In Ireland, pre-hospital emergency health care is provided in the vast majority of the country by the Health Service Executive's (HSE's) National Ambulance Service. In Dublin, pre-hospital emergency health care is provided by the National Ambulance Service and the Dublin Fire Brigade. Furthermore, emergency care is also provided in some cases by the Air Corps and the Irish Coast Guard. In December 2014, the Health Information and Quality Authority (HIQA) published a review of public pre-hospital emergency care services. As part of that review HIQA examined compliance with Pre-hospital Emergency Care Key Performance Indicators for Emergency Response Times (HIQA, 2012). The review found that the National Ambulance Service and Dublin Fire Brigade both struggled for a variety of reasons to meet national response time key performance indicators (HIQA, 2014). A failure to meet key performance indicators has the potential to result in litigation against the health and ambulance services, where an individual alleges that he or she has suffered an injury as a consequence of the failure of an ambulance to arrive on scene within a reasonable time. This paper will examine the legal implications of failing to respond to 999 or 112 telephone calls within a reasonable time or within agreed guidelines.
Response times
A key performance indicator for ECHO (patients who are in cardiac or respiratory arrest) and DELTA (patients with life-threatening conditions other than cardiac or respiratory arrest) calls to the National Ambulance Service or Dublin Fire Brigade in Ireland, sets out that a first responder (which includes advanced paramedics, paramedics or community first responders) should arrive on scene within 7 minutes and 59 seconds or less in 75% of all cases (HIQA, 2014). Furthermore, calls categorised as ECHO or DELTA should have a patient-carrying vehicle on the scene within 18 minutes and 59 seconds in 80% of cases (HIQA, 2014).
The review indicated that the National Ambulance Service for the period January 2013 to March 2014 had a best monthly response of 58% for ECHO calls and 34% for DELTA calls. The figures for the Dublin Fire Brigade for the same period indicated a best monthly average result of 87% for ECHO calls and 55% for DELTA calls. Total ambulance response time target attainment improved overall in 2014 as a consequence of combining results for the National Ambulance Service and Dublin Fire Brigade, but HIQA cautioned that an improved response to ECHO calls by Dublin Fire Brigade impacts the combined results (HIQA, 2014).
More worryingly, it appears to be accepted that the target of having a first responder on the scene within 7 minutes 59 seconds in rural areas may never be achieved (HIQA, 2014). In Ireland, 40% of calls to the National Ambulance Service relate to rural locations, whereas in England, 12% of incidents are classified as rural in a typical ambulance service (HIQA, 2014). So it is a cause of concern that Ireland, which has a large rural population, is not served by an ambulance service which can meet its own targets.
Delays or failure to attend a patient within a reasonable time raises concern about the consequences for the patient and the ambulance service. Conflicting views have been expressed in relation to the effect of response times on patient outcome (Breen et al, 2000; Pons and Markovchick, 2002). Questions also arise as to whether the ambulance service owes a duty of care to callers. A failure to meet set time limits as set out in standards or guidelines has the potential—in the author's opinion—to lead to claims based on a negligent failure to attend to a patient within a reasonable time, and may result in liability being imposed, with resultant cost implications for the HSE and or National Ambulance Service or Dublin Fire Brigade.
There have been reports in the media in Ireland in relation to negligence claims against the ambulance service (The Irish Times, 1997; Healy, 2012). There are no written court judgements on the issue of delayed response time by the ambulance service in Ireland, but cases have come before the courts in the UK in recent years, which while not binding in Ireland, could be raised in argument before the Irish courts.
In order to establish liability in a negligence case, a plaintiff must prove to the court that he or she is owed a duty of care by the defendant ambulance/health service, the defendant must fail to meet the standard of care established by law, the plaintiff must suffer an injury or loss, and the defendant's conduct must have caused the plaintiff's injury.
Duty of care
The first element which a plaintiff must prove is that he or she was owed a duty of care. A duty of care is not owed to everyone and a plaintiff bringing an action alleging negligence has to show that a duty of care was owed to him or her personally.
