In August 2015 I wrote a blog about the finding by the High Court that an A&E receptionist was not liable for failing to provide accurate information about waiting times to a patient, that the claimant patient would be seen in 4-5 hours rather than 30 minutes, which resulted in the claimant leaving hospital and returning home rather than waiting to be seen, whereupon he suffered a brain haemorrhage for which, if he had been in hospital, he would have received urgent treatment and avoided his neurological injuries, click here to read my previous blog.

I commented on the judgment of HHJ Robinson at that time:

In considering whether the reception staff should have told the claimant he would be seen in 30 minutes rather than 4 to 5 hours, the judge concluded that, whilst it was reasonably foreseeable that a patient might leave A&E in the belief that he would not be seen for 4-5 hours rather than 30 minutes and that harm could result, receptionists were not under a duty to guard against harm coming to patients caused by the failure to wait to be seen in A&E and it would not be fair, just and reasonable to impose liability on the receptionist for harm arising in this case as a result of the failure to inform the claimant of the likely waiting time to be seen by a triage nurse. The judge stated that he reached this conclusion on the basis that (a) the duty of civilian receptionists was to complete relevant registration forms competently; (b) provision of (accurate) waiting time information was a courtesy, and not mandatory; and (c) the imposition of liability on reception staff may result in that courtesy (and possibly other courtesies) being removed, which ultimately would be detrimental.

The Judge also concluded that non-clinical staff were not to be the subject of the same legal test as that of clinical staff and were assessed against “the standard of a member of the public exercising common sense” rather than the traditional Bolam test, based on medical expert peer review, used when assessing clinical staff.

The decision was appealed by the losing claimant, coming to the Court of Appeal before Lord Justices Jackson, McCombe and Sales in March 2017. The primary basis of the appeal was that the judge had erred in assessing the scope of the duty owed by reception staff and had erred in his application of the “fair, just and reasonable” test. A lesser part of the appeal related to the other aspect of the case, that there had been a failure by the nurses to priority triage the claimant within 15 minutes, but this was dismissed with some brevity by the appeal court on the basis of the evidence before the judge. The hospital again asserted on appeal that the function of the A&E receptionist was a clerical one, namely to take down details of new arrivals and pass them on to the triage nurses; giving information about waiting times was not part of that function. This was to be distinguished from the role of an ambulance telephonist.

Jackson LJ, giving the lead judgment, concluded that, when the receptionist told the claimant that he would be waiting for up to 4-5 hours, she did not assume responsibility for the catastrophic consequences that might befall the claimant should he then walk out of hospital, even if it was foreseeable that that might happen. It would not be fair, just and reasonable to impose upon a receptionist a duty not to provide inaccurate information about waiting times. The appeal judge, whilst stating he was not usually sympathetic to “floodgates” arguments, expressed understanding about why the trial judge was concerned with opening the floodgates in this instance. In any event, Jackson LJ considered that, even if there had been a duty on the receptionist, the claim could not succeed on the basis that the claimant had walked out of A&E without informing the staff he was about to leave, the damage was outside the scope of the duty and there was no causal link between the damage and the duty.

Sales LJ agreed with Jackson LJ in his finding, albeit for slightly different reasons. He stated that he did not consider that it was “fair, just and reasonable to impose a duty of fine-grained perfection regarding the information provided [by a civilian receptionist about waiting times]” as it was not part of their “core function” of admitting presenting individuals into A&E but it was, rather, a matter of courtesy and part of a general spirit of helpfulness to the public; an imposition of a duty would lead to defensive practices by hospitals and the withdrawal of the helpful courtesy role.

However, McCombe LJ dissented. In his judgment he points out some salient facts in the case: the information given by the receptionist was not just incorrect, inaccurate and incomplete, but delivered in an uncaring tone, and this was a particularly “bad case”, in the sense that the misinformation was of a 4-5 hour wait rather than a 30 minute wait. The appeal judge felt it was not possible to divide up the functions of reception and medical staff: the duty of the hospital has to be considered “in the round” and the duty was not to misinform, whether by reception staff or medical staff. Accordingly, McCombe LJ considered that the claimant should succeed.

So, the claimant lost 2-1, with each appeal judge considering it necessary to give their own judgment on the case. In my previous LexisNexis article on the High Court case, I stated: “Whilst one can understand the judge’s concern regarding imposing liability on non-clinical staff, the corollary is perhaps that not imposing any liability does nothing to guard against the provision of grossly inaccurate misinformation. It is perhaps interesting that the judge did not impose any liability rather than impose liability yet find the claimant contributory negligent”. It seems that McCombe LJ was concerned that the misinformation was “a bad case” (a view with which I have considerable sympathy) but it also seems that Jackson LJ considered the claimant was contributorily negligent. Either way, whilst the majority in the appeal court agreed with the trial judge that the receptionist should not be held liable, and the claimant lost, there is a distinct lack of consensus as to the legal reasoning; on this basis, it will be interesting to see if the claimant attempts to appeal further.