In recent years there has been a significant rise in the number of clinical negligence cases involving issues of both vicarious liability (VL) and non-delegable duty of care (NDDOC). These allegations often arise in situations where private companies contract with the NHS to provide NHS services, or where private companies sub contract with medical, dental, or nursing professionals to provide services.
The recently decided case of Jaida Mae Hopkins v Azam Akramy, Badger Group and NHS Commissioning Board  EWHC 3445 (QB) has provided some much needed clarity on NDDOC in these cases and when it may arise under statute or the common law.
The child claimant in the case tragically sustained very serious life changing disability following the development of Meningoencephalitis.
In December 2008 when aged two and a half years old she had become unwell, and on 27 December was taken by her grandparents to an Out of Hours centre run by Badger Group, the second defendant. There she was seen by the first defendant, Nurse A, a nurse practitioner engaged by the second defendant. Following an examination by Nurse A the claimant was prescribed penicillin for a presumed throat infection and advice was given in relation to symptom control. Advice was also given in relation to safety netting.
Two days later, on 29 December she was taken by ambulance to the Birmingham Children’s Hospital where despite treatment she sustained significant brain injury as a result of her illness.
Nurse A is a member of RCN and has indemnity with them to the extent of £3m including damages and claimant and defence costs. Badger, the second defendant, despite being under an obligation to arrange adequate insurance in relation to liabilities arising out of the performance of the contract to provide Our of Hours primary care services, had no insurance in place to cover clinical negligence claims made against them.
The question arose as to whether the third defendant (the successor to the PCT which contracted with Badger to provide the out of hours service) had a NDDOC to the claimant so that it was liable to the claimant in relation to the services provided at the clinic. The issue was heard as a preliminary issue on 21 October 2020.
It is rare that any detail is pleaded in relation to the exact nature of the duty or how it is said to arise in specific circumstances. It can arise both under statute and the common law. This case was only concerned with the statutory duty but a useful pointer was given regarding the common law duty.
The statutory duty
Under the NHS Act 2006 the Secretary of State for Health is to provide or secure the provision of services in order to promote a comprehensive health service, which pursuant to section 83 includes the provision of primary health care services.
Under that section a PCT may provide the service itself or make arrangements for the service’s provision, including by making contractual arrangements for that provision.
Whether a statutory duty arises under any particular Act is clearly a matter of interpretation of the Act in question. That was discussed in the case of Armes v Nottinghamshire County Council  UKSC 60. In that case Lord Reed referred to the distinction between whether the body in question is under a duty to perform the act by itself or through its arrangements with others.
In this case the third defendant‘s position was, in essence that the duty was to ‘provide’ or ‘secure the provision of services’ and that by making the arrangements it had with Badger the duty was in effect discharged. It was also submitted that if that were not the case, the NHS would in effect be an insurer of last resort.
The statutory framework did not in the Judge’s opinion impose a non-delegable duty of care on the PCT. The duty on the PCT was mandatory, but it was empowered to discharge the duty in two ways, by providing the services itself, or by making appropriate arrangements for their provision, which it had done. The claim against the third defendant could not succeed.
Bearing in mind the insurance arrangements, or lack of them the consequences for the claimant, if she is able to prove her case in negligence are significant.
NDDOC under the common law
A NDDOC may also arise under the common law, but in cases where a statutory duty is imposed the judge made it clear that the common law duty can be of no application. There is no ‘fall back ‘ position in such circumstances.
Guidance on the application of NDDOC at common law was given by Lord Sumption in the case of Woodland v Swimming Teachers Association and Ors [ 2013] UKSC 66
A finding of the existence of a NDDOC at common law is, it is said, to be found in special public policy for operations involving exceptional danger to the public or where a duty on a defendant has certain characteristics:
(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
The issue of whether and how a NDDOC arises in a clinical context will, in our view, continue to cause difficulties for claimants, practitioners and those contracting to provide health services both in the NHS and private sectors.
There are clearly lessons to be learned at the contracting stage in relation to the liabilities which may arise, and the insurance or indemnity arrangements which may be necessary to protect against those potential liabilities.
Where it is asserted that a NDDOC arises in a clinical case it is essential there is clarity as to the basis for that assertion and whether it is alleged to be a statutory or common law duty.
The complexity of the relationships between the various statutory bodies concerned with the provision of NHS and other health services, and the private organisations with whom they contract however will continue to be a source of litigation. Without proper consideration of the liabilities which may arise under these arrangements however, there may be a real prospect of under, or no compensation for those injured in the course of treatment.