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Darnley v Croydon Health Services NHS Trust

The Supreme Court has finally delivered its judgment in the appeal by Michael Darnley against the dismissal of his claim for negligence against the Croydon Health Services NHS Trust [2018] UKSC 50.

Facts

Mr Darnley suffered a head injury in an assault. He attended the Trust’s Mayday Hospital. He told the Receptionist that he had a head injury and that he felt unwell and as if he might collapse. He was told by the Receptionist that he would be seen within 4-5 hours. That information was erroneous. It was in fact the case that he would have been seen by a triage nurse within 30 minutes of his arrival.

Mr Darnley left the hospital after 19 minutes. Shortly after his departure the triage nurse called for him. Later than evening his condition deteriorated and his family called an ambulance. A CT scan at the Trust confirmed the presence of an extra dural haematoma and despite transfer to the neurosurgical unit at St George’s for evacuation of the haematoma it was too late to prevent the development of permanent brain damage. The Claimant has been left with a hemiplegia and long-term disabilities.

Both the Judge at first instance and the Court of Appeal found for the Trust on the issue of liability. The Supreme Court has disagreed and allowed the appeal.

Main Findings

Lord Lloyd-Jones delivering the lead judgment of the Court held that:

  • The factual circumstances of the case came within an existing category of a duty of care between a hospital and patient; and hence the receptionist at the Mayday Hospital owed Mr Darnley a common law duty of care to give reasonably accurate information as to waiting times.
  • That it was negligent of the receptionist to inform Mr Darnley that he would have to wait up to 4 to 5 hours before being seen, in the circumstances where the receptionists knew that the correct information was that he could reasonably expect to be seen by the triage nurse within 30 minutes
  • On the findings made by the Trial Judge
    • That had Mr Darnley been given the correct information he would have remained in the Hospital setting; and
    • That it was reasonably foreseeable that someone, who had been told that there was a 4-5 hours wait, would leave a hospital and might foreseeably suffer an injury in consequence; and
    • That Mr Darnley’s decision to leave was at least in part made on the basis that he had been told that he would have to wait up to 4-5 hours
    • That Mr Darnley would have suffered his collapse in the hospital setting and would have been transferred to St George’s and undergone surgery sooner and would have made a near full recovery
    • Causation was therefore established

The matter has been remitted to the High Court for issues of quantum.

Discussion

The Supreme Court make it clear that they consider that the trial judge and the majority of the Court of Appeal had confused or conflated the issue of whether a duty of care existed with the issue of whether that duty had been breached.

It was the considered view of the Supreme Court that this was not the imposition of a duty of care in a novel situation where it was necessary to start afresh from Caparo principles and decide whether the duty existed: it is long established that NHS trusts that run casualty departments owe a duty to patients, including before they are treated or admitted. Therefore, as soon as a patient is “booked in” a duty of care arises.

That duty of care is to take reasonable care not to act in a way that might foreseeably cause a patient to sustain injury, and clearly extends to not providing misleading information that might cause such injury. Further, this is a duty owed by the hospital trust that must be viewed “in the round”, and so it is not appropriate to distinguish between medical and non-medical staff. The distinction between clinical and non-clinical might well be relevant to the standard of care in terms of whether the duty had been breached, but not as to whether the duty of care exists in the first place.

Lord Lloyd-Jones also dismissed in his judgment the practical concerns and social consequences that so troubled the majority in the Court of Appeal, stating that:

  • the concerns about requiring perfection from A & E staff were “directed at false targets” and were not relevant to whether a duty of care existed, but whether it had been breached;
  • the observations about the undesirable consequences of imposing a duty were “considerably over-stated” and that “There is no reason to suppose that the factual context of an A & E department is likely to give rise to any unusual evidential difficulties”; and
  • “So far as substantive liability is concerned, the requirements of negligence and causation will remain effective control factors. It is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty”.

In summary, therefore, the real question in Darnley always should have been not whether a duty of care existed, but whether that duty had been breached.

What are the implications, and should Hospital Trusts be concerned?

Data published by NHS England shows that just under 1.7m people attended major A&E departments in England in September 2018. That figure rises to just over 2 million if minor injury units, urgent care and walk-in centres are included.

Exposing untrained staff therefore to potential negligence claims of this type could have serious ramifications for the NHS and may limit valuable resources thereby compromising patient care further. Whilst the Supreme Court sought to recognise the “colossal pressure” under which A&E departments operate arguably this decision add to this pressure.

It is however to be expected that further guidance will be provided in future judgments to limit the ramifications of this decision but there are immediate practical steps that healthcare providers can take to provide sensible guidance to their first contact reception staff, to try and guard against patients being given incorrect or misleading information.

In reality the decision in Darnley has not made new law – merely affirmed existing legal principles. It is however a wake-up call. It reinforces the need for all hospital staff to take reasonable care to ensure they do not give out misinformation. Reasonable care needs to be taken to ensure that patients are not misled as to the availability of medical assistance and this would extend to information given about when that medical assistance might be available. Both clinical and non-clinical staff will need to be reminded that waiting time information provided to patients is not simply a common courtesy and carelessness as to its accuracy might have serious legal consequences.

Those providers who operate services for patients presenting to emergency departments, urgent care centres, minor injuries units and walk in clinics will need to review their current operating procedures.  Where there is a procedure in place for triaging those patients, patients should be informed of that and the likely timeframe within which that triage will take place. That information could be provided either orally by reception and other ‘first contact’ staff, by leaflet, or by displaying a prominent notice with accurate information.  As ever, clear documentation of the advice given to patients about likely timescales to be seen would be extremely valuable in the event of subsequent complaints or claims.

There is some reassurance in the judgment. The actions of non-medical staff will be judged in the same way as their medically qualified colleagues; not to the counsel of perfection but to a reasonable standard, namely “that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care”.

It is hoped that the control factors of negligence and causation that Lord Lloyd-Jones speaks of in his judgment will be rigorously applied to ensure that this does not become a fertile ground for claimants.

VICTORIA WOODBRIDGE

Crown Office Chambers



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