In private practice, many practitioners make use of a locum, or locum tenens to go on leave, attend overseas conferences or take study leave. It is important to consider the legal consequences of appointing another practitioner to work in your practice.
A locum can either be appointed as an employee or an independent contractor. A locum who is appointed as an employee enjoys the rights of all employees under the Labour Relations Act and The Basic Conditions of Employment Act. When appointing a locum as an employee, the doctrine of vicarious liability applies, which states that a medical practitioner can be held liable for the unlawful or negligent conduct of the locum. Essentially it is a doctrine of liability without fault, meaning one person can be held liable for the act of another.
If a locum is appointed as an independent contractor no labour legislation applies to that locum and the doctrine of vicarious liability will only apply if an incompetent locum is appointed, or if the locum acts in a manner which causes prejudice to third parties. As an independent contractor, the locum is appointed solely to provide services as a substitute practitioner for a limited period of time.
It is advisable to appoint a locum as an independent contractor because the locum would then be held liable for any alleged unlawful or unprofessional conduct in his or her personal capacity. Alternatively, the locum appointed as an employee would be covered by the principle of vicarious liability.
Some other points to note when appointing a locum:
A locum cannot be appointed for a period exceeding 6 months;
Only a person who is registered to practice under the Health Professions Act may be appointed as a locum;
The contract of employment should be in writing.
Practitioners appointing a locum should also notify patients that the locum is a substitute of the practitioner.
Roxann van Rugge (LLB)
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