‘Extension’ to the duty of care in healthcare

Darnley v Croydon Health Service NHS Trust [10.10.18]

The Supreme Court have ruled that Emergency Department (ED) receptionists owe a duty of care to patients not to provide misleading information about waiting times. This is a further example of the growing litigation surrounding the expansion of the duty of care Trusts owe outside of the more traditional doctor-patient relationships.

Background

In Darnley, the claimant attended ED on 17 May 2010 with a head injury. The receptionist asked the claimant to wait and said it could take up to four or five hours before he was seen by a medical professional. The receptionist had not indicated that he would be triaged in approximately 30 minutes by a nurse. The claimant left ED after 19 minutes because he did not feel well enough to wait. At home, the claimant’s condition deteriorated and an ambulance was called. It was later discovered that the claimant had an extradural haematoma. By this time it was too late to prevent permanent injury and the claimant sustained left hemiplegia and long-term disabilities.

The claimant alleged that the receptionist had breached her duty by providing misleading information about waiting times, causing him to leave the hospital. The Trust argued that receptionists in ED are not under a duty to provide accurate information about waiting times. Both the High Court and the Court of Appeal agreed with the Trust. It was not deemed fair, just and reasonable for such a duty of care to be imposed on non-medical receptionists. The majority Court of Appeal judgment also emphasised that, even if there was such a duty, the Trust could not be held liable where a patient had chosen to leave ED without informing ED staff.

Decision

The Supreme Court unanimously allowed the claimant’s appeal. The court held there was a duty on receptionists not to give misleading information about waiting times. The court confirmed it was reasonably foreseeable that the claimant might leave with the misleading information provided. Had the claimant been told he would be seen by a triage nurse sooner, he would have waited.

A patient-healthcare provider relationship, giving rise to a duty of care, was established as soon as the claimant was ‘booked in’ at reception. It did not matter that the receptionist had a non-medical role. The duty is owed by the Trust, who chose to charge non-medical receptionists with the provision of accurate information, and those receptionists must take reasonable care not to provide misleading advice regarding the availability of medical assistance.

The Supreme Court emphasised that this case fell within an established duty of care and did not extend the scope of the duty owed by Trusts to patients.

Comment

This case raises questions around how far healthcare providers’ duty of care stretches. It also serves as a useful reminder that the duty of care does have the potential to extend further than the traditional doctor-patient relationship. Darnley shows that the relationship starts not with the first interaction with a healthcare professional but when the patient enters the Trust’s premises.

NHS Trusts will need to be mindful of the legal expectations that fall upon non-clinical frontline staff. Additional training is likely required for these individuals to ensure they provide accurate factual information and of course do not provide any medical advice or opinion.

Clearly signs throughout ED departments are vital, but we question the helpfulness of signs in some Trusts setting out the average waiting times at that moment. These may be wrongly relied upon by patients, ignorant of the possibility of being triaged and seen much sooner, depending on the seriousness and urgency of their presentation.

GP practices should also take note of the Darnley judgement, particularly in relation to the interaction their receptionists have with patients in person and over the telephone.

Darnley has the potential to impose significant costs. Not just from ensuring non-medical staff are adequately versed in the implications of the information they provide, but also in the potential for further litigation to follow. Functions of the hospital and other healthcare units will be considered as a whole and not divided between receptionists and medical staff.

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