Vicarious Liability - Will It Apply To Private Practice?
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- Published: Monday, 09 August 2021 19:59
- Written by Chris Tapper
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A specialist barrister has said that while “It is likely that a substantial number of cases will follow” in the wake of the Raj Rattan ‘vicarious liability’ case, the court’s examination of the NHS GDS contract may “Not be relevant to private dental work.”
Last month, GDPUK reported that Dr Rattan, Dental Protection’s Dental Director, is to fight a case in the High Court “As a matter of principle,” after the Court decided that as a practice owner, he was liable for treatment carried out by associate dentists at his former practice.
Dental Protection issued a press release after Deputy High Court Judge, Heather Williams QC, held that Dr Rattan was vicariously liable for the acts and omissions of three self-employed associate dentists, in respect of a Claimant’s dental treatment at Dr Rattan’s practice.
The judge held in Hughes v Rattan, that the “Defendant owed the Claimant a non-delegable duty of care in respect of this treatment” according to a report published on the Old Square Chambers website.
Dental Protection said “Mr Raj Rattan has said he will appeal the decision of the High Court that he, as a practice owner, is liable to Mrs Hughes for the treatment carried out by associate dentists at his former practice. He did not carry out any of her treatment and sold the practice six years ago.”
The case closely followed that of Dr John Croad, who found that he was similarly held to be vicariously responsible for treatment carried out in his practice by associates, many years after he retired from practice.
Now barrister Robert Kellar QC, has said that the circumstances surrounding Dr Rattan’s case related to the terms of the NHS dental contract and “Those terms would not be relevant to private dental work.”
Writing on the UK Human Rights Blog, the Barrister, who specialises in Clnical Negligence said “The question for the Court was whether the relationship between the practice owner and the associates was sufficiently ‘akin to employment’ to make it fair and just to impose vicarious liability.”
Mr Kellar wrote “The sheer fact that the associate dentists were self-employed, responsible for their own tax and national insurance and not in receipt of the kind of benefits that would be received by employees did not answer the question one way or another.”
“Whist associates were free to make clinical decisions and provide treatment as they saw fit, a relatively slight amount of control was sufficient for the purposes of the law on vicarious liability.”
“A number of factors suggested that there was a sufficient degree of control present. These included that that practice owner could decide when the premises were open and when his nursing and reception staff were made available.”
Of the Hughes v Rattan case, Mr Kellar said “It is clear that the outcome of this case turned upon its own particular facts.”
“For example, the Court was heavily influenced by a careful analysis of the terms of the GDS contract between the Primary Care Trust and the practice owner in relation to NHS work.”
“Those terms would not be relevant to private dental work. Indeed, the Court stated in terms that it had not been asked to decide whether the same duties would be owed to private dental patients.”
“Accordingly, the analysis performed by the Court in Hughes will need to be performed by the Court afresh in future cases.”
The barrister said Dr Rattan’s case is an “Important test case for those involved in healthcare litigation.”
“At first blush, this case suggests that the wind is blowing in favour of claimants on this important issue.”
Mr Kellar’s blog can be found here.
I also think that practice fee scales should be guidanceonly. Associates should be free to use the guide or set a different amount.
Brian Westbury
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