GDC “top-up” Appeal Turned Down

GDC “top-up” Appeal Turned Down

Despite being able to fit the original 10 Commandments onto a pair of stone tablets, the National Health Service (General Dental Services Contracts) Regulations 2005, run to nearly 60 pages.

As a result there are dentists who have never read them and of those that have, few can claim to have memorised and understood every paragraph. Like most revered texts they have been subject to much commentary and explanation, not by prophets, but the NHS authorities, regulators and their legal teams. Since ultimately a registrant’s livelihood is dependent upon staying on the right side of these groups, their opinions may as well be enshrined in law. However, a new legal judgement has opened the door to serious questions about a long accepted interpretation of the contract.

There has been some revision of the regulations since 2006 as well as an element of “mission creep.” In general, the changes have made it harder for performers to acquire UDA’s. One rule that had appeared pretty clear throughout was the issue of “top up fees.” An example would be where a dentist providing a patient with a crown under the NHS offered the patient the option of an additional payment over the relevant NHS patient charge. This might buy the patient a different material or perhaps the services of a different lab.

It had long been accepted that the practice was forbidden and that the authorities would take action if it were found out, and this would include involving the GDC. It was also made clear that whether or not the dentist gained financially from this was irrelevant, simply offering any paid-top up was completely unacceptable.

As GDPUK has previously reported, in June 2022 the High Court overturned the GDC’s decision to erase a young dentist. The Judge, Justice Ritchie, had observed that there were inconsistencies between the NHS charges and contract regulations, and Business Service Authority guidance. He allowed the dentist’s appeal against the PCC decision in relation to the top up charges and related findings of dishonesty. The dentist who had been erased as a result of the decision, was restored to the register following the judgement. The GDC, used to getting their way, soon announced that they would “seek clarity on interpretation of NHS regulations.” They chose to do this by appealing the High Court decision.

In the latest development, the Court of Appeal has now turned down the GDCs appeal. In a brief statement on their website the GDC concluded, “It will be for the DHSC and NHS bodies in England who have responsibility for the Contract Regulations and associated guidance to consider what action they need to take following the outcome of this appeal and to communicate any implications for NHS dental charges to patients and dental professionals. We have been in contact with those organisations throughout the development of this case.”

On the GDPUK forum, comments about the latest legal decision have revealed a variety of interpretations. First to report the news was Andre Haigh, linking to the judgement and commenting, “GDC, BDA interpretation found to be wrong by Court of Appeal.” It did not take long for BDA Chair Eddie Crouch to respond “BDA interpretation? Don’t think we expressed an opinion apart from seeking clarity.” Another subscriber observed that, “this is starting to look incredibly embarrassing for the GDC and NHSE.”  An optimistic forum member, cryptically commented, “I think the GDC may be about to learn its lessons.”

There is clearly some concern that dentists will interpret the latest judgement as giving the green light to NHS top-ups. Despite Eddie Crouch’s comments on GDPUK, the BDA had published a piece at the time that the GDC’s decision to erase was overturned. One part read, “The GDS contract remains unchanged. A dentist cannot demand or accept a fee or other remuneration except as allowed by the NHS Dental charges regulation. A "top up" fee is therefore not permissible under the GDS regulations. The treatment provided under the "mixing" clause is either wholly NHS or wholly private.”

Cautioning against any sudden changes by dentists, the BDA had added, “We are aware that there have been comments on social media that have suggested the position has been changed by this recent legal decision. We trust that our members will pay as much attention to uninformed social media chat room comments about this decision as they hope their patients do about esoteric non evidenced based dental remedies.”

Given that the BDA is also a significant indemnity provider, it might be prudent to wait for further developments before assuming that top ups will be tolerated.


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