Duties of care owed by hospital receptionists: Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151

By Peter Yates

Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151

Mr Darnley, the Claimant, was assaulted. He received a head injury. His friend drove him to a nearby A & E department. The hospital in question operated a commonly used system; a “civilian” (i.e., non-clinically qualified) receptionist would take the patient’s basic details. The patient would then be assessed within 30 minutes by a triage nurse, who would decide on the best course of action. Urgent cases would be prioritised.

The trial judge would later find the following facts:

  • The receptionist told the Claimant and his friend that he would have to wait for up to four to five hours before being seen.
  • The receptionist did not tell the Claimant that he would be assessed by a triage nurse within 30 minutes.
  • Pressures in the hospital were such that some patients might have to wait up to four to five hours before being treated, but it was not the case that a patient with a serious head injury would have had to wait that long.
  • The receptionist told the Claimant that if he did collapse he would be treated as an emergency.
  • The Claimant, who was in pain, left the waiting area after 19 minutes without telling the receptionist. A short time later the triage nurse came to find him, but he had gone.
  • The Claimant would have waited if he had been told that a triage nurse would have seen him within 30 minutes.
  • “It is reasonably foreseeable that a person who believes it may be four or five hours before they will be seen by a doctor may decide to leave, in circumstances where that person would have stayed if they believed they would be seen much sooner by a triage nurse.”
  • The Claimant’s condition at home deteriorated. He was later brought back to hospital by ambulance and was found to have an extradural haematoma. He suffered partial paralysis and long-term disabilities.

It is against this background that the Claimant brought his claim against the Defendant Trust for what was said to be a breach of a duty to provide accurate information about waiting times.

The facts of the case may be thought to be highly specific, but the principles to be drawn from the judgments are potentially significant. That is because there are around 450,000 visits to A & E departments in England alone every week. Research cited in the first instance judgment revealed that 3-8% of UK patients leave emergency departments without being seen.

The Claimant’s case failed. The trial judge concluded that it was not part of the receptionists’ duty to give information about waiting times and that they were not in breach of duty by providing inaccurate information or by failing to provide accurate information. It was not, he said, “fair, just and reasonable” to impose such a duty of care upon the reception staff. Even if there was a breach of duty causation was not made out; the inaccurate information did not cause the Claimant’s injury. He took the decision to leave and he must take responsibility for that decision. (The judge also rejected another proposition that the hospital was in breach of duty by failing to triage the Claimant as a priority within 15 minutes, consistently with NICE guidelines. The Court of Appeal swiftly rejected the Claimant’s grounds of appeal on this point.)

The Claimant appealed to the Court of Appeal which, by a majority, upheld the trial judge’s decision.

The starting point is if course Caparo v Dickman [1990] 2 AC 605. That case established the principles for determining the existence and scope of a duty of care: foreseeability of damage; a relationship of “proximity” or “neighbourhood”; and whether it would be “fair, just and reasonable” to impose a duty of care.

Lord Justice Jackson added that “[t]he question whether the law of tort imposes a duty of care in any given situation is not a binary question admitting of a simple yes or no answer. It is necessary also to consider the scope of the suggested duty and the range of consequences for which the defendant is assuming responsibility or is to be held responsible”.

The Claimant relied on Kent v Griffiths [2001] QB 36 and Michael v Chief Constable of South Wales Police [2015] UKSC 2. Kent concerned a Claimant who suffered an asthma attack. Her doctor telephoned 999 and requested an ambulance. In a second call the Claimant’s husband was told that the ambulance was well on its way and would arrive in seven or eight minutes. In fact, the ambulance was late and she suffered permanent brain damage. The doctor gave evidence that, if she had been told that the ambulance would take 40 minutes to arrive, she would have advised the Claimant’s husband to drive her to hospital. The trial judge, and in turn the Court of Appeal, found that the ambulance service owed the Claimant a duty, having accepted the 999 call.

The Claimant submitted that there is an analogy to be drawn between the ambulance service and the reception staff in an A & E department, and that errors made by telephone staff in the ambulance service can give rise to liability for personal injury. The Defendant, by contrast, submitted that the receptionists were there to perform a clerical function relating to taking down details and passing them on to triage nurses; giving information about waiting times was not part of their function.

