like shaggy said, “it wasn’t me…”
TRANSCRIPT
1
Like Shaggy said, “It wasn’t me…” A whistle-stop tour of Vicarious Liability, Non- Delegable Duty and the liability of non-medical staff
Tania Kahlon Associate 9 May 2019
2
Running Order
1. Vicarious Liability 2. Non-Delegable Duty 3. Darnley v Croydon Health Services NHS Trust
3 3 Difference between vicarious liability and liability due to non-delegable duty
• Two different routes by which an Insured can be liable for negligence • Vicarious Liability
• Tortfeasor (usually employee) owes patient a duty of care and commits negligence.
• There is a connection between negligence, tortfeasor (doctor or employee) and the defendant (clinic or hospital).
• Defendant itself commits no wrong but is vicariously liable. • This is what is behind normal liability of Insureds for its medical staff,
perhaps contractors. • Non-Delegable Duty
• Alleges Defendant body owes an ongoing duty of care directly to the Claimant (e.g. of reasonable healthcare) despite the service being contracted out. The tort is personal to the organisation itself.
• Will often mean Insured liable for contracted out services.
4 4
VICARIOUS LIABILTY
• Classically - imposes liability on defendants for torts committed by employees in close connection with their duties to defendant
• How far does close connection extend? • What about non-employees? • Both questions relevant to Insureds (e.g. clinics)
5 5 Vicarious Liability was considered in Various Claimants v Barclays Bank PLC [2018] EWCA Civ 1670
• Group litigation; 126 Claimants seeking damages against Barclays Bank in respect of alleged sexual assaults perpetrated by Dr Gordon Bates during pre-employment medical examinations
• Issue – was Barclays vicariously liable for the assaults of Dr Bates? • The Bank denied Dr Bates was an employee on the basis he was self-employed and
engaged by the Bank as an independent contractor. Dr Bates charged a set fee for each medical examination and would invoice the Bank accordingly. Furthermore, during the relevant time period, Dr Bates was also performing similar services for other organisations.
• 2 stage test: • (i) Is the relevant relationship one of employment or "akin to employment"? • (ii) Was the tort sufficiently closely connected with that relationship of
employment or quasi employment? • On applying these tests, the Court found Barclays was liable for the conduct of Dr
Bates
6 6
Barclays Bank – Court of Appeal decision • Basis of Barclays’ appeal: application of stage 1 test was
incorrect • Reminder of test: Is the relevant relationship one of
employment or "akin to employment"? • Barclays said Dr Bates' status as an independent contractor
was a complete defence to the claim • CoA decision: rejected the submission that Dr Bates' status as
an independent contractor was a defence to the claim • The Court of Appeal emphasised that the correct method is to
apply the two –stage test to the particular facts of the case
7 7 5 policy criteria to apply when considering whether clinic vicariously liable for doctor (under stage 1 of the Barclays test) 1) Who is more likely to have means/ insurance to compensate the
patient? (not determinative – but perhaps in borderline cases) 2) Is the negligence committed as a result of activity which is
carried out by the tortfeasor (e.g. doctor) on behalf of the Defendant (e.g. clinic)?
3) Is the activity an integral part of the Defendant’s business activity / carried out for their benefit?
4) Has the Defendant created the risk of the particular negligence which has arisen?
5) Is the doctor/member of staff under the control of the hospital/clinic?
8 8 1st consideration - means to compensate
1. Who is more likely to have means/ insurance to compensate the patient? • Not determinative – but perhaps in borderline cases • In Barclays the only legal recourse open for the Claimants was to sue the Bank. • Dr Bates died 8 years ago and his estate has been distributed. • The Bank and its insurers had the means to meet such claims • Court of Appeal: "no liability could be founded on this consideration alone." • By the same token, however, it must be noted that Barclays were the only available
compensator, following the distribution of Dr Bates' estate several years earlier. • Note - in Razumas v Ministry of Justice (prisoner suing MoJ for negligent medical
treatment). Treatment provided by primary care Trust. Judge said when looking at MoJ or Trust, this criteria is a poor fit. No shortfall of cover here.
9 9 2nd consideration – activity carried out on behalf of the Defendant 2. Is the negligence committed as a result of activity which is carried out by the tortfeasor (e.g. doctor) on behalf of the Defendant (e.g. clinic) • the medical examination and subsequent report was conducted for the benefit
of the Bank and on its behalf as: • A medical examination was required in order to secure employment • Dr Bates conducted all the medical examinations for the Bank and was
therefore an integral part of the business • No Claimant was offered a choice of doctors • The Bank arranged the appointments with Dr Bates • The Bank paid for the examinations • The Claimants had no reason to be examined by Dr Bates other than for
the purposes of an offer of employment from the Bank • Court of Appeal: the medical examination, whilst of some benefit to the
employment, was “clear beyond doubt that [it's] principal benefit was to the prospective employers".
10 10 3rd consideration - Activity is an integral part of the Defendant’s business activity / carried out for their benefit 3. Is the activity an integral part of the Defendant’s business activity / carried out for their benefit? • Medical examination was performed to ensure a future employee of the
Bank was physically suitable for the work which they were being employed to do.
