Tom Semple considers the Supreme Court’s decision concerning an A&E department’s duty to provide accurate waiting time estimates to patients.
Mr Darnley attended an A&E department operated by the Defendant NHS Trust. He advised the receptionist that he had suffered a blow to the head and was feeling unwell, but he was told that he would have to wait around 4 to 5 hours before somebody looked at him. Mr Darnley waited for 19 minutes before deciding to leave. What he was not told was that he would have been seen by a triage nurse within 30 minutes, or as soon as possible, given his head injury symptoms. Thereafter, Mr Darnley deteriorated and was taken back to hospital by ambulance. He was found to have developed a large extra-dural haematoma and, despite treatment, he was left with a permanent and disabling brain injury.
At first instance, HHJ Robinson considered that Mr Darnley had been provided with misleading information that had influenced his decision to leave. Had he been given the correct information, Mr Darnley would have remained in hospital and undergone surgery sufficiently early enough to have made a near full recovery. However, in dismissing the claim, he held that:
The majority in the Court of Appeal upheld the decision. Notably, there was a concern that creating a liability for NHS Trusts in such instances would create undesirable social consequences.
The matter was appealed to the Supreme Court. The issues were:
The Supreme Court decided unanimously in Mr Darnley’s favour. The judgment given by Lord Lloyd-Jones can be summarised as follows:
Duty of Care
Standard of Care
This case underlines the correct approach for identifying when the court needs to determine the existence of a duty of care. In the patient and medical care provider context, the duty is reasonably well defined. It extends to the provision of accurate information so as not to put the patient at risk of foreseeable injury.
The main issue will often be whether the defending body has discharged that duty through its medical and non-medical staff. The nature of the misinformation and the role of individual providing the same will be pertinent. A&E receptionists are not going to be expected to provide general medical advice to patients, but they will be expected to take reasonable care to avoid providing misinformation as to waiting times. It will be a matter of degree, particularly when considering the likely causative effect of the misinformation. In this case, it is noteworthy that the advice about the waiting time was drastically wrong.
Hospital and national guidance on waiting times will be particularly useful for potential claimants in assessing both breach and causation in the early stages. The Supreme Court suggested that providing patients with notices or leaflets could militate against such misinformation in future. Healthcare providers will also want to impress upon all staff the importance of avoiding misleading patients as to their care and the ramifications of failing to do so.
The full judgment can be accessed here.