Friday, 24 March 2017

Mayday! Mayday!

Mr Darnley attended the Mayday Hospital A&E with a head injury following an assault. He was with a friend.  It was a busy Monday evening. He was greeted, as was the system in place, by a receptionist without medical or nursing qualifications. She clerked him in and asked him to wait. She told him that it would be up to 4 to 5 hours before he was seen. He told her that he felt he was going to collapse. She told him that if he did he would be treated as an emergency.

NICE Guidelines state that a head injured patient should be seen within 15 minutes. It was not disputed that in this case Mr Darnley would have been seen within 30 minutes. The information given by the receptionist had been misleading. Mr Darnley was not seen in 30 minutes because after 19 minutes of waiting, he and his friend left. He went home. Very unfortunately his condition rapidly deteriorated and he was rushed back to hospital where it was found he had an extradural haematoma. It was too late to save him from having permanent, serious neurological injuries.

The majority in the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, held:

(i) The circumstances had not been such as to place the Claimant in a special category of patients requiring priority triage.

(ii) The receptionist had not assumed a duty of care or responsibility to the Claimant when giving advice about the likely waiting time. It would not be fair, just and reasonable to impose a duty of care on the receptionist not to give misleading information about waiting times (Caparao v Dickman [1990] 2 AC 605, applied). The Court was concerned, in this case, about the ramifications of finding otherwise when 450,000 people per week present to A&E and many hospitals operate a system similar to the Mayday Hospital. Research shows that as many as 3-8% of patients leave A&E without being seen. How many have potentially serious injuries?

(iii) In any event, either the prevention of the injury was outside the scope of the duty of care or there was no causal link between any breach and the injury: the Claimant, a capacitous adult, chose to walk out of A&E. 

McCombe LJ gave a dissenting judgment. He pointed to the trial Judge's findings about the complaint of possible collapse and the receptionist's response, referred to above. He also observed that the duty of care was on the hospital. He said at [71]:

"The duty of the hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact."

He would have allowed the appeal and imposed liability on the Defendant Trust.

Mr Darnley chose to forego treatment. He did so at least partly on the basis of incorrect advice that he might have to wait up to 4 to 5 hours to be seen by a clinician. He had to balance that information with other considerations such as that he did not know how serious his head injury might be. Arguably therefore he made a treatment decision on the basis of incorrect advice from the hospital staff. This brings to mind the principles in Montgomery. Did the hospital provide the Claimant with relevant, accurate information on which he could exercise proper autonomy?

Suppose the Trust had employed a nurse on reception who had given the same information to the Claimant as the receptionist had given? Would a nurse have been under a duty to advise Mr Darnley to wait to be seen because it cannot be known without proper examination how serious his head injury might be? Would the Trust have been liable because a nurse owes a higher standard of care than a "civilian"? It must be implicit in the majority judgments in Darnley that it is acceptable to organise an A&E department so that the first point of contact - and the only contact for perhaps half an hour in a head injury case - is with a "civilian". Also, it appears that there was no written information given to Mr Darnley. Head injury leaflets are common-place. Was he not given a leaflet to read telling him of the importance of being checked out? 

Some might thing that there is a danger that this judgment will encourage greater use of "civilian" staff so as to help the NHS and other healthcare providers to avoid liability? Why employ a trained nurse when you can use a "civilian" at less cost and with a lower risk of being found liable if something goes wrong?

On the other hand, as I have previously observed on this blog, if there is an greater emphasis on patient autonomy following Montgomery, then that has consequences not only for providers of medical care but also for patients. Adults with capacity to make rational decisions have responsibility for the consequences of those decisions. Mr Darnley removed himself from the hospital without having been seen by a nurse or doctor. He did so without receiving any nursing or medical advice. By doing so he knowingly took the risk that his head injury might be a serious one and he might deteriorate at a time when he was out of the immediate reach of medical attention. He fully, but unwisely, exercised autonomy. 

For some time clinical negligence defendants have been seeking to defend cases (in whole or in part) by contending that patients have broken the chain of causation or have been contributorily negligent by missing appointments or not complying fully with advice etc. Will this judgment encourage more of those sorts of defences?

This is a fascinating decision with potential ramifications for the way hospitals should be organised, and for the responsibilities patients have for their own decisions.