Who's caring for me?

Medical Law International

Volumn 7, Issue 3, 2006, Pages 183-199

  Brazier, Margaret ^a   Beswick, Joanne ^b  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

^b STAFFORDSHIRE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

COMMUNITY CARE; GENERAL PRACTITIONER; HOSPITAL ADMISSION; HOSPITAL CARE; HUMAN; LAW; LEGAL LIABILITY; MEDICAL ETHICS; PATIENT CARE; PRIMARY CARE TRUST; PRIMARY MEDICAL CARE; PRIVATE HOSPITAL; RESPONSIBILITY; REVIEW; SURGICAL PATIENT;

EID: 33744945797     PISSN: 09685332     EISSN: None     Source Type: Journal    
DOI: 10.1177/096853320600700302     Document Type: Review

References (75)

1. On current arrangements for the provision of NHS care generally see C. Newdick Who Should We Treat? (2nd ed.) (OUP, 2004), in particular at 65-93.
2. In essence, the number of PCTs is to be cut to create fewer, larger and more remote PCTs. See "Planned Reorganisation to cost NHS £320 million in Redundancy Payments" Financial Times, November 24, 2005 re proposals being studied by the Department of Health roughly to halve the number of PCT's.
3. See also The Guardian, November 24, 2005 which claims that Patricia Hewitt is preparing to make 6,000 staff redundant due to the reorganisation of 300 PCT's into 100 leaner bodies. And note Sir Nigel Crisp's comments in July 2005 that PCT's should abandon their role as direct providers of services and concentrate on purchasing from other public, private and voluntary organisations.
4. See The Times, December 2, 2005.
5. See I. Kennedy and A. Grubb Medical Law (3rd ed.) (Butterworths, 2000) at 341;
6. M. Brazier Medicine, Patients and the Law (3rd ed.) (Penguin, 2003) at 34-35;
7. C. Newdick op cit, supra note 1.
8. Though see M.A. Jones Medical Negligence (3rd ed.) (Sweet and Maxwell, 2003) for an elegant account of the issues raised by direct liability at 605-619.
9. And on the implications for tortious liability of the NHS 'internal market' more generally, see C. Newdick 'Rights to NHS Resources After the 1990 Act' (1993) 1 Med. L. Rev. 53;
10. K. Barker 'NHS Contracting: Shadows in the Law of Tort' (1995) 3 Med. L. Rev. 161.
11. [1906] 1 KB 160.
12. [1909] 2 KB 820, CA.
13. See generally, Kennedy and Grubb op cit, supra note 4 at 343-44.
14. See Gold v Essex County Council [1942] 2 KB 293,
15. [1942] 2 All ER 237.
16. Razzell v Snowball [1954] 3 All ER 429.
17. And note the unusual context of this claim for breach of statutory duty; see Kennedy and Grubb op cit, supra note 4 at 344.
18. Cassidy v Ministry of Health [1951] 1 All ER 574 at 588.
19. And see the dissenting judgment of Sir Nicholas Browne-Wilkinson VC in Wilsher v Essex Area Health Authority [1986] 3 All ER 801, CA.
20. At 586.
21. Kennedy and Grubb, Principles of Medical Law, (Oxford, OUP, 1998) pages 460-462.
22. And see Newdick op cit, supra note 1 at 234-238.
23. See J. Murphy "A Theory of Non-Delegable Duties in Tort" (forthcoming);
24. E. McKendrick "Vicarious Liability and Independent Contractors - A Re-Examination" (1990) 53 MLR. 770;
25. Glanville Williams "Liability for Independent Contractors" [1956] CLJ 183.
26. See Kandis v State Transport Authority [1984] 1 54 CLR 672 (Australia);
27. Ellis and Wallsend District Hospital (1989) 17 NSWLR 553 (Australia);
28. Yepremian v Scarborough General (1980) DLR (3d) 513 (Canada).
29. See M. Brazier op cit, supra at note 4 at pp. 176-181.
30. See Bull v Devon Health Authority (1989) 4 Med L R 117;
31. Robertson v East Kent Health Authority [1999] Lloyd's Rep Med 123.
32. [1995] 2 AC 633 at 640.
