A hospital whose A&E reception staff told a patient he would have to wait up to five hours was in breach of its duty of care, the Supreme Court has ruled. Justices unanimously upheld the appeal from the claimant who suffered permanent brain damage after receiving ‘incomplete and misleading’ information from the hospital staff.

The claimant, Darnley, attended the Mayday Hospital in Croydon in 2010 after suffering a head injury following an assault. He complained of feeling unwell and that he needed urgent attention.

The reception staff informed him he might have to wait four or five hours for treatment, and he left 19 minutes later for his mother’s house, before his condition deteriorated rapidly. The court heard Darnley had not been informed of hospital policy to offer a triage service to patients within 30 minutes: it was accepted that he would have stayed longer if this was known, and that he would have made a near full recovery if he had been in hospital at the time of his symptoms getting worse.

Court of Appeal judges dismissed his claim, but that decision was today overturned. The matter will return to the Queen’s Bench Division for assessment of damages.

Giving the lead judgment in Darnley v Croydon Health Services NHS Trust, Lord Lloyd-Jones, said the hospital’s duty included a duty to take reasonable care not to provide misleading information which could foreseeably cause injury. It was not appropriate in this regard, he said, to distinguish between medical and non-medical staff.

He added: ‘The majority in the Court of Appeal failed to distinguish between issues as to the existence of a duty of care and issues as to a negligent breach of that duty. Observations on the social cost of imposing such a duty of care are misplaced as this is not a new head of liability for NHS health trusts and in any event the undesirable consequences of imposing the duty in question were considerably overstated.’

He noted that in the appeal judgment Lord Justice Jackson had stated that upholding the claim could make litigation a ‘fertile area’ for future claimants and their lawyers arguing about what was said in the waiting rooms of A&E departments.

But Lord Lloyd-Jones said there was no reason why the factual context of an A&E department was likely to give rise to any difficulties, and the burden of proof of the provision of misleading information was still on the claimant.

The court added that Darnley’s unannounced departure from the A&E department did not break the chain of causation, as had been made out.

Tom Lax, a senior solicitor at London firm Bolt Burdon Kemp, said it would be wrong to see the ruling as an expansion of clinical negligence law. ‘In reality, the specific duty not to provide misleading information to patients about waiting times should be pretty easy for almost any individual to uphold,’ he said.  ‘The circumstance in this case will not make receptionists into victims of spurious “he said/she said” claims, but instead ensure that procedures are put in place, by responsible NHS trusts around the country, to make sure that any person attending A&E will be given accurate information about waiting times when arriving at hospital.’