Kirsty van Rhyn and Dr Yash Naidoo, Case Managers at Medical Protection, explain how the incorrect use of the word 'locum' could land you in trouble with the HPCSA.
The term locum is well known among healthcare professionals in South Africa. It is commonly used by practitioners to describe people who work 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 lead to costly employment disputes. We will touch on these issues and hope to make it clear why the correct use of the term is more important than one might think.
The HPCSA does not define the term locum or locum tenens. The concept is concisely described by Prof S Naidoo as follows: “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 from practice 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 a number of rules and guidelines concerning the use of locums.
Firstly, the HPCSA says 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 Rules3 states that a locum must be currently registered in the independent practice category and cannot be employed for a period longer than six months.
Healthcare practitioners often casually 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. We draw this to practitioners’ attention not simply to be pedantic; failure to properly use the term has led to practitioners being formally investigated by the HPCSA.
In a recent matter, the HPCSA was in the process of investigating the authenticity of sick notes emanating from a practice. During their investigation, a doctor at the practice was interviewed. The doctor had no involvement whatsoever with the sick notes under investigation and was thus not at risk in the first place. However, the doctor innocently mentioned in passing to the HPCSA investigator that they had been locuming at the practice for a year. This caught the attention of the HPCSA who then roped the innocent practitioner and practice owner into a formal investigation requiring a formal explanation from the innocent practitioner and the practice owner, as to this arrangement exceeding six months and possibly contravening the HPCSA’s rules.
Eventually the matter was clarified to the HPCSA as a misunderstanding on the part of the innocent practitioner, who had used the term “locum” incorrectly. But the point remains – the incorrect use of the word can land you in trouble with the HPCSA and cause unnecessary stress and time out of your practice.
But it is not only at the regulator where practitioners may find themselves wanting when it comes to the use of locums. If not carefully considered, the use of locums can potentially lead to employment disputes and legal claims against unsuspecting practitioners.
The main reason for this is a legal concept known as vicarious liability. Put simply, vicarious liability 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 (for example 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 a locum who negligently harms a patient.
Vicarious liability does not generally apply if the practitioner who caused the harm is an independent contractor. 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 they may be 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 Act4 is important, because it creates a presumption that a person is an employee. It 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, particularly for practice owners and people who make use of locums, of ensuring that their 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.
In conclusion, 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.
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1Prof S Naidoo, SADJ July 2015, Vol 70 no 6 p264 - p265
2HPCSA Booklet 1 – General Ethical Guidelines for the Healthcare Professions
3HPCSA Booklet 2 – Ethical and Professional Rules of the Health Professions Council of South Africa
4Labour Relations Act 66 of 1995
Medical Protection does not assist with employment contracts or advise on employment law. Medical Protection does not indemnify individuals in cases of vicarious liability.