33. See Barnes v Crabtree, The Times 1 and 2 November 1955;
34. M. Brazier op cit at pp. 160-2.
35. By virtue of National Health Service Act 1977, s.16CC(2), inserted by, Health and Social Care (Community Standards) Act 2003 s.174 which confirms that PCT's may enter into agreements with not only GP's, but also other NHS employees or private companies.
36. These services can be provided either under the GMS Regulations; National Health Service(General Medical Services Contracts) Regulations 2004 (SI 2004 no. 291 reg 4) PMS Directions; The National Health Service (Personal Medical Services) Regulations SI 2004 No 627; or Provision by PCT's; see National Health Service Act 1977, S.16CA inserted by the Health and Social Care (Community Standards) Act 2003, s. 170;
37. or APMS see Alternative Provider Medical Services Directions 2004, Department of Health, April 21 2004.
38. See Newdick op cit, supra note 1 at 86-92.
39. Patient Choice- Guidance for PCT's, NHS Trusts and SHAs on offering patients choice of where they are treated (Department of Health, 2003);
40. see Newdick op cit at 61 where he notes that the scheme that started for some treatments in 2003 will be extended to all patients from December 2005. All patients who have waited more than six months for elective surgery will be offered the choice between four or five alternative providers.
41. Department of Health Treating More Patients and Extending Choice: Overseas Treatment for NHS Patients (November, 2002);
42. see Newdick op cit, supra note 1 at 238-243.
43. [1998] Lloyd's Rep Med 157 (Huddersfield County Court).
44. As a County Court Decision, this judgment carried no binding authority.
45. Subsequent to the decision McFarlane v Tayside Health Board [1999] 4 A11 ER 961, HL any such claim for the birth of a healthy child is doomed to fail.
46. At 161.
47. See M. Brazier op cit at pp. 192-3.
48. [2004] EWCA 641 CA,
49. [2004] 3 WLR 469,
50. [2005] Q.B. 183.
51. [2003] EWHC 849 (QB);
52. [2003] PIQR P 607.
53. At paragraph 32.
54. Ibid.
55. Ibid.
56. Ibid.
57. Ibid.
58. At 481 paragraph 39, Lord Phillips cites Denning L.J. in Roe v Ministry of Health [1954] 2 Q.B. 66 with apparent approval. If a hospital undertakes to anaesthetise patients there is liability if anaesthesia is performed negligently.
59. (1989) 17 NSWLR 553.
60. (1980) 110 DLR (3d) 513.
61. See supra at note 23.
62. At paragraph 54.
63. At paragraph 52.
64. At paragraph 47.
65. [2003] PIQR P607 at P625.
66. PIQR Ibid at 629-631.
67. See Jones op cit, supra note 5 at 618-19.
68. See Child A at paragraphs 24 and 61.
69. See supra note 23.
70. It should be noted that levels of damages for pain and suffering are generally lower in civil law jurisdictions.
71. Such a claim is likely to be formulated as a claim for 'loss of a chance' i.e. delay reduced the prospects of successful treatment. In Gregg v Scott [2005] UKHL 2, the House of Lords rules out such claims unless the delay is of such magnitude that, but for that delay, the claimant would have been more likely than not to recover uneventfully.
72. Might it be argued that even a private hospital owes and organisational duty to patients to check that surgeons given operating privileges are (a) competent and (b) indemnified?
73. See The Times January 6, 2006.
74. [2004] Lloyd's Rep Med 521.
75. With respect, the statement in J.K. Mason and G.T. Laurie Law and Medical Ethics (7th ed.) (OUP, 2005) at 304, that the judge held it was arguable that the defendant health authority was vicariously liable for Dr Ayling's assaults, is misleading.