A judgment handed down at Cardiff County Court on 19 April 2021 has for the first time confirmed that the owner of an NHS dental practice is responsible for compensating a patient for negligent NHS dental treatment provided by associate dentists working at the practice. That this was not a long established statement of the law will come as a surprise to most dental patients who would view such liability as a legal given. The law has now been clarified and will enable victims of dental malpractice to bring claims against a practice rather than the individual treating dentists who may be uninsured, unco-operative or simply uncontactable.
The previous legal uncertainty came about because dental practice owners would argue that they are operating serviced surgeries to facilitate individual dentists to operate their own independent practices. In other words a dental practice was not providing dental care services to its own patients but simply providing the premises, equipment and materials, nursing and administrative staff and infrastructure. The dentists who carried out the treatment were providing their labour only. Patients were referred to the treating dentists by the practice and the dentists could not leave the practice and take patients with them. It was accepted that patients belonged to the practice and not the individual treating dentists. Despite all of this, the practice owner claimed that the associate dentists were self-employed independent contractors carrying on their own separate businesses.
The court has now decided that this is not a realistic interpretation of how a dental practice operates. An NHS dental practice contracts with the NHS to provide dental care for its registered patients. Under this contract the NHS practice owner is paid directly by the NHS to provide dental services and accepts a responsibility to the NHS for the quality of the care provided at the practice. The court followed a Supreme Court decision which imposed a duty on a party delegating a service or activity (which they have personally assumed a responsibility to provide) to a third party to carry out, to ensure that reasonable care is taken by that third party in the performance of the service. This is called a ‘non-delegable duty’ because although the actual performance of the duty can be delegated to a third party, liability for the satisfactory performance of the duty cannot be transferred to the third party. Therefore in assuming this contractual obligation with the NHS to provide quality care to patients, the law imposes on the practice owner a direct duty to provide dental care of an adequate standard and, if treatment is sub-standard, to compensate the patient.
This direct duty on a dental practice owner to exercise reasonable skill and care in the provision of dental care services operates regardless of who treats the patient, or whether the treating dentist is employed or self-employed.
The court also dismissed the notion that the treating dentists were independent contractors operating their own practices. Fatal to that contention was the fact that patients belong to the practice and not to the individual treating dentists. The associate dentists were therefore providing treatment to patients of the practice in fulfilment of the business of the practice and not their own businesses. As the treating dentists were carrying on a business activity on behalf of the practice owner, their working relationship with the practice owner was considered by the court to be analogous to an employment relationship. Consequently the practice owner was also liable for any negligent care provided by the treating dentists in his capacity as their ‘employer’ following another Supreme Court decision which had extended an employer’s vicarious liability for the negligence of their employees to include workers who are closely integrated into their employer’s enterprise and are viewed as akin to employees.
This judgment will now pave the way for claims in relation to unsatisfactory NHS dental treatment to be brought directly against the practice owner rather than the individual treating dentists. As the contract between the NHS and a dental practice providing NHS dental services is a national standard contract, the non-delegable duty of care imposed on the practice owner will apply to all NHS dental practices in England and Wales. Likewise dental practices hiring associate dentists to provide NHS dental services will be vicariously liable for any negligence of their associate dentists.
Dental Law Partnership acted for Mrs Breakingbury in this claim against the practice owner, Dr Croad. Chris Dean Managing Director of The Dental Law Partnership commented:
“If it were not for vicarious liability and the non-delegable duty of care, there would have been no reasonable prospect of success in the claim for our client, nor of our client being awarded the funds to pay for corrective treatment. Because of this ruling, Mrs Breakingbury, and all dental patients like her who have been the victims of dental negligence, will now have access to justice.”