Understanding and clarifying Duty of Care after Darnley V Croydon Health Services NHS Trust
In litigation, there will always be certain legal elements that a Claimant will need to prove in order to be successful in their claim. Specifically in clinical negligence claims, these elements can broadly speaking be separated into four categories:
- That a duty of care existed.
- That the level of care provided fell below a reasonable standard.
- That the failure of care caused the Claimant to suffer the injury alleged.
- That this injury gives rise to pain, suffering, loss of amenity and any other financial loss (damages).
The recent Supreme Court decision in Darnley v Croydon Health Services NHS Trust (2018) has served to clarify the first three of these key elements.
Facts of the Case
Mr Darnley had been assaulted and struck on the head on the afternoon of 17th May 2010. After worsening headaches, he was taken by a friend to the A&E department at Croydon University Hospital (formerly known as Mayday Hospital). On arrival, both Mr Darnley and his friend told the A&E receptionist that he had been struck on the head, was feeling very unwell, close to collapse and therefore required urgent medical attention. Mr Darnley was ‘booked-in’ by the receptionist. Normal practice dictated that in such circumstances where a person had suffered suspected head injuries, they would be seen by a triage nurse within 30 minutes, something that the receptionist knew. However, Mr Darnley was incorrectly told that he faced a 4-5 hour wait before being seen (even the Chief Executive of the Trust has subsequently described this information to be “completely incorrect”). After 19 minutes in the waiting room, Mr Darnley felt increasingly unwell and decided to go home to take some Paracetamol. He did not tell any medical staff or the receptionist that he was leaving. At home, Mr Darnley’s condition rapidly deteriorated and within the hour he collapsed and was taken back to Croydon University Hospital by ambulance. Mr Darnley was hypertensive (a severe increase in blood pressure) and found to have sustained an extradural haematoma (a bleed on the brain). He was transferred to St George’s Hospital to undergo emergency neurosurgery but unfortunately suffered irrevocable brain damage leaving him with long term disabilities and left sided paralysis.
It was accepted that had Mr Darnley stayed in hospital, he would have been seen to within 30 minutes. He would have then been told to wait which he would have. His subsequent collapse would have therefore occurred in a hospital setting, he would have been transferred urgently and on balance he would have undergone earlier surgery resulting in a near full recovery.
In both the original High Court judgement, and subsequent Appeal hearing, Mr Darnley’s claim was dismissed. It was held that not only was there no duty of care owed between a civilian receptionist and patient, but that Mr Darnley had to take responsibility for his own actions in deciding to leave A&E before being seen. However, the Supreme Court has now ruled in favour of Mr Darnley, clarifying some important points in law.
Duty of Care
In order to succeed in any medical negligence claim you must first establish that a duty of care was owed by the potential Defendant. Now more often than not, establishing this duty of care is quite straight forward. This is because generally all doctors, nurses and other medical professionals owe a duty of care to their patients. However, what is less clear is whether a non-professional civilian such a receptionist, owes a duty of care to patients. In such circumstances, what must be considered is whether:
- Harm was reasonably foreseeable,
- Whether there was a relationship of proximity, and
- If it is fair, just and reasonable to impose a duty of care in the circumstances.
This is a famous three fold test from the case of Caparo Industries PLC v Dickman (1990) on establishing duty of care.
In the original High Court ruling and subsequent appeal, it was held that a civilian non-medical member of staff, such as a receptionist could not owe such a duty. It was seen that imposing such a duty would not only be unreasonable, but also undesirable as this would lead to extra strain and stress on already stretched departments- A&E wards alone see around 100,000 patients a week. There was a real concern that imposing such a duty would mean that in the future, receptionists would be told by their Trusts to do nothing else but complete registration forms and give no further advice.
As such the High Court and Court of Appeal found that the only duty the receptionist was under was to complete the registration form correctly. Thereafter any information regarding waiting times was a courtesy rather than a right. There was no assumption of legal responsibility that could lead to legal action if provided inaccurately.
