An analysis of Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151; Court of Appeal

Most of us will have been to A&E in our lifetime. Equally, most of us will have spent a considerable amount of time waiting in A&E, either to been seen or to be ushered through to the next stage of the filtration process.

According to statistics published by NHS England, in February 2017 there were a total of 1,739,169 attendances at A&E and, of those admissions, 54,492 people had to wait over 4 hours from the decision to admit to admission, whilst 339 people waited over 12 hours. With the media reporting that the NHS is in crisis, due in part to waiting times purportedly being the worst on record, is it any wonder that when faced with such a wait some people are simply walking away?

That is exactly what Michael Darnley did at Mayday University Hospital, now Croydon University Hospital, in May 2010. Mr Darnley attended the A&E Unit at 8.26pm on Monday 17 May 2010 having been the victim of a violent assault. He had received a violent blow to the head and his friend drove him to A&E. On arrival at A&E the receptionist, who was not medically trained, completed an admission card and advised Mr Darnley when he complained of severe pain and a fear of collapse that the wait time could be between 4 and 5 hours. Mr Darnley waited approximately 19 minutes before deciding to return home and take paracetamol for the pain. Neither he nor his friend advised the receptionist of their decision to leave. He was called in to triage by the nurse shortly after but had, by this point, left the hospital.

Later that night Mr Darnley’s condition deteriorated. At 9:42pm his family called an ambulance and he was taken back to Mayday Hospital where a CT scan of his head revealed an extradural haematoma (a build-up of blood between the skull and the outer surface of the brain, usually caused by trauma). Tragically, it was then too late to prevent permanent injury and Mr Darnley suffered left hemiplegia and long term disabilities.

The claimant’s case

The claimant’s case was that:

  1. The hospital had delayed too long in assessing him;
  2. The hospital staff had given him incorrect information about waiting times;
  3. If Mr Darnley had been told he would have been seen in 30 minutes he would have waited and not left;
  4. If he had been seen, Mr Darnley’s treatment would have been prioritised, he would have received treatment and, he would have avoided all injury.

The defendant’s case

The defendant denied breach of duty but admitted that had the claimant been present when called for triage his treatment would have been prioritised and the claimant would have made a full recovery.

In summary the main point of dispute between the parties was the nature and extent of any duty of care owed by a non-medically trained receptionist to individuals attending A&E.

First instance decision

HHJ Robinson, sitting as a judge of the High Court, gave judgment at the end of July 2016[2]. In summary, he found as follows:

  1. The claimant’s presentation on arrival was not such that a non-medically trained staff member would or should have realised he needed priority triage;
  2. On the facts, given the pressures on A&E that evening the failure to triage the claimant within 15minutes in accordance with NICE guidelines was not a breach of duty;
  3. Had the claimant stayed, there would have been a duty to triage him within 30minutes;
  4. Reception staff were not under a duty to provide waiting times and therefore they were not in breach of duty by: – Failing to provide accurate waiting information; – Providing inaccurate waiting information;
  5. It would not be “fair, just and reasonable” to impose such a duty of care upon the reception staff;
  6. Alternatively, even if the receptionist was in breach of duty, the inaccurate information did not cause the claimant’s injuries. The claimant took the decision to leave and must accept responsibility for the consequences

The appeal

The claimant appealed on 4 grounds:

  1. The defendant’s failure to triage the claimant within 15 minutes was a breach of duty, even if he was not assessed as a priority;
  2. Contrary to the judge’s finding of fact, the claimant’s presentation was such as to merit priority triage;
  3. The judge erred in the assessing the scope of duty owed by reception staff;
  4. The judge erred in the assessing the scope of duty owed by reception staff;The judge erred in his application of the “fair, just and reasonable” test.

The Court of Appeal dismissed the first two grounds as findings of fact which the first instance judge had been open to make on the basis of the evidence before him. Consequently, the first two grounds were dismissed and the appeal primarily centred around grounds 3 and 4.

It was here, that the appeal court judges differed in their opinion with the appeal being dismissed 2:1 (Lord Justice McCombe dissenting).

The main point of disagreement centred around the correct interpretation of Kent v Griffiths [2001] QB 36 and whether the role of untrained A&E reception staff is analogous to that of an ambulance service telephonist. Lord Justice Jackson and Lord Justice Sales were of the opinion that there was an important distinction between the two; namely that, the non-medically trained A&E receptionist is there to serve a clerical function only; whereas, the ambulance telephonist passes live information to paramedics and patients in order for them to decide whether to wait for an ambulance or make their own way to A&E. As a consequence, the ambulance telephonist is under a reasonable duty of care to pass on correct information. In contrast, the A&E receptionist is not, as there is no requirement for them to give any wider advice or information to patients.

For Lord Justice McCombe the above was an artificial distinction and one which, upon the particular facts of this case, was incorrect. In his judgment A&E reception staff perform a similar function in that patients need to understand that in truly urgent cases hospitals can act quickly and initial assessments will occur much sooner than the well-known average A&E waiting times. In this particular case the A&E receptionist incorrectly advised Mr Darnley that the wait was 4 to 5 hours, when in fact he would be seen by a triage nurse well before that, usually in 30 minutes. Lord Justice McCombe considered that a hospital’s duty of care should be considered in the round and could not be hived off by classifying a person’s role as simply “clerical”, as, had a medically trained professional provided the same information to Mr Darnley, this would have been a breach of duty.

In relation to the fourth ground Lord Justice Jackson and Lord Justice Sales were both of the opinion that such an extension to the scope of a hospital’s duty of care would add an additional layer of responsibility to clerical staff who operate in an already pressurised A&E system. Furthermore, it could have the otherwise unwanted effect of hospitals instructing staff to provide no information to patients at all and simply to act as a conduit for patient information which would be unhelpful. Again, Lord Justice McCombe was not sympathetic to such an argument, stating that his conclusions were “fact specific”.

Comment

This is an incredibly harsh outcome for the claimant and one wonders whether the outcome would have been different had he said to the receptionist “I’m not going to wait that long” or some other words to that effect. Furthermore, I wonder whether a different set of judges would have reached the same decision, or, whether they would have followed the reasoning of Lord Justice McCombe.

What is particularly difficult for the claimant is that they had arguably proved the more difficult parts of their case: namely that earlier intervention would have made a difference. As many practitioners know, when an individual suffers a brain injury whilst the body can compensate there is only a diminishing window of opportunity before irreversible damage occurs. Mr Darnley’s initial presentation occurred within that window and he could have been treated. Furthermore, it was also accepted that it was reasonably foreseeable that people who are given a lengthy waiting time may leave and that this may cause very serious consequences. I fail to understand why, if a consequence is well known, hospital staff are not under a duty to at least attempt to mitigate against that consequence by warning patients of the potential consequences of self-discharge, or, advising them that the wait for triage assessment is much shorter.

On the back of the comments made by Lord Justice McCombe and on the particular facts of this case it is very difficult to see why a receptionist who is an employee of the defendant Trust ought not to have a duty imposed upon them to provide accurate information. Whilst there may be practical difficulties with this, with the national press publishing statistics about long waiting times at A&E, people who are in real need may be deterred from waiting when the actual processes of A&E mean they would be seen quickly. As Lord Justice McCombe noted, it would not be beyond the capabilities of hospitals to provide leaflets or information in A&E about the various stages you go through upon attendance at A&E and whilst you may wait 4-5hourthis is usually for admission and not to see a triage nurse and be assessed.