Medical Law Briefing – December 2021 – Food, Drugs, Healthcare, Life Sciences

Irina Baranova

1. A recent trio of dental treatment claims
(Ramdhean v Agedo (2020),
Breakingbury v Croad (2021) and
Hughes v Rattan (2021)) have all resulted
in findings that a dental practice (or its owner) owes a
non-delegable duty of care to the end user. Consequent to these
decisions and the related High Court decisions of
Razumas v Ministry of Justice (2018) and
Hopkins v Akramy (2020), there is now
greater clarity around the circumstances in which a non-delegable
duty of care is owed to the recipient of healthcare services, and
by whom, and this clarity is to be welcomed.

2. In this article I shall summarise in brief the law regarding
non-delegable duties, take a tour through some of the leading cases
involving non-delegable duties in healthcare settings, and extract
what I regard as the decisive factors in determining whether a
non-delegable duty is owed, and by whom.

Non-delegable duties of care: the law

3. As will be familiar, a non-delegable duty is a personal duty,
not just to take reasonable care in performing work, but to procure
the reasonable performance of work delegated to others. It is thus
an exception – along with vicarious liability – to the general rule
that the law of negligence is fault-based. Importantly for our
purposes it enables a litigant to bring their claim against
(typically) a large corporate entity when the tortfeasor himself is
un-insured or under-insured. Conversely it exposes such an entity
to significant liability risks; these risks can be minimised by
ensuring that any independent contractors are financially sound and
covered by adequate insurance, and that any contract contains a
suitable indemnity clause.

4. The landmark case of Woodland v Swimming Teachers
Association and ors
[2013] UKSC 66; [2014] A.C. 537
gives the legal test for a non-delegable duty to arise at common
law. Lord Sumption, giving the leading judgment, stated that the
starting point was a relationship between the two parties giving
rise to a positive duty on the part of the defendant to protect a
particular class of persons (including the claimant) against a
particular class of risks. At paragraph 23 he identified the five
defining features of a non-delegable duty. Imposition of such a
duty would also need (paragraph 25) to be fair, just and
reasonable, although the Supreme Court in Armes v
Nottinghamshire County Council
[2017] UKSC 60; [2018]
A.C. 355 at paragraph 36 has clarified that this threshold is met
if the five defining features are satisfied.

5. Lord Sumption’s five defining features are these
(paragraph 23):

“(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, ie 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.”

6. The duty owed by a hospital to its patients is identified in
Woodland as a paradigmatic example of a
common law non-delegable duty (along with that owed by an education
authority to its pupils and by an employer to its employees):
paragraph 34. This remark, although strictly obiter, reflects
obiter dicta to the same effect in numerous earlier decisions by
appellate courts, beginning with Gold v Essex County
Council
[1942] 2 K.B. 293, 301. For example, the
House of Lords in X (Minors) v Bedfordshire County
Council
1 [1995] 2 A.C. 633 noted, “It
is established that those conducting a hospital are under a direct
duty of care to those admitted as patients to the hospital”,
and the Court of Appeal in Farraj v King’s
Healthcare NHS Trust
[2009] EWCA Civ 1203; [2010] 1
W.L.R. 2139 noted, “.I shall assume that a hospital generally
owes a non-delegable duty to its patients to ensure that they are
treated with skill and care.”

7. A non-delegable duty may alternatively arise pursuant to
statute, in which case it is determined according to normal
principles of statutory interpretation. In
Armes the Supreme Court found that a
local authority did not owe a non-delegable duty to children in its
care whom it had placed with foster carers pursuant to section 21
of the Child Care Act 1980. The provision stated, “A local
authority shall discharge its duty . by boarding
him out [i.e. placing him with foster carers]”. It was held
that the local authority’s duty was limited to arranging for,
and then monitoring, the provision of care.

8. Other decisions regarding the interpretation of written
duties (whether statutory or contractual) include:

  • Myton v Woods (1980) 79 LGR 28:
    statute provided that the local education authority “shall
    make arrangements for the provision of transport”. The
    defendant was not liable for the negligence of the taxi firm which
    it had contracted with.

