than their best, allocating their limited resources as favourably as possible', Lord
Justice Mustill makes the following response:
`I have some reservations about this contention, which are not allayed by the
submission that hospital medicine is a public service. So it is, but there are other
public services in respect of which it is not necessarily an answer to allegations
of unsafety that there were insufficient resources to enable the administrators to
do everything they would like to do. I do not for a moment suggest that public
medicine is precisely analogous to other public services, but there is perhaps a
danger in assuming that it is completelysui generis,and that it is necessarily a
complete answer to say that even if the system in a hospital was unsatisfactory, it
was no more unsatisfactory than those in force elsewhere.'Cases likeBullandWilsherdemonstrate that there are an increasing number of
instances in which there seems to be an organisational failure in the delivery of
health care. If a health authority is at fault in the performance of its functions, this
may be described as negligence, notwithstanding the difficulty in locating parti-
cular employees who might be said to be negligent. Arguably, this is the basis of the
decision in the case ofLindsey County Councilv.Marshall/1936), and also other
earlier cases such asCollinsv.Hertfordshire County Council/1947), which found
negligence `in the management and control of the hospital'. A number of
Commonwealth authorities [12] have also found negligence in the organisation of
the hospital itself.
This distinction between direct and vicarious liability was described by Lord
Justice Brooke inRobertsonwhen he stated that:
`If effective systems had been in place... then the Health Authority would be
vicariously liable for any negligence of those of its servants or agents who did
not take proper care to ensure, so far as it is reasonably practicable, that the...
systems worked efficiently. If on the other hand, no effective systems were in
place at all... then the authority would be directly liable in negligence.. .'In either event, this should allow a patient suffering a medical accident to recover,
but as we move towards more systems-based approaches /through clinical
protocols and the like) this type of analysis may become more common.
Finally, it may be worth noting cases involving the administration of drugs and
blood products. In the Court of Appeal decision inBlythv.Bloomsbury Health
Authority/1987) [13], the defendant health authority appealed against a judgment
of Mr Justice Leonard, in which he found that the health authority was negligent in
failing to follow a system put in place to monitor the use of the drug Depo Provera.
The appeal succeeded, the Court of Appeal finding that the judge had reached the
decision, not supported by the evidence, that there had been divergence from a
system put in place within the hospital. Nonetheless, the Court of Appeal seemed
to have accepted that the tests used by Mr Justice Leonard in looking at whether
on a normal day an effective system existed by which patients could get advice on contraception from those who were equipped with the necessary information to enable them to give it fully', and whetherexceptionally something went wrong'
were acceptable tests within themselves. Implicit in the Court of Appeal's judgment
Responsibility,LiabilityandScarceResources 141