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Can a practice principal really be liable for an associate dentist's criminal behaviour?

Can a practice principal really be liable for an associate dentist's criminal behaviour?

The question posed to the court was whether an employer can be vicariously liable for sexual assaults perpetrated by an independent doctor?

Between 1968 and 1984 Dr Bates was engaged by Barclays Bank to carry out medical examinations on potential and existing employees of the bank. Barclays at that time were undergoing a positive drive to recruit women into the bank and as a result a number of the individuals assessed by Dr Bates were women, some as young as 16.

Accusations against Dr Bates

The employees would go to Dr Bates’ home, where he had created a purpose-built treatment room. He would see the patients on their own with no chaperone present. They were required to undress to their underwear. The allegations against him included inappropriate breast examinations and digital vaginal or anal contact. Following the examination, Dr Bates would send a pro-forma document setting out the details of the examination to the bank. If the report was satisfactory the individual would be offered employment.

Dr Bates died in 2009, however in 2013 a police investigation was carried out which concluded that had he been alive, there would have been sufficient evidence against him to warrant a criminal prosecution.

Barclays’ vicarious liability

In 2016, 126 claimants sought damages against Barclays Bank in relation to the sexual assaults they had suffered. They claimed that the bank utilised the services of Dr Bates in the role of medical examiner in order to satisfy themselves that the person was fit to work for the bank and to confirm that they would be suitable for the life assurance policies in place.

In July 2017, the Hon Mrs Justice Davies ruled that, yes, the bank was vicariously liable for the actions of its self-employed contractor. The reasons she gave were as follows:

A two-stage test must be considered to determine whether or not a vicarious liability exists:

  1. Is the relevant relationship one of employment or “akin to employment”?
  2. If so, was the tort sufficiently closely connected with that employment or quasi employment?

When is a relationship “akin to employment”?

When the following criteria are satisfied:

– The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

– The tort (act) will have been committed as a result of activity being taken by the employee on behalf of the employer;

– The employee’s activity is likely to be part of the business activity of the employer;

– The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

– The employee will, to a greater or lesser degree, have been under the control of the employer.

 

The bank argued that Dr Bates was an independent contractor, and that he bore personal liability for the acts. Had the claim been made much earlier his personal estate would have been able to settle the claims.

 

However, to determine whether the relationship was “akin to employment” the judge applied the five criteria set out above:

– The judge concluded that whilst Dr Bates would have had indemnity insurance, that insurance would not have covered him for cases of sexual assault; his estate was distributed many years earlier.

– Employment was conditional upon the bank being satisfied on the basis of the medical examinations that the applicant was medically suitable for service. Dr Bates was the chosen doctor of the bank and he used their stationery.

– The purpose of the examination was to enable the bank to be satisfied that a potential member of staff would, health wise, be an effective member of the workforce. This was an intrinsic part of the business activity of the bank.

– The bank directed the employee where to go and gave no freedom of choice. They directed the doctor to undergo an examination, including a chest measurement! Many of the claimants, who were as young as 15 and 16 saw the doctor alone in his room and were asked to remove their clothing. The judge concluded that the bank created the risk of the tort (sexual assault) taking place.

– The fact that Dr Bates organised his own diary and carried out other medical activities did not negate the argument that he was under the control of the bank at the relevant time. The fact that the assessment took place at his home rather than the bank made no difference to this conclusion.

 

Tort closely connected with the employment

When considering stage 2, she concluded that the sexual assaults occurred during the course of a medical examination which the bank required the applicants to undertake for the purposes of securing employment. Dr Bates was trusted to do the work and placed him in a position to deal with the employees. This gave him the opportunity to abuse his position. The abuse was inextricably interwoven with the carrying out of his duties.

Would a practice principal be vicariously liable for the tortious acts of their Associates?

In short, the answer is yes. Whilst many associate dentists prefer to maintain their self-employed status for tax purposes (the Tooth Counsel has blogged on worker v self employed status on a number of occasions) the relationship that they have with the practice is almost entirely “akin to employment”. It is now common practice for associate dentists to appear to members of the public to be an integral part of their dental practice, bookings are made and diaries organised by the practice, patients and referring dentists are introduced to the associate via the practice, uniforms are often worn and the practice systems and stationery utilised. If an associate dentist commits an actionable tort against a patient or other member of staff whilst engaged by the practice, then the practice itself would be liable.

Whilst the principal of the “independent contractor defence” remains intact, this judgement sees the court extending the scope of vicarious liability significantly. Whilst the facts of the above case are extremely unlikely to arise in today’s society, particularly in a dental setting where nurses are present at all times when a dentist is seeing a patient, it is a valuable lesson to reinforce the view that the employers should not be complacent about the potential for poor behaviour by their independent contractors and the liability that may follow.

