Medical Practice Law Update

Over the last few months there have been various legal developments relevant to medical practices. There are also other important changes on the horizon. Adrian Poole summarises some of these key developments.

Doctors potentially liable for third party misrepresentation

In the recently reported case of Webster and others v Mark Liddington and others [2014] EWCA Civ 560, the Court of Appeal upheld a decision that doctors were liable for misrepresentation by giving their prospective patients manufacturers’ brochures or other information containing materially untrue representations.

This finding does not establish any new legal principles but should serve as a reminder that information provided from third party sources should be treated with care. If specific information in respect of a drug or medical treatment is to be imparted, it is advisable to use a disclaimer to protect the practice. Such a disclaimer should make it clear that you are merely imparting third party information and cannot be held responsible for any inaccuracies in the information provided to you.

Early conciliation now mandatory

As from the 6th May 2014, all would-be claimants in the Employment Tribunal have had to first put their complaint to ACAS in an attempt to see whether settlement is possible. ACAS have a statutory one month maximum period to conciliate although this can be extended by a further 2 weeks by agreement. Only at the end of such a period, after ACAS has issued a certificate of conciliation with a specific reference number, can a claim be accepted by the Employment Tribunal.

Practices are advised to take legal advice should they be notified of a potential claim against them by ACAS so to enable them to properly assess the risk of that claim being successful and the level of any settlement which should be considered. ACAS will not themselves provide legal advice in such circumstances.

Penalties for losing employers

If the prospect of having to pay compensation in the Employment Tribunal is not bad enough, the Tribunal now has the power to impose an additional penalty on employers. The penalty, which will be paid directly to the Secretary of State in a move which has lead to it being described as a “stealth tax”, can be imposed if the Tribunal considers that the breach has “one or more aggravating features”. This term is undefined and left to the discretion of the Tribunal. The amount of the financial penalty is half the value of the compensation awarded to the claimant, subject to a minimum of £100 and a maximum of £5,000. If the employer pays the penalty within 21 days of being sent a penalty notice, its liability for the full sum is discharged.

Practices are advised to keep this additional liability in mind when assessing the risk of a claim against them being successful.

Flexible working for all

Currently only a limited number of employees – parents and carers – enjoy the right to request flexible working. This right is being extended as of 30th June 2014 to include all employees who have completed 26 weeks’ service. Employers will still be entitled to reject flexible working requests but will need to be able to justify their decision if claims are to be avoided.

Practices who are considering the rejection of such requests should seek legal advice at an early stage.

For more information about any of the above, please contact Adrian Poole.

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