• NHS Resolution said case would have “serious consequences for the NHS”
  • Trusts must immediately review their practices to ensure patients are not given misleading information
  • Compensation will be set in due course but could run into six figures

NHS trusts must review their practice “straight away” after a Supreme Court judgement yesterday extended their duty of care to information given to patients by clerical staff.

The UK’s highest court found a south London trust breached its duty of care after a patient in its emergency department suffered severe brain damage having been given misleading information by staff at reception.

According to NHS Resolution, the agency that handles claims made against NHS bodies, it is the first time in England that a trust has been found negligent after a receptionist failed to give accurate information to a patient.

“Trusts therefore need to review their practices straight away, to ensure that visitors to A&E are provided with accurate and not misleading information about waiting times,” she continued. “That might entail, as the court suggested, the use of leaflets or notices. Failure to do so might now incur a legal liability if a patient suffers detriment as a consequence.”

“This decision is an important reminder that hospital staff must take reasonable steps to ensure patients are not provided with ’misinformation’ including the availability and timing of medical assistance,” she added.

The patient, Michael Darnley, was told when he arrived at Croydon Health Services Trust’s Mayday Hospital that he would be seen by a doctor in four or five hours. Darnley was in distress and considerable discomfort having been hit on the head in an assault.

He left the hospital to go to his mother’s house – he subsequently collapsed and was taken to St George’s Hospital. Despite surgery, he has been left with brain damage.

He now struggles to walk, using a frame or wheelchair, and cannot carry out basic tasks around the house without assistance. Had he been told he would be seen inside 30 minutes by a triage nurse, as was hospital policy, he would not have walked out of the accident and emergency, would have collapsed in Mayday hospital, and would most likely have made a near complete recovery, the court ruled.

Mr Darnley’s lawyer, Deborah Blythe of law firm Russell Cooke, told the HSJ: “The defendants were arguing that the giving of information about the availability of medical assistance is purely a matter of courtesy. Even if they get it horribly wrong the trust shouldn’t be responsible for any consequences. That has now changed.”

Today’s ruling overturned judgements made in the High Court and Court of Appeal. After its success in the Court of Appeal last year, NHS Resolution said this claim was “a novel one which we considered important to resist in the interests of the NHS” because “opening up receptionists to negligence claims of this kind would have had very serious consequences for the NHS.”

However, Ms Blythe was adamant that this case would not now open up the floodgates for more claims against the NHS.

And the Supreme Court judgement was clear that this case “is not a new head of liability for NHS trusts”. It said patients will still need to prove that information they received was incorrect, and added: “It is undoubtedly the fact that hospital A&E departments operate in very difficult circumstances and under colossal pressure… which may prove highly influential in many cases where assessing whether there has been negligent breach of duty.”

Compensation will be set by the High Court. Ms Blythe believes it will be substantial and could run into six figures. NHS Resolution said it will work with its lawyers “to ensure that Mr Darnley is compensated as swiftly as possible,” adding that the trust “is very sorry that Mr Darnley did not receive accurate information about how long he would have to wait”.

NHS Resolution paid out £2.1bn last year from its Clinical Negligence Scheme for Trusts, having raised £2.3bn income in the year for the fund from contributions by NHS trusts. According to its most recent accounts, it had made provision against the likely value of future claims of £44.3bn for the CNST.

When asked about the implications of this judgement on future provisions, and the price of future contributions from trusts, a spokeswoman said: “We will review the implications of the judgement carefully with our trust members, the royal colleges and others.”