions of the receptionist were negligent, they had no relevance to the question of whether or not a duty of care was owed.

Breach of duty

The Supreme Court, having concluded that a duty of care was owed by the receptionist to Mr Darnley, went on to consider whether she had breached that duty. The standard of care required was that of an averagely competent and well-informed A&E receptionist. Responding to queries as to the usual system of operation at their department was clearly within the responsibilities of a receptionist. Furthermore, both receptionists in question were aware that a patient with a head injury would be seen by a triage nurse within 30 minutes or as soon as possible in their department. The Trust’s Chief Executive had acknowledged that it was “completely incorrect” to advise Mr Darnley that he would have to wait 4-5 hours before being seen. 
 
The Supreme Court, therefore, had little hesitation in finding that it was a negligent act on the part of the receptionist to have given this information.

Causation

Having found that there was a duty of care and that that duty had been breached, the Supreme Court had to consider whether Mr Darnley had broken any causal link between that and his subsequent injury when he voluntarily left the department after 19 minutes. 
 
Although the Court of Appeal held the view, as the High Court judge had, that Mr Darnley should take responsibility for his own actions, the Supreme Court considered that such reasoning failed to take into account the fact that Mr Darnley’s decision to leave was directly founded on the misleading information that was given to him. There was no dispute that Mr Darnley would have remained had he been told that he would have been triaged within 30 minutes. As such, the Supreme Court did not find that the causal chain had been broken by Mr Darnley’s departure. Rather, it was a reasonably foreseeable consequence of the advice that had been given to him.

Supreme Court’s conclusions

With a duty of care confirmed, breach of duty found and a causative link between the breach and the injury established, the Supreme Court allowed Mr Darnley’s appeal. The case has now been remitted to the High Court for damages to be assessed.

Discussion

Following the judgment, some legal commentators have raised concerns that this judgment exposes untrained staff to negligence claims, bringing additional stresses and burdens to busy hospital units. Although such concerns are an understandable initial reaction, a closer examination of the judgment suggests that it does not represent a significant (or any) shift in law.
 
It is unfortunate that the Court of Appeal conflated the issues of the existence of the duty of care with the breach of the duty of care. This has led to increased confusion over what this case represents. In actual fact, this was not a case regarding the scope of a hospital’s duty at all. Both the High Court and the Court of Appeal erred in entertaining this discussion. As Supreme Court judge Lord Lloyd-Jones observed at paragraph 16 of his judgment: “…the present case falls squarely within an established category of 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…”
 
Other commentators are concerned not over the existence of the duty, but rather the finding that the receptionists were negligent in not providing accurate advice. The worry is that this may lead to very defensive practice, with receptionists not providing any information at all and refusing to engage with patients in any meaningful way.
 
But, once the dust has settled, will it really lead to such defensive practices? Again, these concerns appear overstated. In this case, the receptionists, as well as the Trust’s Chief Executive, conceded that the information given was inaccurate and misleading and no reason was given for the failure to impart accurate information about waiting times. The Supreme Court readily acknowledged the realities of working in an A&E department, but they considered that “it is not unreasonable to require that patients in the position of the appellant should be provided on arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that they would normally be seen by a triage nurse within 30 minutes”. In this case, there was no suggestion that the failure came about due to overstretched resources or a particularly busy A&E department.
 
That said, the facts in this case made breach of duty a more clear-cut issue that it may otherwise have been. There may be similar cases in future which are less straightforward and where under-resourcing, or other legitimate factors, do have a material impact on the assessment of breach of duty. It will be these cases that have the real potential to impact on the practice of A&E units.
 
Finally, some have commented that Mr Darnley should indeed have accepted his fate when voluntarily deciding to leave the A&E department. Recent cases, such as Montgomery v Lanarkshire Health Board, have seen the courts championing patient choice and autonomy. Mr Darnley’s case may appear to go against that trend, but one must remember that it is informed patient choice that the courts have been seeking to espouse. Mr Darnley’s decision to leave was anything but informed.

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