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Contracting out services but not responsibility - non-delegable duties in a healthcare setting

  • Market Insight 19 January 2021 19 January 2021
  • UK & Europe

  • Healthcare

In Morrissey v HSE [2020] IESC 6, the Irish Supreme Court found the Health Service Executive was liable to a claimant despite contracting out part of its role to a third party. In doing so the court followed the UK courts' refusal to absolve health bodies of responsibility to patients where their services are provided by external parties.

Contracting out services but not responsibility - non-delegable duties in a healthcare setting

Ms Morrissey underwent screening for cervical cancer as part of the CervicalCheck national screening programme run by the HSE. The reporting was undertaken by two separate multinational laboratory companies. She alleged that they had failed to correctly report upon two cervical smear tests. The High Court had found the HSE vicariously liable and also that it was primarily liable as it owed her a non-delegable duty of care.

The Supreme Court disagreed that the HSE was vicariously liable for the laboratory companies. It found that the laboratories were independent contractors, and the HSE had insufficient control over their activities.

However the court was satisfied that the HSE owed patients a non-delegable duty of care. In coming to that conclusion the court approved the approach in Woodland v Essex County Council [2014] AC 537 in which Lord Sumption concluded that the essential element giving rise to this duty is the defendant's control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. In Woodland five factors were provided to establish the existence of a non-delegable duty:

  1. The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury.
  2. There is a relationship between the claimant and the defendant, independent of the negligent act or omission, (i) which places the claimant in the custody, charge or care of the defendant, and (ii) the defendant has assumed a positive duty to protect the claimant from harm.
  3. The claimant has no control over how the defendant chooses to perform those obligations.
  4. The defendant has delegated to a third party some function which is an integral part of its duty, and the third party is exercising the defendant's custody or care of the claimant.
  5. The third party has been negligent in the performance of the function assumed by the defendant and delegated to him.

In applying these criteria the court confirmed that the HSE owed a duty to Ms Morrissey even though the testing had been contracted out. The HSE had responsibility for the scheme, irrespective of whether the actual screening or indeed any other elements of the scheme were performed by others.

This case is a demonstration of the impact of non-delegable duties of care in the healthcare setting. The Supreme Court noted that it had not previously been asked to consider whether such a principle applied in Irish law and whether the criteria for determining whether a non-delegable duty arises were the same as under Woodland. The reasoning in Woodland has already been approved by the Scottish courts.

One of the HSE's arguments against the imposition of a non-delegable duty of care was policy considerations. It was argued that increasing the burden of risk on the HSE would reduce the scope of services which could be provided. The court was satisfied that their approach appropriately located the risk. They highlighted the increasing use of the private sector in providing medical services. The service provider was not absolved of its obligations by the mere fact that certain services had been contracted out. This underscores that the traditional responsibilities of health bodies will remain notwithstanding changes to the way services are provided.



Additional authors:

Bethany Dodds

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