The concept of a duty of care was first articulated in the seminal case of Donoghue v Stevenson (Donoghue v Stevenson [1932]) (which has been applied in Ireland), where it was held that you owe a duty of care to your ‘neighbour’. Lord Atkin stated that your neighbour is:
‘…persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’
The neighbour principle is based on proximity but it is also important to consider reasonable foresight, that is, that the person who carried out the act and subsequently caused the harm complained of could have reasonably foreseen that the act was likely to cause harm to another person.
In cases alleging negligence involving the health services, the duty of care is often assumed as it is easy to establish proximity and foreseeability based on the Donoghue case. However, there are situations where it is not clear whether or to whom the duty of care is owed, and the law in relation to duty of care has developed as a consequence. The modern approach to determining the existence of a duty of care is that set out in the Caparo Industries plc v Dickman case (Caparo Industries plc v Dickman [1990]), where Lord Bridge stated that, in addition to foreseeability of damage,
‘…necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other’
Thus, while proximity and foreseeability are essential elements of a duty of care, it must also be fair and reasonable to impose a duty of care.
The courts in deciding whether it is fair or reasonable to impose a duty of care take public policy considerations into account. In Michaels v The Chief Constable of South Wales Police & Anor (Michaels v The Chief Constable of South Wales Police & Anor [2015]), Lord Kerr stated:
‘Some assessment has to be made of what a judge considers the public interest to be; what detriment would be caused to that interest if liability were held to exist; and what harm would be done to claimants if they are denied a remedy for the loss that they have suffered’
The English courts have consistently held that various public services including social services, the police and the fire services do not owe a duty of care to the public at large to respond to a telephone call for help (X (minors) v. Bedfordshire County Council, [1995]; Capital and Counties plc v Hampshire County Council [1997]; Michaels v The Chief Constable of South Wales Police & Anor [2015]). The courts in Ireland have also held that the police owe no duty of care in respect of their investigatory or prosecutorial functions (LM v Commissioner of An Garda Siochana [2011]). This reluctance on the part of the courts to hold an emergency service provider liable in negligence exists for a number of reasons, including that it could lead to large numbers of claims that would impact on limited budgets or promote defensive practices and have adverse effects on the provision of beneficial public services.
In contrast, the English courts have held that the ambulance service owes a duty of care to members of the public who have called 999, and where the call has been accepted, to provide the service for a named individual at a specified address. This arose in the case of Kent v Griffiths (Kent v Griffiths [2001]). In this case a doctor attended a pregnant woman who had suffered an asthmatic attack in her home and called an ambulance for her at 16:25. The doctor informed the call handler of the woman's name, address and age and indicated that she was suffering from bronchial asthma and asked for an ambulance to take her immediately to casualty. The woman's husband phoned again at 16:38 and was told the ambulance would be there within 7–8 minutes. The doctor phoned again at 16:54, the ambulance arrived at 17:05 (however, a record prepared by a member of the ambulance crew indicated that it had arrived at 16:47 and not 17:05) and the woman was transferred to hospital where she arrived at 17:17.
During the journey, the claimant was given oxygen, but suffered a respiratory arrest with consequential serious memory impairment, change of personality and miscarriage. The judge found that the ambulance had taken 34 minutes to travel from its base to the plaintiff's home—a total of 6.5 miles—and should have arrived at least 14 minutes before it did and no reasonable explanation had been offered. The judge also found that the record of the ambulance's arrival had been falsified. He went on to find that where an ambulance service was in a position to supply a timely rescue, and had accepted to do so, it owed a duty of care to the rescuee as an individual patient.
The matter was appealed to the Court of Appeal where the issue of proximity was the central argument. The defendant ambulance service had earlier conceded that the claimant's injuries were foreseeable and that it was ‘fair, just and reasonable’ to impose a duty of care. Lord Woolf distinguished the ambulance service from the police and fire services and held that the latter services owed duties to the general public and not specific individuals, whereas the ambulance service (like other NHS institutions) performed functions for the benefit of individuals. The court went on to find that although the ambulance service owed no duty to the public at large to respond to a telephone call for help, once a 999 call had been accepted, it was arguable that the ambulance service did have an obligation to provide the service for a named individual at a specified address. Thus, it was held that the acceptance of the call established proximity and the duty of care.
