Vicarious liability and non-delegable duties in healthcare claims

Published 15 July 2021

The issues of vicarious liability and non-delegable duties have been both interlinked and evolving over the past number of years, particularly in the healthcare sphere. Traditionally, the independent contractor had been viewed as a separate entity, both economically and from a liability perspective, from the principal. The attitude of the Courts has begun to change, however, and the question of the extent of non-delegable duties has become harder to define.  All of the cases considered are highly reliant on their factual matrix and, in particular, the relationship between the parties.

Last year, the Supreme Court has, in the Morrissey v Health Service Executive and others [2020] IESC 6 decision, enunciated the overall test for vicarious liability as being one which considers whether the nature of the relationship, including the question of control, is such that it is similar in substance, if not in form, to the types of relationships which have traditionally been regarded as giving rise to vicarious liability. It was also held that the ultimate question for the Court to address when considering whether a party could be said to be vicariously liable for another was whether the level of engagement by one party with the way in which the other party is to carry out a task entrusted to it is sufficient to conclude that there is a real extent to which it can be said that the contracted party is closely integrated into the activities of the employer, not just in respect of the ends to be achieved but as to the manner in which those ends are to be pursued. It was, the Court said, difficult to give any true red line, for the type of circumstances which would arise would be many and varied. The legal relationship would certainly be relevant. So too would the degree of control. But neither would necessarily be decisive particularly where the substance of the practical situation may not always correspond with legal form.

In Morrissey, when considering the relationship between the Health Service Executive (“HSE”) and the laboratories with whom the HSE had contracted to carry out the examination of cervical smear samples as part of a national screening programme, the Court held that the relationship was clearly one of independent contractors and noted that the level of control exercised by the HSE was such that it could not give rise to vicarious liability. The HSE was therefore not vicariously liable for any negligence established against the laboratories.

Non-Delegable Duty

A person who has an established relationship with someone, such as a customer or patient, but who arranges for relevant work to be done by a third party, may become primarily liable in negligence for the work undertaken by the third party. For example, where it can be said that the party with the primary relationship with the patient knew or ought to have known that there was a real risk that the work which was passed on to a third party would not be carried out in an appropriate fashion. However, the concept of “non-delegable duty” has begun to evolve in the area of primary liability. A non-delegable duty may be said to arise where a party who has the primary responsibility with the customer or patient may be held, in certain circumstances, to have accepted a duty to ensure that any relevant arrangements will be carried out in a non-negligent way and may be held to have done so in circumstances where that duty remains in place irrespective of whether the contracting party chooses to carry out its side of the arrangement itself or to arrange for a third party to do so.

The Position in Irish Law

The issue of a non-delegable duty as it may arise in Irish law was considered in the Supreme Court decision in Morrissey. The Court noted that it had never been asked to fully consider either the question of whether such a principle applied in Irish law and, if so, whether the criteria for determining that a non-delegable duty arises were the same as those identified in UK case law. In this regard, the Irish Court gave very significant consideration to the UK jurisprudence, including the UK Supreme Court decision of Woodland v Essex County Council [2013] UKSC 66 [2014] A.C 537. The Supreme Court also considered the Irish High Court decision of Byrne v Ryan [2007] IEHC 206, in which it was held (approving the UK decision of Cassidy v Ministry of Health [1951] 2 K.B. 343) that where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services. In light of this finding, it was also held that a hospital owed a primary duty to the patient as the hospital authorities accepted the patient for treatment and it was their duty to treat him with reasonable care. They selected, employed and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, as it meant that they did not perform their duty to him.

The Supreme Court was of the view that it was necessary to consider the appropriate approach to be adopted and stated that a Court should be informed by an underlying principle, if there be one, but should also, to the extent that it was not possible to identify any underlying principle, adopt an incremental approach. The Supreme Court considered three questions in this context, as follows:

• The extent to which the concept of ‘non-delegable duty’ arises in Irish law;
• The parameters of the applicability of such a duty, should it be held to exist in principle; and,
• Whether it could be said that the arrangements of the HSE in respect of the cervical cancer screening process could be said to come within the scope of any such principle so as, in turn, to lead to the HSE being primarily liable for any negligence established in respect of laboratories whom it contracted to carry out work in the context of that scheme.

