Who owes a duty to a patient: practice, practitioner or both?
Hughes v Rattan [04.02.22]
On 4 February 2022, the Court of Appeal handed down the latest judgment considering whether a dental practice can be held liable for the acts or omissions of self-employed Associate Dentists.
The claim concerned alleged negligent dental treatment by a number of dentists, three of whom were self-employed Associates.
Dr Rattan owned a dental practice in which he contracted with Associate Dentists to assess patients to fulfil his own obligations under both NHS and private regimes. The practice provided the administration support, equipment and premises that supported the treatment being provided. The Associates were not employees, but rather self-employed practitioners who held their own indemnity insurance for negligence. They could work for other practices as they wished, were responsible for their own tax and national insurance, did not receive sick pay, and had complete clinical control over the dental treatment they provided.
The claimant brought a claim in clinical negligence concerning the treatment she received from a number of the Associate Dentists. The claimant’s evidence was that she was a patient of the practice as she paid the practice, and made all appointments through reception (who assigned her to whichever dentist was available).
Decision at first instance
At first instance, the High Court held that both:
- Dr Rattan owed a non-delegable duty to the patients.
- Dr Rattan was vicariously liable for any negligence of the Associates (on the basis that the relationship was akin to employment).
Court of Appeal decision
The defendant appealed the decision largely focusing on the ‘antecedent relationship’ between the claimant and defendant. The defendant emphasised that the Associates had complete clinical control when performing treatment on the claimant and the claimant’s involvement with the practice itself was administrative only. The claimant was able to make a preference on which dentist she saw, however did not exercise that choice.
The Court of Appeal upheld that there was a non-delegable duty.
It was found that patients were under the care of Dr Rattan and thus an antecedent relationship was established as they were signing a ‘Personal Dental Treatment Plan’ which named Dr Rattan only as the dentist who was providing her with treatment. No other dentist was named.
The antecedent relationship was formed when the Personal Dental Treatment Plan was signed. It was therefore held that the duty owed by Dr Rattan “was a positive or affirmative one to protect the patient from injury; not simply to avoid acting in a way that foreseeably causes injury; and it involved an element of control over the patient”.
Furthermore, it was found that the claimant had no control over how the defendant chose to perform his obligations. Whilst it was accepted she could express a preference over which dentist she saw, her ability to refuse treatment by the dentist she was allocated by the practice did not remove the non-delegable duty of care.
The Court of Appeal concluded obiter that the Barclays test for vicarious liability (see Various Claimants v Barclays Bank Plc ) was not satisfied in this case for a combination of reasons but the two most significant reasons being:
- The Associate Dentists were free to work at the practice for as many or as few hours as they wished.
- They were also free to work for other practice owners and businesses, and some in fact did so.
The Associate Dentists also performed independent clinical treatments to patients and made their own clinical decisions when doing so, paid for their own professional clothing and indemnified the practice for any negligence. Overall, the retained Associate Dentists had independent businesses and not relationships akin to employment with the defendant Dr Rattan as the practice owner.
The issues for determination here will always depend on the facts and each clinical scenario will require particular consideration. Here the existence of a Personal Dental Treatment Plan in the name of the principle only was a critical factor. That will not always be the case in every practice.
The Court of Appeal finding in favour of non-delegable duty of care was relatively case specific, as it involved NHS dental care involving patients and the practice owner signing standard forms. These forms confirmed that the care primarily rested with the practice rather than the retained independent Associate Dentists. This allowed the court to make a finding of non-delegable duty of care based on the factual and evidential circumstances. We may distinguish this from non-NHS treatment. Private dental care is not based on standardised contracts and the patient’s treatment is primarily under the direction of an independent practitioner rather than the practice.
However there is no doubt that this case is significant for all dental practices and other analogous healthcare providers. Whilst insurers will welcome the obiter comments on vicarious liability, itself a long running debate, the extension of the non-delegable duty of care in this context is significant for all clinical practitioners, medical malpractice insurers, underwriters and legal practitioners working in this space and underscores the importance of having clear contractual indemnity arrangements in place. A review of all relevant clinical documentation is also recommended.