• In providing the Bank with a medical assessment, Dr Bates was an integral part of the Bank's business
• Court of Appeal: in selecting employees "there could hardly be a clearer example" of an activity being part of a defendant’s business activity. In providing Barclays with a medical assessment on physical suitability, this was integral to Barclays' business.
• NB: business activity does not necessarily mean commercial activity
11 11 4th consideration - Has Defendant created the risk of the negligence which has arisen? 4. Has the Defendant created the risk of the particular negligence which has arisen? • The Bank did create a risk of the alleged tort as they required young
girls, many of whom were 15 or 16, to attend the home of Dr Bates for a medical examination.
• The Bank directed Dr Bates to perform a physical examination which included a chest measurement.
• Court of Appeal: accepted the circumstances obviously give rise to the risk of tort than other circumstances, but that the "variety of facts in negligence cases are legion," and concluded that the risk on these facts was established
• E.g. Armes v Nottinghamshire County Council: child placed in foster care / abused by foster parents. Held: Local Authority, who placed the children, had created a relationship of trust and authority between parents and children which left them vulnerable
12 12
5th consideration – Is the member of staff under control of Defendant?
5. Is the doctor/member of staff under the control of the hospital/clinic? • Dr Bates was under the control of the Defendant.
• The Defendant decided what questions Dr Bates was to ask the Claimants and what
physical examinations were to be carried out.
• The Defendant chose Dr Bates and did not give the Claimants the choice of another doctor
• Court of Appeal - the question of control to be "perhaps the most critical factor".
• Key: what doctor does, not how s/he does it. How do you assess this? It’s a question of accountability.
• E.g. JGE v The Portsmouth Roman Catholic Diocesan Trust: relationship between Catholic parish priest and Bishop was one where Bishop had no direct control over day to day affairs of the priest in question, but could take action if certain things not done as they should have been ; priest found to be accountable to the Bishop. Satisfied requirement for a degree of control. Eg. Bishop had ability to remove priesthood from that parish so there was a level of control (akin to employment)
• E.g. Armes: Local Authority didn’t have control over minutiae of family’s every day life but did have overarching powers to inspect/supervise/ remove children / ultimately foster parents accountable to Local Authority
13 13 Applying Vicarious Liability to the relationship between hospital/clinic and doctor • Is there a relationship akin to employment? • Degree of oversight by the clinic or hospital • Does clinic have responsibility for assigning work to a particular
doctor ? • Can the clinic direct the doctor regarding quantity and/or quality of
work? • Could the clinic take action to prevent future negligence? • What is the contractual and commercial relationship between
clinic and doctor? Who bears the commercial risk? • Would the clinic be classified and regulated as a private hospital
under relevant legislation?
14 14 Vicarious liability - Stage 2 of the Barclays test • Stage 1 satisfied – yes, there’s a relationship of employment / akin to employment • Stage 2: Was the tort sufficiently closely connected with that employment or
quasi employment? • We are looking at the relationship between the negligence and the relationship of
employment • Can the wrongful action be seen as a way of carrying out the work, even if
unauthorised by employer ? • The Court found that Dr Bates' conduct fell within the remit of the tasks he was
instructed to undertake by the Defendant. The sexual assaults occurred during a medical examination requested by the Defendant and Dr Bates abused his position. Referring to another case (Catholic Child Welfare Society):
• "…the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them…"
• The second stage of the test was not appealed by Barclays, yet the Court of Appeal reiterated that the "medical examinations were sufficiently closely connected with the relationship between Dr Bates and the Appellants [Barclays]. They were the whole purpose of that relationship."
15 15 Vicarious liability – applying Stage 2 of Barclays to medical malpractice • Once found relationship akin to employment, it’s very likely that
any relevant tort is likely to have been sufficiently closely connected to that relationship to attract vicarious liability
• Any medmal committed during course of treatment / abuse or assault is very likely to be found to be closely connected to that relationship
16 16
Non-Delegable Duty • Where an organisation is liable even where the negligence is committed by a third party
• Duty extends beyond merely being careful, to procuring the careful performance of work delegated to others
• Duty of care is personal and cannot be delegated, even if the work required to preform the duty is delegated / duty remains with the Defendant (e.g. clinic / private hospital)
• Key case: law on non-delegable duties of care has been clarified in Woodland v Essex County Council [2013] UKSC 66
• The following 5 criteria which ‘characterise’ non-delegable duties of care were identified
1. Vulnerability
3. Control
17 17
Non-Delegable Duty: 5 factors - the law
1) C is patient, child, or for some other reason is especially vulnerable or dependent on D’s protection against the risk of injury
2) There is an antecedent relationship between C and D, independent of the negligent act or omission itself, (i) which places C in the actual custody, charge or care of D, and (ii) from which it is possible to impute to D the assumption of a positive duty to protect C from harm
3) C has no control over how D chooses to perform those obligations
4) D has delegated to a 3rd party some function which is an integral part of the positive duty; and for that purpose the 3rd party is exercising D’s custody or care of, and corresponding control over C.
5) The 3rd party has been negligent in the performance of the very function delegated by D to him.
