‘Dutiful’ or ‘Duty-full’: Duty of Care & Out of Hours Healthcare.

For better or for worse, the provision and management of Shropshire’s medical services has been a frequent topic in regional and national newspapers.

Serving a 1,347 square mile area, the provision of appropriate care, over such a large and regionally separated geographical area, is a cornerstone to the general public’s trust in its healthcare provision. In particular, what options are available when the need for care arises outside of a GP’s working hours - a topic brought into the spotlight following the recent announcement that out of hours primary care and urgent care may change in Shropshire for the first time in 20 years.

In February 2025, NHS Shropshire, Telford and Wrekin announced their, ‘intent to award’ the contract for out of hours GP services to, 'Medvivo', a private healthcare company specialising in providing urgent care NHS services in the South West.

Should the contract be formally awarded to Medvivo, they will be responsible for providing urgent medical care, outside core hours, and 111 services in Shropshire for at least the next five years. This will mark a change for Shropshire, as since 1996 urgent out of hours care services have been provided by ‘Shropdoc’.

Since the announcement, questions have been asked about this change in services. Whilst NHS outsourcing of services to private sector contracts is not a new phenomenon, it is understandable that some patients may ask, who is responsible should I suffer an instance of avoidable harm by a private sector provider?

This question raises an interesting, albeit complex, legal question on the duty of care and where care is not given by the NHS Trust itself but rather by a third party.

This blog seeks to overview and demystify some of the legal technicalities behind duty of care in this respect, and how this new development in Shropshire’s healthcare landscape may affect the rights of the community in cases of avoidable harm moving forward.

Basic Principles & NHS Trusts

It is well accepted that in the absence of a formal duty of care, whilst no one-stop shop test exists for every case, in certain categories of cases there are three general principles to consider when establishing a duty of care as set out in the case of ‘Caparo’(1). These are as follows:

• There is foreseeability of damage
• There is a relationship between the parties as one of proximity
• It must be fair, just and reasonable for the law to impose a duty

In the case of claims against the NHS, it is well-established that a doctor owes a duty of care to their patients. The NHS constitution even makes clear that a patient has the right to be treated with a professional standard of care. Usually, this duty is established at the point of being accepted for treatment or in the case of accident and emergency, when attending hospital to seek treatment.

During the development of this category of duty of care, some more unique cases have come to pass that have developed the basic principle of duty of care in the hospital context. For example, in the case of ‘Darnley’(2) , the Supreme Court held that a hospital receptionist owed a duty of care to a patient for advice given at accident & emergency. The receptionist had breached this duty by providing incorrect information on waiting times before triage for a head injury, which resulted in the claimant leaving the hospital and subsequently suffering a serious injury. The patient had been ‘booked in’ which was considered sufficient to establish the relationship of patient and healthcare provider.

More technical cases have also tested the understanding of duty of care. In the case of 'Khan v Meadows'(3), a GP failed to notice that a haemophilia test was abnormal and, believing the test was normal, the claimant had a child who developed haemophilia and autism. The claimant claimed for both haemophilia and autism.

The Supreme Court held that the duty of care extended to the haemophilia only (because the GP had undertaken to check against the risk of haemophilia only) and as such the GP had not undertaken to protect the claimant against the risk of her son developing autism.

Therefore, except in the occasional unique scenario where duty of care is pushed beyond its usually understood boundaries, a duty of care against an NHS Trust is typically straightforward to determine.

Duty of Care with Private Parties

Where the health professional providing care is doing so in a private practice, or is at a private hospital, the traditional duty of care takes a slightly different from form. A duty of care arises both under the law of tort (the same principles as above) but also in the contractual relationship created by the patient obtaining private services in exchange for monetary remuneration (ie the agreement to pay money for medical treatment).

Usually the contract between the patient and provider contains a clause to act with reasonable care and skill. If not, such a duty will be implied into the contract under by the Supply of Goods and Services Act 1982 (4). In practical terms, the distinction does not make much difference. In some specific circumstances, however, the patients’ rights might be subject to further protection under consumer/credit rights legislation. The private parties’ duty of care may therefore contain some further hurdles but, largely, remains similar.

Non-Delegable Duty of Care

In the case of an independent contractor providing healthcare services, such as a locum doctor, self-employed dentist or even a separate healthcare company, the legal position can become more complex.

