Told by an accident and emergency receptionist that he might have to wait four to five hours, Michael Darnley left after 19 minutes and later suffered permanent brain damage. The trial judge found that correct information would have led him to stay and make a very near full recovery. The Supreme Court held that the NHS trust owed a duty not to give misleading information about waiting times, that the advice was negligent, and that it caused his injury.
After a blow to the head, Mr Darnley went to Mayday Hospital’s emergency department. He told the receptionist he felt very unwell and needed urgent attention. He left after 19 minutes, having been told it could be four to five hours before someone saw him. He later collapsed at home and suffered permanent injury despite surgery.
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The department’s usual practice was different from what he had been told. A patient complaining of a head injury would normally be seen by a triage nurse within 30 minutes, and both receptionists on duty said that they would ordinarily explain that. The trial judge found that the information actually given was inaccurate or incomplete. Had Mr Darnley been told that he would be seen within 30 minutes, he would have stayed, his collapse would have occurred in hospital, and earlier surgery would have produced a very near full recovery. His decision to leave was made at least partly because of what the receptionist said, and it was reasonably foreseeable that a patient given a four or five hour estimate might leave when he would otherwise have waited.
The courts below
Mr Darnley sued the NHS trust which managed the hospital, alleging breach by the non-clinical reception staff in the information given about waiting time, and a failure to assess him for priority triage. HHJ Robinson, sitting as a High Court judge, rejected both allegations. His presentation did not require reception staff to alert a nurse immediately, and not being seen during his 19 minutes at the hospital was neither a breach nor a cause of loss. On the information, the judge held that receptionists owed no duty to guard patients against harm from failing to wait, that the harm was outside the scope of any duty, that liability would not be fair, just and reasonable, and that Mr Darnley’s own decision to leave broke the chain of causation.
The Court of Appeal dismissed the appeal by a majority. Jackson LJ held that the incorrect information was not an actionable misstatement: the receptionist had not assumed responsibility for the consequences of his walking out, and a duty not to give inaccurate waiting-time information would add a new layer of responsibility for clerical staff and a new head of liability for NHS trusts. Even if there was a breach, its scope could not cover a patient who left without saying so. Sales LJ agreed that no relevant duty arose and regarded such information as given by way of courtesy. Both were concerned that a duty might produce defensive practices and disputes about conversations in waiting rooms. McCombe LJ dissented. He held that the hospital’s duty not to misinform patients could not be avoided by separating reception from medical functions, and that the incomplete information was a negligent and causative breach.
Duty of care
Lord Lloyd-Jones, with whom Lady Hale, Lord Reed, Lord Kerr and Lord Hodge agreed, held that the majority had treated an established duty as if it were a novel one. Where a category of duty is already recognised, the court does not reassess foreseeability, proximity and what is fair, just and reasonable on every application. Those considerations have already been taken into account. A fresh policy inquiry is normally needed only when the court is asked to go beyond established categories.
Those who provide and run a casualty department have long owed a duty to people who present complaining of illness or injury, before they are treated or admitted: a duty to take reasonable care not to cause physical injury. Once Mr Darnley had attended, supplied the details requested and been booked in, he was in a patient and health-care provider relationship with the trust. The claim was for physical injury. The duty extends to taking reasonable care not to give misleading information which may foreseeably cause such injury. The absence of an earlier case about this precise combination of receptionist, waiting time and physical injury did not take the claim outside the established category.
The duty is owed by the trust. In deciding whether it exists, it is not appropriate to distinguish medical from non-medical staff. The trust had made its receptionists the first point of contact and given them responsibility for accurate information about the availability of assistance. The skill expected of a particular employee may matter when asking whether the duty was breached, but not when asking whether the trust owed it. Lord Lloyd-Jones agreed with McCombe LJ that the duty must be considered in the round: the trust must take care not to misinform patients, whether the words come from reception or medical staff.
The majority had also mixed the existence of a duty with the question of breach. Points about pressure in a busy department, and about the impossibility of giving perfectly precise waiting times, concerned the standard of care, not whether a duty existed. The feared social consequences were overstated. This was not a new head of liability. A claimant would still have to prove misleading information, negligence and causation, and staff could give evidence of their usual practice. The pressure on accident and emergency departments might be highly relevant to breach, but it did not remove the duty.
Breach and causation
A receptionist cannot be expected to give medical advice. The standard is that of an averagely competent and well-informed person performing a receptionist’s function in an emergency department, and the patient can expect skill appropriate to that task. It would be impossible to tell every arrival precisely when a doctor would attend. It is not unreasonable, however, to require receptionists not to give misleading information about the likely availability of medical assistance. Explaining the usual system was within their responsibility, and no reason was given for not telling Mr Darnley that a head-injury patient would normally be seen by a triage nurse within 30 minutes. Saying instead that he would have to wait up to four or five hours to see a doctor was incomplete and misleading. The trust’s chief executive later described that statement as completely incorrect. Given the finding that such information might foreseeably cause a patient to leave, giving it was negligent.
Nor did Mr Darnley’s unannounced departure break the chain of causation. The majority’s alternative conclusion was inconsistent with the trial judge’s findings. Correct information would have led him to stay and collapse in hospital. His decision to leave was made at least partly on the misleading information and was reasonably foreseeable. He had reported feeling about to collapse, had in fact suffered a very grave head injury, and collapsed within an hour of leaving. Collapse in hospital at about 21:30 would have produced earlier surgery and a very near full recovery.
Verdict: The Supreme Court unanimously allowed Mr Darnley’s appeal. The trust was liable, and the case returned to the Queen’s Bench Division to assess damages.
Source: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