18 18 Applying Non-Delegable Duty in medical malpractice: factors to consider • All hospitals (probably) owe NDD to patients. In Lister judge said classes of persons /
institutions that were in this sort of special relationship did include hospitals • Generally applicable factors making it likely that the clinic / hospital does owe a NDD:
• Legislative and regulatory context • Inherent vulnerability of patients / Patients requiring medical treatment are
inherently vulnerable • Direct connection between medical malpractice, and the core function of a
hospital/clinic to care for patients
• Factors to consider in an individual case: • Is there an antecedent, independent relationship between patient and clinic? • Look at degree to which the clinic takes responsibility for actual provision of care
vs. its arrangements • Look at the degree of patient control – of doctor, type of treatment, timing of
appointments
Non-Delegable Duty: contractual context
• Always check the contract(s): what has the hospital clinic actually agreed to do ? For whom?
• One end of spectrum – obligation to the patient to provide appropriate treatment by a safe and competent doctor
• Other end – obligation to the doctor to provide rooms or facilities, leaving all other arrangements to be made between doctor and patient
• Other factors: • obligation to provide nursing or medical staff to assist
doctor • to facilitate introduction between patient and doctor but no
responsibility for any treatment thereafter
20 20 Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 • Case looked at the liability of non-medical staff
21 21
Darnley - The Facts
• 20:26 on 17 May 2010; Mr D attended A&E department at Mayday Hospital with friend, Mr Tubman • Had been struck on his head in an assault a few hours earlier • Saw receptionist at A&E ; told her of assault/head injury/ feeling very
unwell/head hurting/needed to see someone • Receptionist said: wait would be 4 to 5 hours before seen • Mr D and Mr T waited for 19 minutes in waiting area; left hospital without
being seen • At home later that evening: deterioration/intradural bleed • Transfer back to Mayday Hospital by ambulance for surgery. Despite
surgery suffered permanent serious brain injury
22 22 The trial – High Court (2015) – findings of fact • Advice re waiting time:
• Accepted Mr T’s evidence that the advice was 4-5 hours • Incorrect information: should have advised within 30 minutes
(to be seen by triage nurse) • Reasonably foreseeable:
• that some patients do leave A & E departments without being seen or treated and that, in such cases, harm may result.
• someone who believes it may be 4 to 5 hours before they will be seen by a doctor may decide to leave, in circumstances where they would have stayed if they believed they would be seen much sooner by a triage nurse
• If Mr D had been told 30 minutes, he would have waited; would have had earlier surgery; would have made a very near full recovery
23 23
The trial – High Court (2015) – the law • Receptionists in A & E departments are not under a duty
to guard patients against harm caused by failure to wait to be seen
• The harm suffered in this case was outside the scope of any duty or obligation owed by the NHS Trust via its reception staff
• It would not be fair, just and reasonable to impose liability upon the NHS Trust for harm arising as a result of the failure by the reception staff to inform the patient of the likely waiting time to be seen by a triage nurse
• Judgment: Claimant lost • Claimant appealed…
24 24
Court of Appeal decision (2 out of 3 judges agreed)
• Neither the receptionist nor the NHS Trust, acting by the receptionist, owed any duty to advise about waiting times
• It was not fair, just and reasonable to impose upon the receptionist, or upon the NHS Trust acting by the receptionist, a duty not to provide inaccurate information about waiting times. To do so would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts
• whether what had occurred was a failure to provide information, or, the provision of inaccurate information, no relevant duty of care would arise.
• The fair, just and reasonable view was that information as to likely waiting times was provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public
• Duty of care should not turn on very subtle differences in language used on a particular occasion by a busy receptionist in a hard pressed A&E department
• A court should be slow to find a duty of care to provide precise and accurate information about waiting times because if such a duty was imposed then it would be difficult to see why it would not extend to an obligation to correct that information (e.g. changing waiting times)
• Imposing such a duty could lead to defensive practices on the part of NHS Trusts (clinics) resulting in the withdrawal of information which actually is generally helpful to the public
25 25
Court of Appeal – the odd judge out said… • On the issue of duty, he rejected the suggestion that the functions
of a hospital can be divided into those of receptionists and those of medical staff. He was of the view that it is the duty of the hospital as a whole not to provide misinformation to patients, whether it is provided by reception staff or medical staff
• Breach - information provided could only have given the false impression that Mr D would not be seen or assessed by anyone sooner than the indicated period of up to 4 or 5 hours.
• Incomplete and inaccurate information had been provided negligently. The failure to impart the reality of the triage system to Mr D on his arrival was, on the facts of this case, a breach of duty by the hospital
• Causation – breach was causative of Mr D’s injury • Outcome: Mr D appealed again…
26 26 Supreme Court (2018) - judges said it’s NOT a new duty we’re imposing • All 5 judges – unanimous decision • Not creating a new duty of care (by hospital receptionists / non
medically trained staff) because in essence, this duty already existed
• “as soon as the C had (a) attended at the Trust's A & E department seeking medical attention for the injury, (b) had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the Trust of patient and health care provider.
• the scope of the duty to take reasonable care clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury”.
27 27 Supreme Court – what the judges said about medical vs. non-medical staff • Not appropriate to distinguish, between medical and non-medical staff • The Trust had charged its non-medically qualified staff with the role of
being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability
• “The duty of the NHS Trust must be considered in the round. While it is not the function of reception staff to give wider advice or information in general to patients, it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff. In this regard, it is simply not appropriate to distinguish between medical and non-medical staff in the manner proposed by the Trust”.
