Vicarious liability may in general terms be defined as “the strict liability of one person for the delict of another”. Initially foreign to South African law, vicarious liability had been borrowed from English law. Regardless of the basis of vicarious liability, it is now well established that one person can be vicariously liable for the damage caused by another. Remember, according to the fault theory the wrongdoer had to act with fault, either intent or negligence, in order to incur delictual liability, whereas a strict liability is liability in the absence of fault.
Recognised instances of strict liability are rare and stem mainly from modern legislation (such as the Consumer Protection Act) or common law actions of Roman origin. Already before the enactment of the Consumer Protection Act (Hereinafter referred to as the “CPA”) writers argued in favour of strict product liability.
The CPA dramatically changes the legal position to its existence. Before the CPA a consumer had to rely on contractual or alternatively delictual remedies against the practitioners who caused him or her harm, and fault on the part of the practitioners had to be proven. With the introduction of the CPA, a no-fault liability has now been introduced.
Many medical practitioners in private practice use a locum when they themselves are not available to practice. This, in general, would be to reduce the workload, and that the locum would only assist and not be associated with the medical practitioner of the practice.
It is not always possible to fill these gaps internally and hence the need for locums. In legal terms when something goes wrong either with a patient or with the practice, it is very important to establish whether a locum was appointed to the practice and that the locum did indeed form part of the supply chain as general defined or as an employee/independent contractor.
The locums are often appointed without consideration of the legal consequences or requirements as mentioned on our Common Law, but also in the Consumer Protection Act 68 of 2008 under Section 61 and 113.
The Consumer Protection Act 68 of 2008(CPA) applies to every transaction occurring in South Africa involving the supply of goods or services in exchange for consideration unless the transaction is exempted from the application of the Act. For the purposes of the Act, a patient is considered a “consumer”.
A medical practitioner is seen as a “service provider”. “Service” in a health context is a consultation with a health practitioner, the medical advice rendered by such a practitioner, or any medical intervention.
The aim of the Act is to protect and develop the social and economic welfare of consumers, especially vulnerable consumers. If the CPA is in conflict with any other health care legislation, for example, the National Health Act or the Health Professions Act, the Act offering greater protection to the consumer will apply. As vicarious liability will be applicable only if the doctor appointed an incompetent locum or where a locum’s actions caused prejudice to third parties in this regard
According to the rules of the Health Professions Council of South Africa (HPCSA) the onus to ensure that the locum tenens is registered and fit to practise rests with the principal.
A practitioner shall employ as a professional assistant or locum tenens, or in any other contractual capacity and, in the case of locum tenens for a period not exceeding six months, only a person –
(a) Who is registered under the Act to practise;
(b) Whose name currently appears on the register kept by the registrar in terms of section 18 of the Act; and
(c) Who is not suspended from practising his or her profession?
Conclusion
In most cases, medical practitioners appointing locum/employee/independent contractors must make sure that they indeed have to proper contract to follow. If the practitioner has its own practice number then liability would not be visible towards the practitioner although the practise could still be liable under Section 61 of the Consumer Protection Act 68 of 2008.
The Principal must make sure that the locum adheres to the HPCSA requirements for the Locum to assist. The principal and locum must make sure that the contents of Section 61 and 113 of the Consumer Protection Act 68 of 2008 are properly perused and understood.
ABOUT THE AUTHOR:
Frank Maritz- Senior Legal Advisor Consumer Protection & Popi Act and Labour, SEESA Bloemfontein.