Taking steps to protect members from clinical negligence claims

High profile non-delegable duty of care claims had left some practice owners worried that they could end up being found liable for treatment provided by clinicians within their practices when they did not have direct involvement in the patient’s treatment. Thankfully though, after years of advocacy and engagement by Dental Protection, important changes have been made to the new FP17DC forms used by NHS dental practices in England and Wales, which could mark an important step in reducing the chances of these claims succeeding. 

How it started 

This journey started on 4 February 2022, with a Court of Appeal judgment on Hughes v Rattan¹. Dr Raj Rattan, a member of Dental Protection and our Dental Director at the time, was being sued by a claimant who had received NHS treatment carried out by associates at his former practice.

Dr Rattan never treated the patient, and the treating dentists were willing to respond to the claim, but the claimant via their solicitors refused to engage with them and instead continued to pursue Dr Rattan under both vicarious liability and non-delegable duty of care. 

While vicarious liability claims focus on the relationship between the practice owner and the treating clinician, non-delegable duty of care claims focus on the practice owner’s relationship with the patient. Where the practice owner is assumed to have a personal responsibility to the patient, the duty for the safety of that patient remains with the practice owner regardless of whether associates, or any other clinician in the practice, may have carried out their treatment. 

The Court of Appeal ruled that Dr Rattan was not vicariously liable for the actions of the associates concerned because of the freedoms they had in his practice. However, the judges agreed with the High Court and found he had a positive non-delegable duty of care to protect the patient from harm because she had been placed in Dr Rattan’s care as a patient of the practice he owned. 

The judges took into consideration the claimant’s own perception that she was a patient of the practice rather than the individual dentists who treated her. A key factor in the judge’s decision was that the then version of the FP17DC form referred to the ‘dentist named on the form’ as providing the course of treatment. The form only had a field for the provider’s name and details to be included which added weight to the argument that the practice owner was responsible for the treatment. The treating dentist could only be identified via their Performer number.

Furthermore, the claimant had not received any other documentation naming the individual dentists, and it was identified that patients were described as ‘patients of the practice’ under the associates’ agreement. 

The updated NHS FP17DC 

Since the judgment, Dental Protection has campaigned for amendments to the form to avoid other NHS practice owners in England and Wales being exposed to similar challenges and outcomes in these claims. This included making representations to the minister, meeting with key individuals within the Department of Health and Social Care (DHSC) and NHS England as well as submissions to the Health and Care Select Committee. 

The conclusion from this is that the new form² now also includes fields for treating clinician(s) to be named with the statement ‘The clinician named on this form is providing you with a course of treatment.’ It focuses attention on the clinician carrying out the work and not the Provider. 

That these changes have now been made is a great success not just for Dental Protection, but for Dr Rattan, who is now our Global Adviser. Even after accepting the outcome of the judgment in his case, he personally continued to highlight the need for these amendments, to benefit the wider profession. 

Impact on industry 

We thank the DHSC, NHS England and NHS Wales for making these changes when the forms were being revised which provides greater clarity for patients and a sense of reassurance to the industry. 

This change does not necessarily mean that claimant law firms will stop bringing non-delegable duty of care claims – it could however reduce the chances of such claims arising from NHS dental care in England and Wales being successfully pursued.

We urge practices to ensure their software has been updated to include the new form, and to consider the steps we have previously set out, which may also help in thwarting non-delegable duty of care claims. 

This includes ensuring information provided to patients explains that associate dentists and other self-employed clinicians are independent contractors and are personally responsible for the treatment they provide. Practices should also ensure that all correspondence with the patient – right from when the first appointment is booked – makes clear who is the treating clinician(s), and who is responsible for their course of treatment. 

At Dental Protection, we remain committed to doing everything we can on this issue, on behalf of members and the wider dental profession. 

References 

1 Rattan v Hughes: Hughes (claimant/respondent) v Rattan (defendant/appellant) - Courts and Tribunals Judiciary 

2 Updated treatment form: Where can I find information on the FP17DC, FP17DC(w), FP17DCO, and FP17DCO(w) treatment plan forms?  · Customer Self-Service