28 28 Supreme Court – was there a breach of duty by the receptionist? • In this case, yes • A receptionist in an A & E department cannot, of course, be expected to
give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance
• The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care
• Responding to requests for information as to the usual system of operation of the A & E department was well within the area of responsibility of the receptionists here
• 4-5 hours was misleading and misleading • Not unreasonable to expect the receptionist to provide accurate
information of 30 minutes
29 29
Supreme Court decision – causation • Causation had been established • If Mr D had been told that he would be seen within 30 minutes, he
would have stayed in the waiting area and would have been seen before he left
• He would then have been admitted or told to wait • He would have waited and his later collapse would have occurred
within a hospital setting • Mr D’s decision to leave was made, in part at least, on the basis of
information provided to him by the receptionist which was inaccurate or incomplete
• It was reasonably foreseeable that a person who believes that it may be 4 to 5 hours before he will be seen by a doctor may decide to leave, in circumstances where that person would have stayed if he believed he would be seen much sooner by a triage nurse
30 30 Darnley – outcome, what does it mean for Insureds? • This case highlights that if entities / Insureds choose, as they are
entitled to do so, to delegate initial reception/clerical type tasks to non-medically trained personnel, they will be liable for damage caused through negligence of those clerical / non-medical staff, where it results in foreseeable damage to patients even prior to admission
• The duty arises from the moment the patient is seen by employees or agents of the Insured
• This duty extends to patients who have not yet been treated because they have chosen to leave the clinic/hospital, where the decision to leave results at least in part from misinformation provided by staff
31 31
Court of Appeal concern Supreme Court response
“Would not be fair, just or reasonable to impose “a duty of fine-grained perfection
Not expected to provide minute-perfect or hour-perfect information about how long the wait might be
Potentially giving rise to a flurry of litigation / maybe A&E departments taking a defensive approach.
Hospital staff will be able to give evidence as to their usual practice
Pressures of A&E departments It has not been suggested that the receptionists should have provided accurate information to each patient on arrival as to precisely when he or she would be seen by a medically qualified member of staff…However, it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance
32 32 Darnley – Practical steps for Insureds
• Relevant staff should be aware of this decision
• Up to date knowledge/training requirements (are staff up to date on waiting times / how long before medical assistance will be available / surgeon’s lists)
• Internally - review Insured’s internal guidelines, policies and training materials – are the waiting times in them accurate and up to date ?
• Externally - where departments/waiting areas/corridors have posters on walls, notices on doors / receptions desks – are they accurate ?
• If they use leaflets / flyers – are they accurate?
• Where departments don’t already have wall signs or leaflets etc. in place, consider doing that now. This would be extremely valuable and will complement the information provided by staff members so that there is a safety net in place
• Review any information on Insured’s website – is that accurate ?
• Scenarios other than waiting times: relaying blood results / when available / when surgeon next available for post-op check / when prescriptions available
33 33
Any Questions…? • Lawyer: "Doctor, before you performed the autopsy, did you check for a
pulse?" • Witness: "No." • Lawyer: "Did you check for blood pressure?" • Witness: "No." • Lawyer: "Did you check for breathing?" • Witness: "No." • Lawyer: "So, then it is possible that the patient was alive when you began
the autopsy?" • Witness: "No." • Lawyer: "How can you be so sure, Doctor?" • Witness: "Because his brain was sitting on my desk in a jar." • Lawyer: "But could the patient have still been alive nevertheless?" • Witness: "Yes, it is possible that he could have been alive and practicing
law somewhere."
Running Order
Difference between vicarious liability and liability due to non-delegable duty
VICARIOUS LIABILTY
Vicarious Liability was considered in Various Claimants v Barclays Bank PLC [2018] EWCA Civ 1670
Barclays Bank – Court of Appeal decision
5 policy criteria to apply when considering whether clinic vicariously liable for doctor (under stage 1 of the Barclays test)
1st consideration - means to compensate
2nd consideration – activity carried out on behalf of the Defendant
3rd consideration - Activity is an integral part of the Defendant’s business activity / carried out for their benefit
4th consideration - Has Defendant created the risk of the negligence which has arisen?
5th consideration –Is the member of staff under control of Defendant?
Applying Vicarious Liability to the relationship between hospital/clinic and doctor
Vicarious liability - Stage 2 of the Barclays test
Vicarious liability – applying Stage 2 of Barclays to medical malpractice
Non-Delegable Duty
Applying Non-Delegable Duty in medical malpractice: factors to consider
Non-Delegable Duty: contractual context
Darnley v Croydon Health Services NHS Trust[2018] UKSC 50
Darnley - The Facts
The trial – High Court (2015) – the law
Court of Appeal decision (2 out of 3 judges agreed)
Court of Appeal – the odd judge out said…
Supreme Court (2018) - judges said it’s NOT a new duty we’re imposing
Supreme Court – what the judges said about medical vs. non-medical staff
Supreme Court – was there a breach of duty by the receptionist?
Supreme Court decision – causation
Darnley – Practical steps for Insureds
Any Questions…?
