In our first independent healthcare in house lawyers' forum for 2018 we cover the following topics: - claims and liabilities update - including vicarious liability for the acts of non-employees and the post Paterson inquiry - inquests and other regulatory liabilities - capacity, consent, and how to not get sued.

1. Independent healthcare in house
lawyers’ forum
March 2018, London

2. Liability for ‘non-employees’ (including
vicarious liability and non-delegable
duties post Paterson)
Matthew Trinder

3. Victims of disgraced breast
surgeon Ian Paterson granted
£37m compensation
https://www.theguardian.com/uk-
news/2017/sep/13/victims-of-rogue-breast-surgeon-
ian-paterson-to-be-compensated-from-37m-fund

4. Vicarious Liability: two stage test
The current two stage legal test has been re-stated
recently in Various Claimants v Barclays Bank PLC
[2017] EWHC 1929 (QB) at [27]:
i. Is the relevant relationship one of employment or
‘akin to employment’?
ii. If so, was the tort sufficiently closely connected
with that employment or quasi-employment?

5. Relationship ‘akin to employment’ – the 5
criteria identified in Barclays Bank [45]
i. D is more likely than the tortfeasor to have the means and
insurance to compensate the victim;
ii. the tort will have been committed as a result of activity by the
tortfeasor on behalf of the D;
iii. the tortfeasor’s activity is likely in reality to be an integral part
of D’s business activity carried out for D’s benefit
iv. D, by employing or engaging the tortfeasor, to carry on the
activity, will have created the risk of the tort committed;
v. the tortfeasor will, to a greater or lesser degree, have been
under the control of D, in particular with regard to what the
tortfeasor does.

6. Factors to Consider
• The degree of oversight by the clinic or hospital.
• Does the clinic or hospital have responsibility for
assigning work to a particular doctor, or does the
doctor bring in the work him or herself?
• Can the clinic or hospital direct the doctor
regarding the quantity and/or quality of work, or is
the doctor autonomous?
• Could the clinic or hospital take action to prevent
future negligence by the doctor?

7. Factors to Consider
• What is the contractual and commercial
relationship between the clinic and the doctor?
• NB Who bears the commercial risk/enjoys the
profits or suffers the losses?
• Would the clinic be classified and regulated as a
private hospital under relevant legislation?

8. Stage 2: sufficiently close
connection
This means the connection between (a) the
relationship which is ‘akin to employment’, and (b)
the tort.

9. Factors to consider
• A tort committed during the course of a
consultation or treatment is highly likely to have a
sufficiently close connection.
• It might be different if the tort is unrelated to
treatment, committed out of hours and/or away
from the clinic’s premises.

10. Non-delegable Duties: a fallback
even if no vicarious liability
The usual assumption that a party is not responsible
for acts or omissions by third parties can be displaced
for particular risks.
Five relevant characteristics as identified in
Woodland v Swimming Teachers’ Association [2014]
AC 537 at [23] as:-

11. 1. C is a patient, child, or for some other reason is
especially vulnerable or dependent on D’s
protection
2. There is an antecedent relationship between C
and D, independent of the negligent act or
omission itself which (i) places C in D’s protective
custody, charge or care, and (ii) from which it is
possible to impute to D the assumption of a
positive personal duty to protect C from harm
5 relevant characteristics

12. 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 that positive duty; and
for that purpose the third 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
5 relevant characteristics

13. Factors to consider
• Direct connection between clinical negligence, and
the core function of a hospital or clinic to care for
patients.
• Antecedent independent relationship between
patient and clinic or hospital.
• Degree to which the clinic or hospital takes
responsibility for actual provision of care as
opposed to merely arranging the provision of care.
• Degree of patient control – of doctor, type of
treatment, timing of appointments etc.

14. Remember to check the
contractual context!
What has the clinic actually agreed to do and for
whom?
At one end of the spectrum, the contractual
obligation to the patient may include providing
appropriate treatment by a safe and competent
doctor; in contrast, at the other end of the spectrum
the obligation to the doctor to provide rooms or
facilities, leaving all other arrangements to be made
between the patient and doctor

15. Remember to check the
contractual context!
Other variables include any obligation to provide
nursing or medical staff to assist the doctor, any
obligation to facilitate the introduction between the
patient and doctor but not to be responsible for any
treatment provided thereafter.
All hospitals probably owe a non-delegable duty to
patients!

16. Discussion
• Public policy driver towards holding somebody to
account so that patient is not left without a
remedy.
• Private hospitals and clinics may increasingly find
themselves responsible for the negligence of ‘non-
employees’ where the doctor does not have
indemnity cover, that cover is not sufficient or
where cover is refused following notification.

