is the necessity for a health authority to ensure that patients within the hospital are
sufficiently well counselled in relation to drugs administered.
InRe HIV Haemophiliac Litigation/1996), an application by the plaintiff to the
court for an order requiring the Department of Health and Social Security /DHSS)
to produce departmental documents relating to its policies for the importation of
blood products was resisted by the DHSS, on the basis that the plaintiffs did not
have a good cause of action either by breach of statutory duty or in negligence. The
Court of Appeal gave judgment on the preliminary issue of whether or not the
DHSS might be in breach of statutory duty under section 3 of the National Health
Service Act 1977, or otherwise negligent in the design of a system to secure the
physical health of the people, and the prevention, diagnosis and treatment of ill-
ness within England and Wales. This was said to result from its failure to ensure a
self-sufficiency in blood, as a result of which haemophiliacs were treated with
Factor VIII blood products contaminated with the HIV virus, imported from the
USA. The Court of Appeal found that the relevant sections of the 1977 Act did not
found an action for breach of statutory duty as it was not clear that Parliament had
intended to allow individual enforcement and recovery /and see alsoDannsv.
Department of Health/1995)). However in relation to negligence the Court of
Appeal found an arguable case. In their words:
`It is obvious that it would be rare for a case on negligence to be proved having
regard to the nature of the duties under the 1977 Act, and the fact that, in the law
of negligence, it is difficult to prove a negligent breach of duty when the party
charged with negligence is required to exercise discretion and to form judg-
ments upon the allocation of public resources. That, however, is not sufficient
...to make it clear for the purposes of these proceedings that there can in law be
no claim in negligence.'It seems, therefore, that hospitals may increasingly have to face direct liability for
their failure to organise adequate systems of health care delivery. Thus, in an era of
resource constraint, if the delivery of health care is inadequate, it may become
easier rather than more difficult for the patient to find a remedy. This is not least
because the courts have traditionally been very protective of doctors /in particular)
and that when negligence alleged is that of the organisation, rather than the
medical professional, certain obstacles to medical negligence litigation may be
removed.
8.7 Case study
The principles considered above can be illustrated by the use of a case study.
Nisasister on night duty and is in charge of a small rural hospital which some
time ago closed its accident and emergency facility. Shortly before midnight on a
snowy winter's evening, two people arrive by car at the hospital. R says that he has
found, on the roadside very near to the hospital, an injured person, V, who
accompanies him. V has been the victim of a hit-and-run incident. V is fully con-
scious, but appears to have been hit in his upper body and may have broken a
number of bones. He is also bleeding badly from the head. The nearest accident
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