A preliminary issue was determined by HHJ Melissa Clarke on the issue of whether the NHS owed a non-delegable duty of care to a patient when care was outsourced to a private provider.
The Claimant was an unwell 2-year-old child whose grandmother sought out-of-hours care for her on 28 December 2008. The child had become unwell on Boxing Day, was not interested in her presents, eating and drinking very little, moaning and unable to talk and had become unsteady on her legs.
The GP practice’s automated message directed patients to an out-of-hours medical centre where the Claimant was assessed by a nurse practitioner. The advice given was to encourage the child to drink and take paracetamol and to consult her GP If she did not improve. The child deteriorated and was admitted to hospital a few days later where an MRI scan revealed hydrocephalus and brain abnormalities requiring urgent surgery. The child has been left with severe and permanent neurological injuries. It is alleged that the nurse practitioner’s assessment was negligent.
The First Defendant was the nurse practitioner, the Second Defendant a private company with whom the NHS had contracted to operate the out-of-hours medical centre (which had in turn contracted with the nurse to provide care) and the third defendant was the Primary Care Trust, whose liabilities have since been assumed by the NHS Commissioning Board.
The Second Defendant had no insurance for the purposes of any liability to the Claimant, notwithstanding the requirement to hold adequate insurance arising from the negligent performance of the services that was part of its contract with the PCT. It required those they engaged to provide care to hold their own insurance cover. However, the cover obtained by the First Defendant in this case is unlikely to be sufficient to satisfy the claim at full value.
Against this background, the Claimant argued that as the Claimant was an NHS patient the Third Defendant owed a non-delegable duty of care to her and should also be liable to her for any damages arising from the nurse practitioner’s negligence.
The judgment considered the provisions of the NHS Act 2006 (“the Act”) which provides at section 83 that each PCT must provide primary medical services within its area or secure their provision within its area and that it can either provide those services itself or make arrangements for such provision including entering into contractual relationships with other providers. The Claimant argued that the statutory duty went beyond merely arranging provision of services, but extended to the performance of those services and this could not be delegated.
However, the judge accepted the Defendant’s contrary argument that the duty in this case did not extend further than making arrangements for services to be provided, similar to the arrangement of foster care by councils as considered in Armes v Nottinghamshire County Council  UKSC 60. Whilst the statutory duty under section 83 is mandatory, It may be discharged either by the PCT providing primary medical services or securing the provision of those services by a third party (see  to  of the judgment).
- The Second Defendant did not contest that it owed a non-delegable duty to the Claimant and/or was vicariously liable for the actions of the First Defendant. (Para 24-5)
- The matter was considered only on the basis of whether a non-delegable duty arose under statute rather than any common law duty, such as that considered in Woodland v Swimming Teachers Association and Os UKSC 66. A common law duty did not fall for consideration in this case as it could not override the explicit statutory provision within the Act. (Para 73-4)
- The Claimant sought at first to rely on the NHS Constitution, principle 5 of which notes that the NHS is committed to working with a number of organisations including private organisations in the interests of patients. At the hearing it was accepted by the Claimant that the NHS Constitution was not in place at the date of the negligence. However, it appears that such an argument could be deployed in a future case. (Para 58)
The quadriplegic Claimant in this case was an NHS patient, but the NHS will not cover her claim. Should she succeed, the insurance taken by the nurse practitioner is likely to fall well short of meeting her needs, as may the value of the nurse’s own assets and those of the uninsured Second Defendant, a position that is unfortunate to say the least, for all involved.
Angus McCullough QC appeared for the Third Defendant. He did not contribute to this article.