17. Discussion
• Urgent need to review legal relationship with non-
employees and to take steps to satisfy yourself that
sufficient cover will be provided on a non-
discretionary basis?
• Urgent need to review own insurance
arrangements. Vicarious liability included or an
optional extra? Limited to employees or will it
cover something ‘akin to employment’? Cap for
individual or aggregate claims?

18. Capacity and consent
Ben Troke

19. Today I’ll be talking about
• Best interests and resources
• The role of “next of kin”
• Consent and “how to not get sued”?
• Q&A

20. The “Making Decisions” Act

21. You can’t always get what you
want….

22. “Next of Kin” ?

23. “Doctor knows
best”

24. How to not get
sued?

25. Questions?
Ben Troke
E: ben.troke@brownejacobson.com
T: +44 (0)115 976 6263

26. Inquests and wider regulatory
risks
Andrew Peel

27. Inquests
-The Coroner has a duty to investigate the death where he has reason
to suspect that:
• Death is violent or unnatural (including death due to self harm)
• The cause is unknown
• Death in custody or state detention
-It is a fact finding exercise
-It does not apportion blame
-It ascertains who the Deceased was and how, when and where they
died
-“Article 2” Inquests
- Douglas v Ministry of Justice and Care UK – recoverability of Inquest
costs

28. Inquests
Preventing Future Deaths Reports
- The Coroner MUST issue a report where the evidence gives rise to a
concern that circumstances exist which create a risk that other
deaths will occur in the future, and
- In the Coroner’s opinion, action should be taken to prevent the
occurrence or continuation of such circumstances, or to eliminate
or reduce the risk

29. Inquests
Preventing Future Deaths Reports
- PFD reports can be issued at an Inquest or during an investigation
- The recipient must respond within 56 days and must include an
action plan and timetable for implementation or reasons why no
action is proposed
- Report and responses are sent to the Chief Coroner, all interested
persons and anyone who the Coroner thinks may find it useful- e.g.
the CQC. The Chief Coroner publicises PFD reports on the Courts
and Tribunals Judiciary Website and submits an annual report to
Parliament

30. Inquests
Preventing Future Deaths Reports
The risk of a PFD report reinforces the need for:
• A thorough investigation at an early stage
• Disclosure of the SUI/RCA to the Coroner and family
• Specific Organisational Learning evidence from a senior
doctor/nurse/director explaining the investigation and what
processes have changed
• Even if a PFD report is avoided, the outcome of an Inquest can
result in adverse news coverage for a provider which raises
reputational issues

31. CQC
• Recently released a third consultation on their future inspection
and regulation regime, which is specific to independent health
providers
• The CQC intend to rate new types of provider from 2018/2019
including all independent community care services and
independent doctors, online or otherwise.
• CQC Insight, the data analysis system designed to improve CQC’s
ongoing monitoring of service quality, will be extended to
independent acute hospital and mental health services in
2018/2019

32. CQC
• Pilots will be launched requiring independent providers to
regularly send CQC quality information ahead of a roll out in
2019/2020.
• Inspections will increasingly be unannounced
• Inspection reports will be more succinct

33. Data Security Breaches
• Private hospital was fined £200,000 for the way in which they
transferred, transcribed and stored records of IVF appointments.
• Private health insurer was the subject of data breach committed
by an employee. The matter is currently being investigated by the
ICO and FCA.
• Blackpool Teaching Hospitals NHS Foundation Trust fined £185,000
for publishing employees’ confidential data including sexual
orientation, date of birth and religious beliefs.
• GDPR effective from 25 May 2018! (as if you didn’t know!)

34. Criminal Implications
• Jack Adcock/Dr Hadiza Bawa-Garba – doctor was convicted of gross
negligence manslaughter in November 2015 for clinical mistakes
made including confusing Jack with another patient who had a
DNAR in place. Dr Bawa-Garba appealed her sentence but this was
quashed by the Court of Appeal. Dr Bawa-Garba was also struck off
the GMC register (on appeal by the MPTS to the High Court). Crowd
funding has allowed her to appeal the current position.
• Does this and Paterson affect the current vogue to move to
employed consultants?
• Assisted suicide

35. Contact us:
Matthew Trinder
E: matthew.trinder@brownejacobson.com
T: +44 (0)330 045 2442
Ben Troke
E: ben.troke@brownejacobson.com
T: +44 (0)115 976 6263
Andrew Peel
E: andrew.peel@brownejacobson.com
T: +44 (0)330 045 2101

36. All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2018 – The information contained within
this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the prior
consent of Browne Jacobson.