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Shocking Outcome in Recent Vicarious Court Case
I am sure many have heard about the recent judgment, despite different opinions on the case one thing remains blatantly apparent – a new precedent has been set!
It was revealed that a practice owner in Wales was found to be liable for damages and costs - more than two decades after his retirement.
Dental practice principals could in future be considered to be liable for the dental negligence of their associates, following a recent judgement. It will undoubtedly place additional stress and burden on already overstretched dental practice owners.
The BDA News website called the judgment “A shocking court case.” It said it highlights why some indemnity policies will not keep you safe from claims and damages. The judge made a judgement that the dental practice owner, owed a non-delegable duty of care to a claimant as a patient of the practice (regardless of whether he personally treated her).
During the hearing, Judge Harrison considered that the relationship between principal and associate was “akin to employment.”
Considering dental professionals are working agreed hours on set days, often in a uniform with a logo representing the company’s brand – gives rise to concern surrounding the employed vs self-employed status of the Associate Dentists. This turns on its head that HMRC considers associates as self-employed.
While this decision is not binding, the judgement is persuasive, and will certainly be the catalyst for change, as the implications of this ruling are potentially far-reaching within the dental profession.
The decision from this preliminary hearing is quite disappointing. The law only requires that individual practitioners hold appropriate indemnity to ensure patients have access to compensation in the event of a successful claim. There is no legal requirement for practice owners to also hold indemnity for treatment carried out by other practitioners, the majority of whom work as independent contractors.
This has always been the status quo, however if a practice owner is also to hold indemnity for treatment carried out by other clinicians, they would in effect be paying ‘double indemnity’ and these higher costs could have a devastating impact on many practices.
Although this case alone does not change the requirement for individual practitioners and associates to have appropriate indemnity arrangements in place, it will cause unnecessary worry to all practice owners or potential new owners and will no doubt lead to fundamental changes being put in place to ensure proper access to negligence claims for patients and service users are in place.
So what do you need to do?
Audit your staff files now
This all leads directly back to safer recruitment processes, and the importance of carrying out appropriate checks at the outset and review annually. You should have a clear and concise system in place to recruit staff who are fit and trained to carry out the specific role. You should have a policy and procedure in place that clearly identifies the process you must follow when recruiting staff members, the objectives should cover the following points:
- To support the Dental Practice in providing a fair, consistent and effective approach to the recruitment of all employees in accordance with employment law and best practice
- To provide a framework for recruitment, onboarding and induction, and training within the Dental Practice, this policy should dovetail with those other named policies and procedures
- To ensure that the recruitment procedure is in accordance with the General Dental Council's requirements and Professional Standards and that it meets recruitment systems' standards in line with the general requirements for healthcare staff
These policies are underpinned by the Health and Social Care Act 2008 under CQC Regulation 19: Fit and proper persons employed
The intention of this regulation is to make sure that providers only employ 'fit and proper' staff who are able to provide care and treatment appropriate to their role and to enable them to provide the regulated activity. To meet this regulation, providers must operate robust recruitment procedures, including undertaking any relevant checks. They must have a procedure for ongoing monitoring of staff to make sure they remain able to meet the requirements, and they must have appropriate arrangements in place to deal with staff who are no longer fit to carry out the duties required of them.
Employing unfit people or continuing to allow unfit people to stay in a role, may lead the CQC to question the fitness of a provider.
This is also echoed in our GDC standards:
Maintain, develop and work within your professional knowledge and skills.
Well led – Management arrangements
In theory, you should already have these systems and policies in place and be actively reviewing them. Strong, effective and efficient management of staff, policies and systems are required in order to ensure complete compliance in this area.
Review your current arrangements, and ask yourself the following questions:
- Do you have a strong management arrangement in place? This could be a partner, yourself as the owner or a practice manager.
- Have you established your core values? Are these reflected in how you approach your team? If you haven’t, I would make it a priority to set expectations and business boundaries so that all staff members are aware of the ethos of the practice that can be continually reinforced. Set a precedent for your team and hold each other accountable.
- Are policies routinely reviewed and the impact changes shared within the team? QCS regularly review policies and procedures that all staff can access on the dashboard – ensuring your staff are reading these documents and affirming their understanding is just as important, so ensure you have a system in place.
- Are you following safer recruitment procedures? Are the relevant checks taking place, such as references, enhanced DBS, checking the GDC register and following up on certification?
- Are these regularly reviewed at set intervals to ensure active renewal has taken place? Do you store evidence of this? Do you use a checklist to ensure all required documents are in place? What if a dental professional fails to hand their evidence in on time – are their clinics cancelled until they are presented to you?
- Do you regularly review DBS certificates? Renewed when needed or request they provide you with a self-declaration form?
- Do you carry out quarterly peer reviews of the quality of their work? Are you following up on feedback from patients? Is there a trend developing? Do you act on these and if so how?
- Have you reviewed your complaints procedure? How do you follow up on these complaints? Do you work collectively with the clinician to prevent more of the same in future? Would you create an action plan?
- Do you ask for patient feedback via satisfaction surveys? How do you utilise the information and feed that back into the wider team? How do you use this information to instigate and implement change?
- Are you accountable? How do you hold yourself and your team accountable? Ensuring ongoing training and self-development is monitored and reviewed alongside regular practice meetings to support a well-informed and trustworthy team.
- Document it – if it is not documented, it didn’t happen!! Make sure you are recording everything in writing and have a copy or email thread of all communication taking place between colleagues. This will be your evidence timeline to support any future action you may need to take.
Gone are the days of a gentleman’s handshake, or word of mouth recommendation. It’s imperative that your practice operates in a safe and robust way that can be evidenced at every step of the way. Make the change now so that you won’t suffer the consequences later.
Polices of use within the QCS system to support you:
- DPR01 Recruitment Policy and Procedure
- DAR41 Fit and Proper Person – Directors (CQC), Policy and Procedure
- DPR08 GDC Policy and Procedure
- DCP12 Staff Requirements and Involvement Policy and Procedure
- DCP03 Staff Identification Policy and Procedure
- DPC01 Agency staff Policy and Procedure
- DQQ07 Quality Assurance Policy and Procedure
- DQQ03 Complaints, Suggestions and Compliments Policy and Procedure
- DPG10 Whistleblowing Policy and Procedure
- DAB29 Duty of Candour Policy and Procedure
- DAC11 Record Keeping Policy and Procedure
- FSD01 – Patients Survey
- Resource Centre– Staff Record Checklist and Audit template
- Resource Centre – Clinical Records Audit
*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.