Litigation update

28 June 2019
It is very unusual for a clinical negligence claim to reach the highest reaches
of the court system. Rarer still are cases involving non-clinical staff such as receptionists. Dr James Lucas, medicolegal consultant, discusses such a case which was recently considered by the Supreme Court in the UK and extracts potential learning points for practitioners in Ireland1.

The facts

Mr Darnley, aged 26, sustained a blow to the back of the head during an assault late one afternoon. He telephoned his friend, Mr Tubman, to explain what had happened, adding that he had a headache which was getting worse. Mr Tubman drove his friend to an Accident & Emergency (A&E) department at an NHS Trust. Mr Darnley was noted to have attended A&E at 20.26 hours.

Mr Tubman was a witness to the conversation between Mr Darnley and the A&E receptionist, and became involved in the discussion. On Mr Tubman’s account, the background to Mr Darnley’s attendance was explained to the receptionist. She was informed by both men that they were worried that Mr Darnley had sustained a head injury and needed urgent attention. According to Mr Tubman, the receptionist told Mr Darnley that he would have to sit in the waiting room for up to four-to-five hours, before somebody would be available to look at him. Mr Tubman said that Mr Darnley explained to the receptionist that he could not wait that long as he felt that he was about to collapse, and that the receptionist replied that if the appellant did collapse, he would be
treated as an emergency.

The two receptionists on duty that evening gave evidence in court as to their usual practice, as they were unable to recollect the conversation with Mr Darnley. One receptionist indicated that she would have mentioned an assessment by a triage nurse within 30 minutes of arrival; and the other said that she would inform a patient that they would be seen by a triage nurse as soon as possible.

Mr Darnley sat down with Mr Tubman in the A&E waiting area, but he left shortly afterwards because he felt too unwell to remain and wanted to go home to take some analgesia. Neither Mr Darnley nor Mr Tubman informed the receptionist or anyone else about their intention to leave the A&E department, however both of the receptionists on duty noticed that the men had left and notified the receptionist taking over on the next shift to look out for Mr Darnley.

Mr Darnley was driven to his mother’s house and went to bed. He became distressed a short time later and an ambulance was called. He was taken to hospital where a CT scan demonstrated a large left temporal/inferior parietal extra-dural haematoma with marked midline shift. Despite neurosurgical intervention to remove the extradural blood clot, Mr Darnley suffered permanent neurological impairment in the form of a severe and very disabling left hemiplegia.


In the context of his claim against the NHS Trust, Mr Darnley included an allegation of breach of duty by the reception staff. This related to the information provided about the time that he would have to wait before being seen by a clinician, and also alleging a failure to assess him for priority triage.

The High Court judge concluded that the harm suffered by Mr Darnley was outside the scope of any duty or obligation owed by the Trust or its reception staff. The judge said that the connection between the alleged inadequacies of the information provided and the harm suffered was broken because the decision to leave was ultimately down to
Mr Darnley.

Mr Darnley appealed the High Court’s decision. The appeal was dismissed by a majority of the Court of Appeal. Lord Justice Jackson’s judgment included a comment that imposing a duty on the receptionist would add a new layer of responsibility to clerical staff. Moreover, the judge said that Mr Darnley should accept responsibility for his own actions with regards to his having walked out of the department without telling staff that he was about to leave.

The case was appealed further and went to the Supreme Court

Mr Darnley further appealed and went to the Supreme Court, where the Justices considered that the case fell within an established category in which the law imposes a duty of care. They also accepted that as soon as Mr Darnley had attended the A&E department and had been booked in, he was accepted into the system and entered into a relationship with the NHS Trust. They ruled that it was not appropriate to distinguish between medical and non-medical staff with regards to the duty of care, and that in this instance, the NHS Trust had charged its non-medically qualified staff with the role of being the first point of contact with persons seeking medical assistance. As a result, they had an assumed responsibility for providing accurate information.

Having established this, the Justices went on to say that, whilst acknowledging the enormous pressure on staff, it is not unreasonable to require receptionists to take adequate care not to provide misleading information as to the likely
availability of medical assistance.

The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency care.

The Justices held that Mr Darnley had been misinformed by the receptionist as to the true position with regards to triaging, and was, as a result, misled as to the availability of
medical assistance. The Justices referred to the critical finding of the trial judge – namely that it was reasonably foreseeable that a person who believes that it may be four or five hours before he will be seen by a doctor may decide to leave. The provision of misleading information by the receptionist was therefore found to be negligent. Causation was also established on a number of grounds. Importantly, the Justices referred to the trial judge’s findings that if Mr Darnley had collapsed whilst at the NHS Trust, he would have been transferred earlier for neurosurgery, with the result that he would have made a very near full recovery.

Mr Darnley’s appeal was allowed by the Supreme Court.

Learning points

The judgment is not binding on Ireland. However, it is entirely possible that the courts in Ireland would adopt a similar approach when considering the duty of care of non-clinical staff such as receptionists. Whilst the case in question related to care in an emergency department, there is nothing to indicate that a different approach would be taken by the courts when considering out-of-hospital settings. This is particularly relevant in the context of ‘open surgeries’ or ‘walk-in centres’ providing primary care, where patients may have to wait to be assessed. Practitioners might therefore consider the following guidance on foot of the judgment:

• The development of a protocol is critical in terms of defining the roles and responsibilities of non-clinical staff on the ‘frontline’ of a clinical service. Protocols should encompass issues such as:

• Dealing with special patient groups, eg children and those with special needs.

• Clearly understood thresholds for alerting clinical staff to the presence of patients who may require prompt attention, eg patients presenting with time-sensitive complaints such as chest pain.

• Expectations with regards to documenting patient encounters.

• Communicating with patients when the waiting time significantly increases, eg because of a medical emergency or staff illness.

• Appropriate training of non-clinical staff with patient-facing roles is essential. The training needs of temporary/agency staff should be considered as part of induction processes at the practice. In the case of established administrative staff, refresher training should be considered. It is important to retain training materials and logs.

• The present case could be used as an illustration of the role of administrative staff in providing clear information to patients when they present for clinical assessment and the risks of patient harm, and costly litigation, when the duty of care is breached.

• Consideration could be given to an agreed ‘script’ or form of words to be used when explaining the system in operation at the practice. Patients should understand what they should do if they believe that their condition is deteriorating whilst waiting for clinical assessment.

• Written information relating to triage procedures/ waiting times, including patient information leaflets and signage within the practice, might be helpful in supplementing verbal explanations and demonstrating that clear guidance has been
provided to patients.

In conclusion, it is important to reassure non-clinical staff that the judgment does not impose highly unrealistic expectations in relation to the standards of communication with patients. Neither does it impose responsibility on receptionists with regards to the design of the system in operation at the practice or the fact that some patients will have to wait to be assessed due to the resource-constraints within healthcare. In Medical Protection’s experience, it is extremely rare for allegations of breach of duty to be directed towards practice receptionists or other administrative staff and we expect this to remain the case.


1. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) [2018] UKSC 50