We are often asked whether members need any additional protection when they are training, supervising or advising professional colleagues, either in a formally recognised mentoring capacity or in a less formal arrangement which otherwise shares many of the same characteristics. Coupled with this, we are often asked if the member is liable for the acts and omissions of a mentee.
Duty of care
Each individual practitioner has a duty of care to each and every patient in whose treatment they are involved. This duty of care has an ethical as well as a legal dimension and reflecting this fact, you should start from the premise that such a duty of care exists even when you are not treating the patient personally.
Depending on the specific relationship between the mentor and mentee, it may be possible to argue that the mentor is in some respects vicariously liable for the negligent acts and omissions of the mentee.
In a ‘true’ mentoring arrangement, however, it should be clear (and separately confirmed in any documentation regarding the arrangement) that the mentee is autonomous, working independently and electing to call upon the advice and guidance of the mentor only as and when he/she chooses to. In such circumstances, it would be extremely difficult to demonstrate vicarious liability on the part of the mentor.
However, a mentor should not assume from this that they could never be held to be liable for any adverse outcome as a result of a mentee’s treatment of a patient. There could be circumstances in which a mentor could be drawn into civil proceedings such as a negligence claim, or into a regulatory complaint or investigation. For example, the mentor could be named as a primary defendant or co-defendant in a negligence claim or, alternatively, could be the subject of a ‘third party’ action, perhaps brought by a mentee who feels aggrieved that he or she has followed the mentor’s advice and guidance and has ended up being sued as a result.
If the mentoring is taking place under the auspices of a training organisation (especially one which has approved or endorsed the appointment of a particular individual as mentor), it is also possible for proceedings to be brought against this organisation. Under normal arrangements this is less likely to be as a third party to a claim in negligence brought by a patient, but a separate action brought by a dentist/mentee who is him/herself subject to a claim in negligence by a patient.
Another possibility is that the mentor or training organisation is brought into the action by the mentee’s defence organisation or insurer. The mentee might then sue the organisation either in negligence (for a breach of duty of care to the mentee) or for breach of contract (if, for example, the organisation has undertaken to provide a level/quality of support which does not materialise on a particular occasion). If the mentee has paid any money to the mentor or to the training organisation for the provision of the mentoring service, the contractual obligations are even easier to demonstrate.
We look upon a mentoring role as part of your professional activity. No additional subscriptions are payable by the mentor unless you have opted for membership in a non-clinical category which excludes any involvement in the treatment of patients. If you are mentoring a practitioner who is placing implants, both of you must be indemnified to provide implant dentistry.
While members can look to us for advice, support and representation in their personal capacity as a mentor, this would not normally extend to indemnifying any corporate or similar entity through which they might provide these services unless specific arrangements had been made in advance, ie, through taking out corporate membership for the organisation itself.