In Darnley -v- Croydon Health Services NHS Trust [2017] EWCA Civ 151, the Court of Appeal affirmed that there is no general duty on A&E receptionists to provide information about waiting times.

Background

The claimant presented to Mayday Hospital A&E department at 20:26 on Monday 17 May 2010 reporting a blow to his head from an assault 90 minutes earlier.

The claimant’s case was that there was a failure to triage him within 15 minutes as per 2007 NICE guidance CG 56 (since superseded), and the receptionist inaccurately told him it would be four to five hours before he was seen without mentioning that he would be triaged within 30 minutes, prompting him to leave before treatment.

At 20:45 the claimant decided to go home and left the A&E department without informing staff. A short time later he was called by a triage nurse but was no longer present. Unfortunately, despite subsequent ambulance admission and emergency treatment, the claimant developed left hemiplegia and long-term disabilities due to an extradural haematoma.

At the first instance trial in April 2015, the trial judge dismissed the claim finding that a failure to triage the claimant within 15 minutes was not a breach of duty and that it was not ‘fair, just and reasonable’ to impose a duty to provide accurate information (or not to provide inaccurate information) about waiting times on A&E reception staff.

The claimant appealed on four grounds:

  1. the failure to triage within 15 minutes was a breach of duty
  2. the claimant’s presentation on arrival was such as to merit priority triage
  3. the trial judge erred in assessing the scope of the duty owed by the reception staff
  4. the trial judge erred in applying the ‘fair, just and reasonable’ test

Decision

Dismissing the appeal, Lord Justices Jackson and Sales (with Lord Justice McCombe dissenting) were not persuaded to revisit the trial judge’s fact finding on grounds one and two. In particular they noted that the parties’ experts agreed that triage within 30 minutes of arrival in the context of a busy A&E department was reasonable and that, had the claimant remained, triage would have been provided within that timescale. On grounds three and four, in his leading judgment LJ Jackson favoured the defendant’s argument that the provision of waiting time information is a courtesy, not a legal obligation. He and LJ Sales concluded that to impose an obligation on NHS trusts to provide accurate (or not misleading) information about waiting times in a continually fluctuating environment such as A&E was too great a burden.

He was further persuaded to distinguish between hospital receptionists, whose function is wholly clerical, and ambulance service control room staff whose function (as confirmed in Kent -v- Griffiths [2001] QB 36) is to pass information between paramedics and patients so that correct action can be taken.

LJ Jackson concluded that even if a duty to provide correct information (or not to provide inaccurate information) was established, the claim would still fail because such liability would not extend to a patient who voluntarily leaves without informing staff, as did the claimant in this case.

Comment

Whilst the decision confirms that there is no legal obligation on A&E receptionists to provide accurate (or not misleading) information about waiting times, this case arose in part because the information provided was incomplete.

Lord Justice McCombe (dissenting) was persuaded by the first instance trial judge’s acceptance of the ‘compelling’ account of the claimant’s conversation with the receptionist as recalled by an accompanying friend. The witness’s evidence was that the receptionist was unhelpful, pulling the shutter of her desk down whilst the claimant tried to convey his concerns, and that she didn’t inform him about the 30-minute triage process. It was not disputed that had the claimant been triaged, he would have been treated as a priority and made a full recovery.

Ultimately, it is a matter for trusts whether they wish their A&E reception staff to provide waiting time information. Good practice in preventing recurrences of cases such as this would be to ensure that where information is volunteered, it includes all relevant considerations, such as triage time. It would be sensible for training and/or policy documents to be drawn up to provide guidance to staff.

Also important to note is the distinction drawn between A&E’s non-clinical ‘civilian receptionists’ and wider auxiliary NHS staff, such as in the ambulance control room, where a legal obligation to pass on relevant information does apply. Whilst not considered by the court in this case, the specific reference to the A&E reception staff being non-clinical raises the question of whether a different finding would have been made had the misleading waiting time information been supplied by a member of clinical staff.