In Hopkins v (1) Akramy (2) Badger Group (3) NHS Commissioning Board [2020] EWHC 3445 (QB), the High Court considered, as a preliminary issue, whether an NHS Primary Care Trust (“PCT”) owed a non-delegable duty of care for health services provided to NHS patients by a private company. HHJ Melissa Clarke, sitting as a Judge of the High Court, held that it did not. 

Background

The facts of this tragic case are relatively straightforward (though the legal principles are less so):

  1. The Third Defendant was the PCT at the material time; it provided no treatment to the Claimant.
  2. The Second Defendant operated an out-of-hours medical service pursuant to a contract with the Third Defendant. 
  3. The First Defendant was a nurse practitioner engaged to provide medical services at the Second Defendant’s medical centre. 
  4. The Claimant became unwell on 26 December 2008. She was then aged 2½ years old. 
  5. On 27 December, she was taken by her grandmother to the Second Defendant’s medical unit, where she was examined by the First Defendant. She was diagnosed as having an URTI and discharged with penicillin.
  6. On 29 December 2008, the Claimant was taken to hospital by ambulance where a MRI scan showed hydrocephalus and multiple abnormal areas in her brain. She has suffered permanent neurological damage.

The Issue 

The point for resolution in this hearing of a preliminary issue was whether the Third Defendant owed a non-delegable duty of care pursuant to s. 83 of the NHS Act 2006, such that it could be liable to the Claimant notwithstanding the fact that the care was provided by the First Defendant at the Second Defendant’s medical centre.

The Duty of Care in Hopkins 

Section 83 of the NHS Act 2006 sets out 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 …“

Non-Delegable Duties 

The Court considered the leading authorities on non-delegable duties of care. 

HHJ Melissa Clarke stressed the distinction between a statutory duty of care and a common law duty of care. Where a statute provides that a duty is delegable, the common law cannot override that: see [40]. Given the duty in this case derived from the statute, the focus was accordingly on the wording of s. 83. 

The Court explained the personal nature of a non-delegable duty of care and drew a clear distinction between cases where there was a duty to provide that care personally (in which case the duty would be non-delegable, as in Woodland v Swimming Teachers Association [2014] AC 537) and where the duty was to arrange for services to be provided (such as in Myton v Woods (1980) 79 LGR 28): see [37]-[55].

Application to the Present Case

The Court considered at [71]-[72] that the inclusion of an alternative provision in s. 83(2)(b) to enable a PCT to arrange for the care to be provided by third parties meant that the duty of care was delegable:

“In my judgment therefore, and as the D3 submits, the effect of the statutory scheme is that if a PCT elects to discharge its section 83(1) duty by providing primary medical services itself (for example by directly employing healthcare professionals such as GPs), it is electing to discharge the duty to perform. It will take on the responsibility for doing so and will be liable for breach in accordance with ordinary principles. 

“If, however, a PCT elects to discharge its section 83(1) duty by securing the provision of primary medical services from others, it is electing to discharge its alternative duty which can properly be characterised as a duty to make arrangements for the provision of services. Section 83(2) gives it the power to do by means of entering into contractual arrangements with others. In this case, following Myton and Armes, subject to exercising reasonable care in selecting the contractor, and although the PCT retains overall responsibility to administer and arrange such arrangements pursuant to section 22 of the Act, the PCT retains no residual responsibility in relation to the manner in which the contractor performs the service. In particular it retains no responsibility to ensure that those providing that care do it safely.“

The Judge further found that there was no common law non-delegable duty: see [74]. 

Judgment was therefore entered for the Third Defendant on the preliminary issue and the claim against the Third Defendant was dismissed. 

Conclusion

This is an important judgment. When care responsibilities are delegated by the NHS pursuant to the NHS Act 2006, the primary liability for any negligence in respect of the provision of primary medical services will rest with the individual to whom the responsibility was delegated.

Whilst PCTs were abolished by the Health and Social Care Act 2012, s. 83(2) of the 2006 Act remains in force as amended with the power to delegate remaining with the NHS Commissioning Board.

It is not considered that this case alters the general position, long-established, that a hospital will owe a non-delegable duty of care provided to patients, regardless of whether the care is provided by employees of the hospital or contractors (see Cassidy v Ministry of Health [1951] 2 KB 343). The distinguishing feature in this case is that the Second Defendant was an independent service, providing an out-of-hours clinic, and in such circumstances would not fall under this rule. The distinction is well illustrated in the case of Farraj v King’s Healthcare NHS Trust [2010] 1 WLR 2139, where the Defendant NHS Trust was held not to owe a non-delegable duty of care for the testing of a tissue sample that was sent to an independent laboratory.

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