Hopkins v Akramy & Ors

A statutory duty to provide services may be expressed in the alternative as a duty either to provide them or to secure their provision. Where legislation permits a public body to discharge its duty by securing provision through an independent contractor, the statutory duty is delegable. The body is not subject to a non-delegable duty to ensure that the contractor performs the service safely, although it remains responsible for exercising reasonable care in selecting the contractor and for administering the arrangements. The statutory scheme must be interpreted first. Common-law criteria for non-delegable duties cannot override, or operate as a cross-check against, a statutory allocation of responsibility.

The claimant brought a personal injury claim arising from allegedly negligent out-of-hours primary medical treatment provided by a nurse practitioner engaged by a private medical services group. The services were supplied to NHS patients under a contract with South Birmingham Primary Care Trust. The NHS Commissioning Board, as successor to relevant PCT liabilities, accepted that the contractual liability had transferred to it but denied that the PCT owed a non-delegable duty of care.

The parties agreed assumed facts for determination of a preliminary issue. The question was whether, on 27 December 2008, the PCT owed a non-delegable duty such that liability for any negligence by the nurse practitioner could be enforced against the successor body.

1. Preliminary issue determined. The NHS Commissioning Board did not owe a non-delegable duty of care as successor to the South Birmingham Primary Care Trust and was not liable for negligent acts or omissions by those providing care at the out-of-hours facility.
2. The relevant statutory duty was imposed by section 83(1) of the NHS Act 2006. It required the PCT, to the extent considered necessary to meet all reasonable requirements, either to provide primary medical services or to secure their provision. The corresponding power in section 83(2) permitted the PCT to provide the services itself or to make appropriate arrangements, including contractual arrangements with another person.
3. The words permitting the PCT to secure provision were given operative effect. If the PCT provided the services itself, it assumed the duty to perform them and would be liable under ordinary principles. If it secured provision from others, it discharged an alternative duty to arrange for the services. Following Myton v Woods and Armes v Nottinghamshire County Council, it retained no residual responsibility for the manner in which the contractor performed the services, subject to reasonable care in selecting the contractor and its statutory responsibility to administer the arrangements under section 22.
4. The court rejected the submission that the Woodland v Swimming Teachers Association and Ors criteria could be used as a cross-check. Those criteria concerned common-law non-delegable duties and had no role in interpreting the statutory scheme. Since Parliament had provided for a delegable statutory duty to secure primary medical services, the common law could not impose a contrary obligation.

The judgment concerned a trial of a preliminary issue ordered by Master Eastman on 13 November 2019. No appellate history was stated.