Thank you
Like Shaggy said, “It wasn’t me…” A whistle-stop tour of Vicarious Liability, Non- Delegable Duty and the liability of non-medical staff
Tania Kahlon Associate 9 May 2019
2
Running Order
1. Vicarious Liability 2. Non-Delegable Duty 3. Darnley v Croydon Health Services NHS Trust
3 3 Difference between vicarious liability and liability due to non-delegable duty
• Two different routes by which an Insured can be liable for negligence • Vicarious Liability
• Tortfeasor (usually employee) owes patient a duty of care and commits negligence.
• There is a connection between negligence, tortfeasor (doctor or employee) and the defendant (clinic or hospital).
• Defendant itself commits no wrong but is vicariously liable. • This is what is behind normal liability of Insureds for its medical staff,
perhaps contractors. • Non-Delegable Duty
• Alleges Defendant body owes an ongoing duty of care directly to the Claimant (e.g. of reasonable healthcare) despite the service being contracted out. The tort is personal to the organisation itself.
• Will often mean Insured liable for contracted out services.
4 4
VICARIOUS LIABILTY
• Classically - imposes liability on defendants for torts committed by employees in close connection with their duties to defendant
• How far does close connection extend? • What about non-employees? • Both questions relevant to Insureds (e.g. clinics)
5 5 Vicarious Liability was considered in Various Claimants v Barclays Bank PLC [2018] EWCA Civ 1670
• Group litigation; 126 Claimants seeking damages against Barclays Bank in respect of alleged sexual assaults perpetrated by Dr Gordon Bates during pre-employment medical examinations
• Issue – was Barclays vicariously liable for the assaults of Dr Bates? • The Bank denied Dr Bates was an employee on the basis he was self-employed and
engaged by the Bank as an independent contractor. Dr Bates charged a set fee for each medical examination and would invoice the Bank accordingly. Furthermore, during the relevant time period, Dr Bates was also performing similar services for other organisations.
• 2 stage test: • (i) Is the relevant relationship one of employment or "akin to employment"? • (ii) Was the tort sufficiently closely connected with that relationship of
employment or quasi employment? • On applying these tests, the Court found Barclays was liable for the conduct of Dr
Bates
6 6
Barclays Bank – Court of Appeal decision • Basis of Barclays’ appeal: application of stage 1 test was
incorrect • Reminder of test: Is the relevant relationship one of
employment or "akin to employment"? • Barclays said Dr Bates' status as an independent contractor
was a complete defence to the claim • CoA decision: rejected the submission that Dr Bates' status as
an independent contractor was a defence to the claim • The Court of Appeal emphasised that the correct method is to
apply the two –stage test to the particular facts of the case
7 7 5 policy criteria to apply when considering whether clinic vicariously liable for doctor (under stage 1 of the Barclays test) 1) Who is more likely to have means/ insurance to compensate the
patient? (not determinative – but perhaps in borderline cases) 2) Is the negligence committed as a result of activity which is
carried out by the tortfeasor (e.g. doctor) on behalf of the Defendant (e.g. clinic)?
3) Is the activity an integral part of the Defendant’s business activity / carried out for their benefit?
4) Has the Defendant created the risk of the particular negligence which has arisen?
5) Is the doctor/member of staff under the control of the hospital/clinic?
8 8 1st consideration - means to compensate
1. Who is more likely to have means/ insurance to compensate the patient? • Not determinative – but perhaps in borderline cases • In Barclays the only legal recourse open for the Claimants was to sue the Bank. • Dr Bates died 8 years ago and his estate has been distributed. • The Bank and its insurers had the means to meet such claims • Court of Appeal: "no liability could be founded on this consideration alone." • By the same token, however, it must be noted that Barclays were the only available
compensator, following the distribution of Dr Bates' estate several years earlier. • Note - in Razumas v Ministry of Justice (prisoner suing MoJ for negligent medical
treatment). Treatment provided by primary care Trust. Judge said when looking at MoJ or Trust, this criteria is a poor fit. No shortfall of cover here.
9 9 2nd consideration – activity carried out on behalf of the Defendant 2. Is the negligence committed as a result of activity which is carried out by the tortfeasor (e.g. doctor) on behalf of the Defendant (e.g. clinic) • the medical examination and subsequent report was conducted for the benefit
of the Bank and on its behalf as: • A medical examination was required in order to secure employment • Dr Bates conducted all the medical examinations for the Bank and was
therefore an integral part of the business • No Claimant was offered a choice of doctors • The Bank arranged the appointments with Dr Bates • The Bank paid for the examinations • The Claimants had no reason to be examined by Dr Bates other than for
the purposes of an offer of employment from the Bank • Court of Appeal: the medical examination, whilst of some benefit to the
employment, was “clear beyond doubt that [it's] principal benefit was to the prospective employers".
10 10 3rd consideration - Activity is an integral part of the Defendant’s business activity / carried out for their benefit 3. Is the activity an integral part of the Defendant’s business activity / carried out for their benefit? • Medical examination was performed to ensure a future employee of the
Bank was physically suitable for the work which they were being employed to do.
