GDPUK.com Opinions:: Eddie Crouch - The Judgement
| Eddie Crouch, well known to all GDPUK readers, sets out exclusively and immediately for GDPUK the story behind his court cases and the judgement which was handed down today, 10th December, at the Court of Appeal. In this story, Eddie also makes clear the true role the BDA had during this period of time, and exactly how the funding issue came about. |
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The story starts with Eddie as secretary of Birmingham LDC, a role he was quite new to, and the mood of the profession and in Birmingham was strongly against the contract about to be imposed by the Department of Health [DH] in April 2006.
In February 2006, Birmingham LDC sought the assistance of a local firm of solicitors to assist dentists unhappy with new NHS contracts, wanting to know how to “sign in dispute” correctly. Many have since said this was the only true negotiation we had over the contracts offered.
In my position as LDC Secretary I was approached by many others, some not even from my own LDC. The legal information we had was shared with many other LDCs and spread far and wide.
I was delighted when the BDA invited me to attend a meeting on potential legal challenges to the contract. The meeting took place in London in the late summer of 2006. The legal route of a Judicial Review appeared to be the only avenue left after disputes were thrown out by the NHS Litigation Authority [NHSLA], and it would have to be within three months of any decision made in Harrogate.
I took with me a selection of cases from those seeking my help - the ones I thought would and could be fought. Some of these came from colleagues who did not have the financial clout to take on such a challenge. This is an expensive road to follow as I have discovered for myself. Most of the cases which I considered to be very strong were deemed unwinnable by the BDA. There were several others, backed by the legal insurance cover on their practices that tried to get permission for a Judicial Review, but failed.
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The BDA did assist one case from Hillingdon, where a dentist with a case prepared by her solicitor husband (which reduced costs) was settled on the court steps and involved a practitioner who had been offered a zero contract value. Sadly, for contracts involving atypical years, this settlement set no legal precedent.
During that summer, my case had finally been painted with Harrogate whitewash and thrown out. With my experience of the BDA’s view of other important cases, I decided to go it alone.
As the permissions hearing approached, I contacted the BDA to inform them, and they started to seek out legal opinions on the strength of my argument. Their initial opinions were unfavourable and they advised it was unlikely I would receive permission for a full Judicial Review.
Permission was granted before Mr Justice Burton on the grounds that the issues raised were of “public importance” and a date was set for February 2008.
My arguments were two fold, firstly my atypical year was ignored by the PCT and as a result patients waiting for treatment suffered, and secondly that a termination clause had been inserted into my contract that I felt was unfair and draconian.
The BDA was unhappy about my first argument. I thought having a patient angle to my case ensured press coverage, why would the media be interested in a termination clause in a dentist’s contract? To me, it was important that I tried to show this contract was not about patient care as the Government claimed, but about the capping of Government funding.
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The BDA chose not to support any of my costs at the first hearing despite my formal request; their reasoning was that I had not come to them from the start, and that my argument over needs assessments was a big risk. Indeed, just a few weeks before the case, the BDA sought further legal opinion from a very senior QC who felt success in the whole case could not be assured.
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The BDA eventually changed Counsel and they were represented at the High Court by a different QC. Judge Collins found in my favour over the termination clause and he suggested the BDA should organise a whip round to support my costs which by this time were substantial.
A large proportion of my legal expenses were raised by gifts from generous colleagues who came to my aid; a mixture of small and large donations was received, and I can never thank all of those donors enough for their help and support.
After the case the BDA, taking up the Judge’s suggestion offered to write articles in the BDJ and BDA news asking for further donations, but these articles never appeared.
Then the Department of Health appealed against the findings of the Judicial Review and I began to panic regarding potential further risks of costs. I asked my friends and colleagues to write to the BDA and request support, this time of a financial nature and hundreds did, prompting a response on the website and personal letters back from the Chair of the Executive Board.
I was asked to attend a meeting at Wimpole Street where the issue of funding was touched upon, but before any details of financial help from the BDA could be offered I was required to sign a form of confidentiality agreement, effectively a ‘gagging clause’, before any offer was tabled.
It was a Catch 22 situation. What happened if I signed the gagging clause and the offer was unacceptable? In the end, after deliberation with my barrister, I chose not to sign and the matter ended there.
Further still, my legal team agreed with the Department of Health a neutral cost agreement, so that, even if I lost, the risk of the Department’s massive legal bill was taken off my shoulders. It also meant, unfortunately, that if we won, my legal team could not bill the DoH.
So there we have it, a case in which I owe much to the benevolence of so many and one that shows even the might of a Government can be defeated against all the odds.
If you believe that you are right you can win.
An incredible weight has been lifted off my shoulders and without the generous support of so many friends and colleagues it would not have been possible to win a famous victory for the profession. I am just sad that more contract holders were unable to pursue their arguments to good effect. Who knows how successful they too may have been had there been a little more help out there when they needed it?
Eddie Crouch
10th December 2008.
Mahendra
BDA complete and utter disgrace.
Andy
You have demonstrated incredible bravery on behalf of us all thank you.
Anne
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