ways to increasingly centralised control /e.g. through NICE and the development
of clinical guidelines) there may be more room for the courts to insist that relevant
guidelines and protocols are followed. Thus a decision not to pay for prescription
costs of beta interferon to the alleged disadvantage of multiple sclerosis patients
was said to be unlawful in failing to follow national policy as laid down by a
government circular. However, the major development in this area must be the
passage of the Human Rights Act 1998, giving the possibility of challenge by
patients to treatment decisions. One can envisage potential claims under Article 2
/right to life) and Article 8 /right to family life) depending on the type of treatment
and circumstances of the case. It may also be possible to invoke Article 6 claims
/independent and impartial hearing) where significant decisions are taken without
reference to the patient. But there is a more general point here. As described above
it has been difficult to challenge treatment decisions except by reference toWed-
nesburyunreasonableness ± a stern test indeed. Now, post the 1998 Act, there are
signs of change. The House of Lords are beginning to speak of the need for public
bodies to demonstrate that, where human rights may be at stake, decisions are
proportionate /see for example the judgment of Lord Slynn inRv.Secretary of State
for the Environment ,Transport and the Regions ex parte Alconbury and Others/2001).
This is in many ways what Mr Justice Laws would have demanded inRv.Cam-
bridge HA ex parte B/1995), and it may allow courts to at least demand that the
process of decision making by authorities is subject to scrutiny even though the
courts will continue to disavow any wish to order the priorities for treatment.
8.6 From vicarious to direct liability
For many years, the view was taken that hospital authorities were not liable for
actions of staff in discharging professional duties. This applied to nurses in the
course of medical procedures under the guidance of the doctor whose control was
thought to be supreme'. However, the hospital authority remained legally responsible to patients forpurely ministerial or administrative duties' and these
included `attendance of nurses in the ward' /per Lord Justice Kennedy inHillyerv.
St Bartholomew's Hospital/1909)). This artificial division, and the concept of
control which underpinned it, was difficult to maintain, and inGoldvEssex County
Council/1942) Lord Greene expressed the view that:
`Nursing... is just what the patient is entitled to expect from the institution, and
the relationship of the nurses to the institution supports the inference that they
are engaged to nurse the patients... the idea that... the only obligation which
the hospital undertakes to perform by its nursing staff is not the essential work
of nursing but only so called administrative work appears to me... not merely
unworkable in practice but contrary to the plain sense of the position.'This case effectively established that a hospital authority would be vicariously
liable for the negligence of an employee, such as a nurse. A mistake made by a
nurse following the direct orders of a surgeon would probably not give rise to
liability, but the surgeon no longer ruled `supreme' even in the theatre. Following
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