• In providing the Bank with a medical assessment, Dr Bates was an integral part of the Bank's business
• Court of Appeal: in selecting employees "there could hardly be a clearer example" of an activity being part of a defendant’s business activity. In providing Barclays with a medical assessment on physical suitability, this was integral to Barclays' business.
• NB: business activity does not necessarily mean commercial activity
11 11 4th consideration - Has Defendant created the risk of the negligence which has arisen? 4. Has the Defendant created the risk of the particular negligence which has arisen? • The Bank did create a risk of the alleged tort as they required young
girls, many of whom were 15 or 16, to attend the home of Dr Bates for a medical examination.
• The Bank directed Dr Bates to perform a physical examination which included a chest measurement.
• Court of Appeal: accepted the circumstances obviously give rise to the risk of tort than other circumstances, but that the "variety of facts in negligence cases are legion," and concluded that the risk on these facts was established
• E.g. Armes v Nottinghamshire County Council: child placed in foster care / abused by foster parents. Held: Local Authority, who placed the children, had created a relationship of trust and authority between parents and children which left them vulnerable
12 12
5th consideration – Is the member of staff under control of Defendant?
5. Is the doctor/member of staff under the control of the hospital/clinic? • Dr Bates was under the control of the Defendant.
• The Defendant decided what questions Dr Bates was to ask the Claimants and what
physical examinations were to be carried out.
• The Defendant chose Dr Bates and did not give the Claimants the choice of another doctor
• Court of Appeal - the question of control to be "perhaps the most critical factor".
• Key: what doctor does, not how s/he does it. How do you assess this? It’s a question of accountability.
• E.g. JGE v The Portsmouth Roman Catholic Diocesan Trust: relationship between Catholic parish priest and Bishop was one where Bishop had no direct control over day to day affairs of the priest in question, but could take action if certain things not done as they should have been ; priest found to be accountable to the Bishop. Satisfied requirement for a degree of control. Eg. Bishop had ability to remove priesthood from that parish so there was a level of control (akin to employment)
• E.g. Armes: Local Authority didn’t have control over minutiae of family’s every day life but did have overarching powers to inspect/supervise/ remove children / ultimately foster parents accountable to Local Authority
13 13 Applying Vicarious Liability to the relationship between hospital/clinic and doctor • Is there a relationship akin to employment? • Degree of oversight by the clinic or hospital • Does clinic have responsibility for assigning work to a particular
doctor ? • Can the clinic direct the doctor regarding quantity and/or quality of
work? • Could the clinic take action to prevent future negligence? • What is the contractual and commercial relationship between
clinic and doctor? Who bears the commercial risk? • Would the clinic be classified and regulated as a private hospital
under relevant legislation?
14 14 Vicarious liability - Stage 2 of the Barclays test • Stage 1 satisfied – yes, there’s a relationship of employment / akin to employment • Stage 2: Was the tort sufficiently closely connected with that employment or
quasi employment? • We are looking at the relationship between the negligence and the relationship of
employment • Can the wrongful action be seen as a way of carrying out the work, even if
unauthorised by employer ? • The Court found that Dr Bates' conduct fell within the remit of the tasks he was
instructed to undertake by the Defendant. The sexual assaults occurred during a medical examination requested by the Defendant and Dr Bates abused his position. Referring to another case (Catholic Child Welfare Society):
• "…the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them…"
• The second stage of the test was not appealed by Barclays, yet the Court of Appeal reiterated that the "medical examinations were sufficiently closely connected with the relationship between Dr Bates and the Appellants [Barclays]. They were the whole purpose of that relationship."
15 15 Vicarious liability – applying Stage 2 of Barclays to medical malpractice • Once found relationship akin to employment, it’s very likely that
any relevant tort is likely to have been sufficiently closely connected to that relationship to attract vicarious liability
• Any medmal committed during course of treatment / abuse or assault is very likely to be found to be closely connected to that relationship
16 16
Non-Delegable Duty • Where an organisation is liable even where the negligence is committed by a third party
• Duty extends beyond merely being careful, to procuring the careful performance of work delegated to others
• Duty of care is personal and cannot be delegated, even if the work required to preform the duty is delegated / duty remains with the Defendant (e.g. clinic / private hospital)
• Key case: law on non-delegable duties of care has been clarified in Woodland v Essex County Council [2013] UKSC 66
• The following 5 criteria which ‘characterise’ non-delegable duties of care were identified
1. Vulnerability
3. Control
17 17
Non-Delegable Duty: 5 factors - the law
1) C is patient, child, or for some other reason is especially vulnerable or dependent on D’s protection against the risk of injury
2) There is an antecedent relationship between C and D, independent of the negligent act or omission itself, (i) which places C in the actual custody, charge or care of D, and (ii) from which it is possible to impute to D the assumption of a positive duty to protect C from harm
3) C has no control over how D chooses to perform those obligations
4) D has delegated to a 3rd party some function which is an integral part of the positive duty; and for that purpose the 3rd party is exercising D’s custody or care of, and corresponding control over C.
5) The 3rd party has been negligent in the performance of the very function delegated by D to him.
