Introduction
Are dental practices which service NHS General Dental Services Contracts liable for negligence by associate dentists whom they engage?
In Iris Hughes v Rajendra Rattan [2022] EWCA Civ 107 the Court of Appeal addressed this important issue.
Richard O’Keeffe, pupil at Old Square Chambers, has written a case summary following the judgment.
The facts
Dr Rattan was the owner and sole principal dentist at the Practice where Mrs Hughes received NHS dental care. Mrs Hughes was treated not by Dr Rattan, but by a number of other dentists, three of whom were self-employed Associates. Mrs Hughes alleged that her treatment by them was negligent, and the High Court had to determine whether Dr Rattan was liable for the acts or omissions of the Associates by virtue of either a non-delegable duty of care or vicarious liability.
The facts were largely agreed. Dr Rattan contracted with the Primary Care Trust under a General Dental Services Contract (GDS) (derived from the NHS (General Dental Services Contracts) Regulations 2005) to deliver dental services to patients. He was entitled to engage Associates to deliver those services, provided he took reasonable care to ensure they had appropriate clinical experience, training and arrangements for CPD and appraisal.
He contracted with Associates on an independent contractor rather than employee basis. The tax, sickness absence and pension position reflected that, but there was also provision for maximum holiday, parental leave, notice of termination, and restrictive covenants to protect the good will of the patients for the benefit of the Practice. Associates paid Dr Rattan a ‘licence fee’. Fees received under the GDS, NHS charges, private fees, laboratory fees, other expenses and bad debts, were all split 50/50 between the Associate and the Practice. Associates held insurance and provided an indemnity to Dr Rattan in respect of negligence claims. They had complete clinical freedom over, and responsibility for, their clinical decision-making and treatment.
Appointments were organised and patient records held centrally by the Practice. Mrs Hughes could express a preference for seeing a particular Associate but was not entitled to such. In respect of each course of treatment Mrs Hughes signed a Personal Dental Treatment Plan, which under “Provider’s details” referred to Dr Rattan.
The High Court
Heather Williams QC (as she then was – now Heather Williams J) held that Dr Rattan did owe a non-delegable duty to Mrs Hughes, in the sense described by Lord Sumption in Woodland v Swimming Teachers Association and others [2014] AC 537. Whilst employers are generally liable for the negligence of their employees, but not of independent contractors, Lord Sumption held that where certain criteria are met, a non-delegable duty will arise to see that care is taken by anyone to whom a task is delegated, including independent contractors. Those criteria are as follows.
Criterion (1). The Claimant was particularly vulnerable or dependent on the protection of the Defendant against the risk of injury (such as a child or a patient).
Criterion (2). The Claimant and Defendant had an antecedent relationship placing the Claimant in the care of the Defendant from which a positive duty to protect could be imputed.
Criterion (3). The Claimant had no control over whether the Defendant chose to perform that duty personally or through others.
Criteria (4) and (5). The Defendant had delegated to a third party some function which was an integral part of the positive duty, and the third party had been negligent in the performance of that function.
Criteria (4)-(5) were not in issue. On the agreed facts as outlined above the Judge held that criteria (1)-(3) were satisfied, and that Dr Rattan did owe Mrs Hughes a non-delegable duty of care in respect of the dental treatment she received at his practice.
The Judge also went on find that Dr Rattan was vicariously liable for any negligence of the Associates, in that his relationship with them was one akin to employment, per Baroness Hale in Various Claimants v Barclays Bank Plc [2020] UKSC 13, and, critically, that the Associates were carrying on activities as an integral part of the business activities of Dr Rattan per Lord Reed in Cox v Ministry of Justice [2016] UKSC 10 and Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. She focussed on integration, in that the Associates enabled Dr Rattan to meet his obligations under the GDS Contract, and that Dr Rattan bore the majority of the business risk, as well as features of the relationship which resembled employment, including what the Judge saw as elements of control.
