Encourage patients not to leave untreated

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

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In May 2010, Michael Darnley was assaulted - hit on the head. Later, he felt unwell and was taken to hospital by a friend. The patient told the receptionist at the emergency department at 8.26pm that he had been attacked and had a very bad headache; ‘My head felt really painful and felt like it was in a vice. I just wanted to go home and lie down’. The receptionist told Mr Darnley and his friend that they would have to wait up to four or five hours to be seen. No more than 19 minutes later, Mr Darnley left the department and went home, only to call an ambulance at 9.42pm. A subsequent CT scan of his head showed an extradural haematoma. Although this was evacuated some four hours later, he has permanent brain damage, with a severe dense left hemiplegia.

During litigation, the trial judge found as a fact that had the patient been told from the outset that he would have been seen by a triage nurse within 30 minutes, he would have stayed in the emergency department, and would have been seen and been told to wait for treatment. Following on from this, he would have undergone surgery earlier and would have made a ‘very nearly full recovery’.

The court was told that whilst national guidance prescribed clinical triage for head injuries within 15 minutes of arrival at ED, review within 30 minutes was a realistic and reasonable expectation.

The trial judge and subsequent Court of Appeal dismissed the claim on the basis that it was not just, fair and reasonable to impose liability on a hospital for the failure by receptionists to inform the patient of the likely 30 minute wait to be seen by a triage nurse. Whilst as a matter of courtesy and ‘out of a general spirit of trying to be helpful to the public’ information relating to waiting times is provided by hospitals, this provision was not found by the court to be subject to a duty of care in law.

But the Supreme Court disagreed. The court found that telling Mr Darnley he would have to wait four or five hours to see a doctor was incomplete and misleading, omitting as it did the role of the triage nurse in providing a review within 30 minutes. The court noted the critical finding that it was reasonably foreseeable that a person who believes that they may wait for four or five hours may decide to leave. In light of this, the provision of misleading information by a receptionist as to time within which clinical assistance might be available equated to substandard care.

But the overarching principle remains that the patient should not be mislead. The ‘four to five hours’ was described in court as ‘completely wrong’, and from the perspective of any outside observer is seems preposterous, an egregious misrepresentation of the service provided by the hospital that he attended.

Plainly, misinformation will have its most potent effect in the context of patients presenting with a rapidly deteriorating clinical situation. Any clinical service with a ‘walk in’ element may potentially encounter patients whose untreated condition may cause them harm if they are inadvertently deterred from seeing clinicians. It would be ironic and regrettable if we were to provide less information in a quest to minimise the risk of uttering any misleading words.

The courts recognise the ‘colossal’ pressures sometimes experienced in emergency and other departments, and that targets may not always be met. In this instance, the receptionist should have therefore encouraged Mr Darnley to wait to be seen whilst informing him of the usual plan for review by a triage nurse within 30 minutes. If there had been then some unforeseen delay following his waiting 30 minutes, and he had threatened to leave, she should have repeated the encouragement, and taken reasonable steps to give him a revised time. Discouragement must be avoided.

Robert Wheeler
Department of clinical law, October 2018