18 18 Applying Non-Delegable Duty in medical malpractice: factors to consider • All hospitals (probably) owe NDD to patients. In Lister judge said classes of persons /
institutions that were in this sort of special relationship did include hospitals • Generally applicable factors making it likely that the clinic / hospital does owe a NDD:
• Legislative and regulatory context • Inherent vulnerability of patients / Patients requiring medical treatment are
inherently vulnerable • Direct connection between medical malpractice, and the core function of a
hospital/clinic to care for patients
• Factors to consider in an individual case: • Is there an antecedent, independent relationship between patient and clinic? • Look at degree to which the clinic takes responsibility for actual provision of care
vs. its arrangements • Look at the degree of patient control – of doctor, type of treatment, timing of
appointments
Non-Delegable Duty: contractual context
• Always check the contract(s): what has the hospital clinic actually agreed to do ? For whom?
• One end of spectrum – obligation to the patient to provide appropriate treatment by a safe and competent doctor
• Other end – obligation to the doctor to provide rooms or facilities, leaving all other arrangements to be made between doctor and patient
• Other factors: • obligation to provide nursing or medical staff to assist
doctor • to facilitate introduction between patient and doctor but no
responsibility for any treatment thereafter
20 20 Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 • Case looked at the liability of non-medical staff
21 21
Darnley - The Facts
• 20:26 on 17 May 2010; Mr D attended A&E department at Mayday Hospital with friend, Mr Tubman • Had been struck on his head in an assault a few hours earlier • Saw receptionist at A&E ; told her of assault/head injury/ feeling very
unwell/head hurting/needed to see someone • Receptionist said: wait would be 4 to 5 hours before seen • Mr D and Mr T waited for 19 minutes in waiting area; left hospital without
being seen • At home later that evening: deterioration/intradural bleed • Transfer back to Mayday Hospital by ambulance for surgery. Despite
surgery suffered permanent serious brain injury
22 22 The trial – High Court (2015) – findings of fact • Advice re waiting time:
• Accepted Mr T’s evidence that the advice was 4-5 hours • Incorrect information: should have advised within 30 minutes
(to be seen by triage nurse) • Reasonably foreseeable:
• that some patients do leave A & E departments without being seen or treated and that, in such cases, harm may result.
• someone who believes it may be 4 to 5 hours before they will be seen by a doctor may decide to leave, in circumstances where they would have stayed if they believed they would be seen much sooner by a triage nurse
• If Mr D had been told 30 minutes, he would have waited; would have had earlier surgery; would have made a very near full recovery
23 23
The trial – High Court (2015) – the law • Receptionists in A & E departments are not under a duty
to guard patients against harm caused by failure to wait to be seen
• The harm suffered in this case was outside the scope of any duty or obligation owed by the NHS Trust via its reception staff
• It would not be fair, just and reasonable to impose liability upon the NHS Trust for harm arising as a result of the failure by the reception staff to inform the patient of the likely waiting time to be seen by a triage nurse
• Judgment: Claimant lost • Claimant appealed…
24 24
Court of Appeal decision (2 out of 3 judges agreed)
• Neither the receptionist nor the NHS Trust, acting by the receptionist, owed any duty to advise about waiting times
• It was not fair, just and reasonable to impose upon the receptionist, or upon the NHS Trust acting by the receptionist, a duty not to provide inaccurate information about waiting times. To do so would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts
• whether what had occurred was a failure to provide information, or, the provision of inaccurate information, no relevant duty of care would arise.
• The fair, just and reasonable view was that information as to likely waiting times was provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public
• Duty of care should not turn on very subtle differences in language used on a particular occasion by a busy receptionist in a hard pressed A&E department
• A court should be slow to find a duty of care to provide precise and accurate information about waiting times because if such a duty was imposed then it would be difficult to see why it would not extend to an obligation to correct that information (e.g. changing waiting times)
• Imposing such a duty could lead to defensive practices on the part of NHS Trusts (clinics) resulting in the withdrawal of information which actually is generally helpful to the public
25 25
Court of Appeal – the odd judge out said… • On the issue of duty, he rejected the suggestion that the functions
of a hospital can be divided into those of receptionists and those of medical staff. He was of the view that it is the duty of the hospital as a whole not to provide misinformation to patients, whether it is provided by reception staff or medical staff
• Breach - information provided could only have given the false impression that Mr D would not be seen or assessed by anyone sooner than the indicated period of up to 4 or 5 hours.
• Incomplete and inaccurate information had been provided negligently. The failure to impart the reality of the triage system to Mr D on his arrival was, on the facts of this case, a breach of duty by the hospital
• Causation – breach was causative of Mr D’s injury • Outcome: Mr D appealed again…
26 26 Supreme Court (2018) - judges said it’s NOT a new duty we’re imposing • All 5 judges – unanimous decision • Not creating a new duty of care (by hospital receptionists / non
medically trained staff) because in essence, this duty already existed
• “as soon as the C had (a) attended at the Trust's A & E department seeking medical attention for the injury, (b) had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the Trust of patient and health care provider.
• the scope of the duty to take reasonable care clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury”.
27 27 Supreme Court – what the judges said about medical vs. non-medical staff • Not appropriate to distinguish, between medical and non-medical staff • The Trust had charged its non-medically qualified staff with the role of
being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability
• “The duty of the NHS Trust must be considered in the round. While it is not the function of reception staff to give wider advice or information in general to patients, it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is not avoided by the misinformation having been provided by reception staff as opposed to medical staff. In this regard, it is simply not appropriate to distinguish between medical and non-medical staff in the manner proposed by the Trust”.