The Court of Appeal
Dr Rattan appealed against the first instance decision both as to non-delegable duty and vicarious liability.
Non-delegable duty
Bean LJ, giving the judgment of the Court, held that Dr Rattan was under a non-delegable duty to Mrs Hughes in respect of the treatment she received at the Practice. Addressing in turn criteria (1)-(3) from Woodland, he held as follows.
Criterion (1). A “patient” within Lord Sumption’s description must include anyone receiving treatment from a dentist. There was no requirement that the Claimant be within a subset of especially vulnerable patients in order to qualify.
Criterion (2). The argument that the Practice assumed no duty to provide dental treatment but merely a duty to make administrative arrangements for dental treatment by an Associate failed. Once Mrs Hughes signed the Treatment Plan she was placed in the care of Dr Rattan. This was not because he was a dentist himself but because he was the owner of the Practice, and the position would be the same if the Practice had been run by a company or owned by a partnership. The Treatment Plan stated that “the dentist named on this form is providing you with a course of treatment”, and named only Dr Rattan. That was consistent with the GDS Contract, and the Associate Agreements which referred to “patients of the Practice”, and prohibited Associates from seeking to solicit patients away from the Practice. The duty owed by Dr Rattan was a positive or affirmative one to protect the patient from injury, and it involved an element of control over the patient.
Criterion (3). Mrs Hughes had no control over how Dr Rattan chose to perform his obligations, whether personally or through employees or third parties. She could merely express a preference. That she could refuse to be treated at all did not detract from that analysis.
Vicarious liability
In light of the conclusion on non-delegable duty, the issue of vicarious liability did not strictly arise. The court nevertheless expressed its conclusions, obiter, on the issue given that this was viewed as a test case.
Dr Rattan argued that the Judge had left out of account or given insufficient weight to a number of significant factors in determining whether the relationship between Dr Rattan and the Associates was one akin to employment, and in which the latter were integrated into the business of the former.
Bean LJ held that where primary facts are largely undisputed and the preliminary issue is one of law, the deference to be accorded to a multi-factorial evaluation by a trial judge is reduced. Bean LJ accepted that the Associates were carrying on their activities as an integral part of the Defendant’s business and for its benefit, and were not conducting, recognisably to someone with no knowledge of the contractual relationship, independent businesses of their own. However, Baroness Hale made clear in Barclays that use of the concept of business integration in Cox and other decisions had not eroded the classic test for vicarious liability, which lay in the distinction between employment (and relationships akin to employment) on the one hand, and relationships with independent contractors on the other.
Adopting that primary classic test, Bean LJ held that this relationship was not akin to employment, particularly in light of the Associates’ freedom to work as and when they wished, including for other practices, their total freedom as to their clinical judgments and procedures, their independent contractor tax status, their share in the business risk of bad debts, the requirement that they indemnify the Defendant against claims in respect of their treatment of patients, and their having to pay for their own clothing and professional development.
The appeal was dismissed in light of of the Court’s conclusion on ground 1.
Comment
This decision provides welcome clarity as to the liability of dental practices, which owe a non-delegable duty to patients treated in their practices, whether that treatment is provided by employees or independent associates. The long-established practice whereby dental claimants had to sue a multiplicity of dentists in order to bring claims which are often of modest value, perhaps in relation to a single tooth, need no longer be pursued. Instead the claimant can bring a single claim against the practice.
The judgment may be read alongside the recent decision of the Court of Appeal in Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827 [2022] PNLR 8, which prevents practices from requiring claimants to join associates to the claim against their wishes.
The judgment also represents an application of Baroness Hale’s bold judgment in Barclays, albeit obiter, to the effect that the classic distinction between employee and independent contractor remains the key test for vicarious liability, overriding any policy considerations regarding business integration.
Ben Collins QC acted for Mrs Hughes, instructed by David Corless-Smith of The Dental Law Partnership.
