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Kevin Lewis – the law of unintended consequences

by adminjay

Kevin Lewis explores the unintended consequences that have led to vicarious liability.

I have lost count of the number of times when I have either witnessed, or experienced at first hand, this frustrating phenomenon.

Somebody makes a decent enough decision in order to deal with a particular issue or solve a particular problem – but further down the track it becomes painfully clear that in solving one problem they have unwittingly created another, perhaps greater problem.

Or several such problems that also carry much greater risk or are considerably more difficult to fix than the original problem was ever likely to be.

Dentistry is currently awash with examples of this, not least the issue of mandatory Covid vaccinations. 

Even if one were to accept that dentists (and other dental health professionals) electing to leave the profession prematurely or in mid-career was always a likely consequence of mandation, the findings of the recent UK-wide study of undergraduate student views were less predictable and almost certainly unintended.  

This study found that for every 20 students who had happily received two doses of the vaccine and also a booster dose by mid-December 2021, at least one other student had stated an intention to refuse the vaccine and withdraw from their course altogether.

A ratio like that has unintended financial and practical consequences for the universities and also profound long-term consequences in terms of dental workforce planning.  

However and wherever this issue finally lands, it has not reflected well on those ‘upstairs’ and their inability to think ahead; it has also sent some very curious mixed messages regarding patient autonomy and consent.

A generation earlier, the demands of infection control had driven a paradigm shift towards a greater use of disposables – creating unplanned mountains of packaging, clinical and other hazardous waste requiring safe disposal, at significant extra cost.

It should have been equally predictable that ‘fallow time’ and the other SOPs would decimate the numbers of patients seen in 2020/21 – but seemingly not?

Unintended consequences have been the recurring hallmark of NHS dentistry ever since its launch in 1948, when the government grossly underestimated both the public uptake of free dentistry, and the limitless resourcefulness and productivity of dentists when suitably incentivised.

The scale of the tsunami of dentistry that followed was unintended, but it provoked swift corrective action. 

Three successive deep cuts in the original fee scale, and the imposition of patient charges to reduce demand, had all happened within barely three years.

History repeated itself in 1992 when the government decided that dentists were doing much too well out of the 1990 contract – which was never their intention.

A cunning plan

But a less obvious lesson from history had occurred in the 1960s, when the gross fees generated by assistant dentists were buried within, and artificially inflating, the gross earnings of the principals/practice owners.

This led the government to conclude that principal dentists were over-earning. 

To solve this problem, the BDA came up with the ingenious idea of these assistants becoming independent contractors (associates) with their own visible earnings, making their own contributions to the NHS Pension Scheme and paying an agreed percentage of their gross earnings to the practice owner as a license fee for access to the patients, facilities and other services being provided.

But over time this independence and partial autonomy had the unintended consequence of fuelling practice disputes over so-called ‘clinical freedom’, fee assignments and the percentage split, the ownership of patient goodwill and the solicitation of patients after leaving the practice.

Practice owners tried to wrestle back control by tightening up the associateship agreement – the Confederation of Dental Employers (CODE) was in its heyday and the BDA and the (then) GDPA were kept busy reacting to events and refining their own versions of such an agreement.

All these well-intentioned and laudable efforts to give the practice owner a proper degree of business protection, has itself had another unintended consequence as highlighted by a cluster of recent legal decisions on that most contentious of topics – the status of the dental associate and the split of responsibilities between associates and practice owners. 

The BDA Associateship agreement has long been viewed as the gold standard, balancing fairness to associates with protecting practice owners.

But the very features that make it so excellent for its originally-intended purpose, especially when coupled with the unfortunate but forensically crafted wording of the NHS provider contracts, are now being used as blunt instruments with which to beat practice owners.  

In this series of litigation directed against practice owners it is being argued firstly that the working arrangements crystallised in the above documents collectively result in a practice owner being more likely to be considered vicariously liable for the negligent acts and omissions of self-employed associates as well as employees. 

And secondly, in many cases a practice owner will also have a duty of care for every patient treated in the practice, whether or not they ever treat them personally, and that duty cannot be discharged by arranging for the patient’s care to be provided by a GDC-registered and appropriately indemnified associate dentist.

Each case turns on its specific details, but for practice owners it is starting to feel more like a case of ‘out of the frying pan into the fire’ than an unintended consequence, because acting prudently, professionally, fairly and responsibly offers precious little protection against this kind of litigation, and creates a climate of continuing uncertainty and risk for practice owners.

Best of intentions

In 2005 the GDC was granted its statutory powers to implement mandatory professional indemnity, and quite properly its entire approach to mandatory indemnity is based on professionalism – registrants taking personal professional responsibility and accountability for their own actions, ensuring that adequate and appropriate indemnity arrangements are in place and co-operating with indemnity providers and third parties in patients’ best interests to ensure that they can obtain any due compensation without undue delay. 

Dental registrants are required to hold indemnity in respect of their own acts and omissions, but not those of other people; all very logical and sensible, but with the unintended consequence of leaving the back door sufficiently wide open for a horse and cart to be driven through it by those with sufficient self-interest and lack of respect for the GDC’s good intentions.

Enter the ‘no win-no fee’ solicitors who approach all this from a very different perspective – most patients who are actually (or allegedly) harmed by negligent dental care and treatment, might reasonably be expected to seek compensation from whomever actually treated them. 

Yet in the two most recent cases (and a third one earlier in 2021) the same infamous ‘no win-no fee’ law firm continued its recent campaign of suing the practice owner rather than associate dentist(s) who actually treated the patient in question.

It makes no sense at all until you understand that they will approach each case in the way that maximises fee generation and renders a bumper payday for themselves more likely, even if it means that the patients wait a lot longer to be compensated (where appropriate), even if they end up with same level of damages (or less), and even if it squanders opportunities to prevent the same thing happening for another patient – because you can’t expect a dentist to reflect upon or learn lessons from an event that nobody has even made them aware of, let alone asked them about. 

And also because (as happened in one of the cases) you can’t expect a dentist who ceased practising 20 years ago, and sold their practice 10 years ago, to change what they do tomorrow in order to make patients safer.

These patients are being actively advised by their own legal representatives to disregard the dentist(s) who treated them – who are legally required to hold indemnity for this very purpose – and instead sue practice owners and limited companies that own practices, neither of which are required by law to hold any indemnity arrangements to facilitate the fair compensation of patients in situations like this.  

Such are the combined unintended consequences of the 1999 (Woolf) and 2013 (‘LASPO’) reforms to the Civil Justice System; what a tragedy they have turned out to be for patients and ultimately for their access to dentistry, and for the morale of the dental profession.  

But the ‘no win-no fee’ lawyers have plundered these lucrative procedural arrangements shamelessly, portraying their profession in the worst possible light. 

At least their regular self-aggrandising claim to be championing patients and their rights is now firmly outed for the distasteful pretence it has always been – a consequence that I am sure the lawyers never intended. 

For references email seb.evans@fmc.co.uk.

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