Farraj v King's Healthcare NHS Trust & Cytogenetic DNA
Services Limited [2009] EWCA Civ 1203
In the August edition of SMIB we looked at the issue of
antenatal testing and independent contractors arising in the
Scottish case JS v Lothian Health Board [2009] CSOH 97. Of
particular interest was Lady Stacey's consideration of issues
surrounding non-delegable duties of care. Similar issues arose in
the English case Farraj v King's Healthcare NHS Trust.
Mr and Mrs Farraj, a Jordanian couple, are both carriers of a
gene which can cause beta thalassaemia major (BTM), an inherited
blood disorder which is disabling and gives rise to reduced life
expectancy. In 1995 Mrs Farraj was pregnant with her third child
and the couple were advised by a consultant obstetrician at the
King Hussein Medical Centre in Amman to undergo DNA testing which
would detect whether the child would suffer from BTM. If the
results were positive, the couple intended that the pregnancy
should be terminated.
In May 1995 a tissue sample was taken from Mrs Farraj, with the
intention being that this was to be a tissue sample from the foetus
rather than the mother. The sample was sent to King's Healthcare
NHS Trust in London. On examining this sample, personnel at King's
concluded that it was not suitable for DNA testing. The sample
required to be cleaned and foetal tissue identified. King's did not
have the facilities to carry out this cleaning and identification.
The sample was therefore sent to Cytogenetic DNA Services Ltd, a
cytogenetic laboratory. Cytogenetic returned the cultured sample to
King's in June 1995 where the DNA testing was carried out and it
was found that the foetus did not have BTM. The result was conveyed
to the Farrajs' obstetrician in Amman.
Unfortunately, when the baby was born he was found to suffer
from BTM. The test result had been wrong and Mr and Mrs Farraj
commenced proceedings. The error stemmed from the fact that the
sample had been taken from the mother and not the foetus. King's
had no way of ascertaining this fact and this task had fallen to
Cytogenetic. It transpired that a technician at Cytogenetic had
harboured doubts as to whether the sample comprised or included any
foetal tissue, but had failed to pass these doubts on to
King's.
The trial judge held both Cytogenetic and King's liable in
respect of the error, but split liability 66/33: Cytogenetic on the
basis that it had been negligent not to pass on the technician's
doubts; King's on the basis that they ought to have positively
enquired whether the sample was a reliable source of foetal tissue.
That decision was appealed and the Court of Appeal held that the
judge should not have reached that view on the evidence. They
concluded that King's had been entitled to assume that the sample
was satisfactory, unless Cytogenetic informed them to the contrary.
As a result sole responsibility for the error lay with
Cytogenetic.
The Farrajs, however, also sought to argue that King's owed them
a personal non-delegable duty of care for the negligence of
Cytogenetic. The Court of Appeal rejected this proposition.
In reaching that view Lord Justice Dyson commented that English
law has now reached the stage where it is recognised that a
hospital owes a non-delegable duty to ensure that its patients are
treated with due skill and care - "depending on the facts of
the particular case". Lord Justice Dyson further stated that
there is a significant difference between treating a patient who is
admitted to hospital for that purpose and carrying out tests on
samples that are provided by a person who is not a patient. He
accepts that a non-delegable duty arises where a patient is
admitted to hospital and has tests carried out, but that is because
the conducting of the test is part of the treatment the patient is
receiving in hospital. Lord Justice Dyson therefore ultimately
concluded that there was no special basis for finding that a
special duty was owed by King's to the Farrajs, as they were not
receiving treatment at King's.
Of interest, Lord Justice Dyson took the view that neither the
claimants' expectations nor the severity of the consequences of the
error ought to have a bearing on the existence of a non-delegable
duty.
Lord Justice Sedley agreed with Lord Justice Dyson's approach,
stating that the facts of the Farrajs' case did not fit the
paradigm of patient and healthcare provider, but rather the
provision of analytical and diagnostic laboratory services. As
such, in the absence of some express prohibition, there was no
principle of law which prevents the entire or partial delegation of
that task. In the event that the task is delegated to an ostensibly
competent sub-contractor, it is the sub-contractor who will be
liable in respect of any error made by them.
Therefore, had Mr & Mrs Farraj been patients of King's then
a non-delegable duty would likely have existed.
Contributed by Caroline Gordon