Dentistry Changes to The GDS Contract, Can They be Challenged?

The Dentists Act 2006 together with the NHS General Dental Services Contract govern how dental practitioners working within the NHS operate.

The legislation together with the contract document should be familiar to all practitioners but in reality, it is only when aspects of dental practice are tinkered with by central Government or a dispute arises between dentists and the NHS that reference is had to the information contained therein.

It is the case that all dentists are currently self-employed and required to hold their own indemnity or insurance cover.  Only those dentists who work exclusively in hospitals are covered by “crown indemnity”.  However, at the same time, they are to all intent and purpose, on the payroll of the NHS and it is the NHS who determine the terms of their engagement as contractors.

Many practitioners are now feeling the strain of Covid-19.  The apparent uncertainty over when the contract year 2019-20 will run from and to is likely to cause issues between the dentists and NHS commissioners.

The default position is that the year started on 1^st March 2019 and ended on 29^th February 2020 to combat the fact that March 2020 would not have been a fully productive month due to the impact of Coronavirus and the “lockdown” of 23^rd March 2020, which has now been extended until at least 7^th May 2020.  However, practitioners can elect to change the start date to 1^st April 2019 with the year ending on 31^st March 2020 or even more uncertainly, take an average of UDA productivity over a three-month period in 2019-20.

How would that impact on a practice which only started up 2 months before lockdown?

Uppermost in practitioners’ minds will be an issue that the guidance from the Chief Dental Officer fails to deal with, that of clawback.  NHS England have issued what is in effect a variation to the existing dental contract.

Whilst the basic principles of contract law do not permit unilateral changes to a contract IE those which are imposed by one party and not agreed by the other party, the actions of NHS England are contained within the contract as follows: –

Clauses 287 and 288 of the dental contracts which particularise how unilateral variations must be approached: –

1. No amendment or variation has effect unless it is in writing and signed by or on behalf of NHS England and the contractor.
2. NHS England may vary the contract without the Contractor’s consent: –

• in order to comply with the Dentists Act 2006, any regulations pursuant to the Act or any direction by the Secretary of State pursuant to the Act and
• notifies the Contractor in writing of the proposed variation and the date on which it is to take effect and
• where it is reasonably practicable to do so, the date shall be not less than 14 days after the date on which the notice is served on the Contractor.

Given the above, in spite of the confusion that has been caused as a result of the changes which have been imposed due to the impact of Covid-19, the prospects of a successful claim against NHS England would seem small and possibly not worth the risks that are involved.

For advice on this and any other questions that you have as to the impact that Covid-19 has had on your practice, whether of a dental or employment nature, we are happy to help. Our Business Support Service can provide up to 2 hours of free advice.

Please contact Jonathan Jacobs on 0161 667 3686 or jonathan.jacobs@prosperitylaw.com