Darnley v Croydon Health Services NHS Trust: Supreme Court confirms duty of care exists on non-medical A&E staff

Patricia Hitchcock QC

In a unanimous judgment delivered on 10th October 2018, the Supreme Court reminded practitioners that there is no need to consider the Caparo v Dickman test in every case where the existence of a duty of care is in issue, and that judges must be careful not to conflate issues relevant to the existence of a duty with those relevant to whether or not the duty has been breached.

On the facts of this case, the Court confirmed that non-medical staff such as receptionists do owe a duty of care to patients, and that this duty precedes admission to hospital.

The Facts

In the afternoon of 17th May 2010, the appellant Michael Mark Junior Darnley was assaulted and struck on the head.  He later telephoned a friend, Mr Tubman, complaining of worsening headache. Mr Tubman drove him to the Accident and Emergency department at Mayday Hospital, Croydon, where each man told the receptionist that Mr Darnley had been hit on the head, was feeling very unwell and that he needed urgent medical attention.  The evidence of Mr Darnley and Mr Tubman, which was accepted by the trial judge, was that they were told that they would have to wait for between 4 and 5 hours to be seen by anyone medically qualified unless Mr Darnley were to collapse, in which case he would be treated as an emergency.  Mr Darnley was booked in at 20.26 but 19 minutes later felt so unwell that he decided to leave to go home and take some paracetamol; neither he nor Mr Tubman informed the receptionist (or anyone else) that he was leaving.

Mr Tubman drove the appellant to his mother’s house, where he became very unwell.  An ambulance was called at 21.44, arrived at 22.05 and delivered him to Mayday A&E at 22.38.  During the journey, the appellant had become hypertensive, his GCS had dropped to 9/15 and he had projectile vomited.  A CT brain scan identified a large extradural haematoma with marked midline shift.  The appellant was intubated and ventilated and transferred to the care of neurosurgeons at St George’s, Tooting, who operated to evacuate the haematoma at 01.00.

Mr Darnley suffered permanent brain damage, manifesting as a severe left hemiplegia.

The Trial Judge’s Findings

The claim alleged negligence both by the receptionist providing inaccurate and misleading information about waiting times and by a failure properly to assess the appellant as a high priority for triage.  At the trial in 2015, it was not established which of the two receptionists on duty at the time had dealt with Mr Darnley.  Neither had any recollection of the events that day but both gave evidence as to their usual practice when a person with a suspected head injury asked about waiting times: one said that she would advise that the patient would be seen by a triage nurse within 30 minutes; the other, that she would advise that the triage nurse would be informed and the patient would be seen by the nurse as soon as possible.

The trial judge, HHJ Robinson sitting as a Judge of the High Court, made the following germaine findings of fact:

• If the appellant had been told that he would be seen within 30 minutes of arrival, he would have stayed to be seen, and would have been seen promptly.

• If he had been seen, he would have been either admitted or told to wait; if told to wait, he would have waited.

• If he had waited, his collapse would have happened in a hospital setting and would have resulted in prompt transfer to St George’s Hospital, earlier surgery and a “very near full recovery”.

• The appellant’s decision to leave was based at least in part on the information that he was given by the receptionist about waiting times, which was inaccurate.

• It was reasonably foreseeable that a person told that he would have to wait for four or five hours might leave without treatment, and might suffer physical harm as a result.

Nonetheless, the trial judge found that there was no duty of care on the receptionist to guard patients against such harm and that it would be unreasonable to impose such a duty on the Trust.  The learned judge also found that the appellant’s decision to leave the hospital without telling anyone he was going broke the chain of causation.

The Court of Appeal conflates duty and breach

Jackson and Sales LJJ, in a majority judgment, upheld the trial judge’s decision, on the basis that:

• There was no duty of care on the receptionist, or on the Trust acting by the receptionist, to advise about waiting times and to impose such a duty would be to add a new layer of responsibility on staff and of liability on hospital trusts, which would be undesirable;

• alternatively, the damage was outside the scope of any duty, as if the duty was  to provide accurate information then the consequences of the appellant choosing to leave without telling anybody could not be laid at the receptionist’s door  - the appellant must take responsibility for his own actions;

• alternatively, there was no causal link between any breach and the damage.

As Lord Lloyd-Jones -  giving the unanimous judgment of the Supreme Court -  observed, it is difficult to see how these findings could be correlated with the findings of fact at trial. The Supreme Court preferred the analysis of McCombe LJ in the dissenting judgment:  On the facts found by the trial judge, the respondent  breached its duty in providing inaccurate information that created a false impression as to how long the appellant would have to wait, and this breach foreseeably caused the appellant to leave, which foreseeably caused him severe damage.

The ratio of the Supreme Court’s judgment

Lord Lloyd-Jones (with whom Lady Hale, Lord Reed, Lord Kerr and Lord Hodge agreed) clarified that on a true analysis this case did not raise an issue on the existence of a duty of care.  The Caparo  test on which much deliberation below had centred - whether or not it would be fair, just and reasonable to impose a duty in all the circumstances - has no application where, as here, the case falls within an established category of duty of care [15-16].  Citing the dissenting judgment below [19], the case note by Professor Goudkamp in CLJ ([2017] CLJ 481) [23] and the analogous case of Kent v Griffiths ([2001] QB 36 [18]), his Lordship pointed out that “it has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards.  The duty is one to take reasonable care not to cause physical injury to the patient” [16].

His Lordship further reminded practitioners that such a duty is owed by all staff, medical and non-medical.  Distinctions in training and expected knowledge may be highly relevant when considering breach but not at the stage of considering whether or not a duty exists [17, 21].  He further opined that the social cost of imposing such a duty had been “considerably over-stated” by counsel on behalf of the Trust, and had no relevance in any event where the Court was not in fact dealing with a new head of liability [22].

Turning to whether or not the duty had been breached, his Lordship acknowledged the very considerable pressures on staff in NHS A&E departments but held that it was nonetheless not unreasonable to find on the facts that there had been a breach of duty: “The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency care….two receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury …..would be told that they would be seen by a triage nurse within 30 minutes of arrival … or as soon as possible.  …It is not unreasonable to require that patients…should be provided on arrival ….with accurate information.”  [25-26]

It was accepted by the Trust that the information actually provided was “completely incorrect”.  On the judge’s finding of fact that it was reasonably foreseeable that a person who believes it may be four or five hours before he will be seen by a doctor may decide to leave, there was a clear breach of duty. [27]

Finally, his Lordship dealt briskly with the view taken below that in leaving the appellant had broken the chain of causation:  On the findings of fact at first instance, there was a clear causal chain.  The fact that the appellant did in fact have a serious closed head injury merely made his sudden and premature departure all the more likely [29].

Conclusion

This clear declarative judgment underlines that if health Trusts choose - as they are entitled to do -  to delegate initial A&E reception to non-medically-trained personnel, they will be liable for damage caused through the negligence of those staff where it results in foreseeable damage to patients even prior to admission; and this duty extends to patients who have not been treated because they have chosen to leave the hospital, where that decision results at least in part from misinformation provided by hospital staff.