Kevin Lewis – the law of unintended consequences


Kevin Lewis explores the unintended penalties that have led to vicarious legal responsibility.

I’ve misplaced rely of the variety of occasions when I’ve both witnessed, or skilled at first hand, this irritating phenomenon.

Any individual makes an honest sufficient resolution as a way to take care of a selected concern or remedy a selected drawback – however additional down the monitor it turns into painfully clear that in fixing one drawback they’ve unwittingly created one other, maybe larger drawback.

Or a number of such issues that additionally carry a lot larger danger or are significantly harder to repair than the unique drawback was ever prone to be.

Dentistry is presently awash with examples of this, not least the difficulty of necessary Covid vaccinations. 

Even when one have been to just accept that dentists (and different dental well being professionals) electing to depart the career prematurely or in mid-career was at all times a possible consequence of mandation, the findings of the latest UK-wide research of undergraduate pupil views have been much less predictable and virtually actually unintended.  

This research discovered that for each 20 college students who had fortunately acquired two doses of the vaccine and likewise a booster dose by mid-December 2021, a minimum of one different pupil had acknowledged an intention to refuse the vaccine and withdraw from their course altogether.

A ratio like that has unintended monetary and sensible penalties for the colleges and likewise profound long-term penalties by way of dental workforce planning.  

Nonetheless and wherever this concern lastly lands, it has not mirrored effectively on these ‘upstairs’ and their incapacity to assume forward; it has additionally despatched some very curious blended messages concerning affected person autonomy and consent.

A technology earlier, the calls for of an infection management had pushed a paradigm shift in the direction of a larger use of disposables – creating unplanned mountains of packaging, scientific and different hazardous waste requiring protected disposal, at vital further price.

It ought to have been equally predictable that ‘fallow time’ and the opposite SOPs would decimate the numbers of sufferers seen in 2020/21 – however seemingly not?

Unintended penalties have been the recurring hallmark of NHS dentistry ever since its launch in 1948, when the federal government grossly underestimated each the general public uptake of free dentistry, and the limitless resourcefulness and productiveness of dentists when suitably incentivised.

The size of the tsunami of dentistry that adopted was unintended, however it provoked swift corrective motion. 

Three successive deep cuts within the unique payment scale, and the imposition of affected person costs to cut back demand, had all occurred inside barely three years.

Historical past repeated itself in 1992 when the federal government determined that dentists have been doing a lot too effectively out of the 1990 contract – which was by no means their intention.

A crafty plan

However a much less apparent lesson from historical past had occurred within the Sixties, when the gross charges generated by assistant dentists have been buried inside, and artificially inflating, the gross earnings of the principals/observe house owners.

This led the federal government to conclude that principal dentists have been over-earning. 

To unravel this drawback, the BDA got here up with the ingenious thought of those assistants turning into impartial contractors (associates) with their very own seen earnings, making their very own contributions to the NHS Pension Scheme and paying an agreed share of their gross earnings to the observe proprietor as a license payment for entry to the sufferers, amenities and different companies being supplied.

However over time this independence and partial autonomy had the unintended consequence of fuelling observe disputes over so-called ‘scientific freedom’, payment assignments and the share break up, the possession of affected person goodwill and the solicitation of sufferers after leaving the observe.

Apply house owners tried to wrestle again management by tightening up the associateship settlement – the Confederation of Dental Employers (CODE) was in its heyday and the BDA and the (then) GDPA have been stored busy reacting to occasions and refining their very own variations of such an settlement.

All these well-intentioned and laudable efforts to provide the observe proprietor a correct diploma of enterprise safety, has itself had one other unintended consequence as highlighted by a cluster of latest authorized choices on that the majority contentious of matters – the standing of the dental affiliate and the break up of tasks between associates and observe house owners. 

The BDA Associateship settlement has lengthy been considered because the gold normal, balancing equity to associates with defending observe house owners.

