Dental Protection has set out a range of steps to help practice owners reduce the chance of a vicarious liability and non-delegable duty of care claim against them being successful.
This follows the 4 February 2022 Court of Appeal judgment on Hughes v Rattan. Dr Rattan, a member of Dental Protection and its Dental Director, was sued by a claimant who had received NHS treatment carried out by associates at his former practice. Dr Rattan never treated the patient, and the treating dentists were willing to respond to the claim, but the claimant via their solicitors refused to engage with them and instead continued to pursue Dr Rattan under both vicarious liability and non-delegable duty of care.
The Court of Appeal ruled that Dr Rattan was not vicariously liable for the actions of the associates concerned because of the freedoms they had in his practice, but the judges agreed with the High Court that the claimant had been placed in Mr Rattan’s care as a patient of the practice, and as such he had a positive non-delegable duty to protect her from harm caused by dental treatment.
Non-delegable duty of care
Non-delegable duty of care claims focus on the practice owner’s relationship with the patient. Where the practice owner is assumed to have a personal responsibility to the patient, the duty for the safety of that patient remains with the practice owner regardless of whether associates may have carried out their treatment.
In the Hughes v Rattan case, the judges took into consideration the claimant’s own perception that she was a patient of the practice rather than the individual dentists who treated her. The personal dental treatment plan form used in England and Wales (FP17DC) was significant in relation to this point, as this named Dr Rattan as the dentist providing her treatment. Furthermore, the claimant had not received any other documentation naming the individual dentists, and it was identified that patients were described as ‘patients of the practice’ under the associates’ agreement.
Dental Protection has set out the following steps for practice owners which may help reinforce that a patient is under the care of the treating dentist, and reduce the risk of a successful claim relating to alleged non-delegable duty of care:
- Practice leaflets and website – ensure information provided to patients explains that associate dentists are self-employed, independent contractors and are personally responsible for the treatment they provide.
- FP17DC/FP17DCO – the layout of these forms (used in England and Wales) is such that only the practice owner i.e. the provider under the GDS contract or PDS agreement, can be named. We would encourage practice owners in England and Wales to ensure the name of the treating dentist is added to the form either handwritten alongside the performer number or added into the Oral Health Assessment box which sets out the care and treatment required.
- Patient correspondence – ensure all correspondence with the patient – right from when the first appointment is booked – makes clear who is the treating dentist, and that the patient will be a patient of that dentist for the duration of their treatment. This includes ensuring that text confirmation of appointments state who the appointment is with, rather than just stating the practice name.
Vicarious liability
Vicarious liability claims focus on the relationship between the practice owner and the treating clinician. Recent Court cases have specifically examined the relationship between a practice owner and self-employed associate dentists, to ascertain whether it could be considered “akin to employment”.
In the Hughes v Rattan case, Dr Rattan was not considered vicariously liable for the actions of the associate dentists because of the particular freedoms they had in his practice. However as the finding was specific to this case, the judgment does not set a precedent for all other vicarious liability claims.
Dental Protection has set out the following steps to try and limit consideration that the associate relationship with the practice owner is akin to employment, and reduce the risk of a successful vicarious liability claim:
- Contracts – check whether any clauses could suggest a relationship akin to employment. For example, if the following are stipulated in associates’ contracts, it is less likely to be considered akin to employment:
- Associates are responsible for their own tax/national insurance contributions
- They can work for other practice owners or businesses if they wish
- They do not receive sick pay or pension from the practice owner
- They can choose which laboratory they use
- They are responsible for their own clinical audits of their patients
- They have complete clinical control over the dental treatment provided to their patient at each consultation, and are responsible for their own standard of work.
- They pay for their own clothing and non-standard equipment and materials.
- Indemnity – ensure contracts contain the requirement that associates holds their own indemnity, and check this regularly to confirm it is adequate and appropriate. Also ensure you as practice owner have additional protection against vicarious liability and non-delegable duty of care claims bought against you relating to treatment provided by associates. If your business is operated through a limited company, it is important to note that the company as an entity in its own right may need separate protection.
- Business cards – associates should hold their own business cards, with no practice branding.
- Contact details - retain up to date contact information for all clinicians, including at the point an associate leaves, so that the associate can be contacted in the event a claim is brought against the practice relating to treatment an associate has provided.
Geoff Jones, Executive Director, Member Protection and Support at Dental Protection, said: “Last year, Dental Protection extended its benefits for eligible practice principal members to include additional protection against claims relating to treatment provided by self-employed, contracted associates. Despite this reassurance however, we know experiencing a vicarious liability or non-delegable duty of care claim can still be distressing.
“At the time of the Court of Appeal judgment we said we would consider the Court’s findings carefully and provide further guidance. We have now set out some practical steps to enable practice owners to reinforce that a patient is under the care of the treating dentist, and to limit consideration that the associate relationship is akin to employment.
“To be clear, these steps will not stop certain dental negligence solicitors in their quest to bring vicarious liability and non-delegable duty of care claims against practice owners - even when the treating dentists have been identified and are willing to settle - but they may reduce the risk of such claims being successful. We will continue to do everything we can on this issue, on behalf of members and the wider profession.”
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About Dental Protection
Dental Protection is a registered trademark and a trading name of The Medical Protection Society Limited (“MPS”). MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.
Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.
Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.
MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.