Court of Appeal rules dental associate/practice relationship not akin to employment
On 21st July 2021, the High Court handed down its decision in Rattan v Hughes, which despite dealing mainly with claims for non-delegable duty, found the practice owner was vicariously liable for the acts of its associates. The practice owner was given permission to appeal, and on Friday, the Court of Appeal delivered its judgment on the case.
In addition to finding vicarious liability was present, the High Court judge ruled that the practice owner also had non-delegable duties towards the patient. You can find our analysis of the High Court decision, including what the non-delegable duty of dental practice means, more about dental and medical negligence and details of the facts of the case here.
Did the Court of Appeal agree with these two findings?
The Court of Appeal confirmed that the practice owner did owe the patient a non-delegable duty of care. The article above outlines the legal test for this, so we will not repeat that here.
Non-delegable duties have been well established in English law for many years, and this decision, therefore, comes as no surprise. Whilst this area of law may not have been utilised in clinical negligence claims involving dentists much in the past, the fact remains dental practices have always owed patients a duty of care that could not be delegated by sub-contracting the work to associates, irrespective of the employment status of those contracts. You should check your insurance policy to make sure you have protection in place if a claim is issued against you.
We have seen comments on whether the test would be different in a private setting; this case involved NHS treatment, where there was a contract to perform the dental services between the NHS and the practice.
We consider it unlikely a private practice would be able to distinguish itself from this case on that basis alone. The question is not whether the dental practice had a contractual right to delegate the work; the question is whether the patient places themselves in the practice’s care and is vulnerable to the risk of injury. Whether the dental services are offered via the NHS or private practice, the patient is placing themselves in the practice’s care, which advertises and administers the services.
The Court of Appeal, however, did not agree with the High Court on this point and ruled that the dental practice was not vicariously liable for the associates’ actions.
Whilst this is a moot point concerning clinical negligence claims because the non-delegable duty will still apply, this is a helpful finding more generally for dental practices, specifically dental medical negligence. The test for vicarious liability is whether the relationship in question is akin to an employment relationship. The Court of Appeal held that it was not akin. This decision is likely to assist in establishing that dentists are truly self-employed.
Whilst worker status has been challenged in the tribunals, such cases do not reflect the majority of the profession who wish to maintain the status quo and continue working on a self-employed basis.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.