However, the Supreme Court overturned this ruling.
The Supreme Court found in favour of Mr Darnley stating that as soon as he attended A&E seeking medical attention, provided information and was “booked in” a recognised duty of care between a hospital and patient had already been established. There is a duty that as soon as someone attends an A&E department complaining of illness- staff should take reasonable care not to cause the patient further injury. As this was an established duty, the Supreme Court found that the three-fold test of Caparo need not be considered. They held that there is a duty on NHS Trusts not to provide misinformation and this duty cannot be avoided simply because it is provided by a receptionist rather than trained medical staff.
The Supreme Court also found that the concern of causing unreasonable strain and stress on already stretched departments had been “considerably over-stated” and misplaced. This also had no significance in any event when deciding the facts of this case.
Standard of Care
Therefore as a duty of care had arisen, the receptionist’s actions would need to be compared against that of an averagely competent, well-informed receptionist performing the same duties (Bolam v Friern Hospital Management Committee (1957)). As such, a competent receptionist would have known that standard procedure dictates a patient suffering from a head injuries would be seen within 30 minutes of arrival. Consequently not providing this accurate information fell below the reasonable standard. The receptionist had even confirmed at trial that she knew this to be the standard procedure with head injuries.
In a similar case, Kent v Griffiths (2001) the London Ambulance Service was found to be liable on an alternative basis (by the Court of Appeal) in part for wrongly advising the Claimant that an ambulance was about to arrive when it was not. In this case had the information been accurate the Claimant would have sought other means of transport to the hospital.
Consequently, it was reasonably foreseeable that a patient who was told they faced a waiting time of 4-5 hours may decide to leave and suffer harm as a result. Therefore this was a breach of their duty of care by providing incorrect information which would foreseeably cause physical injury.
Once a breach of duty had been established, another important point of law that was at issue was whether or not the breach of duty had caused the subsequent injury to the Mr Darnley. In order to succeed in a clinical negligence claim you must prove that the injury you suffered was a direct cause of the breach of duty. For example, if there is a delay in diagnosis of cancer, but that delay did not materially change that patient’s prognosis, you would not succeed in stating that the original breach caused any additional/avoidable harm to the Claimant.
In the present case the High Court and Court of Appeal held that due to Mr Darnley’s own actions, there had been a ‘break in the chain of causation’. Namely that Mr Darnley had himself chose to leave the hospital without telling any members of staff. The first two Court’s found that the Trust could not be held responsible as it was Mr Darnley’s own decision, not the inaccurate information provided, that had led to his injuries. A much set out point that a Claimant must be responsible for ‘their own actions’.
However, in the Supreme Court this ruling was again overturned. They found that firstly, had he waited, Mr Darnley would have been seen, appropriately treated and made a near full recovery. Secondly, Mr Darnley’s decision to leave was based at least in part on the inaccurate information that he was given by the receptionist about waiting times. Third, by providing Mr Darnley the incorrect information relating to waiting times, it was reasonably foreseeable that he would leave. This was particularly the case given that he was vulnerable and had suffered a severe head injury. This all led to his eventual injury. Therefore there had been no break in the chain of causation.
When this case first came to trial there was concern that a new unreasonable duty of care would be imposed on civilians and non-medically trained staff at hospitals. This could have been akin to imposing a duty on an off-duty police officer to step in to break up a riot. However, this case was not in fact a duty of care case at all, but ‘simply’ a case as to whether an established duty of care had been breached.
Nevertheless, the importance of this case should not be overstated in clarifying some key elements in clinical negligence claims. How this may develop and applied in the future will be of great interest. It may give rise to questions as to whether a duty of care arises in other scenarios, such as with GP receptionists or even cleaners. For example, what would happen if a cleaner working in a Trust was asked to urgently wheel a patient to surgery due to no other staff being available during a critically busy time? Would that cleaner be liable if they were delayed after becoming ‘unreasonably’ lost thus causing the patient an injury?
It therefore remains to be seen how this important judgement may affect clinical negligence claims in the future.