24 Jun 2021  •  HR & Employment Law  •  4min read By  • Zoe Close

Vicarious liability – your questions answered

Zoe Close, Practice Plan Head of Sales, and Sarah Buxton, an employment lawyer, explore your questions on vicarious liability and its impact on the profession…

The topic of vicarious liability that has come out of a recent court ruling has been worrying a number of dentists in recent months.

The landmark judgement at Cardiff Crown Court saw a former owner of an NHS dental practice found ‘vicariously liable’ for negligence after alleged poor treatment provided by an associate.

The court ruled that he owed a ‘delegable duty of care’ to the NHS patient, following an alleged malpractice being carried out by the dentist.

Until now, NHS dental practice owners who had a claim made against them were armed with an argument and were able to say dentists working at their practice were self-employed and independent contractors.

As a result of this, it was the individual dentists themselves who were responsible for poor treatment and resulting claims, however, this judgement has put the liability onto the practice owner, which has undoubtedly worried many people in the profession.

So, with that in mind, I caught up with Sarah at a recent webinar to discuss a range of questions sent in from dentists and practice owners.

ZC: If I was a practice owner, what sort of things should I have written into contractual agreements with associates?

SB: The first thing you need to do is make sure your agreements with the associates are bespoke and tailor-made. One of the things you need to look at is making sure there are various self-employed indicators within the agreement.

Also, we’ve been advising our clients to look at putting contractual indemnities in place so, for example, if a practice owner was in a situation where they were liable for an associate’s clinical negligence, then they would have the contractual right to sue them.

ZC: Is it important for businesses to make sure they have indemnity policies and extra cover in place?

SB: Yes, it is. My advice would be to consider not only your agreements but to double check your policies to make sure you have got vicarious liability cover in place. And if you use a good dentally aware broker, they will know exactly why you need it and what you need it for.

ZC: If you want to change someone’s contract, for example, to look at something that is perhaps more protective against vicarious liability, what happens if the associate isn’t in agreement with what you want to put in it?

SB: It is quite a difficult subject at the moment, however, I suppose it is a decision you have to make.

It’s really difficult at the moment because we’ve spoken about recruitment being a bit of an issue for the industry. Looking at and changing that contract to give yourself extra protection may leave you in a situation where the associate leaves, but that is a decision you have to make.

Personally, I think it is important to compromise on such an issue, and to make the contracts into something that suits both parties.

ZC: If it is an NHS contract, does that not pass the vicarious liability on to the NHS?

SB: No, how it works is that there are individual contracts in place, so there is an NHS contract in place for the owner, then the owner has a contract with the associates. The associates have no contract in place directly with the NHS.

This has made it difficult for lawyers over the last 12 months because the NHS tried to dictate or give guidance in respect of how associates should be paid, yet they had no contract with them and all they could do was penalise the practice owner in respect of their contract with them, so it is quite complicated.

ZC: Is the ruling likely to be revisited?

SB: This is the second type of judgement I’m aware of over the last two years; this particular judgement might be appealed, but we don’t know yet.

My understanding is that the practice owner doesn’t have the backing to appeal it; again, it comes down to making sure you’ve got adequate cover in place to ensure you have the appropriate level of funds should you need to appeal such claims going forward because our legal system is very expensive.

So, it isn’t clear if it will be revisited, but I do think we will see more cases like this coming up.

ZC: Thanks for taking the time to talk about such an important issue.

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