Standard of care
Once a duty of care is established, there is an obligation in law to provide the required standard of care. The plaintiff in proving his or her case must establish that there was a failure to conform to the required standard of care. The standard applicable to the ambulance service is the standard expected of the service in similar circumstances. Standards and guidelines issued by a professional association should as far as is reasonable be followed. Adherence to local or national standards or guidelines is likely to protect an individual or organisation as the courts in most cases are likely to find that those protocols represent acceptable practice. Conversely, departure from standards or guidelines may create problems, as courts may view national policies or accepted practice as not to be departed from.
Where an ambulance service has set out time frames within which to respond and they are reasonable, it will be judged by these criteria. The failure to meet reasonable time frames if set out in the HSE or ambulance service's own standards or guidelines may, in the author's opinion, cause difficulty for the service as a defendant in any action. Despite this, the court in the Kent v Griffiths case was not overly concerned with response time targets but rather focused on the lack of an explanation to justify a failure of the ambulance to attend within a reasonable time and the fact that the ambulance log book had been falsified.
Proving a breach of the standard of care expected is difficult to establish in view of the individual's initial illness or accident and the clinical complexity of most pre-hospital care situations. Furthermore, response times can be affected by a number of factors—for example, heavy traffic, poor weather conditions, the quality of the information given to the call handler and availability of resources (Williams, 2007). The judgements in Kent v Griffiths indicate that although a duty of care may be established, if an explanation can be given for the delay it may mean that the plaintiff cannot establish a breach of the duty of care. Lord Woolf acknowledged that conflicting demands on the ambulance service or lack of resources may mean that a plaintiff will not be able to establish a breach of duty.
This would appear to have been the issue in an Irish case reported in The Irish Times (1997), where an ambulance driver responding to a call from a patient having an asthmatic attack was diverted to a stabbing incident which turned out to be non-life-threatening. The ambulance then made its way to the first patient who had suffered an asthmatic attack, was not breathing and subsequently died. The judge found that no more than a few minutes had elapsed between the ambulancemen checking the stabbing victim and their arrival to treat the patient with the asthmatic attack, and dismissed the claim holding that the ambulance driver could not have refused to check out the condition of the stabbing victim first.
In contrast, the BBC (2014) reported a settlement of about £;5 million involving the London Ambulance Service NHS Trust in the case of a scientist who collapsed at home and suffered brain damage as a result of having to wait over 100 minutes for an ambulance. As the woman lived in a high-risk area, the ambulance required a police escort and waited 100 m from the address for the police escort to arrive. About 5 minutes before the ambulance arrived the woman had a cardiac arrest and suffered brain damage including chronic amnesia, confusion and disorientation, and requires 24-hour care for the rest of her life. There would appear to have been some explanation offered for the delay in this case but the delay of over 100 minutes seems excessive in the author's opinion.
Both of these reports are from media sources and there are no official court reports, so it is not clear what legal arguments were made in court. Also, the Irish case is a decision of the Irish Circuit Court and unlikely to create a precedent.
Whether there has been a breach of the duty or standard of care by the ambulance service and paramedics involves consideration of whether the actions of the paramedic in question accords with what a reasonable body of competent paramedics would have done in similar circumstances (Dunne v The National Maternity Hospital [1989]). If there has been a breach of the duty of care, then the claimant must show that he or she suffered an injury or loss which was reasonably foreseeable and a direct result of a breach of the duty or standard of care.
Injury, loss or damage suffered
The plaintiff must show that he or she has suffered some injury, damage or loss, which is usually self-evident and easily established. Any harm arising as a result of the alleged negligence of an ambulance service in failing to respond within a reasonable time must be foreseeable. If there is no injury or loss, no matter how long an ambulance has delayed in arriving, there can be no negligence.
