The decision of the Supreme Court in the Darnley appeal has now been handed down. The potential implications of the judgment for patients and those on the front line in healthcare services are considered below.
The claimant, Michael Darnley, was assaulted on the afternoon of 17 May 2010 and sustained a head injury. He contacted a friend, Mr Tubman, and the pair subsequently attended the Mayday Hospital in Croydon. The claimant arrived at the Accident & Emergency (A&E) department at 20:26 in the evening.
The claimant was clerked into the department by the A&E Receptionist. Mr Tubman gave evidence at the trial and the Judge accepted his version of the conversation that took place with the receptionist: the claimant informed the receptionist that he had been assaulted and struck at the back of his head; he thought he had a head injury; that he was feeling very unwell and his head was hurting.
Mr Darnley took a seat in the waiting area with his friend but then decided to leave because he felt too unwell to remain and wanted to go home to take some paracetamol. The pair left the A&E department at 20:45, 19 minutes after their arrival. Neither informed the receptionist or anyone else that they were leaving.
It was asserted that both Mr Darnley and Mr Tubman said that the claimant needed urgent attention. They both alleged that the receptionist had apparently said they would have to wait four-five hours before Mr Darnley could be seen. He told the receptionist that he could not wait that long as he felt he might collapse. It was said the receptionist replied that if he did collapse then he would be treated as an emergency.
The A&E receptionists on duty at the material time were also called to give evidence. Unsurprisingly, neither could remember the incident or any conversation with the claimant and gave their evidence by reference to their usual practice. One receptionist said that she would tell patients who had sustained a head injury that they could expect to be seen by a triage nurse within 30 minutes of arrival and that it would be incorrect to tell a patient that they would have to wait up to four-five hours to be seen. The other stated that she would tell them that the triage nurse would be informed and they would be seen as soon as possible.
Was a duty owed by the Trust? If so, what was the scope of the duty?
When the case was heard in the Court of Appeal, the majority held that a duty was not owed by the receptionist or the Trust in these circumstances. Dissenting however, McCombe LJ considered that the hospital owed a duty not to provide misinformation to patients irrespective of whether the misinformation was provided by reception or medical staff.
The Supreme Court has however ruled that this case falls squarely within an established duty of care. As soon as the appellant arrived at the A&E department seeking medical attention for his injuries and he had been booked in, he was “accepted into the system and entered into a relationship with the respondent of patient and healthcare provider”.
The scope of the duty owed to him extended to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury. The Supreme Court elaborated further and ruled that it was not appropriate in this regard to distinguish between medical and non-medical staff.
In an A&E department the timing for patients to be seen will vary according to their condition. The very purpose of triage is to ascertain which patients require treatment first, and prioritise them appropriately. It is not a task performed by reception staff.
The Judge at first instance accepted that it was reasonably foreseeable that some patients leave A&E departments and that someone who is told they will have to wait four-five hours may do so. In such circumstances, had the claimant been aware that he would have been seen much sooner by a triage nurse, it is likely that he would have stayed.
Implicit in the Supreme Court’s decision is a reluctance to distinguish between medical and non-medical staff. However, receptionists are non-medically qualified staff and to give accurate information about the availability of medical assistance implies that they have some medical knowledge. Many conditions presented in A&E departments are occult in nature and can only be assessed following specialist examination and history taking. That process starts in triage.
On the face of it, the claimant’s decision to leave the department seems illogical given his injuries. It is far from clear how he could have obtained urgent medical attention after he had walked out of the department. He was the only one who was aware of the circumstances and force of the assault he was subject to. Nothing had changed in terms of his need for medical attention, which he clearly recognised, only that he was told he would have to wait for it.
The claimant’s failure to return to the reception desk or to attract anyone’s attention to his plight or to seek further information as to waiting times before taking the step of leaving the department also seems illogical and at odds with his own evidence.
It is frequently the case that clinical negligence claims are not brought until many months or even years after the event. The evidential difficulties of establishing who said what at the reception desk of an A&E department, is likely to be fraught with difficulty, with the odds weighed in favour of the claimant. Reception staff do not and cannot be expected to keep verbatim transcripts of their interaction with every patient waiting in the waiting room. In any subsequent proceedings, they will rely upon their memory and usual practice. The evidence of patients however, given long after the event, is likely to carry more weight because an attendance at an A&E department is an unusual event for most people and it is thought that what took place is likely to stick in a patient’s mind.
The Supreme Court suggested that it is not unreasonable to require patients in Mr Darnley’s (and one might assume that means patients who may have suffered a head injury) should be provided with accurate information that they would normally be seen by triage nurse within 30 minutes, either verbally or by a leaflet. Therefore, it may be helpful to provide patients with a leaflet about the process of triage and waiting times, either in very general terms or specifically covering their particular injury/condition.
Alternatively, Trusts (and indeed other organisations providing healthcare) might simply extend the electronic means of booking in to an A&E department that already exist in many out-patient departments - patients can then simply log in their details on arrival and wait to be seen. The absence of staff in A&E waiting areas may however lead to additional problems.
Could technology provide a solution?
Many Trusts now make use of CCTV for the protection of staff and patients in A&E departments and elsewhere on NHS property. By extending the scope of surveillance, arguably a small step, Trusts could ensure that all encounters with reception staff are recorded.
The use of technology in healthcare encounters might be extended beyond the A&E reception desk. Emergency service personnel wearing bodycams are now a regular occurrence and could be extended to reception, nursing and medical staff. This may yield wider benefits for healthcare staff, both in terms of teaching and in the continuity of care, but could also assist in the resolution of complaints and clinical negligence claims. For instance, the ability to review a patient by means of audio visual aids over a period of time could be particularly useful when trying to assess whether a patient’s conscious level is deteriorating or improving.
The question is whether the general public would accept a technological intrusion into consultations, which are often intimate and personal. The potential benefits for all in terms of improving quality and continuity of care and the long term saving of costs incurred by clinical litigation may bring it one step closer.