However the very options that make it so wonderful for its originally-intended function, particularly when coupled with the unlucky however forensically crafted wording of the NHS supplier contracts, are actually getting used as blunt devices with which to beat observe house owners.  

On this collection of litigation directed towards observe house owners it’s being argued firstly that the working preparations crystallised within the above paperwork collectively lead to a observe proprietor being extra prone to be thought-about vicariously chargeable for the negligent acts and omissions of self-employed associates in addition to workers. 

And secondly, in lots of instances a observe proprietor will even have an obligation of care for each affected person handled within the observe, whether or not or not they ever deal with them personally, and that responsibility can’t be discharged by arranging for the affected person’s care to be supplied by a GDC-registered and appropriately indemnified affiliate dentist.

Every case activates its particular particulars, however for observe house owners it’s beginning to really feel extra like a case of ‘out of the frying pan into the hearth’ than an unintended consequence, as a result of appearing prudently, professionally, pretty and responsibly provides valuable little safety towards this type of litigation, and creates a local weather of continuous uncertainty and danger for observe house owners.

Better of intentions

In 2005 the GDC was granted its statutory powers to implement necessary skilled indemnity, and fairly correctly its complete method to necessary indemnity is predicated on professionalism – registrants taking private skilled accountability and accountability for their very own actions, making certain that sufficient and applicable indemnity preparations are in place and co-operating with indemnity suppliers and third events in sufferers’ greatest pursuits to make sure that they’ll get hold of any due compensation with out undue delay. 

Dental registrants are required to carry indemnity in respect of their very own acts and omissions, however not these of different folks; all very logical and smart, however with the unintended consequence of leaving the again door sufficiently vast open for a horse and cart to be pushed via it by these with adequate self-interest and lack of respect for the GDC’s good intentions.

Enter the ‘no win-no payment’ solicitors who method all this from a really completely different perspective – most sufferers who’re really (or allegedly) harmed by negligent dental care and therapy, may fairly be anticipated to hunt compensation from whomever really handled them. 

But within the two most up-to-date instances (and a 3rd one earlier in 2021) the identical notorious ‘no win-no payment’ legislation agency continued its latest marketing campaign of suing the observe proprietor fairly than affiliate dentist(s) who really handled the affected person in query.

It is unnecessary in any respect till you perceive that they may method every case in the best way that maximises payment technology and renders a bumper payday for themselves extra probably, even when it signifies that the sufferers wait loads longer to be compensated (the place applicable), even when they find yourself with similar stage of damages (or much less), and even when it squanders alternatives to forestall the identical factor occurring for one more affected person – as a result of you possibly can’t count on a dentist to replicate upon or be taught classes from an occasion that no one has even made them conscious of, not to mention requested them about. 

And likewise as a result of (as occurred in one of many instances) you possibly can’t count on a dentist who ceased practising 20 years in the past, and offered their observe 10 years in the past, to alter what they do tomorrow as a way to make sufferers safer.

These sufferers are being actively suggested by their very own authorized representatives to ignore the dentist(s) who handled them – who’re legally required to carry indemnity for this very function – and as an alternative sue observe house owners and restricted firms that personal practices, neither of that are required by legislation to carry any indemnity preparations to facilitate the truthful compensation of sufferers in conditions like this.  

Such are the mixed unintended penalties of the 1999 (Woolf) and 2013 (‘LASPO’) reforms to the Civil Justice System; what a tragedy they’ve turned out to be for sufferers and finally for his or her entry to dentistry, and for the morale of the dental career.  

However the ‘no win-no payment’ legal professionals have plundered these profitable procedural preparations shamelessly, portraying their career within the worst doable mild. 

No less than their common self-aggrandising declare to be championing sufferers and their rights is now firmly outed for the distasteful pretence it has at all times been – a consequence that I’m positive the legal professionals by no means supposed. 

For references e mail [email protected].

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