Confused about Contracts for Dentists ?

SOME GENERALITIES AROUND DENTIST AGREEMENTS

(This is provided as general information. It is NOT legal advice.Always seek legal advice about these matters about your individual circumstances)

(EA- Employment; ICA-Independent Contractor Agreement; SFA- Service and Facility Agreement)

	EA	ICA	SFA
Relationship	Contract of service between employer and dentist -Subject to Employment common law and Far Work Act	Contract for service between principal (practice) and contractor (dentist)	Contract for provision of facility and services between principal (dentist and their own professional practice) and service provider ( the clinic )
Liability can lie solely with Engaged Dentist ?	No	Yes to some degree	Yes to some degree
Patient Records owned by practice ?	Yes (common law)	Can be in contract	Can be in contract
Dentist Public Liability Insurance?	No	Yes	Yes
Dentist Professional Indemnity ?	Yes, AHPRA required	Yes, AHPRA required	Yes, AHPRA required
Fair Work Act Applies – Unfair Dismissal	Yes, but can be reduced.	Generally No, but can be claimed	Generally No but can be claimed
Fair Work Act Applies – Leave entitlements	Yes.	Generally No, but can be claimed	Generally No ,but can be claimed
Long Service Leave	Yes	Generally Not,but can be claimed	Generally No, but can be claimed
Antii discrimination Law ?	FWAct and ADC (Cth) and State	Yes	Yes
Who has Invoice Responsibility ?	Not applicable	Yes – dentist	Yes- practice
Flexibility in setting Hours by agreement ?	Yes	Yes	Yes
Hours determined by Practice Only	Yes	No	No
Termination with limited notice	Yes	Yes	Yes
Facilities to be provided	Yes	Yes	Yes
Goodwill protected by Restraint	Yes	Yes	Yes
Commission less Direct Costs	Yes	Yes	Yes
Engaged Dentist as Company or Trust	No	Yes	Yes
Suit Junior Dentists who need direction and control	Yes	Unlikely	Unlikely
Payroll Tax Liability	Yes	Probably	Possibly not
Superannuation Liability	Yes- quantified at SGC	Probably	Possibly
Retainer plus Commission	Yes	Yes	Difficult to arrange

May 5th, 2021|

About the Author: Brad Wright

Brad Wright - Barrister

6 months ago

Current considerations around health practitioner liability continue to develop.Dental practitioners can be liable for the personal injuries that patients might allege against them for dental treatment. In simple terms patients can sue their treating practitioner for failed dental treatment and has been the case in common law since time immemorial. Practitioners are required to have Indemnity insurance in place personally for these purposes as one of the AHPRA registration standards.However, in recent times because of the development of more and more group practices, patients may seek to sue the practice in addition to the dentist to provided them the treatment. This arises because patients usually receive an invoice with the practice facility name on it as well as the name of the practitioner who provided the actual dental treatment. This risk can be insure with most of the indemnifiers.It is understandable therefore that patients might view their contract as having been with the practice rather than the dental practitioner who provided the treatment. Depending on how the case is pleaded, this may mean that the practice is alleged to have a liability because of some of the processes that the practice is responsible for in addition to assertions of oversight and vicarious liability which may or may not be evidence. In plain language this means that owners of dental practices are at risk of suit from patients for the personal injuries for negligent dental treatment as alleged by dentists who work at the practice and invoice through the practice.In addition where multiple practitioners treat a patient over a period of time within a practice, a patient might quite reasonably commence action against all of the practitioners who have provided treatment to the patient as well as the practice itself and the directors of the practice entity.In such cases the issue of proportionate liability arises.The Victorian Civil Juries Charge Book states at 2.1.9 in relation to apportionment that“You would need to consider, in deciding to what extent it was just and equitable that one defendant should recover contribution from the other, the extent to which each defendant, in your judgment, fell short of taking that care for the plaintiff which it should have taken in all the circumstances. In considering that matter, it would be appropriate to take into account whether, in your view, one defendant had greater control over the situation than the other. You would also need to consider, in deciding that matter, the importance of the conduct of each defendant in causing the accident and the plaintiff’s injuries…”In the circumstances there are a number of mechanisms which are appropriate for practice owners to reduce their risk in the circumstances and this can be done by way of the agreements that the practice has with the patients and with the dentist who they engaged. If this is a concern then these practice practices should seek appropriate legal advice about these protections.Somewhat more problematic and difficult to prevent is the issue of regulator action against practitioners who were only minimally involved in the treatment of a practitioner and this can be because of the practice ownership being perceived to be part of the treatment.As is well known anyone can complain about the treatment provided and the conduct by any practitioner at any time. Often, dissatisfied patients will complain about the practice and the communications of the staff as well as about the dentist who provided the actual treatment.Then issues of shared care responsibility arise. The Dental Board Code of Conduct has a shared care provision including the followingGood practice includes that you:a. take reasonable steps to ensure that any person to whom you delegate, refer or hand over to has the qualifications and/or experience and/or knowledge and/or skills to provide the care neededb. understand that, although as delegating practitioner you will not be accountable for the decisions and actions of those to whom you delegate, you remain responsible for the overall management of the patient and for the decision to delegate, andc. always communicate sufficient, timely information about the patient and the treatment needed to enable the continuing safe care of the patient.However practice owners are at some risk of being involved in patient complaints in matters connected to treatment such as patient recalls communications with patients and even infection control.It is prudent for practice owners particularly to review these processes and minimise their risk by way of clear communications and policies.Consider:Indemnities in service agreements or independent contracts.Insurance cover for engaged dentists and the corporate who owns the practicePatient Consent forms including an explanation of practice arrangements.Consistent policies and reviews of communications with patients about these issues.Brad WrightMay 2025This short article is not intended as legal advice and is for general information only. Any practitioners who consider the issues arise in this article that give them any concern should seek independent legal advice from an appropriately qualified legal practitioner.Liability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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Brad Wright - Barrister