Lord Justice Jackson concluded that “there is no general duty upon civilian receptionists to keep patients informed about likely waiting times”. He went on:

“In my view there is an important distinction between a telephonist in the ambulance service and an A & E receptionist. The telephonist in the ambulance service often passes information to paramedics or patients, in order that people can act on that information. Ambulance drivers need to know where to go. Patients waiting for ambulances may need to decide whether to stay where they are or to arrange their own transport to hospital (a scenario discussed by Lord Toulson in Michael). Therefore the law imposes on the ambulance service, by its telephone staff, a duty to take reasonable care to pass on correct information. The position of the A & E reception staff in a hospital such as Mayday Hospital is different. Their function is to record the details of new arrivals, to tell them where to wait and to pass on relevant details to the triage nurses. It is not their function or their duty to give any wider advice or information to patients.”

His Lordship stated that this was not a case of failure to inform, but rather one of giving incorrect information. This, he said, was not an actionable misstatement. “When [the receptionist] added that he would have to wait for up to 4 or 5 hours, she was not assuming responsibility to the claimant in the sense of accepting responsibility for the catastrophic consequences which he might suffer if he simply walked out of the hospital. Foreseeability alone is not sufficient to give rise to a duty of care.” Nor was it fair, just and reasonable to impose on the receptionist a duty not to provide inaccurate information about waiting times. Lurking in the background was a “floodgates” argument, and Jackson LJ acknowledged that “[l]itigation 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.” Finally, even if there had been a breach of duty, the scope of that duty, said Jackson LJ, could not extend to liability “for the consequences of a patient walking out without telling the staff that he was about to leave. … [T]here comes a point when people must accept responsibility for their own actions. The claimant was told to wait. He chose not to do so. Without informing anyone of his decision, he simply walked out of the hospital.”

Lord Justice Sales also rejected the appeal. He preferred to characterise the receptionist’s comments as a failure to provide information rather than a misstatement, although it did not, he thought, affect the analysis or outcome. His Lordship stated that if the duty sought by the Claimant were imposed, it is difficult to see why it would not extend to a duty to correct previously-given information which was superseded by, for example, an influx into A & E of emergency cases. That possibility, his Lordship stated, tends to show that it would not be fair, just or reasonable to impose the duty. It would not, he said, be fair, just and reasonable to impose “a duty of fine-grained perfection regarding the information provided”. The receptionist’s core function is to admit people into the A & E service. Information about waiting times is peripheral to that core function. Proper training can be expected in relation to core functions, thereby justifying the imposition of care in respect of them. His Lordship gave the example of a receptionist who falsely tells a patient that A & E is closed. That interaction might, he said, be capable of founding a claim in tort. But providing information about waiting times after admittance is peripheral. He concluded:

“In my judgment, the fair, just and reasonable view is that such information is provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public, as the judge held, and that its provision is not subject to a duty of care in law such that compensation must be paid if a mistake is made. Imposition of such a duty would be likely to lead to defensive practices on the part of NHS trusts to forbid their receptionists to provide any information about likely waiting times, as the judge observed. This reflects the fact that, as noted above, provision of such information is not part of the core function performed by a receptionist. It also indicates that there would be a social cost of imposition of a duty of care, in terms of withdrawal of information which is generally helpful to the public when provided as a courtesy, which is not offset by considerations of justice as between claimant and defendant in this sort of case.”

Lord Justice McCombe dissented, although he was careful to note that his conclusions were “fact specific”. He disagreed with the distinction drawn by Jackson LJ between ambulance service telephonists and A & E receptionists. He added: “It is said that patients waiting for ambulance services may need to decide whether to stay where they are or to arrange alternative transport. 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. I am not confident that it is equally well-known that hospitals do operate triage systems precisely to cater for this type of case.” His Lordship further stated that the functions and duties of a hospital had to be considered in the round. If a hospital has a duty not to misinform patients, that duty is not removed “by interposing non-medical reception staff as a first point of contact”. Although there is no duty on receptionists to give wider advice or information, they were under a duty not to provide misinformation.

This is an interesting case which is of significant practical importance. The trial judge and the majority in the Court of Appeal openly wished to avoid opening up a potentially massive area of litigation. In so doing, however, the judgments may have sacrificed clarity. The distinction drawn by Jackson LJ, for example, between ambulance service telephonists and hospital receptionists is a thin one indeed, and McCombe LJ is surely right to question it. Moreover, the duty being contended for by the Claimant could not be said to have been onerous – it would have been satisfied simply by informing the Claimant that he would be seen by a triage nurse within 30 minutes. No specialist knowledge, skill or funding would be required. The conclusions on causation also seem to be flatly inconsistent with the trial judge’s findings of fact. Nevertheless, the law in this highly specific but important area appears to be settled.

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