Guidance has been released by Dental Protection to help practice owners against vicarious liability and non-delegable duty of care claims.
Dental Protection has shared a range of steps for practice owners to prevent successful duty of care claims.
The guidance aims to reduce the chance of a vicarious liability or non-delegable duty of care claim being successful.
Hughes versus Rattan
This comes after the Hughes versus Rattan case earlier this year, on 4 February 2022.
Dr Raj Rattan is dental director of Dental Protection. He was sued by a patient who had received NHS treatment at his former practice. The patient accused Raj of both vicarious liability and non-delegable duty of care.
However, Raj had never treated the patient.
In addition, the associates who were involved in the treatment in question were willing to respond to the claim. Despite this, the patient refused to engage with them.
The patient continued to pursue the claim even though Raj was not involved in the treatment.
The Court of Appeal ruled that Dr Rattan was not vicariously liable for the actions of the associates concerned.
However, the judges agreed that the claimant had been placed in Mr Rattan’s care as a patient of the practice. As a result, he had a positive non-delegable duty to protect her from any harm during her treatment.
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Non-delegable guidance
The practice owner’s relationship with the patient is the focus of non-delegable duty of care claims.
As such, where the practice owner is assumed to have a personal responsibility to the patient, the safety of the patient is the responsibility of the practice owner. This is regardless of whether they are carrying out the treatment.
In the Hughes versus Rattan case, the dental treatment plan form used in England and Wales (FP17DC) named Raj as the dentist providing treatment.
In addition, the claimant had not received any other documentation which named the associates who carried out her treatment. Patients were described as ‘patients of the practice’.
The following steps have been shared by Dental Protection to support practice owners against similar non-delegable claims. The guidance reinforces the fact that the patient is under the care of the treating dentist:
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, ie 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.
Raj was not found to be vicariously liable because of the freedoms of the associates in Raj’s practice.
Regardless, the following steps have been shared by Dental Protection which aim to support practice owners against similar vicarious liability claims. The guidance tries to limit consideration that the associate relationship with the practice owner is akin to employment:
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
- Can work for other practice owners or businesses if they wish
- Do not receive sick pay or pension from the practice owner
- Can choose which laboratory they use
- Are responsible for their own clinical audits of their patients
- Have complete clinical control over the dental treatment provided to their patient at each consultation, and are responsible for their own standard of work
- Pay for their own clothing and non-standard equipment and materials.
Indemnity
Ensure contracts contain the requirement that associates hold 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 brought 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.
Distressing experience
Geoff Jones is executive director, member protection and support at Dental Protection. He stated: ‘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.’
He continued: ‘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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