According to NHS England statistics the number of people attending A&E during September 2018 was just over 2 million (of which emergency admissions accounted for 500k), an increase of 4.1% on the same time last year. These statistics are reflected in the increasing number of news bulletins reporting the pressure under which most A&E units are struggling. A recent Supreme Court ruling (Darnley v Croydon Health Services NHS Trust) that non-clinical A&E receptionist staff also have a duty of care to patients has been interpreted by some as adding additional strain to a system on the verge of collapse.  

Triage time was not mentioned

In 2010 Mr Darnley went, with a friend, to the Mayday Hospital in Croydon with a serious head injury. On asking how long he was likely to have to wait, the receptionist on duty replied that it could be 4 to 5 hours before he saw a doctor, omitting to mention that he would be triaged within 30 minutes. Feeling very unwell, he decided that he could not wait for that length of time in a hospital waiting room and opted to go to his mother’s. Around an hour later, he collapsed and was transferred to the Mayday by ambulance and thence onto St. George’s Hospital where he was operated on. Sadly, the delay between his collapse and the operation meant that he suffered catastrophic brain injury, leaving him severely disabled.

Unreasonable to expect non-medical staff to convey waiting times

In 2015 his claim was heard in the High Court on the basis that it was a reasonable expectation for the receptionist (who did not recall the original conversation with Mr Darnley) to inform him that he would be triaged within 30 minutes. Had that been the case then, Mr Darnley argued, he would have stayed in A&E, thus hugely improving his chance of making a recovery. The Trust argued that it was unreasonable to expect the non-medically qualified reception staff to be responsible for conveying accurate waiting times. This was accepted by the trial judge who found that had Mr Darnley waited to be triaged rather than leaving, he was likely to have made a full recovery. Mr Darnley appealed the decision.

A&E receptionists do have a duty of care

At appeal, the question was whether or not it was fair to impose a duty of care on the receptionist. The Court of Appeal upheld the first ruling, finding that the receptionists’ role was purely clerical and they were not under a duty to give patients information about waiting times so they could not be liable if a patient chose to leave A&E. Mr Darnley then pursued his case to the Supreme Court which handed down its judgment on 10 October 2018 – in his favour. The judges found that as waiting times in A&E were a standard part of its normal system of operation, it should be within the competence of a well-informed person acting as a receptionist in A&E to communicate how long a patient might expect to wait before being seen. Therefore it was not unreasonable to expect a receptionist to inform a patient that they would be triaged within 30 minutes. In Mr Darnley’s case, the receptionist gave incorrect information which was misleading and negligent.

Common sense must prevail

Although several commentators have noted that finding non-clinical staff negligent because of misleading information that ultimately led to a patient sustaining life-changing injuries will heap additional, and unnecessary, strain upon an already over-burdened A&E service. However, the Supreme Court’s ruling was a rational assessment of the situation on the ground – a reasonably competent and well-informed receptionist knowing how the  department operates, should be able to inform a patient how long it will be before they see a  triage nurse which was, in the case of the Mayday Hospital, 30 minutes. Essentially, the Supreme Court ruling is urging people to use their common sense and apply knowledge that they would automatically possess due to the nature of their working environment. Hospitals will need to reinforce this message through training frontline non-clinical staff if they are to avoid finding themselves in a similar position to that of the Mayday.

About the author

Jeanette Whyman Partner

Jeanette is head of the medical negligence team. Having worked previously for Hospital Trusts, Jeanette has extensive knowledge of hospital practices and procedures. This means that she is able to assess a case speedily and to anticipate the other parties' position – this enables her to put forward the best possible case on behalf of her client.