If you have any questions about this blog, or require advice and assistance in relation to your liabilities within the work place please feel free to email Julia Furley on This email address is being protected from spambots. You need JavaScript enabled to view it., or call us on 020 7388 1658.

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Recent comment in this post
Stephen Henderson

Unusual circumstances

Great summary of a curious case. The claimants came after the bank because it has deep pockets and the doctor is dead and his affa... Read More
Tuesday, 03 October 2017 07:22
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GDC Watch Winter 2017 - Sexual Misconduct

GDC Watch Winter 2017 - Sexual Misconduct

Recently, I have been mulling over issues of personal conduct.  This has led me to the specific topic of this blog which is sexual misconduct or otherwise inappropriate sexual behaviour. It looks at historic and current cases and I hope is just as interesting and thought-provoking for you readers.  Before anyone accuses me of misandry, I will state that I did not come across any examples of ‘females behaving badly’.

From discussions with colleagues and on other platforms it appears that the reason why the GDC have a mandate over personal conduct is not well understood.  The Standards relevant to personal conduct and behaviour are:


Principle One

  • 1.3.1  You must justify the trust that patients, the public and your colleagues place in you by always acting honestly and fairly in your dealings with them. This applies to any business or education activities in which you are involved as well as to your professional dealings.
  • 1.3.2  You must make sure you do not bring the profession into disrepute.

Principle Nine

  • 9.1  Ensure that your conduct, both at work and in your personal life, justifies patients’ trust in you and the public’s trust in the dental profession.

 

There are some difficulties here that need consideration:

  1. Whether the relevant standard is breached is ultimately partly dependent on the personal and moral views of the GDC employees and committees as the case progresses;
  2. Where can the line be drawn on what is an acceptable personal behaviour or boundary to maintain? Do we even know? Or is it rightly kept vague to move with our ever-changing world?

From a legal point of view case law dictates that surgeons, dentists, journalists, headmasters and even professional footballers are role models whereby ‘higher standards of conduct can rightly be expected by the public’.   This statement came about as a result of an unfaithful footballer involved in a threesome wanting to keep it out of the media believe it or not.  I’m not sure that Lord Woolf, when he made his judgement anticipated that today’s role models would also include reality TV stars who happily have sex on live TV but there we go.

The Indicative Outcomes Guidance (IOG) is always worth a read to understand how sanctions are arrived at and the reasoning behind it.  The purpose of a sanction is to both protect the public and the wider public interest.  What may on the face of it seem draconian and intrusive to a registrant’s right to a private life actually stems from GDC working extremely hard to maintain the reputation of and public confidence in the profession and they actually deserve credit for this.  Poor behaviour, even if it does not involve any patients has the potential to seriously undermine public confidence in the profession and bring the profession into disrepute.  With regard to sexual misconduct the IOG says:

 

So essentially, sexual misconduct allegations are likely to progress to a full hearing.

Sexual misconduct is essentially an abuse of power:



With all that in mind, here are some relevant case examples:

Dr AB kissed a dental nurse on the back of the neck without consent, and this was determined to be sexually motivated.  Dr AB denied the charges, gave inconsistent evidence, maintained that his actions had simply been misunderstood, accused the nurse of being racist and of wanting money from him as well as thinking he would just turn up and have his side of the story accepted as the truth.  This didn’t impress the panel and he was suspended with immediate effect for 12 months to hopefully give him enough time to have a really good think about all of this.  The Committee felt that the registrant lacked any insight, and pretty much knocked out all the defence submissions.  A couple of interesting lines from the determination are:
 

“The Committee was also aware that you are older than Dental Nurse A and in a position of professional power over her………

It [the committee] considered that dental nurses and colleagues do form part of the public and are included in the considerations of protecting the public.”

Therefore, professional boundaries do not just apply to Principals and patients.  Associates must also maintain professional boundaries with their supporting colleagues.

Mr CD was sentenced to three years imprisonment for sexual assault on a female; a conviction that was upheld on appeal.  The events surrounding the assault were the heads of charge and the FtP hearing considered both this misconduct and subsequent criminal conviction.   Misconduct was easily established, and the committee rejected the sanction of a suspension on the basis of no apology or demonstrable remorse from Mr CD and he was erased.  Placing your penis toward a patient’s mouth without their consent is possibly the most serious breach of professional boundaries, however it is interesting in this case that the sanction of erasure is automatically 5 years, which obviously exceeds the duration of his criminal sentence. Whether he ought to be allowed the chance to even reapply to the register is debatable.

