Duty of care

The scenario

Philippa, AOP member

“I am the sole optometrist-owner of a practice in London. To assist with the day-to-day running of the practice, I have recently recruited several non-clinical reception and support staff. I was concerned to hear about a case in healthcare where the duty of care of reception staff was brought into question when things went wrong. Can you provide an update on these developments in clinical negligence, specifically with regards to duty of care and how this may affect my non-clinical staff?”

The advice

Emma Brindley, AOP trainee solicitor

As an optometrist, you are trained to know how to safely and effectively manage patients presenting with particular problems or concerns, or, if not, to direct them to the most appropriate source of help. It therefore seems fair, just and reasonable to impose a duty of care on you, and for there to be consequences in the event that this duty is breached and the patient suffers injury as a result.

But what about your staff who have had no clinical training, who are often the first point of contact for patients, both routine and emergency?

This was the question for the court in the case of Darnley vs Croydon Health Services NHS Trust [2018] UKSC 50.

Ensure that your non-clinical staff are trained to recognise important signs and symptoms

The case

The patient, Mr Darnley, was struck on the head during an assault. He attended A&E where he was told by the receptionist that he would not be seen for four to five hours. Feeling too unwell to remain, Mr Darnley left A&E after 19 minutes. The information provided by the receptionist was incorrect. Due to the nature of his injuries, Mr Darnley would have been seen within 30 minutes.

Later, Mr Darnley collapsed due to a bleed on the brain. By the time he arrived back at the hospital he had suffered significant brain damage.

The key issues for the court were:

• Did the hospital trust, acting through the receptionist, owe Mr Darnley a duty to take reasonable care to provide him with accurate waiting times?
• If so, was that duty of care breached?
• If so, did the breach cause Mr Darnley injury that he otherwise would not have suffered?

At trial, and subsequently the Court of Appeal, Mr Darnley lost his case. Although it was accepted that had Mr Darnley been provided with accurate information regarding waiting times, he would have stayed and the brain damage could have been avoided, the court held that it was not within the duty of care of the receptionist to provide accurate information as to waiting times; the information was simply provided as a matter of professional courtesy.

This decision was overturned on appeal to the Supreme Court. In reaching a decision, the Supreme Court stated: “The duty of the respondent trust must be considered in the round. While it is not the function of reception staff to give wider advice or information in general to patients, it is the duty of the NHS trust to take care not to provide misinformation to patients, and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff. In this regard, it is simply not appropriate to distinguish between medical and non-medical staff in the manner proposed by the respondent.”

An employer can be held ‘vicariously liable’ for the acts or omissions of its employees

Optometry learnings

Although the case will impact secondary healthcare providers in the main, there are potential implications for the optometry sector. Indeed, following the Supreme Court ruling in this case, the AOP legal team has seen a steady increase in the number of clinical negligence claims being brought against businesses in respect of the allegedly negligent acts or omissions of their non-clinical staff. This is because, as a matter of law, an employer can be held ‘vicariously liable’ for the acts or omissions of its employees.

So, what can you do to protect your business?

• Ensure that your non-clinical staff are trained to recognise important signs and symptoms, offer an appropriate appointment or consult a clinically-trained   member of staff so that appropriate advice can be given
• If your practice offers enhanced services such as minor eye conditions, you should explain to your non-clinical staff the extent of the services you provide   and the conditions you can treat, referring them to any policies, procedures or guidelines where appropriate. Providing non-clinical staff with easy to follow   written guides can avoid misunderstandings
• Never under-estimate the importance of good records: if a patient presents with a particular problem or concern, you should encourage your non-clinical   staff to make a clear and comprehensive note of the attendance or call, together with any information or advice provided
• Check that you are covered for the actions of your practice team. If you are an AOP member and a business owner, your practice will be covered under   the medical malpractice policy if all of the optometrist owners and optometrists employed or engaged as locums by your practice are AOP members.

For more information on the AOP’s vicarious liability insurance, visit the AOP website.  

Image credit: Getty/Nadezhda Fedrunova