Abstract
Many medical practitioners in private practice use a locum tenens when they themselves are not available to practice. The locums are often appointed without consideration of the legal consequences or requirements. Legislation distinguishes between an employee and an independent contractor. If the locum is appointed as an employee the doctrine of vicarious liability comes into play which is not the case with an independent contractor. Contracts currently available to appoint a locum give the contracting parties a choice between being appointed as an employee or an independent contractor; this should be changed in that all locums should be appointed as independent contractors especially if the working of the Consumer Protection Act is also taken into consideration. Furthermore, according to the rules of the Health Professions Council of South Africa (HPCSA) the onus to ensure that the locum tenens is registered and fit to practice, rests with the principal
Highlights
The words locum tenens originate from Latin meaning "one holding a place"
The locum should be registered as a health practitioner with the Health Professions Council of South Africa (HPCSA) and the contract of appointment should be in writing
The Consumer Protection Act 68 of 200850 (CPA) applies to every transaction occurring in South Africa involving the supply of goods or services in exchange for consideration[51] unless the transaction is exempted from the application of the Act.[52]
Summary
The words locum tenens originate from Latin meaning "one holding a place".1 This phrase dates back to the middle ages when the Catholic Church provided clergy to parishes where there was no priest available. A further aspect to take cognisance of when appointing a locum as an employee is the possible application of the doctrine of vicarious liability, according to which the medical practitioner himself or herself could be held liable for the unlawful and/or negligent conduct of the locum This danger exists to a lesser extend if a locum is appointed as an independent contractor, as vicarious liability will be applicable only if the doctor appointed an incompetent locum or where a locum's actions caused prejudice to third parties.[5]. Two pro forma contracts that a medical practitioner in private practice appointing a locum himself or herself can use are included. These contracts are analysed and recommendations are made to improve the current options to the benefit of both parties. Mainly to indicate the role of the locum in the application of the Act in a medical context and how it should be contractually addressed
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