9 months ago

𝗗𝗲𝗻𝘁𝗮𝗹 𝗣𝗿𝗮𝗰𝘁𝗶𝗰𝗲 𝗖𝗕𝗩𝗧/𝗖𝗕𝗖𝗧 𝗥𝗶𝘀𝗸 𝗠𝗮𝗻𝗮𝗴𝗲𝗺𝗲𝗻𝘁It is generally accepted that dentists recording CBVT- particularly large volume CBVT datasets- have responsibility for the interpretation of all data, not just the area of interest. (Dentists who record OPG radiographs must take responsibility for all non-dental diagnosis from such images or alternatively have them assessed on referral by an oral radiologist or medical radiologist and include this cost in their estimate of fees to the patient (see Aust Dent J2012 Mar:57 Suppl 1:9-15. doi: 10.1111j.1834-7819.2011.01653.x.)Practitioners frequently use a CBVT dataset to ’construct’ an OPG.If this construction is based on a full volume dataset, it is arguable that there may be pathology not detected by a general dentist who has training for the use of machine that they use.In Western Australia, Section 36 of the Radiation Safety Act 1975 provides for the Radiological Council to impose conditions, restrictions or limitations on a licence, exemption, or registration. In Western Australia, the standard condition of registration for the purpose of Radiology – Dental, requires that: “as soon as practicable, all CBCT images are reported on by an Australian Health Practitioner Regulation Agency registered medical radiologist or dento-maxillofacial radiologist”. It is probably therefore prudent, if not a legal requirement, in other states that practitioners recording CBVT data sets give consideration to having all of the datasets reviewed by an appropriate radiologist to reduce a failure to diagnose risk. Such reports would then need to be communicated to the patients as a matter of course. ... See MoreSee Less

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Brad Wright - Barrister

10 months ago

In some recent work I had cause to consider radiology in dental practice. I had an interest in this through practice and an article I wrote when I first went to the bar in 2011. pubmed.ncbi.nlm.nih.gov/22376092/I still see references to the ALARA principle - meaning as low as reasonably achievable.That is no longer relevant in Australian health practice at least in relation to diagnostic radiology.That phrase is no longer used in the code for diagnostic medical / dental radiology under Justification or Optimisation. The phrase ALARA references the superseded 2008 Code.See here for the 2019 code. www.arpansa.gov.au/sites/default/files/medical-exposure-code-rps-c-5.pdf The new code specifies as to optimisation:2.2.2 OptimisationOptimisation of protection is maximising the benefit-risk ratio of a medical exposure for that patient.Radiation exposure must be minimised yet still sufficient to fulfil the clinical objective of the procedure, with account taken of relevant norms of acceptable image quality or therapeutic efficacy. Special attention is required for exposures of paediatric patients, for individuals undergoing health screening, for volunteersin medical research and where a fetus or breastfed infant may receive an incidental exposure.Diagnostic reference levels (DRLs), which give an indication of levels of doses to patients for common procedures, are one method that can be used as an optimisation tool in medical imaging. Their purpose is to raise awareness of patient doses and prompt medical radiation facilities administering doses greater than the reference levels to review procedures and revise or justify as appropriate.This justification is now a three tier process.See here for the 2019 code. www.arpansa.gov.au/sites/default/files/medical-exposure-code-rps-c-5.pdf ... See MoreSee Less

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About the Author: Brad Wright

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