Provision of medical services to NHS patients by a third party – does the NHS Trust owe a duty of care?

In this post, Henry King discusses the case of Hopkins (A Child) v Akramy [2020] EWHC 3445 (QB), in which the court held that an NHS Primary Care Trust did not owe a non-delegable duty of care to protect NHS patients from harm, including harm from the negligent provision of primary medical services by a third party. This case provides useful insight into the court’s considerations in a situation where the alleged negligence is by a third party with whom the NHS has contracted to provide healthcare services.

Background Facts

The case involves a very sad set of facts.

• In June 2008, the South Birmingham Primary Care Trust (now the NHS Commissioning body, “D3”) contracted with the Badger Medical Centre (“D2”) to provide out of hours medical services for NHS patients in South Birmingham. It was an express term of this contract that D2 would carry adequate insurance against all liabilities arising from the negligent performance of such services.
• On 26.12.08, C (then aged two and a half) began developing uncharacteristic symptoms.
• On 27.12.08, these symptoms developed into C being unsteady on her feet and weak. That morning, following an automated message advising to do so, C was taken to D2’s out of hours clinic. C was assessed by a nurse, D1. C was discharged to be treated with paracetamol and if symptoms persisted, to see her own GP for review. C did not improve.
• On 29.12.08, C was taken by ambulance to hospital, and an MRI revealed hydrocephalus and multiple abnormal areas in her brain. C suffered permanent neurological damage. She is now quadriplegic with a severe visual impairment, epilepsy and bulbar palsy.

To compound the issues:

• Whilst D1 has a policy of insurance, it is limited to £3m inclusive of hers and the other parties’ costs. It was agreed that, should C succeed in her claim for negligence against D1 (which is denied), D1’s indemnity cover may not be sufficient to meet her claim for full damages and costs.
• Despite the express contractual stipulation, D2 is uninsured for the purposes of any liability to C. The extent of D2’s assets against which C could enforce any judgment she may obtain, is unknown.

Against this background, C added D3 as a party to proceedings and claimed that D3 owed C a non-delegable duty of care.

The Issue

The question for the Court was therefore whether, on or around 28.12.08, D3 owed a non-delegable duty of care to protect NHS patients from harm, including harm from the negligent provision of primary medical services by a third party.

The Law

In 2008, D3 had a statutory duty to provide or secure the provision of primary medical services to NHS patients in South Birmingham. This was pursuant to the statutory framework in force in December 2008, the relevant provision being s.83 NHS Act 2006 which provides as follows:

83 Primary medical services

(1) Each Primary Care Trust must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to provide primary medical services within its area, or secure their provision within its area.

(2) A Primary Care Trust may (in addition to any other power conferred on it)–

(a) provide primary medical services itself (whether within or outside its area),

(b) make such arrangements for their provision (whether within or outside its area) as it considers appropriate, and may in particular make contractual arrangements with any person…

As to the case law regarding a non-delegable duty of care, HHJ Melissa Clarke set out at length the considerations in respect of the approach when determining such a question between [37-55], and it is suggested that these paragraphs are worth reading in full if you have a case involving such issues.

To paraphrase:

• The first analysis arises by statutory construction of the relevant statute in place at that time.
• If there is no relevant statute, or if the statute is silent as to the matter, the judge will then turn to the Woodland criteria.
• However, the High Court expressly rejected the notion that the Woodland criteria play any role in statutory interpretation or provide a “cross check” to the statute (at [40]).

By way of recap, the Woodland criteria are those set out by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 at [23]:

1. The claimant is a patient or child or especially vulnerable or dependent on the protection of the defendant against the risk of injury.
2. There is an antecedent relationship between the claimant and the defendant which places the claimant in the actual custody, charge or care of the defendant and from which it is possible to attribute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which will foreseeably harm the claimant.
3. The claimant has no control over how the defendant chooses to perform those obligations.
4. The defendant has delegated its function to a third party which is an integral part of the positive duty which he owes to the claimant; and in exercising the function delegated to him the third party assumes the defendant’s custody or care of the claimant and the control element connected with it.
5. The third party has been negligent in the performance of the function delegated by the defendant to him.

In particular, HHJ Melissa Clarke highlighted the case of Myton v Woods and the judgment of Denning MR that:

“In the circumstances the liability of the education authority depends on the law as to the difference between an employer’s responsibility for his servant’s negligence or default (in which case he must answer) and his liability in respect of an independent contractor. The rule is that he is not liable for the negligence of an independent contractor in the ordinary way: except he delegates to the contractor the very duty which he himself has to fulfil. If it is his own duty which is not fulfilled, he cannot escape responsibility for negligence by saying that it was delegated to a contractor.“

The Parties’ Positions & Determination

As set out at paragraph 8, D3 had a statutory duty to provide or secure the provision of primary medical services to NHS patients (my emphasis).

The Claimant’s case was that s.83 NHS Act 2006 did not define the scope of the duty of care, such that D3 could avail itself of an independent contractor defence. In so arguing, the Claimant sought to distinguish cases such as Myton v Woods on the basis that s.83 NHS Act 2006 imposed an obligation to secure the provision of medical services, rather than a mere duty to arrange such services, thus imposing a non-delegable duty.

D3’s case, unsurprisingly, was that, per the emphasis above, it was an alternate duty: either a duty to perform the services themselves, or instead a duty to secure the provision of such services and no further. It was therefore, to use the above phrasing, a mere duty to arrange. They were therefore able to avail themselves of an independent contractor defence as set out in Myton (see HHJ Clarke’s judgment at [43-44], citing Denning MR).

The High Court sided with D3. The statute, on a plain reading, provided a duty for either provision of such services, or to arrange such services, and indeed was phrased as two alternate limbs at s.83(2). D3 would therefore fulfil their duty by doing either/or. D3 was therefore able to avail themselves of the independent contractor defence (see: [69-72]).

The Judge went on to dismiss any application of the Woodland criteria on the basis that to do so would be the common law attempting to override the intention of parliament (at [74]). For those reasons, D3 did not owe a non-delegable duty of care to C.

Comment

This is a particularly tragic case, and the consequences of the statute are stark for this particular Claimant (albeit, liability still remains firmly dispute as between C and D1).

However, the judgment provides helpful guidance for those working on cases involving arguments of a non-delegable duty of care. Careful attention must be paid to the provision being relied upon and, if it is expressed in the alternative, the Court is likely to give effect to the express wording of Parliament. Further, the Woodland criteria cannot be used as a cross-check or to override the statute in such circumstances, and are only to be applied when the answer is not provided in statute.

Whilst, upon statutory interpretation, the answer might appear to have been plain from the outset, it is suggested that there is perhaps potential for future argument on this topic, based upon policy concerns (from the claimant side) that an NHS Trust is able to “abdicate responsibility” for services provided to NHS patients.