Dental Contracts: A Search for Principle and the Future – A report

I was fortunate enough to attend a most informative Dental Legal Conference in Manchester last week, the legal firm Pannone are to be congratulated on the content of the day.

Here’s a full report written by Aidan Briggs.

The rare Manchester sun was out to welcome delegates to the Lowry hotel for the 2010 Dental conference, organised by Pannone solicitors. In all, 100 or so dentists and related professionals gave up their Wednesday to hear key speakers give their views on the present state of public service dentistry and, as soon became apparent, most brought strong opinions of their own.

After an early photo-call, Dr Eddie Crouch opened the day by reminding listeners, if any reminder was needed, of the ever-increasing role of the law in dentists’ practice, a subject on which his personal experience is well-known. The day was focused around the legal and contracting issues facing NHS dentists and some predictions for the future.

Dr Colin Hancock of Denticare Ltd took the floor and, promptly, the clouds rolled in. Patients, said Dr Hancock, are now last on a long and impenetrable list of TLAs (Three-Letter Acronyms) with which practitioners have to grapple. This has led inexorably to systemic professional mistrust between dentists and their PCTs and, ultimately, a total loss of morale in the profession. “Do not roll over” was his plea; too many independents back down in the face of increasingly outrageous demands out of fear of bureaucracy and cost. While maintaining a rapport with the provider was advisable, challenging underperformance demands, keeping rigorous diaries and getting the BDA or lawyers involved early had served to prevent his practice paying a single penny in ‘clawback’. This professional mistrust certainly resonated with his audience; dentists complained of “arbitrary and disconnected decision-making” from PCTs which was neither fair, reasonable nor equitable and this was to become a theme of the day’s discussions.

John Renshaw of Oral Care Consulting Ltd continued in similar vein detailing the minefield that is the new bidding process for PCT contracts. This process, he announced, militates against small practitioners and probably represents between 50 – 60 hours of work per bid. Gone, he mourned, is the old system, “a natural, organic way of developing a practice” and in its place is a new deal in which dentists put up all the cash, take all the risks and are expected to hand over all their goodwill to the PCT after 5 years: “There are huge, huge problems with the new service. The effort to bring fairness fails at every turn. It’s not fair, open, honest, legal or reasonable at all”. Running through the stages of MOI, EOI, PQQ, ITT and finally KPIs Mr Renshaw railed against PCTs who try “to change the immutable laws of nature”. There were rare good apples – PCTs who tendered not on price but on quality for example – but the subtext running through the whole system was an effort “to destabilise every dental practice”, and for Renshaw “dental unemployment is only just around the corner”. A gloomy forecast indeed. Little hope was raised for prospects post- May 6th; “Tories just don’t understand dentistry” was Renshaw’s blunt assessment, and as for the next contract system: “PDS Plus stinks. It is the pits”.

Resentment however was not merely aimed at government. One delegate blamed the BDA’s training-heavy agenda as the cause of looming unemployment. Other delegates were less polite: “The BDA couldn’t run a bath. They couldn’t negotiate their way out of a wet paper bag” said one disenchanted member over lunch. Delegates generally criticised a lack of leadership.

Into the storm Jim Lister of Pannone solicitors attempted to inject a ray of hope, giving advice for employment disputes. Redundancy, he said, was an under-used tool in an employer’s arsenal; making staff redundant was not restricted to collapsing businesses and should be employed as a tool for managing the skills and costs of your business. Thanks to the UK’s employer-friendly regime even an unfair redundancy still saves you money, delegates heard. On the other hand, the new Vetting & Barring scheme and the flexible working provisions of the Equality Act promised a serious headache for small employers. Quid pro quo.

