Thomas Coates of Buxton Coates Solicitors provides an overview of the legal situation facing dental professionals in light of NHS contract reform.

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The NHS England dental contract underwent a number of reforms at the end of 2022, as well as during 2023. Potentially, these changes have significant implications for dental professionals, particularly in terms of direct access and contractual obligations. With this in mind, what follows is an overview of some of the main issues under scrutiny within the walls of Buxton Coates Solicitors, to help dental team members better understand and steer through these reforms effectively.

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1. Understanding the reforms

The recent reforms were driven by six primary goals:

  1. 1.

    To be designed with the support of the profession

  2. 2.

    To improve oral health outcomes

  3. 3.

    To increase incentives to undertake preventive dentistry, prioritise evidence-based care for patients with the most needs, and reduce incentives to deliver care that is of low clinical value

  4. 4.

    To improve patient access to NHS care, with a specific focus on addressing inequalities, particularly deprivation and ethnicity

  5. 5.

    To demonstrate that patients are not having to pay privately for dental care that was previously commissioned NHS dental care

  6. 6.

    To be affordable within NHS resources made available by the Government, including taking account of dental charge income.

It is worth noting at this point that it is not clear how these goals will be monitored. Based on recent experiences with PDS+ contract holders, we envisage that where the NHS/ICBs (integrated care boards) are not clear with how they intend to implement change, it often results in disputes between the NHS/ICB and the GDS contract holder.

As for the reason why these six aims were created in the first place, this is the result of significant challenges with staff recruitment and retention, most especially because NHS dentistry was not attracting dental care professionals (DCPs). Most DCPs were seeking to move solely to private dentistry, where they could earn more money whilst facing fewer administrative challenges.

We have seen other challenges in respect of DCPs, as some dental hygienists and dental therapists, quite understandably, do not feel direct access is within their scope of practice, unless they are very experienced.

In fact, dental hygienists and dental therapists have expressed concerns with how practice owners are trying to administer the changes and feel pressured into accepting direct access. Therefore, dental hygienists and dental therapists may be left negotiating new contractual terms.

2. Working agreements

Where new contractual terms are agreed, it is in the best interests of the practice owner and the dental hygienist or dental therapist to ensure this is accurately reflected in the Hygienist/Therapist Agreements.

Dental hygiene and therapy services have been directly accessible in private dentistry for some time. However, some dental hygienists and dental therapists have been reluctant to take on direct access patients even in the private sector.

From a regulatory perspective, dental hygienists and dental therapists need to be confident it is within their scope of practice and that they have the correct indemnity insurance in place. As a DCP, even where they are employed, they cannot delegate these responsibilities to the practice owner.

The main difficulty we foresee is dental hygienists and dental therapists not having contracts that accurately reflect their working arrangements. It is likely the GDS contract holders will just issue them with Associate Agreements or Private Hygienist/Therapist Agreements but this will not accurately reflect the terms of engagement.

The legal standing of a dental hygienist or dental therapist is entirely dependent upon their contractual arrangements/agreements with the GDS contract holder. They may need to negotiate new contracts, to ensure the terms accurately reflect the services they are providing.

In our experience, where there is ambiguity in the self-employed contracts, it is likely to result in a dispute between the GDS contractor and dental hygienist or dental therapist. Furthermore, where terms are ambiguous, they are difficult to rely upon and enforce.

3. Varying a contract

If you want to vary your contract, you can approach your ICB directly. Depending upon the variation you are seeking to achieve, there will be specific provisions within the GDS/PDS contract on how to instigate the variation.

An example is approaching the NHS/ICB to incorporate your GDS contract. The NHS reserves the right to restructure the contract and even reduce the UDA value.

It is our advice that you instruct a solicitor to review the contract and ask them to assist you with approaching the NHS/ICB to achieve the variation.

4. Clarity is key

If you are a provider or performer, you should ensure you have a bespoke Associate, Hygienist or Therapist Agreement in place.

The disputes we see arise as a result of contracts that have unclear terms. For example, where there is a complaint, defective treatment, or underperformed UDAs, the parties are unable to agree a resolution as it is not clear what the parties' intentions were at the outset.

To protect yourself and your self-employed staff, you should ensure there are clear, bespoke agreements in place from the outset, which the team at Buxton Coates Solicitors can prepare for you.

Buxton Coates Solicitors is a full-service, independent law firm providing bespoke legal services for dental professionals. If you would like help with any legal issues, simply email or call 0330 088 2275 in the first instance.