A recent High Court judgment has provided clarification on the duties owed by non- medically trained personnel in a Hospital setting.
The judgement also provides helpful guidance on two additional issues which are often central to the disputes between parties in clinical negligence claims. These are:
- The level of responsibility a patient must take for themselves
- The weight that should be afforded to compliance with NICE guidelines
The claimant was attacked one evening and was persuaded by a friend to attend A&E at the Defendant Trust. The Court found on the evidence that he arrived in A&E at 8:26pm and left at 8:45pm, a stay of some 19 minutes. His condition deteriorated at home, an ambulance was called at 9:42pm, and on return to the Hospital a CT scan showed the presence of an extra-dural haematoma, which was later removed. It was not disputed that had the Claimant remained in Hospital and been treated earlier, he would have avoided the left hemiplegia from which he now suffers.
The Claimant put forward a case that there were breaches of duty by both clinical and non-clinical reception staff. As against the clinical staff (triage nurses) it was alleged that there was a failure to assess and triage the Claimant in 15 minutes and in accordance with the relevant NICE guidelines.
As against the non-clinical staff it was alleged that there was a failure to provide accurate information regarding the time the Claimant would have to wait before being seen, and also a failure to assess the Claimant for “priority triage”.
On the available witness evidence, the judge found that the Claimant was told that he would have to wait for up to four to five hours to be seen on arrival at A&E. He accepted the Claimant’s evidence that had he been told that he would have been seen in thirty minutes, he would have waited in A&E.
Effect of NICE guidelines and “Priority Triage”
The guidance relevant to the issues in question were issued in September 2007. It is widely accepted that NICE guidelines should be taken fully into account by Health Professionals when exercising their clinical judgment.
When asked to address the question as to whether a failure to assess the claimant within fifteen minutes of his arrival at hospital (and in strict accordance with the guidance) was a breach of duty the court pointed towards the Claimant’s “straightforward and superficially attractive” primary case. The Claimant argued that NICE guidelines described optimal practice and anything less must represent sub- optimal practice and therefore was unacceptable. It was accepted by the experts in their joint discussion that whilst the NICE guidance for triage within 15 minutes applied principle, the potential for other factors to affect compliance with this principle meant that an expectation for a patient to be seen by a triage nurse within 30 minutes would be deemed acceptable.
Based on the Court’s assessment and weight afforded to the NICE guidance, the Claimant did not succeed in establishing breach of duty against the clinical staff for failing to triage within 15 (or indeed 19) minutes.
Duty of non-clinical staff
The second issue for the Court then became whether there was a failure (which could amount to a breach of duty) by non-clinical reception staff to provide the Claimant with accurate waiting times to be seen by a triage nurse.
The Defendant argued that it would not be unfair, unjust or unreasonable to hold the A&E department responsible for the consequences of the claimant leaving the A&E department in the circumstances of this case. The Defendant argued that there should not be an assumption of responsibility for the consequences resultant from a failure by a civilian reception staff giving inaccurate or incomplete information. An imposition of such a duty would be unreasonable and would make the role NHS receptionist very difficult.
As the judge highlighted: “We seem to live in an age where there is in perception at least, increasing reluctance by individuals to take personal responsibility for their own actions. Here, the Claimant’s case on this issue broadly stated that it was the fault of the receptionist that he left the hospital and thus their fault for everything that flowed from such departure”.
The Court found that it was reasonably foreseeable that some people leave A&E without being seen and then in some cases they may suffer harm as a result. Furthermore, it was 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 and would have waited if believed they would have been sooner.
In this case, the Court concluded that it would not be fair, just and reasonable to impose liability on the defendant as a result of a failure by the receptionist to inform the claimant of the likely waiting time to be seen by a triage nurse. The Court admitted as much when passing judgment that this was a policy decision.
The court even went so far as to say that “The ultimate conclusion could be justified on the basis of the connection between the alleged inadequacies of the information provided and the harm suffered is broken because the decision to leave is ultimately the decision of the claimant. It was the claimant who was aware that he had been struck over the head. He knew he was in pain. He knew that ultimately he would be seen. He took the decision to leave before had had been seen. Ultimately, it is the Claimant who must take responsibility for the consequence of that decision, not the defendant.”
The finding in respect of the NICE guidance issue is eminently sensible and was made in circumstances where the Defendant Trust was able to show evidence that this was a particularly busy time in A&E where there was a high clinical workload at the time of the Claimant’s attendance. It reiterates what is often argued by Defendants in clinical negligence claims, i.e. that NICE guidance are precisely that and in many circumstances a description of optimal practice. Flagrant disregard for NICE guidelines should be deemed unacceptable but equally a failure to comply to NICE guidance to the letter of law should not on its own be a damning factor.
There is no doubt that the issues that arose in this case will arise in subsequent cases; however, for the time being, it provides useful assistance to clinicians and, indeed, lawyers when deciding what level of importance to assign strict adherence to NICE guidelines. It is a reminder to lawyers and Trusts when considering complaints or adverse incidents that things are rarely black and white.