UK: Dentists in Court

Last Updated: 17 September 2010
Article by David Reissner and Susan Hunneyball

Originally published in The Dentist

Although the Government may find using Units of Dental Activity a convenient means of limiting expenditure on dental fees, they have turned out to be a blunt weapon in the hands of some primary care trusts. In some cases inappropriate implementation of new GDS contracts since April 1, 2006 has brought PCTs and dentists into conflict, with some disputes having to be resolved by the Courts.

In May 2010, Mr Justice Hickinbottom presided over the High Court proceedings between David Tomkins and Knowsley Primary Care Trust (reported in The Dentist, July/ August 2010). The judge held that a UDA figure for Mr Tomkins' associate had been agreed and that the PCT was in breach of contract by failing to pay for the associate's activity. Hard on the heels of Mr Tomkins' case, a further dental dispute has now come before the Courts.

Up to the end of April 2005, Liverpool dentists Jackie Walters, Debbie Peterson and Gerard Forsey, had practised under an 'old' contract for general dental services. Many patients of the practice were from the more deprived sections of the community. The practice provided a full range of National Health Service treatment, including periodontal, cobalt/ chrome dentures, inlays, root canal treatment, crown and bridgework. Patients had access to a hygienist and a dental health educator.

From May 2005, Walters, Peterson and Forsey went into a pilot for personal dental services, but Parliament introduced legislation for new General Dental Services contracts with effect from April 1, 2006. The objective was to remove dentists' freedom to do as much work as they felt appropriate and be paid for it; and to introduce a regime under which a PCT's expenditure would be limited to what it had paid each dentist during a baseline period of October 1, 2004 to September 30, 2005. The idea was that the PCT would measure the care and treatment provided in the baseline period, convert that work into UDAs and apply a price to each unit. If the number of units (less five per cent) was multiplied by the price, each dentist should have been paid under a new GDS contract the same as he or she had been paid during the baseline period.

Converting care and treatment during the baseline period into UDAs, calculating a value for UDAs, and arranging for each individual dentist to enter into a contract – typically running to over 120 pages and with more than 360 clauses – was doubtless a great headache for PCTs and if done properly, was bound to take a long time to achieve.

Walters, Peterson and Forsey did not hear anything from Central Liverpool PCT (later succeeded by Liverpool PCT), until January 9, 2006. Various discussions followed and the PCT then sent each dentist a letter on February 16, 2006 with a draft contract, saying that in return for the contract value, the PCT expected the practice would attain its required units of activity broadly in line with the historic profile for the baseline period.

The letter said that unless the contracts were signed and returned, Walters, Peterson and Forsey would not be able to practise within the NHS after March 31, 2006. The PCT had priced UDAs at £20.33, as they had done for every dentist in the area who was moving from PDS into new GDS. No information was given about how the figure of £20.33 had been arrived at, and universal pricing appears to assume that every dentist had similar patients and practised in the same way.

Walters, Peterson and Forsey signed and returned the contracts to the PCT, relying on the PCT's figures and knowing that unless they did so, a practice that had been established in 1986 and which prided itself on the quality of care and the contribution it made to needy patients, would have to close within a matter of weeks.

In the year that followed, Walters, Peterson and Forsey provided the same level of care and treatment to their patients as they had done during the baseline period, but they never managed to achieve the UDA targets in their contracts. Realising the problem, they asked the PCT to reduce the payments being made to them, but this was not enough to ensure the services they were providing matched the contractual payments they were receiving.

In the end, Walters, Peterson and Forsey felt they had no alternative but to give the PCT notice to terminate their contracts and after more than 20 years of providing NHS services and building up relationships with patients, providing them with a standard of care they were proud of, they gave notice to terminate their GDS contracts. Jackie Walters was later to tell a judge: 'It was like getting divorced, only worse.'

Following the termination of the GDS contracts, Liverpool PCT pursued Walters, Peterson and Forsey in the High Court to recover the difference between what the dentists had been paid under their contracts and what they should have been paid if they had achieved their UDA targets.

Walters, Peterson and Forsey counterclaimed against the PCT, arguing that the GDS contracts should be retrospectively corrected to reflect the common intention of the parties. In particular, they argued that they had done substantially the same amount of work under their GDS contracts as they had during the baseline period, and the clear intention of Parliament had been that dentists who entered into a GDS contract should continue to receive the same remuneration as they had during the baseline period. They said if they had done substantially the same amount of work, then the only reason they had not reached their UDA targets must be the PCT's failure to price UDAs correctly.

The PCT disputed this and, in particular, argued that Walters, Peterson and Forsey could not have done as much work under the GDS contracts as they had during the baseline period. Comparing how much work had been done during the baseline period with the work done under the GDS contracts was far from easy. Diaries and appointment books were consulted, but not all the records had been retained. Appointment books might show how many patients were seen during a particular period, but patients might have been given NHS treatment on one occasion and private treatment on another. Diaries might or might not show whether the dentists had taken time off for sickness or other reasons in either period.

The trial of the case took place before His Honour Judge Davies at Manchester County Court in June 2010. After hearing evidence from representatives of the PCT and from Walters, Peterson and Forsey, the judge upheld the PCT's claim to recover overpayments, and then turned to the counterclaim.

He accepted that the common intention of the parties was (as the PCT had conceded) that dentists should be paid the same under the GDS contracts as they were paid during the baseline period for doing substantially the same work. He also agreed with Walters, Peterson and Forsey that the PCT's methods of calculating their targets when they moved from their PDS contracts failed to give effect to the common intention. The judge criticised the PCT for not telling dentists more clearly how they were setting targets and UDA prices, which he suspected was deliberate, to avoid calls for an increase in the universal UDA rate when dentists realised they were not getting a UDA price based on their historical performance.

The judge came to the view that for various personal and professional reasons, such as holidays and undertaking some private work, Walters, Peterson and Forsey had not carried out quite as much work under the GDS contracts as they had during the baseline period, but the shortfall in work did not account for the entire failure to achieve their UDA targets.

The judge concluded that the contracts of Jackie Walters and Gerard Forsey should be rectified by increasing the UDA rates so that if the same work had been done, the UDA targets would have been achieved.

Gerard Forsey's UDA rate was increased to £24.09 per UDA. Jackie Walter's rate was increased to £29.81 per UDA. The judge decided that because the contract value of Debbie Peterson's value only increased by five-and-a-half per cent then her contract would not be rectified. The PCT claims had to be recalculated, resulting in substantial reductions in sums payable to the PCT.

In 2008, during a Parliamentary debate, the House of Lords was informed that 48 per cent of dentists failed to achieve their UDA targets during the first year of GDS contracts. The Walters and Forsey case may therefore not be the only time the Courts have to grapple with whether a PCT is entitled to impose a single UDA rate for all dentists regardless of the nature of their practices and the characteristics of the patients; and the case may not be the last time a Court has to assess the level of work done under the contracts and compare it to the level of work done during 2004 and 2005.

Note: The three dentists in this case have not had an NHS contract since August 2007.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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