Debate on the scope of the frequently-linked issues of non-delegable duty of care and vicarious liability remains extremely active and was recently reconsidered by the High Court in a judgment handed down on 12 February 2018.
Razumas – the facts
The claim involved a prisoner who had developed a soft tissue sarcoma on his left leg while in Pentonville Prison in 2010. He was referred to Southend University Hospital where, in January 2011, a 10 x 7 cm mass was noted. Some four days after that appointment, however, the claimant was released on licence. The hospital doctor had written to the prison explaining that an MRI scan had been booked for the claimant and there was a possibility of malignancy. As the claimant had been released on licence this information was not passed to him.
The claimant was subsequently detained in Brixton, Bedford and Thameside Prisons and seen by various prison doctors on several occasions. It was not until January 2013 that he was referred for investigation of the lump on his leg. A biopsy was performed in August 2013 – the tumour was 20 x 7cm by then – and he was told it was cancerous. An above knee amputation in November 2013 was necessary to remove it. At a later date, the claimant developed a metastatic tumour in his left shoulder muscle.
It was common ground that: there were instances of negligence on the part of the medical staff during the course of his various detentions, that earlier referral and diagnosis would have averted the amputation and that his chances of survival had been compromised by the delay in diagnosis and treatment.
The claimant first sought to bring his claim against the private companies who had failed to diagnose and treat his tumour. The judge noted dryly that “He approached both private companies who had provided the healthcare in the prisons where he was located and NHS England. No one was willing to accept responsibility for those who had treated him.”
He therefore directed his claim against the Ministry of Justice (MoJ) and argued it owed him a non-delegable duty of care. He subsequently added allegations of both direct and vicarious liability.
The statutory background to prison healthcare
Any analysis of the judgment (running to 47 pages) does require some understanding of the statutory framework within which healthcare is provided in prisons.
From around 2003-06 there was a transfer of statutory responsibility for prison healthcare from the Ministry of Justice to the Department of Health and the NHS. The reason for this was that it had been identified that prisoners were a vulnerable group in terms of the provision of healthcare and the aim of the change was to achieve equivalence in the standards of healthcare provided to prisoners and to the general population.
Funding for prison healthcare was transferred to the Department of Health (DH) on 1 April 2003. It seems clear therefore that the function of the provision of healthcare services passed from the MoJ to the NHS at this time. An agreement in 2003 between the Home Office* and the DH provided that healthcare litigation would be the responsibility of the DH. A further partnership agreement published in January 2007 made it absolutely clear that from April 2003 the Secretary of State for Health had assumed responsibility, in place of the Home Office*, for securing a full range of health services for prisoners and for commissioning care from Primary Care Trusts (PCTs). [*The Ministry of Justice took over departmental responsibility for prisons from the Home Office in 2007.]
The findings in Razumas
Direct duty. Despite the legislation and the agreements, the claimant nevertheless argued that the MoJ could owe a direct duty to him. It was held that although the MoJ did owe a direct duty, its scope related to matters arising out of custody, including access to healthcare. That duty had not been breached in this case since it was the healthcare providers who were deficient here, rather than the MoJ itself within the terms of the duty it owed.
Non-delegable duty. With no breach of the direct duty, it was therefore necessary to consider whether the MoJ owed the claimant a non-delegable duty of care. The judge emphasised that such a duty is to be imposed only in exceptional circumstances.
He referred to Lord Sumption’s view in the Supreme Court in Woodland v Essex County Council that the distinguishing feature of non-delegable duty cases is “control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility”. The judge held that that could easily be seen in a conventional hospital as regards healthcare, since “a patient gives himself over to the hospital for the purpose of healthcare”. However, the main reason for the claimant being in prison was not for healthcare and, since 2003 at least (as noted above) healthcare was not part of the MoJ’s essential or mainstream function. It did not therefore owe the claimant a non-delegable duty of care.
Vicarious liability. On this aspect, the judge referred to the cases of Various Claimants v Child Welfare Society, Cox v Ministry of Justice and the 2017 case Armes v Nottinghamshire. He set out the five factors for establishing vicarious liability affirmed by these cases, namely that:
- the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
- the torts would have been committed as a result of activity being undertaken by the employee on behalf of the employer
- the employee’s activity is likely to be part of the business activity of the employer
- the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee
- the employee, will to a greater or lesser extent, have been under the control of the employer
The judge noted that that NHS England, the PCTs and those with whom they contracted would likely have insurance (factor 1) to meet any such claim but he held that other elements of the test were not satisfied. The activity of providing healthcare was not being undertaken on behalf of the MoJ (factor 2) but on behalf of its contracting party, the PCT. The healthcare providers’ activity was not, substantially, part of the business activity (factor 3) of the MoJ. Factors 4 & 5 were also absent because the MoJ had neither created the risk nor had control. The MoJ was not therefore vicariously liable to the claimant.
What can we take from the decision?
The case is a clear example of the necessity to be clear about the statutory framework under which public bodies are set up and which set out their potential responsibilities to those to whom they provide services (in this case, healthcare).
On the face of it, there would seem to be little doubt in this case that had the claimant been able to bring a claim in time against the DH, the PCTs and the care providers – as he had initially intended – he would have been likely to have succeeded. The lack of accountability suggested by the judge’s comment that “no one was willing to accept responsibility for those who had treated him” is more than a little unsettling in that regard.
Having said that, a final procedural twist would probably have operated to defeat any such claim, since the judge found that the claimant had been “fundamentally dishonest” (s57 of the Criminal Justice and Courts Act 2015) in evidence about his medical history and treatment outside prison.