Dr EF accepted a caution for kerb crawling but failed to report this to the GDC.  The panel disregarded the difficult personal circumstances reportedly faced by this registrant at the time of the incident as they did not mitigate against the seriousness of the conduct.  They also said:


“The Committee noted that the matters before it were not clinical in nature. It noted that there had been no harm to patients. However, it bore in mind that its primary function is not only to protect patients but also to take account of the wider public interest, which includes maintaining confidence in the dental profession and the GDC as a regulator, and upholding proper standards of behaviour.”

Dr EF was given a reprimand which will be on the public register for 12 months and as it will form part of the fitness to practise history it will be always be disclosable to any future employer and authorities in other jurisdictions.

A consensual sexual relationship with a patient can cost you a 3-month suspension as Dr GH found out not to mention on-going negative PR with the story still being available on Google many years later.  Dr IJ also knows only too well the damage that can be done after being reported to the GDC by a disgruntled ex-husband of a patient who lied in his witness statement about having seen ‘explicit’ text messages such that the case progressed to a full hearing before it was concluded with no case to answer. Press stories with a ‘guilty as charged’ tone to them relating to his case pre-hearing are also still available online. 

Are we beginning to see the problem with reputational damage to the profession yet?  The press can quite easily defame registrants with their reporting of potentially salacious cases before and during a hearing, and those pages will remain online even when a registrant is vindicated.  For this reason, relationships with patients are just somewhere no dental professional should ever go, aside from the fact that it is seen as being totally unprofessional and a serious abuse of position.  If you find you are heading down the route of a genuine relationship with a patient for goodness sake find them another dentist PDQ.

Moving on from relationships with patients, another potential danger zone is with employees and students.  When they rely on you to pay their wages or pass their finals there is a clear imbalance of power. If you have a fling with an employee be prepared for the risk of sexual harassment claims and grievances forever more. University lecturers may be accused of offering grades for sexual favours or bias (either positive or negative).  Having a relationship with a student is often considered a gross misconduct offence these days.   If you are a partner and you start fooling round with the staff on the quiet prepare for a total breakdown in trust.  It is just best not to go there and if you don’t believe me or feel I am being overly alarmist, ask any employment lawyer about historic compensations awards for harassment claims spanning back over years and years and partnership disputes.

At the time of writing a university lecturer is awaiting a hearing facing allegations of engaging in sexual activity in his office, and then being dishonest about it during the University investigation. We will have to wait to see if this would have made it to the GDC save for the dishonesty aspect.

For those who think that a fumble on the dental chair with one of the nurses is acceptable I am sorry to disappoint you but it is not, and it never was.

In the Mr EF case part of the charges included:


7. Whilst working with Miss LM, you had a consensual sexual relationship during the course of which on one or more occasions on Practice premises during surgery hours or shortly thereafter you:

(a)  exposed yourself wearing a thong;Admitted and proved
(b)  exposed your genitals;Admitted and proved
(c)  engaged in oral sex;Admitted and proved
d)  had sexual intercourse.Admitted and proved

8. Your conduct as above at 7 was:

(a)  unprofessional; Admitted and proved
(b)  inappropriate;Admitted and proved
(c)  indecent.Proved


The Committee found Head 8(c) proved because, by your admissions, other people were present in the practice and therefore you put yourself at risk of being discovered."

The determination also says:

The Committee has found that you behaved inappropriately and unprofessionally towards four dental nurses who worked with you, and that your behaviour towards three of them was indecent. As a partner in the practice, working directly with these dental nurses, you were in a position of authority over them – which you abused.  Furthermore you conducted sexual relations with Miss B in the practice, at times when you could have been discovered.

Mr EF was erased for this and whole host of other sexual misconduct misdemeanours including touching and making inappropriate comments to other nurses.

So even though many feel that consenting adults are entitled to some degree of privacy, the simple fact that they might be discovered in the act by a member of the public is enough to take things to the level of indecency.  Oh dear. This also makes it clear that consent has absolutely no relevance in excusing occurrences of sexual misconduct or otherwise inappropriate sexual behaviour.

Wherever there is a hierarchical relationship or an imbalance of power there is potential for actual abuse or allegation of abuse of power.  An allegation is all it takes, and I know of 2 instances where registrants have faced criminal charges based on false allegations.

Personal conduct involving sexual behaviour has an astonishing potential to bring out the widest range of opinion on what is acceptable or not if the recent debates on Facebook are anything to go by!   I am sure we all know of successful relationships between dentists and employees, lecturers and students, even dentists and former patients.  But this is really an area in which to tread extremely carefully as if you get it wrong the consequences are huge.

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