Also from Pannone, Nicola Marchant a leading practitioner in the North West gave a practical review of partnership disputes and how to avoid them. The take-home message: make an agreement in writing or be lumbered with the archaic provisions of the 1890 Partnership Act. The BDA has a passable template agreement available, which members can tailor to their own situation. Dentists should also be aware of the protection and tax advantages afforded by incorporation or by forming Limited Liability Partnerships; although PCTs work to discourage the use of alternative business structures, there are ways around the problem for the canny (or well-advised) practitioner.

Richard George of DPAS raised the issue of UDA value disparity. In Renshaw’s opinion, harmonisation was inevitable. Colin Hancock agreed that low UDA values prejudice quality and a more likely result is an average payment, with PCTs keeping back money for extensive and specialist treatments. Denplan’s Roger Matthews made comparisons with the recent pilot projects in Northern Ireland and had no doubt that, although dentistry will maintain its value, it was “fanciful to imagine” that dentistry could escape the likely £20 billion of ‘efficiency savings’ after May 6th, whoever wins the election. The inevitable consequence, as with the proposed of cap on GP’s salaries, was a wider gap between private and public incomes and “an inevitable career progression to private practice”.

After lunch, barrister Simon Butler gave a rousing speech urging practitioners to be more proactive in challenging PCTs. Freedom of Information requests can be tactically invaluable in mounting a case, he warned, but if dentists want to protect their goodwill they must be bold and unwavering in the face of PCTs who will try deliberately to disadvantage practices which raise disputes. Mr Butler also raised concerns with the NHLSA Dispute Resolution Process; adjudicators are not legal practitioners, and can bind parties into decisions that are almost impossible to review. As a salutary warning, Mr Butler raised the new 2010 regulations, which entitle PCTs to terminate GP contracts simply on notice without any reasons whatsoever. In a recent medical case, GPs had been forced by one PCT to take a 40% cut in the value of their contracts or have their contracts cancelled under the new clause. That case is currently headed for the High Court, but similar provisions in GDS contracts are coming, and practitioners should be prepared for decisions from PCTs under pressure to make savings.

Mr Butler also discussed contractual arguments in relation to clawback, goodwill and termination.

Leaving the law aside, Roger Matthews through a heavy cold explored the recent data on public and private dental care. The 33⁄4 years since March 2006, delegates heard, have produced only 18,000 new NHS patients for £1.2bn of extra expenditure – just under £100,000 per patient – and the new system showed massive discrepancies in behaviour of PCTs, with some trusts clawing back only 2% of underperformance and others clawing back 100%. Another issue that was raised was the provision of advanced care – such as endodontics and periodontics – which is positively discouraged by the UDA system. Dr Alex Milosevic, a hospital dentist, cited his personal experience of having a glut of referrals who were either too expensive to treat under GDS contracts, or were the victims of the run up to March when many practices have exceeded their allocation of UDAs. The experience that dentists are not the only victims of weak contracting provisions was one shared across the conference as a whole.

On that happy note, Eddie Crouch rounded off the day with a look at the Health Select Committee Report and the Steele Review. He brought good news from the Steele Implementation Programme Board that the 2006-style contract is, hopefully, “dead” and that the proposals under discussion post-Steele will address many of the concerns which were overlooked in the rush to create GDS contracts. The Contracts group have been inundated with expressions of interest in the Wave 2 pilot programmes (although realistically these are likely to get underway in mid-2011, somewhat later than planned) and expect to select 100 or so practices from across the dental spectrum. The Pathways group are engaged in the more arduous task of defining key terms and setting out criteria for advanced care.

As we emerged into the evening sun, three key messages remained out of the day’s discussions; first, mistrust and dirty tactics from PCTs are putting contract value and goodwill at risk, and practitioners are increasingly turning to litigation to protect their interests. Second, the tendering system and employment regulations have increased the burden on practice managers and militate against the small practice. Third, more leadership is needed from the BDA in pursuing dentists’ interests, by forging the shape of future arrangements with providers. As pressures on health budgets increase, dentists must unite and be bold; dark times, and a call to arms.

Aidan Briggs
Barrister
Ely Place Chambers

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