National Health Service: Legal Proceedings | 1 October 1949

National Health Service: Legal Proceedings

Guidance on the troublesome question of whom to name as defendants when an industry is nationalised and actionable rights accrue against units of the industry is always welcome to solicitors. A memorandum dated 15th September, 1949, issued by the Ministry of Health, contains detailed instructions to hospital boards and health committees covering this and other matters connected with legal proceedings where hospitals are involved, in regard to actions in respect of rights or liabilities accrued or incurred after the appointed day. Attention is drawn to s. 13 of the National Health Service Act, 1946, under which boards and committees are entitled to enforce any rights acquired, and are liable in respect of any liabilities incurred (including liabilities in tort), in the exercise of their functions, in all respects as if the board or committee were acting as a principal, and all proceedings for the enforcement of such rights and liabilities shall be brought by or against the board or committee in their own name. In cases where legal proceedings are threatened it is advised that the claimant's solicitor should be informed, if an opportunity occurs, of the view taken as to the correct defendant, but that where, through ignorance or otherwise, the Ministry is sued instead of the board or committee, the matter should, unless the plaintiff's solicitor is prepared to amend the proceedings, be brought at once to the notice of the Ministry, as it will probably be necessary, in a High Court case, to issue a summons under R.S.C., Ord. XVI, for striking out the Ministry from the proceedings and substituting the appropriate board or committee.

Instruction of Solicitors for Defence

The memorandum states that a hospital management committee will instruct solicitors, except possibly where a regional board employs a full-time solicitor or has dealt with the matter in its early stages. It also instances important types of case where it is appropriate for the solicitor to the Ministry of Health to act, or to be consulted, although the proceedings are in form by or against a board or committee. Authorities are authorised to see to the defence of nurses joined as defendants, but must refer cases to the Ministry where nurse defendants have acted outside the scope of their authority or for other reasons ought to be left to conduct their own defence. A doctor defendant will normally be represented by solicitors instructed by his defence organisation. It is stated that authorities are not authorised to undertake the defence of hospital doctors who may be sued in respect of alleged negligence and in the normal case should, if it is sought to make them liable for negligent acts of a doctor, take such steps as are open to them under the Law Reform (Married Women and Tortfeasors) Act, 1935, to obtain a contribution from him in respect of damages that may be recovered. Section 21 of the Limitation Act, 1939, which provides that action should not be brought against public authorities except where commenced within one year of the event complained of, should not be relied on except with the approval of the Ministry.