For as long as anyone can remember dental practice principals have confidently asserted that their associates are self-employed independent contractors and therefore if things go wrong for patients treated by associates, it is the associates who are entirely responsible for any deficiencies in the dental treatment which has been provided. Her Majesty’s Revenue and Customs has generally been accepting of dental associates’ independent contractor status, the GDC regulates the conduct of associates as independent professionals, and of course the BDA and the assorted defence organisations have always taken the line that associates, and associates alone, are liable for the consequences of their acts and omissions. The bad news is that this longstanding and very comfortable arrangement, at least comfortable
for principals, no longer applies in dental negligence. This is due to very recent changes in the law relating to vicarious liability and separately in the scope of what is known as the non-delegable duty of care.
As regards vicarious liability, in 2012 the Court of Appeal extended the law relating to vicarious liability so that a principal is now liable for the negligence of an associate if the principal stands in a relationship that is “akin to employment” with that person.
The test for the imposition of vicarious liability is multifactorial, but essentially focuses on whether the associate is in business in his own account or is operating within the business of the principal. The individual tests applied are:
- Control – the level of managerial control over the activity of the worker,
- Organisation – how central the worker’s activity is to the organisation of the employer,
- Integration – whether the worker is integrated into the employer’s organisation, and
- Entrepreneur – whether the worker is in business on his own account.
So what of our average associate dentist? He or she does provides dental treatment for the practice principal’s patients. He is subject to the same managerial control imposed by the practice owner, and is as integral to the practice business of delivering dental services as any other member of the practice staff. Registration of a dental practice with the Care Quality Commission imposes on the practice principal a high level of control over all staff - including associate dentists - to enforce quality assurance outcomes relating to patient safety. Likewise a practice-based NHS contract will impose obligations on a principal as contract provider to ensure that any dentist performers, including associates, are compliant with quality assurance stipulations under the contract.
Applying the new test for vicarious liability to the overwhelming majority of dental associate/principal relationships
readily reveals that the practice principal will be held to be vicariously liable for any negligent treatment provided by his or her associate dentists, and indeed this was precisely the view adopted in April 2014 by the High Court in
the claim of Whetstone v MPS, a case which in essence involved a dental principal litigating against Dental Protection Limited.
In Whetstone, the judge considered whether a dental practice owner was vicariously liable for the negligent treatment provided by his associate dentist. Applying the new test of vicarious liability, it was held that, whilst the associate was indeed selfemployed, the relationship between the practice principal and associate was “akin to employment” and accordingly the practice principal was vicariously liable for the acts and omissions of his associate.
The bad news for principals does not end there. In October 2013 the Supreme Court in Woodland v Essex County Council reviewed the law on non-delegable duties of care, and expressly stated that the time had come to recognise that Lord Denning was correct in asserting that a hospital has a direct, as well as vicarious, liability to its patients. The principle underpinning the imposition of such a non-delegable duty was that the health care provider
assumed responsibility for the care of patients who were particularly dependent upon the observance of a proper standard of care and liability to the patient, and should not turn on whether the clinician providing the treatment was an employee or independent contractor.
The Supreme Court set out a number of criteria for the imposition of liability on a principal for negligence by an independent contractor, all of which are to be found within the relationship between a principal of a dental practice and a patient of the practice whose dental care has been delegated to an associate dentist. The effect of Woodland is that, in addition to their new vicarious liabilities, practice principals are now directly liable to patients for the negligence of their associate dentists as well.
What then is the practical reality for practice owners of this recently imposed double whammy liability for the misdeeds of their associates?
It is not overstating the consequences to describe them as potentially catastrophic. Practice principals are now responsible, and potentially legally liable, for treatment provided by every associate they employ and have ever employed, including those who have long since departed from their practice.
When dental negligence occurs, an aggrieved dental patient might in the first instance pursue a dental negligence claim against the associate who provided the relevant treatment. However if, or when, difficulties arise with such a
claim; then the practice principal will become the legitimate alternative defendant, and will be joined in the claim.
It is my understanding that the defence organisations do not currently provide indemnity cover for a practice principal’s vicarious, and direct liability for treatment provided by other dental professionals. This is a very significant gap in indemnity cover and may lead to successful claims in such circumstances being secured against the personal assets of principals.
In addition to the obvious financial risk of incomplete indemnity cover, practice owners may find themselves subject to a professional disciplinary sanction for not having adequate professional indemnity cover for all clinical liabilities, and indeed following the recent imposition of compulsory professional indemnity cover as a condition of annual registration there may be a risk to their registration.
Dental practice principals are now in law their associates’ keepers. They must as a matter of urgency seek advice to protect themselves from the business and professional consequences arising from their new liabilities.