Medical or Dental Practitioner Acting as Locum Tenens
Agreement between the dental practitioner and a temporary substitute doctor detailing the details of this agreement.
Many medical practitioners in private practice use a locum tenens when
they themselves are not available to practice. The locums are often
appointed without consideration of the legal consequences or
requirements.
The words locum tenens originate from Latin meaning "one holding a
place". The designation was used by doctors ("principals") who needed
a person to temporarily fill their positions, should they not be available
for a short period of time.
Today locum tenens are in demand nearly everywhere, whether in a
city or a small town, when a doctor is not personally available to
practice.
Legislation distinguishes between an employee and an independent
contractor. If the locum is appointed as an employee the doctrine of
vicarious liability comes into play which is not the case with an
independent contractor. Contracts currently available to appoint
a locum give the contracting parties a choice between being appointed
as an employee or an independent contractor; this should be changed in
that all locums should be appointed as independent contractors
especially if the working of the Consumer Protection Act is also taken
into consideration.
Furthermore, 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 practice, rests with the principal.
Doctors in private practice may make use of a locum for several
Reasons, including:
• to take study leave or acquire new skills;
• to attend foreign or local congresses; or
• for vacation leave.
It is not always possible to fill these gaps internally and hence the need
for locums. Most of the time locums are appointed by medical
practitioners without thinking of the legal consequences of the
appointment.
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 as an employee or as an independent contractor for the
period that he or she has to stand in for the principal.
If a locum is appointed as an employee, the rights of employees under
the Labour Relations Act and the Basic Conditions of Employment Act
could come into play depending on the amount of remuneration
the locum will receive.
A further aspect to take note of when appointing a locum as an
employee is the possible application of the doctrine of vicarious liability,
according to which the medical practitioner himself or herself could be
held liable for the unlawful and/or negligent conduct of the locum. This
danger exists to a lesser extend if a locum is appointed as an
independent contractor, as vicarious liability will be applicable only if the
doctor appointed an incompetent locum or where a locums actions
caused prejudice to third parties.
Two pro forma contracts that a medical practitioner in private practice
appointing a locum himself or herself can use are included. These
contracts are analysed and recommendations are made to improve the
current options to the benefit of both parties.
A medical practitioner can also make use of an agency or a temporary
employment service to provide the practice with a locum for the period
he or she will not be available. The legal consequences in this regard
are highlighted only to the extent that they overlap with the test of an
employee-employer relationship, but on a different level.
Neither of the two pro forma contracts addresses the effect of
the Consumer Protection Act on the medical profession. This aspect is
discussed very briefly, mainly to indicate the role of the locum in the
application of the Act in a medical context and how it should be
contractually addressed.
The Health Professions Act 56 of 1974
The Health Professions Act does not address the appointment of
a locum directly; neither does the Act indicate whether a locum should
be appointed as an employee or an independent contractor.
Section 9 of the Ethical Rules of Conduct for Practitioners registered
under the Health Professions Act, 1974 determines the following
regarding locums, without prescribing that the appointment of
the locum should either be as an employee or as an independent
contractor:
• 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.
The locum should also be registered as a health practitioner with the
Health Professions Council of South Africa (HPCSA) and the contract of
appointment should be in writing. If a member of the HPCSA would like
to see such a contract of appointment, it should be available. Thus,
neither the Act nor the Ethical Rules prescribes how a locum should be
appointed; as an employee or an independent contractor.
It is up to the medical practitioner (principal) and the locum to determine
the contents of the contract of employment. The important reason to
distinguish between an employee and an independent contractor is
because the law attaches different consequences to either appointment.
If a locum is appointed as an employee, labour legislation will be
applicable to the contract of employment, which will not be the case
where an independent contractor is involved.
It is interesting to note that in the Notice concerning the conditions of
employment of dental technicians who are employees section 1
describes a locum tenens as "an employee who is employed to relieve a
regular employee or dental technician contractor for any period during
which a regular employee or dental technician is absent, on sick or other
leave”.
Disciplinary action by the HPCSA has been taken against some medical
practitioners who allowed unqualified or unregistered persons to act
as locum tenens (whether appointed as employees or independent
contractors), resulting in hefty fines and/or temporary suspension.
Medical practitioners should accordingly also take care when
appointing locums to ensure that they are duly qualified and registered.
If no contract was concluded stipulating whether the locum is an
employee or an independent contractor, this complicates matters if a
dispute arises. In such an instance the courts will fall back on the reality
test to determine the position of the locum. The reality test is the test
currently applied by the courts to determine whether an employee or an
independent contractor is involved in a dispute.
Employee or independent contractor?
Common law
The common law views a contract of employment as an ordinary
contract between two parties. It further treats a service contract as a
subdivision of a contract of lease.
Common law defines a contract of employment as an agreement
between two parties in terms of which one of the parties (the employee)
undertakes to place his or her personal services at the disposal of the
other party (the employer) for an indefinite or determined period, in
return for a fixed or ascertainable remuneration and which entitles the
employer to define the employees duties and to control the manner in
which the employee discharges them.
A contract for a certain type of work for a specified time is defined as a
reciprocal contract between an employer and an independent contractor.
An individual contract of employment commences when the parties
agree to the essential terms in the contract and the contract complies
with the general requirements for a valid contract, namely:
• there must be consensus between the parties;
• both parties must have contractual capacity;
• the rights and duties stipulated in the contract must be possible
to perform;
• the rights created and duties assumed must be permitted by
law; and
• the formalities, if prescribed, must be adhered to.
It might not be clear whether the contract between the parties is an
employer-employee contract or a contract between an employer and an
independent contractor.
The Reality Test
The reality test was first described in the case of Denel (Pty) Ltd v
Gerber and has since been expanded upon and confirmed in other
cases.
If the contract between the medical practitioner and the locum stipulates
that it is a contract of employment and the locum is therefore considered
an employee of the principal, the reality test will not be necessary. It will
be relevant only if there is either no written contract (or the contract is
unlawful in terms of the HPCSA rules) or where the parties dispute their
relationship. As stated earlier it is important to determine the basis of the
relationship between a practitioner and locum as labour laws apply only
to employers and employees and not to an independent contractor.
If ever a locum is used in a private medical practice, the medical
practitioner/s (principal) should ascertain that patients are informed that
the locum is a substitute of the physician and not an employee, if that is
the case. This could be managed by the receptionist when the patient
signs a consent form, and it should be noted on the report by
the locum when he or she actually sees the patient.
In all cases it would be better for the practitioner to appoint a locum as
an independent contractor, because the locum himself or herself would
then be held liable for the alleged unlawful or unprofessional conduct. An
independent contractor would have to face cases of delictual
negligence on his or her own whereas the employee is "covered" by
vicarious liability. The application of the CPA should also be addressed
contractually to the benefit of both the principal and the locum.
R0.00 FREE