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28
Sep
1
Posted by on in The Tooth Counsel

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.

©Julia Furley, JFH Law LLP, GDPUK Ltd, 2017
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25
Sep
0
Posted by on in DentistGoneBadd

Dental Software

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©DentistGoneBadd, GDPUK Ltd 2017.
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22
Sep
0
Posted by on in Alun Rees

This piece is not aimed at those people who work in salaried posts without a choice of materials, staff, equipment or patients. I believe they do great work in spite of the system. It is focussed on the self employed, those who have made the choice to hitch their wagon to the NHS and who now frequently find themselves with a dilemma of conscience.

The National Health Service, once “the envy of the world” is effectively broken. Starved of investment and degraded by political interference the morale of staff from cleaners to consultants is at an all time low.

The budget cannot stretch to include high quality dentistry so we have the ideal political option, control the fees, tax the recipients and squeeze the providers.

For more than five decades dentistry and dentists were perceived as the awkward squad and outsiders because they retained their independence and dealt with cash. After fifty five years the unthinkable happened, they were effectively neutralised, hobbled and brought firmly into the NHS tent. Limited contracts placed a cap on earnings. The new contract brought a system that measured activity but did not reward it and has ground down the nearly universal entrepreneurial spirit that had existed. No matter how hard you work you will never earn any more from practicing NHS dentistry only by profiting from other’s labours.

These controlled contracts have had their value eroded by inflation, post crash austerity and three successive governments determined to break another profession. Yet, counter-intuitively, the price paid for the exchange of contracts has increased out of all proportion.

Dentists complain, with justification, that their clinical freedom has been undermined, there is no reward for prevention and the fees paid are still linked to random measures taken a dozen years ago.

So why do dentists put up with it? Behind closed doors everyone  agrees that it is difficult, if not impossible, to maintain standards in the face of increasing bureaucracy, the imposition of disproportionate compliance and the threat of big brother GDC. Yet if a dentist dares to say to a patient that they cannot carry out a treatment to a satisfactory standard on the NHS and they could do it better if they charged a fee that is proportionate to the time, skill and materials required they can be pilloried for bringing the profession into disrepute.

The NHS is the elephant in the room of far too many discussions.

As a “retired” dentist (i.e. no longer on the register) and, running the risk of never being asked to be an after dinner speaker at a GDC bunfight (their loss, I’m quite a good turn), I’ll say it. In many cases if you want the full range of choices, materials, techniques and options of treatment to ensure that someone can deliver their best for you then you will have to pay that someone to treat you privately.

If you want dental care without the clinician needing to compromise, then you have to pay and not have the relationship controlled by a third party.

In my own practice I reduced my reliance on NHS funding in 1993 in the wake of a 7% gross fee cut, I had large borrowings but was fed up of being told how I should treat my patients, I wanted something that was better for them and better for me.

For much of the past 40 plus years NHS dentistry has avoided looking itself in the eyes, owning up and speaking the truth. The hamster wheel rotated ever faster until it became so compromised and patched up that it eventually ran out of spares and ground to a halt.

The majority of people seem to believe that the current situation is unsustainable and it cannot carry on much longer. Don’t think that the people who issue the contracts are going to change anything. They hold the cards, they are the ones who say jump and unfortunately a great many dentists default response is, “how high?”.

To return to the original question, why don’t dentists work privately?

In my experience the reasons fall into two main over lapping categories, fear and comfort.

Fear.

There’s a fear of failure, they think that their patients will not pay them, they fear that the patients will all run away to the practice down the road. They fear that they will not make any money, they quote anecdotes of people who have tried to leave and gone broke.

They are frightened they do not have the skills to perform dentistry to the best of their ability. That’s valid in the short term only, ask anyone who has escaped and they will tell you it takes several years to fully escape from the “make do and mend / just enough is good enough” approach encouraged and fostered by the stifling NHS contract.

Scratch the surface of a lot of these excuses and there often emerges problems with self esteem. They worry that they will be rejected, their patients will effectively say “We don’t love you any more”. They think that they are just not good enough human beings. 

What I also see are people who have skills which are not valued by their paymasters, presuming that they will not be valued by their patients, they say, “They don’t want good dentistry”. This is one small step away from, “they don’t care about themselves, why should I care for them?”

Comfort.

“People will often not make changes until the pain of not making a change exceeds that of making the change.”

The so-called comfort zone has to become pretty uncomfortable to force many to leave it. There is a line on the Pink Floyd track “Time” which runs, “Hanging on in quiet desperation, it’s the English way” for English substitute NHS.

The head in the sand is easier, the hope that Mick Armstrong, Sara Hurley et al will deliver a change, the nirvana contract. Then we will all return to the “golden age” of UK dentistry which you never actually experienced but older people have told you about. Wake up, it’s Jeremy Hunt who has got control and he doesn’t care about you.

There’s the money, let’s not forget, in spite of falling incomes for associates it seems that principals are surviving. With every year they are that little bit closer to claiming the NHS pension, but with every year of added stress they are less likely to enjoy a full life with the pension.

We must also consider the increased value of the practice, the market has peaked and the corporates are growing shy. It would only take a small government bill to remove the exclusivity of the contract and bang goes the bubble.

Final comfort excuse, “I support the NHS”. Really? Really??

I will often ask wavering clients to ask themselves, “Is this what you signed up for? Is this what you saw yourself doing when you left university? Is this what you want to be doing in 10/20/30 years time?”

 

If the answer to any of these questions is “No” then the next ask is, “When are you going to change?”.

 

So - why don’t dentists work privately?

 

 

 

 

 

 

©Alun Rees, GDPUK Ltd, 2017.
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18
Sep
0
Posted by on in DentistGoneBadd

Breaking the News

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©DentistGoneBadd, GDPUK Ltd 2017.
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15
Sep
0
Posted by on in Tony Jacobs

 

Today is the 20th anniversary of the first posts by four members of GDPUK, by email.


Yes, that is how we started, unbelievably before Google and Facebook!

I do love telling this story, and I'd like to share it with you. I was online from 1996, in those days it was dial up with those nostalgic modem sounds. The web was much more simple in 1997, and I taught myself, as many of you did, how to write a web page, rudimentary html, including how to upload it and make it display. I was interested in email communication, and before the ease of modern social media, email lists were the best method, using an internet protocol older than the WWW.

I was a member of an American dental group, IDF, which is still going, but it was very US centred, not particularly useful for a UK dentist. In April 1997, I got the idea of founding a mailing list for UK dentists, and thought about how to get a group together. The BDJ was the way forward.

So, I wrote a letter on my word processor software, posted to BDJ that month and carried on with work and my family. This was the pace of life only 20 years ago. Then in June, [only 8 weeks later :) ] I received a postcard [!!] from the editor of BDJ, saying yes, we will publish your letter. So, in the second August magazine, my letter was published, three colleagues replied, and we got started in the September. Here is the Medline link to that letter .... https://www.ncbi.nlm.nih.gov/pubmed/9293127

 

I must have the hard copy somewhere, ready for the GDPUK museum!!

We are celebrating the anniversary of GDPUK with our Conference in November. Early bird discounts available here https://www.gdpuk.com/conference/ I am looking forward to an interesting and unique day in Manchester - meeting colleagues old and new... all are welcome.

Looking forward to a celebratory drink with you all at the end of that day… cheers.

Thanks for reading and helping GDPUK grow for 20 years.

 

Tony

 
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