  • Wong Mee Wan v Kwan Kin Travel Services
    Ltd
    [1996] 1 WLR 38: a contract for a package tour of
    China included undertakings that the defendant would provide (and
    not merely arrange) particular services. The defendant was
    accordingly under a duty to ensure that said services were provided
    with reasonable skill and care.

Are detainees owed a non-delegable duty in respect of their
medical care?

9. Prisoners are a category of persons identified by Lord
Sumption as being vulnerable or dependent on the Defendant’s
protection, such as to satisfy the first of the five defining
features in Woodland. If the statutory
scheme gives the Defendant responsibility for all aspects of the
Claimant’s imprisonment, including medical care, then a Court
is likely to find that a nondelegable duty is owed, applying the
five-stage test in Woodland.

10. Morgan v Ministry of Justice
[2010] EWHC 2248 (QB) is a High Court decision preceding
Woodland. The Claimants contended that a
non-delegable duty was owed by the Ministry of Justice
(“MOJ”) (the state department in charge of prisons) to
the deceased (a prisoner) in respect of medical care provided at
the prison. At the material time, the local Primary Care Trust
(“PCT”) was responsible for providing medical care under
the statutory scheme; it had previously been the responsibility of
HM Prison Service. The PCT provided medical care through Ellesmere
Medical Practice. Supperstone J determined that the MOJ’s duty
was limited to a duty to provide access to
healthcare, rather than a duty to provide
healthcare2.

11. Razumas v Ministry of Justice
[2018] EWHC 215 (QB); [2018] P.I.Q.R. P10 is a High Court decision
on similar facts, made following the case of
Woodland. The Claimant, then a prisoner,
received negligent medical care at a time after,
pursuant to a statutory regime change, responsibility for
healthcare at the prison had been transferred from the MOJ to the
local PCT. As in the case of Morgan, the
Judge found that the MOJ’s duty was limited to providing access
to healthcare provided by the PCT (or an entity contracted by the
PCT). There was thus no non-delegable duty owed by the MOJ to
provide reasonable medical care. The Defendant accepted (paragraph
139) that it had owed a non-delegable duty in respect of medical
care prior to the statutory change, at which time medical care had
been the responsibility of the prison.

12. In applying the Woodland judgment
to the facts in Razumas, Cockerill J
reasoned as follows:

“150. . there is a nexus between the control of the
claimant by the target and the purpose of
that control/placing, and the care inherent in that
relationship. That facet can be easily seen in a hospital, as
regards healthcare – a patient gives himself over to the hospital
for the very purpose of healthcare. Or as Lord Sumption put it at
[30] the claimant, as well as being in the target’s care should
be “receiving a service which is part of the institution’s
mainstream function” . To similar effect is Baroness
Hale’s point at [40] and also [42] that the conundrum in the
Woodland case resulted from “outsourcing of essential aspects
of [public authorities’] functions”.

151. Here the reasoning breaks down in the current case: the
reason for the prisoner being in the hands of the prison is not
for, and does not comprehend, healthcare. Healthcare is not (at
least since 2003) part of the prison institution’s mainstream
(or essential) function.

.

153. Turning to this case there is a statutory duty
regarding custody and maintenance. Those are duties which the
Defendant has to fulfil. Neither of those are in question in the
complaints made. There is a statutorily derived common law duty as
to accessing healthcare. Again that is not relevant, as I have
found above. But the provision of healthcare forms no part of the
statutory or common law duty. That is the duty of the PCT and its
subcontractors.”

13. She commented that it was proper for consideration to be
given to the existence of a common law non-delegable duty (i.e.
applying the five defining features in
Woodland) following changes to the
statutory scheme: paragraph 157. Expressed differently, this means
that it is appropriate to consider whether a non-delegable duty
arises at common law unless such a duty either arises from the
statute or is ruled out by the statute.

14. Nyang v G4S Care and Justice Services Limited
and ors
[2013] EWHC 3946 (QB) and GB v
Home Office
[2015] EWHC 819 (QB) share a similar
factual matrix and were both endorsed by Cockerill J in
Razumas.

