Following a final appeal, the Supreme Court has determined that there is a duty of care owed by trusts not to provide misinformation via their A&E receptionists. What does this decision mean for trusts going forwards?

Background

The claimant attended A&E having been assaulted and suffering a head injury. He told the receptionist that his head was hurting and that he was feeling very unwell. He said that he thought he needed urgent attention. When the receptionist told him that he could expect to wait four to five hours to see a doctor, the claimant indicated that he could not wait that long and thought he might collapse. The receptionist said that if this happened he would be treated as an emergency and asked him to sit down and wait. Crucially, however, she did not explain to him that he would be seen by a triage nurse within 30 minutes.

The claimant left after 19 minutes without telling anyone that he was going. Later that evening he became very unwell as a result of a large extradural haematoma. He suffered permanent brain damage leaving him severely disabled with left hemiplegia.

Legal discussion

At first instance, and before the Court of Appeal, the trust successfully defended the claim that it had been negligent in providing inaccurate information about waiting times. However the Supreme Court has reversed that decision, finding for the claimant.

The Court confirmed that whilst it is appropriate to place non-medically qualified staff on the reception desk, they must take reasonable care not to provide misleading information about waiting times for medical assistance.

The relevant standard against which such staff are to be judged is of ‘an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency care’.

Practical implications

The judgment in the Supreme Court concludes that it is ‘not unreasonable’ for trusts to be expected to provide information about matters such as being seen by a triage nurse within 30 minutes, either orally via the receptionist, or in a leaflet either handed to the patient or via a prominent notice on the wall.

While consideration would need to be given to ensuring that all patients are able to access this information, bearing in mind language or other barriers, this is not a difficult practical measure to put in place and, indeed, many trusts may already be operating in this way.

Fortunately the Supreme Court noted the reality of life in A&E departments and accepted that the pressure of the A&E environment may be ‘highly influential’ in assessing whether there has been a breach of duty and that it was not being suggested that precisely accurate information about waiting times is required. This is clearly impossible.

Accordingly, what should trusts operating emergency departments be doing to protect themselves? We suggest the following:

  • Immediate communication with reception staff to reiterate the implications of this judgment
  • Review/drafting of applicable policies and consideration of any necessary training
  • Bearing in mind language or any other barriers, ensuring that in addition to providing oral information, emergency departments are clearly displaying accurate notices about waiting time expectations – particularly in relation to triage - and what patients should do if they are concerned about those waits.

NHS Resolution has sent correspondence to all chief executives providing details of this judgment and making its own comment on the implications.