The A&E Receptionist’s Duty of Care
Written by Michael Shiers | Medical Negligence | 23rd October 2020
The Supreme Court has unanimously allowed a recent appeal and clarified the law in relation to the duty of care owed by non-medical staff in hospitals.
The facts of the case go back as long ago as 2010 when Michael Darnley who was then aged 26 was assaulted when he was struck on the head. Michael was suffering from a headache which was getting worse. A friend of his took him to the Accident & Emergency Department at Mayday Hospital in Croydon. Michael arrived at the Department at 08:26 p.m. Michael’s evidence which was accepted by the Trial Judge was that the A&E Receptionist was not very helpful and was more concerned about how the incident had occurred. She told him that he would not be seen for at least 4 – 5 hours because the Department was very busy. Michael sat down in the waiting area with his friend and began to feel worse, he wanted to go home to take some painkillers and he left the Department at 08:45 p.m. believing that if he remained he would not be seen for another 4 – 5 hours. Michael nor his friend did not tell the Hospital that they were leaving. Sadly, Michael did not realise how seriously ill he was. He had a large brain haemorrhage which unsurprisingly made his condition deteriorate rapidly. An ambulance was called and he ended up back at hospital arriving at 10:38 p.m. A CT scan was arranged and showed the presence of a large brain haemorrhage and he was transferred to another hospital where he underwent emergency brain surgery to remove the bleed. Unfortunately, by this time the damage was too great and he was left with a very severe and disabling brain injury.
The High Court Decision
When the case first went to the High Court some three years ago the Trial Judge found that if Michael had been told that he would be seen within 30 minutes by a Triage Nurse then he would have stayed and would not have left the Department. His decision to leave was in part based on the fact that the Receptionist had told him that he would not be seen for at least 4 – 5 hours. The Trial Judge had also found that it was reasonably foreseeable that patients do leave A& E Departments without being seen or treated and that that can cause them harm. He felt that it was reasonably foreseeable that anyone who is told that they would not be seen for 4 – 5 hours may decide to leave and that had they been told that they would be seen by a Triage Nurse within 30 minutes they would have stayed.
Therefore, if Michael had been told the correct information by the Receptionist he would have stayed and when he collapsed at around 09:30 p.m. he would have been transferred to the other hospital sooner and would have been a very near full recovery.
However, Michael’s case was lost on a legal point. The Trial Judge felt that he was not owed a duty of care by the Receptionist who was not medically qualified. Therefore, although Michael was given the wrong information by the Receptionist there was no legal liability for the consequences of giving that wrong information. Further, the Judge felt that Michael had brought the problems on himself by making the decision to leave without being seen.
The Court of Appeal Decision
Michael felt that the decision was wrong and made an Appeal to the Court of Appeal which was heard last year by a majority decision, Michael’s Appeal was dismissed; in other words they agreed with the Trial Judge that the hospital should not be liable for the information given by the receptionist and that the injuries had been caused by Michael’s decision to leave.
The Supreme Court Decision
Because of the importance of the issues in this case permission was given for the case to be heard by the Supreme Court and the case was heard back in the summer. The Judgment was recently given by the Court in early October. The Supreme Court approached the case quite simply. They said it was established that a hospital and its staff owed a duty of care to its patients. Whilst it was not the function of reception staff to give wider advice or information in general to patients, it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff.
The Court felt that it was simply not appropriate to distinguish between medical and non-medical staff in the manner proposed by the lower Courts.
The Court of Appeal had been worried that the case would cause a number of new cases to be brought against busy and already overburdened Emergency Departments. The Supreme Court felt that that was not a valid consideration because the Claimant would still have to prove that the Trust had been negligent, the Court would have to take into account that hospital A&E Departments do operate in very difficult circumstances and under colossal pressure and that could be a very important factor in deciding whether or not the care provided by the Trust through its staff was reasonable.
The Supreme Court, therefore, decided unanimously that a duty of care was owed by the Trust through the non-medical receptionist staff.
The court then had to go onto decide whether that duty of care had been breached by the Trust through the receptionist.
The Supreme Court recognised that the pressures on staff were enormous and the demand for attention was constantly fluctuating that priorities were likely to change. However, it felt that it was not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance. Whilst the receptionist could not be expected to give medical advice the standard required was that of an averagely competent and well-informed person performing the function of a receptionist at a department provided emergency medical care. In this case, both receptionists had given evidence that the standard advice to patients was that they would be seen within 30 minutes by a Triage Nurse but in this case, the Judge had accepted that Michael had been told that he would not be seen for 4 – 5 hours. The information was therefore incomplete and misleading. Indeed the hospital’s own Chief Executive had described the advice as completely incorrect. On the basis that the Trial Judge had found it reasonably foreseeable that someone had been told that they may have to wait 4 or 5 hours to be seen by a doctor may decide to leave and meant that the misinformation by the receptionist was such as to amount as a breach of duty of care amounting to negligence.
Michael’s decision to leave
Did this make any difference? “No” said the Supreme Court.
Michael’s decision to leave was reasonably foreseeable under the circumstances and was made at least in part on the basis that he had been given misleading information.
Michael’s case will now be sent back to the High Court for them to determine the amount of compensation which should be awarded to him to assist with his lifelong disability.
Should you wish to talk to our Personal Injury department, please call Michael Shiers on 01752 827025 or email mshiers@nash.co.uk
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