Once again, delays in the NHS caused by the pandemic taking over the NHS are in the news.  Normal diagnostic tests and routine surgery had to be suspended when it was all hands on deck to deal with the deluge of Covid patients.

An article in The Guardian on 3 April reported on what they called a “truly frightening” backlog of patients having to wait up to 2 years for treatment. There are apparently approximately 4.59 million people on the waiting list and this is rising. The number of people waiting at least a year for treatment before the pandemic was thought to be approximately 1,613, whereas now it is approximately 304,044, a startling rise.  Patients needing urgent treatment, such as for cancer or heart surgery and who are supposed to have this treatment within 28 days are not always getting it within that timescale, but almost worse are “Priority 2” patients. These are people who are not yet emergencies,  but run the risk of becoming so or seriously deteriorating if they do not get treatment.

There is also the “hidden waiting list” and no-one knows how many potential patients are on this list. They can’t, because it consists of people who have not actually been to see a doctor, but possibly or probably should have.  However, for many reasons, such as the unavailability of GP appointments, even telephone ones, or the difficulty in getting one,  feeling that they “don’t want to burden the NHS” with what might turn out to be something not serious after all or fear of actually going out or having to go into hospital with the danger of Covid, they have not.

When this pandemic started, the NHS reassured us that they were “still open for business” and that we should still go to our GP’s or walk in centres as usual.  We wrote then that we should follow that advice.  In our work as medical negligence solicitors, we see so many people who say to us “Well, I didn’t want to bother the doctor; I didn’t think it was anything serious…”.  Doctors can only treat patients they see.  If they don’t see that patient because the patient doesn’t go to the surgery, then there may well be delays in treatment, often fatal delays, but we have to advise that there is no legal claim, because it was not the doctors fault that the patient did not go to she him or her.

But what if we change the words “doesn’t go” to ”couldn’t go”?  What if you can’t get an appointment as your GP has a system where you have to phone at a certain time each day, with no booking ahead, but you just cannot get through to get an appointment, so you give up?  What if the only appointments are with nurses over the phone where your temperature cannot be taken, your breathing listened to, or your lump palpated?  You begin to wonder just what you have to do or what symptoms you have to have to be given an appointment with an actual GP, because you can’t get one for love nor money. Nurses are very good and well trained and certainly have an important role in a GP surgery, but they are not G.P.’s.

If there are any doctors reading this, you may want to consider WHY a patient didn’t see you before their cancer became inoperable. If it was because the surgery practices made it impossible to get past the receptionist,  the defence of not having seen the patient may not be as viable as it was once was.

The case of Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, the Supreme Court considered whether non-clinically trained reception staff at an Accident and Emergency (“A&E”) Department at Mayday Hospital in Croydon owed a duty of care to the Claimant, Mr Darnley, to provide him with accurate information regarding waiting times. On the facts of this case, the Court confirmed that non-medical staff such as receptionists do owe a duty of care to patients, and that this duty precedes admission to hospital. The case further reminded practitioners that such a duty is owed by all staff, medical and non-medical.   Distinctions in training and expected knowledge may be highly relevant when considering breach, such as being “triage trained”, but not when considering whether a duty exists in the first place – it does.

This clear judgment underlines that if health Trusts choose and by extension of the principle, GP surgeries and clinics of all types – as they are entitled to do –  to delegate initial A&E reception to non-medically-trained personnel, they will be liable for damage caused through the negligence of those staff where it results in foreseeable damage to patients even prior to admission. This duty extends to patients who have not been treated because they have chosen to leave the hospital, where that decision results at least in part from misinformation provided by hospital staff. Again, this principle can theoretically be extended to where patients just give up trying to get an appointment because of the obstacles put in their way for doing so.

We know we have been through one of the most, possibly the most, challenging times for the NHS since it’s inception and no-one denies that or wants to belittle its achievements during the pandemic. It’s not over yet.  But should we be beginning to turn our attention a little more to those who have held back with other possible illnesses during it and may now be in themselves a flood waiting to burst.

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If you need to talk to a member of our medical negligence team about delay in treatment then get in touch. Call 01522 561020 or email wecanhelp@ringroselaw.co.uk


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