GP practice principals not vicariously liable for religious activities of locum GP: Brayshaw v The Partners of Apsley Surgery

The High Court today dismissed a claim brought against the Partners of Apsley Surgery relating to the conduct of a locum GP, Dr Thomas O’Brien.

The claimant, a patient registered at the surgery, telephoned asking to speak to a doctor and was telephoned by Dr O’Brien, a locum GP working that day. During their discussion, Dr O’Brien asked whether she had faith and indicated that his wife knew a way of healing without medication. He and his wife rang the claimant from their home that evening, and there were discussions about religion. The claimant wrote to them shortly thereafter stating that she understood that Dr O’Brien was giving of his time “as a Christian and not as my GP”. Over a period of four months, the claimant was befriended by Dr O’Brien and his family and taken to religious meetings. She continued to attend the surgery regularly to see GPs, to attend specialist referrals and to engage with the psychiatric service. Eventually, the claimant had a breakdown after being badly frightened by a lurid story told at a ‘testimony’ meeting. She disclosed what was happening to her psychiatrist, who reported the matters to the GMC. Dr O’Brien was later struck off.

She sued the practice principals and Dr O’Brien, who did not engage with the litigation. Martin Spencer J rejected claims that Dr O’Brien had committed the torts of deliberate infliction of psychiatric injury and harassment, but found that Dr O’Brien had been negligent in exposing the claimant to his brand of Christianity. He awarded damages against Dr O’Brien. He rejected, however, the claimant’s case that the practice principals were vicariously liable for his actions. The judge 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. He 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 their interaction as his GP was insufficient. Religious proselytising was not a risk reasonably incidental to the business of running a GP practice.

This is an important decision for GP practice principals and their liability insurers, as it will assist in at least limiting their potential exposure to claims in respect of activities of GPs out of hours.

Paul Stagg of 1 Chancery Lane represented the Partners, instructed by CMS Cameron McKenna Nabarro Olswang LLP and the Medical Defence Union.