The case of Hughes v Rattan [2022] EWCA Civ 107 (Court of Appeal) from last year, is the most recent in a series of cases in which a patient has sought to hold the primary contractor under an NHS Standard General Dental Services contract (the practice owner) strictly liable for the alleged negligence of an associate dentist.
Dental Practice Structure
Since the NHS was created in 1948, it has generally been recognised that dentists operate as independent contractors. Dentists working within hospital settings or the public dental service, are employed by the NHS and the health board or Trust in which they work. However, general dental practitioners ("GDPs") who work in high street dental practices are generally self-employed. This allows GDPs to carry out NHS work, private work or a mixture of both, as well as work in different places. In practices which offer NHS services, there is usually a practice principal, who often owns the practice, and associate dentists. The practice owner does not have to be a dentist, or if they are a dentist, they do not necessarily need to provide dental services themselves. Associate dentists are not employees of the practice, but rather considered as subcontractors of the practice owner, carrying out NHS work as agreed with the health board or Primary Care Trust. NHS Regulations stipulate that it must be a condition of any sub-contract between the practice owner and an associate dentist that the associate dentist has in force an indemnity arrangement that provides appropriate cover to respond the provision (or alleged provision) of negligent treatment.
Background
The claimant was a patient of the dental practice owned by the defendant (the practice) between 2009 and 2015. She alleged treatment she received at the practice between 2009 and 2012 was negligent. The defendant, who has since retired and sold the practice, was the principal dentist at the practice but did not personally treat the claimant during the relevant time. The claimant received treatment from four dentists, consisting of one trainee and three associate dentists. The defender accepted that he was vicariously liable for any negligence by the trainee who was engaged under a contract of employment. The three associate dentists had each subcontracted with the defendant to provide NHS dental services under the General Dental Services contract between the defendant and the Primary Care Trust, the subcontracts all based on the standard template contract provided by the British Dental Association.
High Court Decision
Following the trial, the judge held that the defendant owed botha non-delegable duty of care to the claimant in respect of the treatment provided by the three associate dentists and that he could be held vicariously liable for any negligence proved by the associate dentists.
(i) Vicarious Liability
The framework for determining vicarious liability was laid out in Various Claimants v Barclays Bank [2020] UKSC 13. The key question to be considered by the Court here was whether the three associate dentists were working as part of their own independent business or as an integral part of the defendant's business when providing treatment at the practice. It was accepted that if the associate dentists were genuine independent contractors, vicarious liability could not be imposed. Ultimately, the court held that each of the three associate dentists were working as an integral part of the defendant's business, in a position "akin to employment" so therefore vicarious liability could be imposed.
(ii) Non-delegable duty of care
The lead case for determining the existence of a non-delegable duty of care is Woodland v Swimming Teachers Association [2013] UKSC 66, which listed 5 criteria which must be met to establish this duty. The Court held that the claimant satisfied the criteria as she was vulnerable to a risk of injury while receiving treatment from the dental practice; the claimant was in the care of the defendant as a patient of the practice, even if not treated by the defendant himself; and the defendant had therefore assumed responsibility to protect the claimant from harm.
Court of Appeal Decision
The defendant was unsuccessful in his appeal. The appeal judge upheld the finding that the defendant owed the claimant a non-delegable duty of care, and this was sufficient to dismiss the appeal without the need to consider vicarious liability. The appeal judge did, though, disagree with the original finding in respect of vicarious liability. In his view the wrong question was asked when considering whether the associate dentists were working as an integral part of the defender's business and it should have focused more on the contractual arrangements in place.
Why is this important?
The key issue raised by this case is the distinction and overlap between vicarious liability and liability for a breach of a non-delegable duty of care. In some cases both types of liability may apply. When looking at a working relationship such as discussed here between associate dentists and practice owners, the "essence" of the working arrangement needs close examination.
For more information or advice on issues relating to professional negligence or duty of care, get in touch with your usual Brodies contact or one of our Professional Indemnity specialists listed below.
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