The topic of vicarious liability has created much noise of late. However, non-delegable duty of care (NDDOC) is often interlinked but lesser understood and discussed.
The case of Jaida Mae Hopkins v Azam Akramy, Badger Group and NHS Commissioning Board (2020 (opens a new window)) helps to illustrate the issues. The purpose of this hearing was to establish whether the Third Defendant owed a NDDOC to the Claimant, although the care was actually provided by the First Defendant at the Second Defendant's medical centre. It was held that it did not.
The First Defendant is the nurse practitioner, who was employed by the Second Defendant to provide out of hours medical services.
The Second Defendant, Badger, is a private company who provided an out of hours service to NHS patients.
The Third Defendant is the Primary Care Trust (PCT) (whose liabilities have been since assumed by the NHS Commissioning Board).
The child Claimant in Hopkins became unwell on 26th December 2008. The following day, the child was taken by her grandparents to an out of hours centre run by the Second Defendant. Following examination by the First Defendant, the Claimant was prescribed penicillin for a presumed throat infection and advice was provided on the monitoring of symptoms. On 29th December the Claimant was taken to the Birmingham Children’s Hospital where she suffered serious brain injury. The Claimant was left with a life changing disability following the development of Meningoencephalitis.
One reason the issue of NDDOC was of particular relevance was due to the indemnity position of the first two defendants;
The First Defendant is a member of the Royal College of Nursing (RCN) and has a £3 million limit of indemnity (inclusive of damages and claimant and defence costs). Moreover, such cover is only at the discretion of the RCN; it is not in fact contractually binding. This limit would not be sufficient should a claim be made against the First Defendant, given claims in this arena are frequently pleaded at closer to the £10 million level.
Unfortunately, the Second Defendant’s insurance did not respond to the claim.
The question was whether the Third Defendant had a NDDOC to the claimant, i.e., that it was liable to the Claimant in relation to the services provided by the First Defendant at the Second Defendant’s medical centre.
What is a non-delegable duty of care?
Where a duty of care is owed, it can generally be delegated. A duty is non-delegable when the party owing the duty cannot avoid responsibility by alleging to have passed responsibility for performing the duty to a third party. Interestingly, the duty owed by an NHS trust to patients in their hospital is generally non-delegable.
There are five defining features of a non-delegable duty under common law:
The claimant is a patient or a child, or is particularly vulnerable or dependent upon the defendant for protection.
There is a pre-existing relationship between the claimant and the defendant which:
places the claimant in the actual care of the defendant
the defendant accepts a duty to actively protect the claimant from harm.
The claimant has no control over how the defendant chooses to perform those duties.
The defendant has delegated an important part of their duty towards the claimant to a third party.
The third party has been negligent in performing the duty assigned to them by the defendant.
The statutory duty
Statutory duties are the laws (opens a new window) made by the legislature that a person or body must follow. Common law is a body of unwritten laws based on judicial decisions.
A non-delegable duty exists either in statute or at common law. In Hopkins, the Judge highlighted the difference between a statutory duty of care and a common law duty of care. Where a statute states that a duty is delegable, the common law cannot override that.
Duties owed by PCTs are set out in section 83 of the NHS Act 2006:
“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…”
Under this section, a PCT may provide the service itself or make appropriate arrangements for the service’s provision. This is extended to making contractual arrangements with third parties.
The Judge held that the principle of non-delegable duty did not apply in this case because the statutory framework did not place a non-delegable duty of care on the Third Defendant. The Act requires the PCT to provide or secure the provision of services which the Third Defendant did by making arrangements with Second Defendant – it did not have liability for the effectiveness of the service provided. As the Third Defendant’s duties were discharged to the Second Defendant, the claim against it was not successful.
What is difficult about this case is the fact that, ordinarily, hospitals owe a NDDOC to patients. The important factor in this case is that the Second Defendant was a private, independent service, providing an out-of-hours clinic on behalf of the PCT. The rule of NDDOC therefore does not apply here. Ironically, had the Claimant had initially been treated in an NHS hospital, it is likely that PCT in charge of the hospital would have owed a common law NDDOC care to the Claimant.
The provision and delegation of health services will likely continue causing issues in the context of NDDOC. Parties must take care in both the delegation and acceptance of duties to/from others, making sure to fully understand their responsibilities and liabilities. Lockton are experts in healthcare contracts and insurance due diligence and can assist with pitches and acquisition decisions to help ensure that the instructing party is clear on their requirements and risks.
The value of clinical negligence claims continues to increase. Inflation will exacerbate this. It is therefore important for any healthcare organisations with indemnity requirements to approach specialist brokers in order receive specialist advice on the level of cover required and notification requirements, minimising the chance of being underinsured or coverage being declined, which can in turn negatively affect patients who suffer damage.
Head of Advocacy and Risk Management, Senior Vice President - Healthcare
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