15. In Nyang the Claimant received
negligent medical treatment while detained in an immigration
removal centre. The centre was operated entirely by the First
Defendant, G4S, pursuant to a contract with the Secretary of State
for the Home Department. The relevant Detention Centre Rules
required the First Defendant to have a medical practitioner and
healthcare team available for the detained persons. The First
Defendant conceded (paragraph 96) that it owed a non-delegable duty
to detainees in respect of their medical care. Although not part of
the ratio of the case, this is undoubtedly the correct outcome,
based on the five Woodland criteria,
considering that the Claimant was a detainee and that secondary
legislation assigned responsibility for medical care (along with
all other aspects of detention) to those operating the centre.

16. The facts in GB were almost
identical, save that the Claimant sued the Home Office, and not
Serco, the private company which the Home Office had engaged to
operate the relevant immigration removal centre. Coulson J found,
applying the Woodland criteria, that a
non-delegable duty was owed by the Home Office in respect of
healthcare provided to detainees at the centre. In the author’s
view this is a puzzling conclusion: from the facts given, it
appears that the Home Office delegated all its
responsibility for the immigration centre to Serco. As such, and
considering the cases in the section below, it is unclear how an
antecedent relationship (the second defining feature in
Woodland) could have existed between the
Claimant and the Defendant Home Office.

What if the parties’ only connection is that D arranged the
provision of healthcare for C?

17. I have considered the position of detainees receiving
medical treatment who are reliant on the Defendant for all other
aspects of their detention. I turn now to those cases in which the
only connection between the Claimant and Defendant is the
Defendant’s duty to arrange (or provide) medical care, and any
such care is in fact provided by a different legal entity. It is
understandably much more difficult to establish a non-delegable
duty in these circumstances. In the author’s view the Courts
are reluctant to find a statutory non-delegable duty except on the
clearest wording; a non-delegable duty is also unlikely to arise at
common law because of the difficulty in establishing an antecedent
relationship.The claimants in the cases below all failed to
establish a non-delegable duty.

18. The Claimant in A (A Child) v Ministry of
Defence and anr
[2004] EWCA Civ 641; [2004] 3
W.L.R. 469 was injured because of negligent care in a hospital in
Germany. The First Defendant, the Ministry of Defence
(“MOD”), was under a duty to arrange medical care for
servicemen and their dependants (a category which included the
Claimant). At the material time it had subcontracted the provision
of secondary care to hospitals in Germany, having run its own
military hospitals in Germany in the past. The Claimant’s
argument that the MOD owed a non-delegable duty to provide
reasonable medical treatment to servicemen and their dependants was
rejected. The MOD’s sole duty was to arrange for medical care,
and this duty had been discharged. The Court held (obiter) that if
the MOD had been running the hospital, it would have owed a
non-delegable duty (paragraph 63).

19. The case of Farraj v King’s Healthcare NHS
Trust and anr
[2009] EWCA Civ 1203; [2010] 1 W.L.R.
2139 concerned Claimants who instructed the First Defendant to
conduct DNA sampling of foetal tissue. The First Defendant
contracted with a laboratory which cleaned and cultured the sample,
returned it to the First Defendant, and negligently failed to
inform it of concerns that the sample contained no foetal tissue.
The Claimants on appeal contended that the First Defendant owed a
non-delegable duty in performing the sampling task.The Court of
Appeal rejected this submission, finding (obiter) that a Trust
would owe a non-delegable duty to a patient admitted to its
hospital for treatment, but (the judgment’s ratio) that the
provision of diagnostic services from a distance to someone not
already a patient was significantly different and gave rise to no
such duty.

20. Hopkins v Akramy and ors [2020]
EWHC 3445 (QB); [2021] Q.B. 564 postdates the
Woodland case. The Claimant was severely
injured due to allegedly negligent medical treatment provided at an
NHS outof-hours clinic. The out-of-hours clinic had been run by a
private company, pursuant to a contract between the company and the
local PCT. The PCT’s duty was to “provide” or
“secure provision of” primary medical services (section
83(1) of the NHS Act 2006, as it then was); the statute allowed it
to provide the services itself or make appropriate arrangements for
their provision (section 83(2)). The Claimant contended that the
PCT was under a statutory (alternatively, common law)
nondelegable duty to provide reasonable medical care. HHJ Melissa
Clarke ruled that on the statutory wording the provision of medical
care was delegable, and that the PCT had discharged its duty to
“secure the provision of” primary medical care by
entering a contract with the private company. The existence of a
statutory delegable duty ruled out an equivalent non-delegable duty
at common law.

