As the NHS struggles under the weight of record demand and Darnley v Croydon Health Services and NHS Trust [2017] EWCA Civ 151 is appealed to the Supreme Court, we consider the impact of a duty to give accurate waiting time information.
Scotland's largest health board, NHS Greater Glasgow & Clyde, apologised for lengthy waits at its A&E departments over Christmas and New Year after it faced a huge increase in demand. Attendances were up 20% on last year.
Fuelled by higher alcohol consumption, bad weather and "flu season," the festive period is always a major challenge. Extended waiting times draw media and political attention and increase the risk of claims. Staff have a duty to prioritise serious cases, but is there a duty to tell patients how long they are likely to wait? Following Darnley, the answer is no – for now.
Mr Darnley attended A&E with a head injury after being assaulted. The receptionist told him he would need to wait four or five hours. After 19 minutes, he lost patience and left. At home, he suddenly collapsed. Sadly he had suffered a brain haemorrhage and was left partially paralysed.
He sued the NHS Trust for giving him misleading information. Head injury patients are seen within 15 minutes – not four or five hours. He argued the receptionist had a duty to provide accurate waiting times. If she had, he would have waited to be seen and avoided serious injury.
The court held the receptionist owed no duty to give accurate waiting times. The claim was dismissed. Mr Darnley appealed unsuccessfully. The Court of Appeal applied the well-known test in Caparo v Dickman and determined it was not fair, just and reasonable to impose such a duty of care on administrative hospital staff. Lord Justice Jackson stated that even if such a duty existed, its scope could not include the consequences of Mr Darnley leaving without telling anyone. Patients must accept responsibility for their own actions.
However, Lord Justice McCombe dissented. He held the hospital had a duty not to give misinformation to patients and its functions cannot be so readily separated between administrative and medical staff.
On appeal to the Supreme Court, Mr Darnley's argument is likely to centre on the dissenting judgment. If successful, could this worsen the problems faced by the NHS?
Investment would be needed in clear waiting-time protocols and training for receptionists. It would require non-clinical staff to provide accurate information about the current waiting times in their A&E department to patients even if the waiting time was in breach of their protocol. Imposing such a duty is likely to raise awareness of the waiting time guidelines and therefore lead to a rise in actions based on Trust and national protocols.
Accurate waiting times are certainly desirable and may improve patient safety, but imposing an onerous legal duty on unregulated administrative staff may not be the best way to achieve this. Given the recent apology for waiting times it is clear that the NHS is under pressure and waiting times are significant. At least for the time being, pending a decision from the Supreme Court, A&E departments can focus on reducing waiting times instead of accurately forecasting them.
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