The Court noted that certain duties were owed to a wide number of persons pursuant to the long established ‘neighbour principle’, which did not require any particular prior relationship to impose such a duty, and, further, certain other duties already existed based on the relationship between the parties, such as between professional persons and clients or patients. The latter relationship, whether based on contract or otherwise, the Court noted, informed the parameters of the duty. Thus, the Court held that it was easy to see that there was a strong case for suggesting that someone who assumes that duty of care cannot absolve themselves from their obligations simply by arranging that a third party will carry out some of the activity which that duty requires to be accomplished. In the circumstances, it was appropriate to recognise that a relationship may give rise to some form of non-delegable duty. It was also appropriate to consider that there was at least one underlying principle behind the concept of the non-delegable duty, being that such a duty derives from a particular relationship between the parties. When considering the various factors identified, the Court was also of the view that they should be viewed in an incremental manner.

The Supreme Court also acknowledged in its Judgment that there continued to be significant differences between the way in which health services are provided in Ireland in comparison with equivalent systems in the UK. Even where patients have medical services provided to them free of charge, those services are often provided in Ireland to a much greater extent by the private sector under arrangements with the HSE. It also noted that many medical services are provided under publicly funded schemes without any contractual relationship and commented that the mere fact that certain services are no longer provided by contract should not necessarily absolve a provider from the kind of obligations which would likely have arisen under contract in the first place. The Court also noted that there was no reason in principle why the HSE might not have chosen to have its own laboratory in which certain screening could take place and that, to the ordinary woman who availed of the cervical check screening programme, the question of the precise ownership of the laboratory who would do the screening would not have appeared material.

When considering the relationship between the HSE and the laboratories undertaking the screening process, the Supreme Court was of the view that it was not appropriate to characterise the role of the HSE as being simply one of facilitating a relationship between patients participating in the cervical check screening programme and laboratories. Rather, the Court held, it was appropriate to characterise the HSE as the party who had undertaken responsibility for the scheme, irrespective of whether actual screening, or indeed other elements of the scheme, were to be performed by others. On that basis, the Court held that the HSE was primarily liable.

The Court also considered whether there was anything in the circumstances of the case which would lead to the view that the HSE had divested itself of responsibility for an element of the programme, being the element which involved the assessment of slides by screeners. The Court was of the view, having considered authority from the UK, that it would be to push the parameters of incremental change or evolution by analogy much too far to suggest that non-delegable duties could arise where it was clear that the obligation being undertaken was simply one of identifying appropriate third parties to carry out a relevant function. The Court identified the central question as, not knowledge of the identity of the various laboratories, but whether the arrangement viewed as a whole could be taken as one where the HSE was simply procuring that screening would be carried out by others, so that the HSE was divesting itself of responsibility for that aspect of the programme by entering into contracts with third parties. The Court held that there was no basis for such a suggestion.

In those circumstances, the HSE was held to have a non-delegable duty and to be primarily liable for any negligence which might be found against the laboratories. The Court reached this conclusion on a narrower basis than the trial judge, as the Supreme Court did not find the HSE to be vicariously liable for the acts of the laboratories. However, the HSE was held, in the manner in which it adopted and promoted the cervical cancer screening process, to have acted in a way which would lead an informed and reasonable person to assume that the HSE was undertaking responsibility for ensuring that the programme would be conducted in a non-negligent way and, further, that there was nothing in the circumstances of the operation of the programme which would lead a reasonable person to conclude that the HSE had absolved itself of any obligations in respect of the screening part of the programme.

Conclusion

Vicarious liability is long established in Irish law, however, the principle of non-delegable duty has only recently been considered by the Supreme Court. While the test for vicarious liability can be more readily discerned, the Courts have shown that the principle of a non-delegable duty is an evolving one which will be heavily reliant on the relationship between the respective parties. In light of this position, it will no longer be possible to strictly delineate between the overall service provider and the independent contractor. Notably, this remains the case even when the overall service provider cannot be held to be vicariously liable for the independent contractor. As a result, healthcare providers will need to re-assess the role of independent contractors in the context of the service being provided and the level of vulnerability of the patients concerned. Such assessments will also need to be undertaken having regard to the individual context of the various delegated functions and the relationship which the overall service provider has with the relevant patient. In particular, healthcare providers will need to consider the contracts in place with independent contractors and the indemnity clauses which the principals will look to rely on.