Causation
The final element which a plaintiff must prove is causation. Causation links the breach of the standard of care to the individual's injury and is often referred to as the ‘but for’ test. Essentially the plaintiff must show, on the balance of probabilities, that but for the failure of the ambulance personnel to conform to the required standard of care, that is in not responding within a reasonable time or within established guidelines/standards, he or she would not have suffered injury, damage or loss. The test arose in the case of Barnett v Chelsea and Kensington Hospital Management Committee (Barnett v Chelsea and Kensington Hospital Management Committee [1968]). The plaintiff's husband and two other men went to hospital at about 08:00, complaining of severe stomach pains and vomiting, having drunk tea unknowingly contaminated with arsenic. The men were seen by a nurse who called the doctor on duty who in turn sent a message to ask the men to contact their GPs. The plaintiff's husband died 5 hours later from arsenic poisoning and his widow sued the hospital.
The court held that given the proximity between the hospital and the three men, a duty of care was owed to the men and the doctor was negligent in failing to see and examine the deceased. But the doctor's negligence was found not to have caused Mr Barnett's death, as even if an examination had been made, the probability was that the deceased would have died anyway and the only available antidote would not have been given in time to save his life. In other words, it was not proved that the doctor's negligence caused the man's death.
While the traditional test for establishing causation is the ‘but for’ test, it is not satisfactory in all cases and the courts have been prepared to modify the test. This occurred in the case of Leigh v London Ambulance Service [2014] (Leigh v London Ambulance Service [2014]), where the claimant got on a bus on the way home from work. As she went to sit down on a seat she dislocated her right patella, became trapped between the seats and was in severe pain. Some passengers went to her assistance and called an ambulance. The first call was made at 19:02 and several more calls were made in the following 50 minutes before the ambulance arrived, during which time the plaintiff became hysterical. The defendant admitted that the ambulance should have arrived at 19:33 at the latest and there was a negligent delay of 17 minutes. It was agreed that the plaintiff suffered post-traumatic stress disorder (PTSD) and dissociative seizures, but there was a dispute as to when the seizures started. The court had to determine whether there was a causative link between the defendant's admitted negligence and the claimant's PTSD and dissociative seizures, and if necessary assess damages. The court held that this was a case where the medical and scientific evidence could not establish when the PTSD commenced, and said:
‘In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed’
The judge found that there was a causative link between the defendant's delay and the plaintiff's PTSD, in that the delay had made more than a negligible contribution to the development of the PTSD. The court also found that the dissociative seizures were part of Ms Leigh's PTSD and assessed damages in the sum of £;500 000. The issue of material contribution has been referred to in the Irish courts but not expressly adopted.
Causation is likely to be a formidable hurdle to overcome for any plaintiff. The nature of the pre-hospital emergency situation means that linking injury to the ambulance service failure can be difficult. However, once a plaintiff can establish that the ambulance service owed him or her a duty of care, that the ambulance service fell below the acceptable standard of care, and, as a matter of probability, caused the harm complained of, an action in negligence may succeed.
Conclusions
An ambulance service provides an important public service and the English courts have found that by accepting a 999 or 112 telephone call an ambulance service owes a duty of care to an identifiable individual at a particular location. The HIQA (2014), in a review of the ambulance service in Ireland, has identified several issues in relation to response times by the National Ambulance Service and Dublin Fire Brigade. Delayed response times can potentially lead to claims for negligence against the service. In such a case, a plaintiff is required to prove that he or she is owed a duty of care, that there was a breach of the standard of care expected, that he or she has suffered an injury and that the injury was as a direct consequence of the breach of the standard of care. While the HSE, National Ambulance Service and Dublin Fire Brigade are in the process of reconfiguring the service, which will hopefully reduce delays in response times, it is incumbent on all staff and service providers to be aware of their legal obligations and what a claim for negligence can entail.
Key Points
Conflict of interest: none declared.