Mixing, NHS charges and top-up fees - More chaos following the Williams case

The recent disclosure of emails by the GDC under FOI concerning the Williams case shows an absolute refusal by the NHS to become involved in the litigation. The reasons for this decision have been redacted, or not even given to the GDC.

Had the NHS bothered to engage, rather than sitting on the sidelines waiting for a decision, it would have had the opportunity to seek Counsel’s advice on the meaning of the regulations so it could have contributed to the court’s understanding of what is a fiendishly tricky issue.

 It’s almost a year since NHS England wrote to the profession on 19.6.23 saying:

“Today NHS England and Department of Health and Social Care have published a short statement (annex 1) responding to this judgement. This will be shared with colleagues via the NHS BSA. We continue to work on the wider implications of this judgement and will issue further guidance in due course.”

The appendix referred to said that it was a “commonly held understanding in the dental sector is that such mixing and top-up payments on the same tooth are not permissible.”  

NHSE clearly doesn’t understand its own regulations and the Court judgments. Alternatively, they have been looking at the pre-2006 regs that are very similar to the current regs in Scotland and NI where mixing on the same tooth is expressly forbidden.

This is precisely what the High Court was concerned about, because the GDC PCC wasn’t able to sort out what the regulations actually said.

One of the key changes in the 2006 contract and associate regulations was to specifically allow mixing on the same tooth eg a dentist can offer an NHS RCT and a private crown [NHS (General Dental Services) Charges Regulations Schedule 3 10(1)] This is not the same as a “top-up” charge. My understanding of a top up charge is that it is a fee in addition to the NHS charge for an item that is supplied under the contract but at an enhanced quality. In other words, mixing within an individual item of treatment (crown/denture) as distinct from mixing within one course of treatment on one tooth.

Previously^[1], dentists have been sentenced to custodial sentences^[2] for doing exactly this. The main difference between those case and the Williams case is that Dr Williams seems to have limited the additional fee to the additional fee charged by the laboratory for the enhanced product compared to the standard NHS type crown. In the Anderson and Muller cases the fees for the top-up were considerably more than the additional lab fees without the evidence of consent (DC forms etc), but the principle was the same.

What is in dispute is whether a charge can be made where a proposed plan is to provide, for example, a crown or a denture which has a cosmetic upgrade above and beyond what a lab might charge to make an NHS crown or denture and that upgrade charge is passed on to the patient. So, a band 3 charge plus a top up fee. The court has said this is permitted under the regulations. The question for those of us that have been advising the profession is whether the Courts have permitted the Williams approach or the Anderson/Mueller approach. The only difference between them is the sum involved.

The one fly in the ointment that neither the Court nor the GDC didn’t seem to notice is the  NHS (General Dental Services) Charges Regulations Schedule 3 10(3) sub-para a) that stops a practitioner selectively withholding items of care under the NHS and

sub-para b) which expressly states that a practitioner cannot compare NHS treatment unfavourably in terms of a difference of quality with private options.

It seems to me that in order to offer a patient an enhanced quality product, by definition the practitioner is at risk of breaching the regulation forbidding them from saying that the private product is better. The only exception to this that has been long argued is that an offer to provide an aesthetically superior product is different to saying that it is “better” and the NHS is “inferior”. I have always thought that is a dangerous hair to split, as it relies on a detailed note of the consent process which is frequently missing.

The problem is that NHSE doesn’t appear to know what the real issue is. Does it believe that the Courts got it wrong? Does it accept the Court is correct and if it is, should there be a limit to the additional fees charged? In either case, how on earth can it prepare new guidance to assist contractors to operate the contract correctly and lawfully, mindful of Schedule 3 10 (3) b? Alternatively, it will have to re-write the regulations to make the position clear for all to see and understand. Given the lead time for a change to the regulations, the profession is unlikely to have clarity until well into the next Parliament.

Perhaps an FOI request to NHSE might reveal their recent and current thinking?

The profession in England and Wales awaits with interest to see how the circle is squared.

^[1] Dentist from Norfolk accused of cheating the NHS out of more than £26,000 | Eastern Daily Press (edp24.co.uk)

^[2] Two dentists convicted of defrauding the NHS escape jail | ITV News Central