Does a medical practice owe a non-delegable duty to its
patients?

21. It is perhaps not surprising, after reflecting on the
numerous judicial obiter dicta to the effect that a hospital owes a
non-delegable duty to its patients, that a non-delegable duty is
owed by a medical practice (or its owner) in the equivalent surgery
setting. But it is notable – and brings clarity to this area of the
law – that a trio of first instance decisions (two of them in the
County Court) have recently been handed down with exactly this
ratio.

22. In Ramdhean v Agedo and anr
(county court, unreported) the Claimant was referred by her usual
dental practice to another dental practice (The Forum Dental
Practice Limited, the Second Defendant) for a particular dental
procedure. The Second Defendant engaged a self-employed dental
surgeon (Dr Agedo, the First Defendant), to perform the procedure,
in fulfilment of its own contractual obligations to the local PCT,
from which it made a profit. Its contract with the PCT required the
Second Defendant to provide personal dental services and to comply
with various terms and conditions relating to the employment or
engagement of dental practitioners.

23. It was the Claimant’s case that the First Defendant
performed the procedure negligently and that the Second Defendant
owed her, as its patient, a nondelegable duty to provide reasonable
dental care. The Second Defendant was uninsured for clinical
negligence claims, although it had sufficient assets to meet the
present claim. HHJ Belcher concluded, paying close attention to the
contract between the Second Defendant and the PCT, in paragraphs
which merit reading in full, that the Claimant was a patient of the
Second Defendant in a way that she was not a patient of the PCT
(paragraphs 36-37):

“36. I am not satisfied that the “passing on of
arrangements” is the same for the PCT and for FDPL [the Second
Defendant]. Whilst the PCT has a duty to provide or secure the
provision of primary dental services within its area, because it
chose to secure that provision through FDPL, the PCT never accepted
the Claimant as a patient. The PCT entered into a contract with
FDPL under which FDPL was to provide the dental services. In doing
so, the PCT was complying with its duty to secure the provision of
primary dental services. I cannot see why that arrangement should
not fall within the general rule that the duty to take reasonable
care may be discharged by entrusting the performance of a task to
an apparently competent independent contractor. The PCT did not
undertake the care, supervision and control of the patient in this
case.

37. FDPL did accept the Claimant as a patient. Whilst Dr
Jackson tried to suggest that FDPL’s function was merely
administrative, merely passing the patient onto Dr Agedo, I am
entirely satisfied that the Claimant was a patient of FDPL. The
services under IMOS [the contract between D2 and the PCT] were
clearly to be provided by the Contractor, that is FDPL [12/179-187;
Clauses 40 – 730]. The IMOS recognises that FDPL will have to
employ or otherwise engage dental practitioners to perform the
dental services. That is inevitable given that FDPL is a company.
The IMOS contains terms and conditions relating to those performing
the services and conditions for their employment or engagement, and
expressly permits subcontracting of clinical matters [12/197-203;
Clauses 178-201]. The IMOS also impose positive obligations on
FDPL, such as, for example, ensuring that any dental practitioner
performing services under the IMOS was maintaining and updating his
skills and knowledge in relation to those services he was
performing [12/201, Clause 195]. Whilst Dr Jackson plainly did not
understand this to be an obligation on FDPL, that is beside the
point. What it does illustrate is that, on any view, FDPL was not
(or should not have been) the simple administrative referral
service which Dr Jackson sought to suggest.”

24. HHJ Belcher proceeded to find that
Woodland’s five defining features
were met: paragraphs 39-47.

25. Breakingbury v Croad (county
court, unreported) has similar facts and is considered in more
detail by Katie Ayres in her article here. In finding that a non-delegable
duty was owed by the owner of the practice, the Judge noted that it
was the practice (and not the individual dentists) which contracted
with the Dental Health Board, that the Claimant made payment to the
practice, and that the Claimant did not choose which dentist she
saw.

