GPs and vicarious liability: Brayshaw v Partners of Apsley Surgery and another

In recent years there has been a general perception that the ever-changing law on vicarious liability has been leaning in the claimant’s favour. However, the case of Brayshaw v Partners of Apsley Surgery and another [2018] EWHC 3286 (QB), [2018] All ER (D) 21 (Dec) is a reminder of some of the risks that claimants still face.

The claimant, in this case, was a vulnerable individual. She had a number of health issues including psychiatric problems. In August 2012, she contacted her GP practice and spoke to a locum GP, Dr O’Brien. The claimant explained that she was in a low mood and feeling desperate. During the telephone conversation, Dr O’Brien explained that his wife knew a way of “healing without medication”.

Later that evening, Dr O’Brien and his wife telephoned the claimant from their home. During this conversation, they discussed their Christian practices.  The claimant wrote to them shortly afterwards stating that she understood that Dr O’Brien was giving of his time “as a Christian and not as my GP”.

Over the next few months, Dr O’Brien and his family befriended the claimant and she was taken to religious meetings. During this time, the claimant continued to seek medical help at the surgery and from other health professionals. The claimant’s religious involvement included attending “testimonies” where individuals would give testimony about their faith and the importance of God in their lives.

On 12 January 2013, the claimant herself gave testimony, following which her relationship with Dr O’Brien broke down. She later disclosed what was happening to her psychiatrist, who reported the matters to the GMC and consequently, Dr O’Brien was struck off.

The claimant brought a claim for damages against Dr O’Brien, who did not engage in the litigation proceedings. The claimant also brought a claim against the partners of the GP practice on the basis that they entrusted her safekeeping and care to a locum doctor employed by them and where, it was argued, the torts were committed in the course of his work for the GP practice or were closely connected with it.

Dr O’Brien was liable in negligence for the psychiatric damage which the claimant had sustained and its consequences by virtue of the religious practices he had imposed on her. However, the court found that it was clear to all that when Dr O’Brien and his wife telephoned the claimant from their home, he was no longer acting in his capacity as a GP. The court, therefore, rejected the claim that there was a sufficiently close connection between Dr O’Brien’s torts and his role as a locum GP. The mere fact that he met the claimant through the relationship as her GP was insufficient. Religious proselytisation could not fairly be regarded as a reasonably incidental risk to the business of carrying on a doctors’ surgery.

The decision was highly fact-specific and in that context, the claimant’s evidence to the GMC Panel investigation, along with her written and oral evidence for the trial in the civil action, went against her;  her evidence was frequently inconsistent.

When considering a claim of vicarious liability, it is important to thoroughly assess the nature of the act(s) complained of and how they are connected to the employer’s business and the degree of control of the employer. Further consideration also needs to be given to how the acts relating to the role the employee is contracted to perform.  The fact that the events start in the workplace does not necessarily mean that they continue to do so.

This is an interesting decision for GP practice principals and their liability insurers, as it appears to limit their potential exposure to claims in respect of the activities of GPs.

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