The key question is whether the independent provider is liable in its own personal capacity or if the overarching NHS Trust, or local care provider, retains responsibility. This is called the non-delegable duty of care; meaning the circumstances in which the legal duty owed by a party can or cannot be transferred or delegated to someone else. Whilst services may be outsourced to a third party, the legal duty and liabilities may not be transferrable to that third party.

In answering this question, the starting point is in two stages: by firstly reviewing the statute (legislation by parliament) followed by reviewing the common law (case law).

Some UK legislation allows for a duty of care to be delegated out to a third party and where this is the case, the legislation cannot be overridden by the common law position.

A notable example of this in action is the case of, 'Hopkins and Akramy'(5) which concerned whether a Primary Care Trust (PCT) owed a duty of care for an out of hours medical practice providing NHS primary care, in circumstances where the nursing staff had been further sub contracted by the out of hours practice.

The nurse had performed a negligent assessment resulting in a permanent neurological injury to the claimant. The question was who should be sued: the nurse, the out of hours company, or the PCT (with the PCT being the only party who, if found to have retained their duty, could provide adequate compensation).

However, no such duty arose because UK Legislation, namely the NHS Act 2006, allowed a delegation of the provision of primary care services to the out of hours provider meaning the PCT did not have a ‘non-delegable duty of care’.

In short, the question to be asked is whether UK legislation exists to delegate a responsibility to the third party private provider.

If no relevant statute exists then the common law test applies as set down in the 'Woodland'(6)case. This case, concerning whether a local authority was liable for independently contracted teachers during a negligent school swimming lesson, set out a five part test establishing a non-delegable duty:

• The claimant is a parent or child or for some other reason especially vulnerable or dependant on the protection by the defendant against injury
• There is an antecedent (meaning existed before) relationship between the claimant and defendant and independent of the negligent act itself which places the claimant in custody, charge, or care of the defendant
• The claimant has no control over how the defendant choses to perform those obligations
• The defendant had delegated to a third party some function which is an integral part of the duty assumed. The third party is exercising the custody of care/control of the claimant that had been exercised by that party
• The third party has been negligent in the very function assumed by the defendant and delegated by the defendant to him.

The application of the test is well demonstrated in the case of 'Hughes v Rattan'(7) where the claimant received dental treatment on the NHS which was carried out by a private practice under an NHS contract.

The work was carried out by a self-employed dentist who undertook work at various other practices. Following negligent dental work, the claimant successfully claimed against the private dental practice. It was held that first the claimant was a ‘patient’ and analogous to the vulnerable or dependant on protection as in Woodland, the claimant was placed in the care of the practice creating a duty to protect them from harm, and that the claimant had no control over the obligations to provide care. The dental practice was liable for the damage.

Therefore, in cases of the private third party providing healthcare services on behalf of another, detailed legal investigation is required to ensure that, in the absence of UK legislation delegating to that party, that another party does or does not retain legal liability in the circumstances. Non-delegable duties thus act as a complex and technical area of duty of care.

A Change for Shropshire

The new announcement has certainly created increased attention on the provision of private contractor care within Shropshire. With the nature of legal liability of a new out of hours GP provider still to be determined, the change in provider should be a reminder to all those who consider that they may have suffered preventable harm, as a result of poor medical care, that the traditional position of a doctor owing a duty of care to its patients can often be more complicated than you think, and accordingly requires legal representation with the highest technical expertise.

Lanyon Bowdler’s Clinical Negligence Department is ranked in the top tier by Legal 500 and Chambers UK, and has a national recognition for its experience in medical negligence, handling all types of claims from birth injuries and amputations to fatal cases.

If you feel you, or a loved one, have suffered an injury as a result of poor treatment, please contact a member of our dedicated team to discuss. medical negligence, please reach out to us for a free consultation.

1. Caparo Industries plc v Dickman [1990] 2 A.C. 605
2. Darnley’ v Croydon Health Services NHS Trust [2018] UKSC 50
3. Khan v Meadows [2021] UKSC 21
4. Supply of Goods and Services Act 1982, Section 13
5. Hopkins and Akramy and Others [2020] EWHC 3445 (QB)
6. Woodland v Essex County Council [2013] UKSC 66
7. Hughes v Rattan [2022] EWCA Civ 107