26. The same conclusion was again reached on very similar facts
by the High Court in the decision of Hughes v
Rattan
[2021] EWHC 2032 (QB). The Claimant attended a
dental practice owned by the Defendant. She contended that she had
received negligent treatment from four dentists working at the
practice, three of whom were self-employed. A contract between the
Defendant and the local PCT required the Defendant to provide
primary dental services and contained detailed terms and
conditions, including regarding the employment and engagement of
dental practitioners. Profits were shared between the Defendant and
the dental practitioners he engaged or employed. In finding that a
non-delegable duty was owed, Heather Williams QC placed weight on
inter alia the following facts:

  • The practice held C’s dental records and arranged her
    appointments;

  • D decided whether the dental services he had contracted with
    the PCT to supply would be provided by himself, his employees,
    associates or sub-contractors;

  • Pursuant to his contract with the PCT, D agreed to a series of
    obligations relating to patients of the practice;

  • C was treated at the practice’s premises, using equipment,
    nursing staff and other facilities provided by D.

Conclusion

27. Whether the recent dental treatment cases in fact represent
a significant extension of the law regarding non-delegable duties
is arguable. They are perhaps better regarded as the inevitable
consequence of the Supreme Court’s
Woodland decision, with its conclusion
that the duty owed by a hospital to its patients was a paradigmatic
example of a non-delegable duty. One point they do bring home is
that the Courts will take the same approach to all forms of medical
treatment. In the setting of a typical dental surgery – in which
a patient principally engages with the practice, the practice
is subject to detailed requirements by the commissioning NHS trust,
and the practice provides the necessary premises and equipment – a
non-delegable duty is likely to arise.

28. Of Lord Sumption’s five defining features of a
nondelegable duty, the one most difficult to square with the
existence of a non-delegable duty in the dental treatment cases is,
in the author’s view, the second: the antecedent relationship,
independent of the negligent act itself. The claimants received no
dental care directly from the defendant, but only from the
(allegedly negligent) self-employed dentists to whom they were
assigned. What was the basis for the decision that there was an
antecedent relationship between the claimant and the defendant,
placing the claimant in the defendant’s care? In answer, it is
observed that the facts relied upon to demonstrate an antecedent
relationship are diverse: inter alia that the claimant was regarded
as belonging to the practice, a significant proportion of the
payment went to the practice, the claimant had limited choice of
which dentist she saw, and the practice agreed to a series of
obligations in respect of its patients3.
“Antecedent” does not equate to
“pre-existing”.

29. The best explanation, though, is given in
Ramdhean at paragraph 42:

“. In Woodland the claimant was in the actual charge or
care of the lifeguard and swimming teacher at the time of the
incident in the swimming pool. However, she was also in the actual
charge or care of the school, and thus of local authority
responsible for the school. The two are not mutually exclusive. The
question is not whether the Claimant was in the care of the First
Defendant (which she undoubtedly was), but whether she was in the
actual care of FDPL [the practice]. If I ask myself “Did FDPL
undertake the care, supervision and control of the Claimant as its
patient?”, I conclude that it clearly did. In my judgment,
FDPL has undertaken to care for the Claimant, albeit the IMOS
permits that to be by way of employing dentists, or otherwise
engaging their services, including by way of
subcontracting.”

30. This analysis underlines the point made by Lady Hale in
Woodland, that the five defining features
are not to be treated as set in stone. Rather than taking the
features at face value, litigators should focus their attention in
this setting on whether the claimant can properly be considered a
“patient” of the practice.

31. Drawing together the dissimilar contexts above in which a
non-delegable duty to provide healthcare may arise, it is striking
that (a) there will usually be a direct relationship between the
claimant and the defendant, and (b) the defendant will be bound
(whether by statute or contract) to provide healthcare, whilst
entitled to delegate the task.

Footnotes

1. Subsequently overturned on unrelated
grounds.

2. The point was also decided under the Crown
Proceedings Act, the MOJ being the Crown for the purposes of
the Act. The reasoning in Morgan was
criticised by Coulson J in GB v Home
Office
at [44]-[62] but endorsed by Cockerill J in
Razumas v MOJ at [156].

3. Notably these factors also point in favour of a
practice being vicariously liable for negligent medical treatment
by self-employed dentists it has engaged.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

https://www.mondaq.com/uk/healthcare/1142306/medical-law-briefing–december-2021

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