Dental practice owners are vicariously liable for the acts and omissions of self-employed associate dentists – High Court

In the case of Hughes v Rattan, the High Court held that the Defendant, a dental practice owner, was vicariously liable for the acts and omissions of three self-employed associate dentists in respect of his dental treatment at his practice.

Hughes v Rattan arose from a dental negligence claim brought against the Defendant, Mr Rattan, the former owner of the Manor Park Dental Practice.  The claim arises from NHS dental treatment provided to the Claimant, Mrs Hughes, by four dentists engaged at the Practice, Drs Shahin Boghani, William Beattie, Rubina Fur and Yavar Khan (“the Treating Dentists”). Dr Khan was an employed assistant dentist; the others were self-employed associate dentists.

Mr Rattan provided NHS dental care pursuant to a General Dental Services Contract (“GDS Contract”) with his local Primary Care Trust. The terms of the contract were derived from the NHS (General Dental Services Contracts) Regulations 2005.  In addition, the agreement in place between the Mr Rattan and each associate, in common with many practice owners, was the British Dental Association’s standard template contract.

Mr Rattan contended that, as a matter of law, he is not liable for the acts and omissions of the Treating Dentists.  It is worth noting that Mr Rattan admitted that he was vicariously liable for the acts and omissions of Dr Khan as at the relevant time he was a trainee engaged under a contract of employment but not the three self-employed associate dentists.

This case came before the High Court by Order of District Judge Fine who directed the trial of the following preliminary issues, namely:

“Whether the Defendant is liable for the acts or omissions of Drs Shahin Boghani, William Beattie, Yavar Khan and Rubina Fur by virtue of vicarious liability or a non-delegable duty of care.”

As regards the vicarious liability question, the issue is whether the relationship between the Mr Rattan and the associate dentists was sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions. This is the first of two criteria that must be shown when vicarious liability is in issue.

It was accepted that if this relationship criterion is met, the second limb of the test, concerning the closeness of the connection between the relationship and the alleged wrongdoing, is satisfied.  

Patient of the practice

Mr Rattan sought to persuade the Court that it was necessary to show that he assumed a personal responsibility to provide the claimant with dental treatment as a pre-requisite to satisfying the statutory test.

However, Heather Williams QC (sitting as a Deputy High Court Judge), ruled that the claimant was a patient of the practice, not a patient of individual associate dentists for a number of reasons including in accordance with the terms of the GDS Contract.

On the question of vicarious liability, although it was noted that the associated dentists had some degree of individual freedom, i.e. freedom  to  make clinical  decisions  and  provide treatment as they saw fit, the Court commented that “a relatively slight amount of control may suffice” for the purpose of vicarious liability.

In addition, the Court held that “the  most significant question” is “whether the Associate Dentists were working as part of their own independent businesses or as an integral part of the Defendant’s business when they provided dental treatment”.  It noted that, in this case, the Associate Dentists were providing dental treatment as an integral part of the Defendant’s dental practice because Mr Rattan:

• determined when the premises were open;
• retained 50% of the monies received by the associates for their NHS work;
• controlled the number of holidays an associate could take;
• would not have been able to comply with the requirements and duties under the GDS Contract had he not recruited the associates.

And the associates:

• were subject to his powers and responsibilities under the GDS Contract;
• agreed to comply with the practice’s policies and procedures.

Conclusions

As always, each case will turn on its individual facts, however this case opens the door for negligence to be brought against practice owners for poor dental work by self-employed dentists operating within their dental practices.  The principle of this case can equally apply to other healthcare settings such as chiropractic care chiropractors, manual therapists and related health professionals commonly work within the same practice or GP practices.

There is also the potential of fitness to practise proceedings to follow cases such as these, depending on the individual circumstances of each case. For example, a registered healthcare professional carrying such liability must make sure they have adequate protections, risk management and insurance in place to protect the public.  If any of these are found lacking, it might result in complaints to regulatory bodies.