The well-established legal principle of ‘vicarious liability’ means that an employer can be held responsible for the negligent acts and omissions of an employee.
There is an assumption that in such a relationship the employee has very little autonomy and independence.
Over time, the courts have come to recognise the fact that modern working relationships come in a variety of shapes and sizes, and are often not a true employer-employee relationship at all. But each court is free to decide whether or not a particular working relationship, however it is described contractually or intended to operate, is ‘akin to employment’.
For our profession, the greater the level of control exerted by the practice owner and the more unequal the balance of power and freedom to make decisions, the more difficult it becomes to resist the argument that vicarious liability exists.
The greyness of the law
As it happens, I was one of the witnesses who gave evidence when the dental case of Whetstone v Medical Protection Society [2014] EWHC 1024 (QB) was heard in the High Court, at the Royal Courts of Justice in London in March 2014 and had the pleasure of sitting through many hours of legal argument surrounding vicarious liability and an employer’s non-delegable duty of care. So, I am well placed to say that as a practice owner, you may be directly liable. But then again, you may not.
A potential risk certainly exists. If there is a normal employer-employee relationship, a practice owner will almost certainly be vicariously liable for the negligent acts and omissions of an employed dentist, hygienist, dental nurse etc. However, the practice owner’s indemnity may or may not cover this vicarious liability, and even if it does there may be conditions attached. Any uncertainty can be problematic if it brings the interests of the indemnity provider into conflict with those of the practice owner.
Why working arrangements are so important (and it’s not just because of HMRC)
Perhaps surprisingly, a practice owner may even be held to be vicariously liable for a self-employed dentist in some circumstances – but it is important to realise that it very much depends upon the individual working arrangement and because of this, practice owners need to understand how their own indemnity arrangements would deal with these situations.
What can dentists do to protect themselves?
Dentists who employ or otherwise engage the services of other healthcare professionals (of all kinds, including other dentists), should consider very carefully their exposure to vicarious liability claims. The risk increases if other dentists work in their practices for short periods and/or might be likely to leave the UK in the future or retire.
My advice
Practice owners should ensure that they have a suitable written agreement with dentists and any other registered health professionals with whom they work, such as one of the
BDA’s standard contracts.
Make it a condition of employment or a term of any other contractual relationship that adequate and appropriate professional indemnity should be maintained by every registered healthcare professional.
It is preferable that the person’s professional indemnity is occurrence-based because this helps to avoid the potential gaps associated with claims made indemnity/insurance arrangements. If the person’s indemnity takes the form of ‘claims-made’ insurance, this wherever possible should include ‘run-off cover’ (an extended reporting period) in perpetuity, without this being time-limited or dependent upon payment of any further premium by the associate in the future.
Practice owners should establish with their professional indemnity provider, whether or not cover would be available for claims alleging their vicarious liability.
Kevin Lewis
Special consultant to the BDA
Read
Kevin’s full article in BDJ In Practice (Member log-in required).
