Brace yourselves: dentists could be liable for actions of self-employed staff

Dental practice owners should take note of the recent ruling in Hughes v Rattan [2021] EWHC 2032 (QB), which found that the owner of a dental practice owed an NHS patient a non-delegable duty of care in respect of the treatment provided by the self-employed associate dentists working at his practice. The practice owner was found to be vicariously liable for their acts and omissions.

The relationship between the practice, the patient, the owner and the associates in this case was not unusual:

• The practice allocated the patient a practice reference number, held her records, arranged her appointments (although a particular dentist could be requested) and took her payment. The personal dental treatment plan she was provided with named the practice owner as the provider of the course of treatment.
• The associate agreements used were the British Dental Association’s standard template contract and it was agreed that any payment received by the practice owner from the PCT in respect of NHS services provided to patients would be spilt 50:50 between the practice owner and the associate who treated the patient.
• Under the GDS contract between the PCT and the practice owner, the practice owner was the “Contractor” responsible for providing dental services and who received all payment from the PCT. As “Contractor”, he could deliver these services via associates provided he complied with a series of requirements in relation to their selection, training and oversight.

The court applied the finding of the 2014 case of Woodland v Swimming Teachers Association and others in reaching its decision. In the Woodland case, the Court considered the five factors that indicate whether a non-delegable duty of care exists, being:

1. A claimant who is a patient or a child, or for some other reason especially vulnerable or dependent on the protection of the defendant against the risk of injury;
2. The existence of an antecedent relationship between the claimant and the defendant which either places the claimant in the actual custody, charge or care of the defendant, or from which you can impute a positive duty on the part of the defendant to protect the claimant from harm;
3. The claimant having no control over how the defendant chooses to perform its obligations to the claimant;
4. The delegation by the defendant to a third party some function which is an integral part of the positive duty he has assumed towards the claimant; and
5. The negligence of the third party in the performance of that function.

Applying these factors, it was held that the practice owner owed a non-delegable duty of care practice to the patient, despite not once treating her directly. The practice owner was duly held liable to the patient for any negligence on the part of the associates. The court also noted that the practice owner could also be vicariously liable in this situation as his relationship with the associates was ‘akin to employment’.

Prudent practitioners would do well to dust off the terms of their insurance policies in light of the findings and ensure that they are adequately protected in the event of such a claim arising.