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How wrong use of 'locum' could land you in hot water

The incorrect use of the word 'locum' could land medical practitioners in trouble with the Health Professions Council of SA (HPCSA), write Kirsty van Rhyn, Medical Protection Cases Team Lead – South Africa, and Dr Yash Naidoo, Medical Protection Dento-legal Consultant.

They write:

The term locum is well known among South African healthcare professionals, and commonly used to describe people working at a practice on a short-term or ad hoc basis.

Unfortunately, our experience tells us that the term is often used incorrectly. Innocently and inadvertently using the term incorrectly could land you in hot water with the Health Professions Council of South Africa (HPCSA) or to costly legal claims.

We explain why the correct use of the term is more important than you would think.

HPCSA matters

The HPCSA does not define the terms locum or locum tenens.

The concept is concisely described by Professor Sudeshni Naidoo, Emeritus Professor at the Faculty of Dentistry at the University of the Western Cape: “Locum tenens is usually a position that is offered when a practitioner in private practice is going on holiday, attending a congress, taking study leave or is absent due to illness or other reason, and therefore the appointment is of short duration”. (1)

Although it does not define the term, the HPCSA does provide for various rules and guidelines concerning the use of locums. This includes a requirement that healthcare practitioners should not employ any intern, community service practitioner, or healthcare practitioners with restricted HPCSA registration as locums. (2)

Rule 9 of the HPCSA’s Ethical and Professional Rules (3) states that a locum must be currently registered in the independent practice category and cannot be employed for longer than six months.

Healthcare practitioners often incorrectly say that they are practising as or making use of a “long term” or “permanent” locum.

It should be clear from the above, however, that such terms are misnomers. Any arrangement longer than six months implies that the term locum is not applicable, and contravenes HPCSA rules.

Failure to properly use the term and understand the rules has led to practitioners being formally investigated by the HPCSA.

Recently, the HPCSA was investigating the authenticity of sick notes from a practice, during which, a doctor at the practice was interviewed.

The doctor had no involvement with the sick notes under investigation and was thus not at risk in the first place.

However, the doctor innocently mentioned “locuming” at the practice for a year. The HPCSA then roped this practitioner and the practice owner into a formal investigation for an explanation, as this arrangement exceeded six months and possibly contravened HPCSA rules.

Eventually the matter was clarified as a misunderstanding on the part of the innocent practitioner, who had used the term “locum” incorrectly.

But the point remains: incorrect use of the word can land you in trouble with the HPCSA and cause unnecessary stress and time out of your practice.

Employment disputes

It is not only with the regulator where practitioners could be in hot water regarding locums. If not carefully considered, the use of locums can potentially lead to legal claims against unsuspecting practitioners.

The main reason is a legal concept known as vicarious liability. Put simply, this means liability without fault: one person (the employer) is held liable to a third party (the patient) for the unlawful or unprofessional act of another (the employee/locum).

If the locum is an employee, then the employer (e.g, the practice owner) may be liable for damages flowing from the locum’s negligent acts or omissions incurred during the course and scope of their employment at the practice.

In other words, the practice owner could be required to pay damages caused by an employee who negligently harms a patient.

Vicarious liability does not generally apply if the practitioner who caused the harm is an independent contractor (i.e, not an employee of the practice).

However, there seems to be a misconception that a locum is, in all instances, not an employee but instead an independent contractor.

This is not necessarily the case. A locum may be an employee or an independent contractor. If there is any doubt, the specific circumstances and facts pertaining to the relationship will be taken into account.

This is why section 200A of the Labour Relations Act (4) is important, because it creates a presumption that a person is an employee.

The Act says the following:

Until the contrary is proved, a person who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee if any one or more of the following factors are present:

a) the manner in which the person works is subject to the control or direction of another person;

b) the person’s hours of work are subject to the control or direction of another person;

c) in the case of a person who works for an organisation, the person forms part of that organisation;

d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;

e) the person is economically dependent on the other person for whom he or she works or renders services;

f) the person is provided with tools of trade or work equipment by the other person; or

g) the person only works for or renders services to one person.

It is no doubt that the presumption above highlights the importance of ensuring that employment agreements are in writing and carefully considered by all parties.

It is recommended that advice is taken from lawyers who are experienced in the drafting of contracts of employment and labour law in general.

Uncertainty and poorly drafted contracts may lead to claims against locums falling at the feet of practice owners by virtue of the doctrine of vicarious liability.

How to avoid confusion

While seemingly simple and inconsequential, it is important to carefully consider the use of the term locum, as well as the use of the services of a locum at a practice.

The terms “long term” or “permanent locum” are misnomers in South Africa. A locum’s services may not exceed a period of six months.

A locum may either be an employee, or an independent contractor and it is important for the practice owner and the locum to carefully consider their needs and take legal advice before entering into any agreements and ensure that all parties are sufficiently protected.

It may seem like semantics to focus on the terminology, but it is important for all members of a practice (including the administrative staff and receptionists) to understand the difference between a locum and someone who works at the practice on a longer-term basis.

Understand that using the locum term incorrectly could have consequences for practitioners.

Furthermore, remember that once you employ another healthcare practitioner, you may be held vicariously liable for their negligent acts or omissions.

1 Prof S Naidoo, SADJ July 2015, Vol 70 no 6 p264 – p265
2 HPCSA Booklet 1 – General Ethical Guidelines for the Healthcare Professions
3 Ethical rules of conduct for practitioners registered under the Health Professions Act
4 Labour Relations Act 66 of 1995

 

See more from MedicalBrief archives:

 

Locum arrested; Gauteng doctor faces disciplinary proceedings

 

HPCSA warns on locums following arrests of ‘illegals’

 

Serious consequences of not paying HPCSA registration fees

 

 

 

 

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