Last month in Darnley v Croydon Health Services NHS Trust the Court of Appeal had to grapple with a potentially far-reaching issue: when hospital reception staff give patients an idea of waiting times, do they owe them a duty of care to get it right?
With around 450,000 visits to accident and emergency departments across England every week, there was a lot at stake in the appeal.
The claimant, Michael Darnley, had been assaulted and hit over the head. His friend Robert Tubman drove him to the A&E department of the local hospital.
It was a busy night, and according to the ‘compelling’ evidence of Tubman, the receptionist who took Darnley’s details addressed him in a very ‘off-hand’ way.
Darnley explained that his head was in pain, but according to Tubman, the receptionist ‘did not have a helpful attitude at all’ and ‘seemed more concerned as to how the injury had occurred’ and ‘asked Michael if the police had been involved’.
The receptionist told Darnley to go and sit down, and said he ‘would have to wait four to five hours before somebody looked at him’.
When Darnley said he could not wait that long because he felt he was about to collapse, the receptionist – who according to Tubman had begun pulling down the shutter – remarked that if he did collapse, then he would be treated as an emergency.
What the receptionist failed to mention was that, although the waiting time for some patients could be as long as five hours, according to the hospital policy Darnley would be seen by a ‘triage’ nurse to assess the urgency of his situation within 30 minutes.
Darnley waited 19 minutes in A&E, before he decided to leave. When the triage nurse appeared 10 minutes later, he was gone.
Sadly, after leaving the hospital, Darnley’s condition deteriorated significantly. He ended up returning in an ambulance, but by then it was too late to avoid permanent damage and he was left with long-term disabilities.
The trial judge dismissed Darnley’s claim, concluding that the receptionist, who was not clinically qualified, did not owe a duty to provide information about waiting times, and it was not ‘fair, just and reasonable’ to impose such a duty of care on reception staff.
In a majority decision, the Court of Appeal upheld the trial judge’s ruling, with Lord Justice Jackson and Lord Justice Sales dismissing the appeal; Lord Justice McCombe gave a dissenting judgment.
Jackson was clearly worried about the potential impact that imposing such a duty on hospital receptionists would have on the NHS, and on patients. He said it would ‘add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts’.
He added: ‘I am not usually sympathetic to “floodgates” arguments. In the present case, however, I do see force in the judge’s concerns. Litigation about who said what to whom in A&E waiting rooms could become a fertile area for claimants and their representatives.
‘Alternatively, healthcare providers could close down this area of risk altogether by instructing reception staff to say nothing to patients apart from asking for their details. That too would be unhelpful, as the judge observed.’
Lord Justice Sales asserted that information about waiting times is ‘provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public… [and] its provision is not subject to a duty of care in law’.
So did their lordships get it right? Not in my view.
I find it hard to agree with the notion that, for patients who consider their injury or illness serious enough to have gone to A&E, they have no right to expect information on how long they will need to wait before they are seen; this is merely a ‘courtesy’ extended by the NHS.
Surely patients have a perfectly legitimate expectation that they will be given some idea of how long they will need to wait – it is more than some benevolent act of courtesy by the NHS that they should be grateful to receive. It is the least patients can expect.
Lord Justice McCombe sought to avoid the ‘floodgates’ problem in his excellent dissenting judgment, by stressing that his judgment was ‘fact specific’, and noting that this was a ‘bad case’.
Going over the evidence of how the claimant was treated, he said:
‘The effect of the information given to the claimant was that he would have to wait “up to 4 or 5 hours” before being attended by anyone and, when he said he felt that he might collapse, he was told that if that happened he would then be treated as an emergency.
‘The information so given could only have given the claimant the impression that he would not be seen or assessed by anyone sooner, short of something like a collapse. The information given was not only uncaring in tone, as related in Mr Tubman’s evidence, it was also untrue…
‘In my view, when given information about waiting times, patients need to know that in true urgency the hospital can act quickly and that initial assessment will occur sooner than the well-known average national A & E waiting times until treatment.’
McCombe was concerned to ensure that hospitals do avoid liability by using non-clinical staff on the reception desk.
He said: ‘I do not accept that the functions of the hospital can be divided up into those of receptionists and medical staff. The duty of the hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact.
‘I agree with Jackson LJ that it is not the function of reception staff to give wider advice or information in general to patients, but, in my judgment, it is the duty of the hospital 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.’
Hospitals are stressful places, and the A&E department is the most challenging place staff can work. Most NHS staff do a fantastic job, in very difficult conditions.
But even employees with no medical qualifications should never feel that they can be dismissive of patients, or careless in the information they provide.
The court has declined to impose a legal duty on them; but an uncaring attitude can still have serious consequences for patients.