28 28 Supreme Court – was there a breach of duty by the receptionist? • In this case, yes • A receptionist in an A & E department cannot, of course, be expected to
give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance
• The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care
• Responding to requests for information as to the usual system of operation of the A & E department was well within the area of responsibility of the receptionists here
• 4-5 hours was misleading and misleading • Not unreasonable to expect the receptionist to provide accurate
information of 30 minutes
29 29
Supreme Court decision – causation • Causation had been established • If Mr D had been told that he would be seen within 30 minutes, he
would have stayed in the waiting area and would have been seen before he left
• He would then have been admitted or told to wait • He would have waited and his later collapse would have occurred
within a hospital setting • Mr D’s decision to leave was made, in part at least, on the basis of
information provided to him by the receptionist which was inaccurate or incomplete
• It was reasonably foreseeable that a person who believes that it may be 4 to 5 hours before he will be seen by a doctor may decide to leave, in circumstances where that person would have stayed if he believed he would be seen much sooner by a triage nurse
30 30 Darnley – outcome, what does it mean for Insureds? • This case highlights that if entities / Insureds choose, as they are
entitled to do so, to delegate initial reception/clerical type tasks to non-medically trained personnel, they will be liable for damage caused through negligence of those clerical / non-medical staff, where it results in foreseeable damage to patients even prior to admission
• The duty arises from the moment the patient is seen by employees or agents of the Insured
• This duty extends to patients who have not yet been treated because they have chosen to leave the clinic/hospital, where the decision to leave results at least in part from misinformation provided by staff
31 31
Court of Appeal concern Supreme Court response
“Would not be fair, just or reasonable to impose “a duty of fine-grained perfection
Not expected to provide minute-perfect or hour-perfect information about how long the wait might be
Potentially giving rise to a flurry of litigation / maybe A&E departments taking a defensive approach.
Hospital staff will be able to give evidence as to their usual practice
Pressures of A&E departments It has not been suggested that the receptionists should have provided accurate information to each patient on arrival as to precisely when he or she would be seen by a medically qualified member of staff…However, it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance
32 32 Darnley – Practical steps for Insureds
• Relevant staff should be aware of this decision
• Up to date knowledge/training requirements (are staff up to date on waiting times / how long before medical assistance will be available / surgeon’s lists)
• Internally - review Insured’s internal guidelines, policies and training materials – are the waiting times in them accurate and up to date ?
• Externally - where departments/waiting areas/corridors have posters on walls, notices on doors / receptions desks – are they accurate ?
• If they use leaflets / flyers – are they accurate?
• Where departments don’t already have wall signs or leaflets etc. in place, consider doing that now. This would be extremely valuable and will complement the information provided by staff members so that there is a safety net in place
• Review any information on Insured’s website – is that accurate ?
• Scenarios other than waiting times: relaying blood results / when available / when surgeon next available for post-op check / when prescriptions available
33 33
Any Questions…? • Lawyer: "Doctor, before you performed the autopsy, did you check for a
pulse?" • Witness: "No." • Lawyer: "Did you check for blood pressure?" • Witness: "No." • Lawyer: "Did you check for breathing?" • Witness: "No." • Lawyer: "So, then it is possible that the patient was alive when you began
the autopsy?" • Witness: "No." • Lawyer: "How can you be so sure, Doctor?" • Witness: "Because his brain was sitting on my desk in a jar." • Lawyer: "But could the patient have still been alive nevertheless?" • Witness: "Yes, it is possible that he could have been alive and practicing
law somewhere."
Running Order
Difference between vicarious liability and liability due to non-delegable duty
VICARIOUS LIABILTY
Vicarious Liability was considered in Various Claimants v Barclays Bank PLC [2018] EWCA Civ 1670
Barclays Bank – Court of Appeal decision
5 policy criteria to apply when considering whether clinic vicariously liable for doctor (under stage 1 of the Barclays test)
1st consideration - means to compensate
2nd consideration – activity carried out on behalf of the Defendant
3rd consideration - Activity is an integral part of the Defendant’s business activity / carried out for their benefit
4th consideration - Has Defendant created the risk of the negligence which has arisen?
5th consideration –Is the member of staff under control of Defendant?
Applying Vicarious Liability to the relationship between hospital/clinic and doctor
Vicarious liability - Stage 2 of the Barclays test
Vicarious liability – applying Stage 2 of Barclays to medical malpractice
Non-Delegable Duty
Applying Non-Delegable Duty in medical malpractice: factors to consider
Non-Delegable Duty: contractual context
Darnley v Croydon Health Services NHS Trust[2018] UKSC 50
Darnley - The Facts
The trial – High Court (2015) – the law
Court of Appeal decision (2 out of 3 judges agreed)
Court of Appeal – the odd judge out said…
Supreme Court (2018) - judges said it’s NOT a new duty we’re imposing
Supreme Court – what the judges said about medical vs. non-medical staff
Supreme Court – was there a breach of duty by the receptionist?
Supreme Court decision – causation
Darnley – Practical steps for Insureds
Any Questions…?
Thank you