Quite unusually, a case regarding the extent of the duty of care owed by the NHS to the public recently went all the way to the Supreme Court. The case of Darnley v Croydon Health Services NHS Trust  UKSC 50 received the judgement of the Supreme Court on 10 October 2018.
Mr Darnley attended A&E with a head injury. The A&E receptionist was told that he had been hit on the head and was feeling unwell. It was accepted by the first trial judge that the receptionist told Mr Darnley that he would have to wait for 4 – 5 hours before he was seen by a medic. He said he could not wait that long as he might collapse and she replied that, if he did collapse, then he would be treated as an emergency and would be seen to. It was found that this information was incorrect and that Mr Darnley should have been told he would be “triaged” (meaning assessed for priority of treatment by a nurse) within 30 minutes.
In fact, Mr Darnley left A&E after 19 minutes. 40 minutes later he started feeling very unwell, an ambulance was called and he was taken back to the hospital where a CT scan identified a significant brain injury. He underwent surgery at a London Hospital 3 hours later. Unfortunately he was left with permanent brain damage.
Mr Darnley issued a claim against the hospital on the basis that it was a breach of the duty of care owed to him by the hospital for the receptionist to have given him incorrect information about waiting times. He argued that, had he been advised he would be seen within 30 minutes for assessment, he would have waited which would have meant earlier scanning and surgery, preventing permanent brain damage.
Both the High Court and the Court of Appeal dismissed his claim on the grounds that there was no duty of care on receptionists to guard patients against injury and it would be unreasonable to impose such a duty.
The Supreme Court's decision
Fortunately for Mr Darnley, the Supreme Court disagreed; saying the duty of receptionists well squarely within the well-established duty of care owed by a hospital to its patients. As soon as Mr Darnley was “booked in” at reception, he became a patient of the hospital. As the hospital owes a duty of care to its patients, such a duty is owed by all staff; both medical and non-medical.
The Supreme Court also decided that Mr Darnley’s choice to leave the hospital did not mean he had caused himself to suffer injury because it was reasonably foreseeable that a person who believes it may be 4 or 5 hours before he will be seen by a doctor may decide to leave. They said the fact he had a grave head injury made this all the more likely and the hospital should have appreciated this.
This may seem to be a harsh decision upon the hospital. To a certain extent Mr Darnley was lucky. He was certainly assisted by the findings of the first trial judge who determined that the receptionist had given incorrect information and that, had she not have done, he would have stayed in the hospital.
However, the duty identified was for receptionists to “take reasonable care not to provide misleading advice as to the availability of medical assistance”. This did not mean a duty to advise patients as to exactly when they might be seen by a medic or to give medical advice. This case was exceptional because the information given was “completely incorrect”.
When considered as an employer/employee relationship where an employer is vicariously liable for the acts of its employees, it must be right, as the Supreme Court has determined here, that there be no gap afforded to non-medical staff employed by a hospital.