NHS regulations were in the dock recently. Len D'Cruz and Kevin Lewis examine the decisions and outcomes.
judgement that has already led to a considerable amount of debate, especially amongst those providing NHS dental care in England and Wales, the Court of Appeal has confirmed that "top-up" private fees in addition to band three NHS charges - in this case for a more aesthetic ceramic crown - were permitted by the relevant NHS regulations.
Professional conduct in question
This appeal was brought by the GDC following a judgement by the High Court , which overturned the original professional conduct committee (PCC) decision of the General Dental Council (GDC) in January 2022, which had resulted in the erasure of dentist Lucy Williams, who was put through lengthy and traumatic regulatory court processes. The High Court ruled that the PCC was wrong to have found that Dr Williams was not permitted to charge 'top-up' fees in the way she did for three patients, and therefore quashed the PCC's finding of dishonesty and replaced the erasure with a nine-month suspension, reflecting other findings in the case.
This appeal centred on whether the judge, Ritchie J had erred in his interpretation of the NHS regulations, where he disagreed with both of the expert witnesses and the lawyers for both the GDC and the dentist and applied his own interpretation. The three appeal court judges reviewed the wording of two NHS regulation clauses very carefully.
They suggested Regulation 22 of The National Health Service (General Dental Services Contracts) Regulations 2005 - which limits the fees that can be charged for the provision of any NHS treatment, to the statutory charges specified in the NHS (Dental Charges) Regulations in force at the time - should be read not in isolation, but together with Paragraph 10(1) of Schedule 3, Part 2 of the NHS GDS Contract Regulations, which specifically permits the mixing of NHS and private treatment with the agreement of the patient.
Overlooked regulation changes
"The judges accepted not only that mixing of NHS and private treatment was allowed but was also allowed on the same tooth"
The judges accepted not only that mixing of NHS and private treatment was allowed but was also allowed on the same tooth, contrary to what the two experts and the lawyers for both the GDC and the dentist had jointly agreed between themselves [paragraph 47 of the judgement]. Whilst the 1992 Regulations had specifically prohibited mixing of NHS and private treatment on "a single tooth" the clause dealing with 'Mixing of general dental services and private care and treatment' missed out subparagraph (3) (a) but carried over the rest of that clause into the 2005 Regulations, thereby removing the prohibition on 'same tooth' mixing from the moment the UDA-based contract was introduced in 2006. It appears that none of the experts or lawyers engaged by either side in the original GDC hearing had recognised this subtle change. It might well have saved much anguish and a significant amount of heartache not to mention cost for everybody concerned, had they done so.
The judges also agreed that paragraph 10 (1) Schedule 3 expressly allows the patient to agree with the dentist to pay privately for "any part of the course of treatment". They referred also to the definition of a "course of treatment" in the regulations which refers to "each and every component of the planned treatment", implying there is no qualification on what a "component" is.
The spirit of choice and fairness
The judges said they were aware of the overriding principle that the NHS Regulations were trying to ensure dental care was free of charge  and therefore felt that the additional cost of the ceramic crown topped up privately by the patient was closer to "the spirit of free dental services".
All of this might sound a bit curious if you've been collecting ever-increasing patient charges on behalf of the Government for decades, but the Court made a specific point that without the modest 'top up fee' in the case in question, the dentist would have been left out of pocket because of the additional laboratory costs involved in a ceramic crown, that the NHS would otherwise expect the dentist to pay. The importance of ensuring patient consent and choice was emphasised.
The Court ultimately accepted that when a patient agrees to treatment, they may agree that some component part or part of that course treatment will be provided under the NHS contract, and they will pay privately for another part or parts of the same course of treatment .
This judgement debated where the boundary lies on what might represent a component part of a course of treatment or indeed of an individual treatment type when it comes to mixing NHS and private treatment. This is potentially quite significant though this is not the first time the 2006 contract wording has come under the scrutiny of judges and been subjected to such forensic legal analysis.
"The decision was situation specific, and the Court did not rule that any kind of 'top up fee', in any circumstance and at any level, was permitted."
The issues under appeal, in this case, revolved specifically around provision of a ceramic crown instead of a porcelain bonded to metal crown where the patient wanted a more aesthetic solution, and with their agreement on the additional private costs, the dentist came to a "pragmatic agreement" with them  which the Court deemed both reasonable and permitted by the regulations.
This separating out of the additional lab costs to represent the so called "top-up" fees was in the opinion of the Appeal Court entirely permitted by the mixing clause. It is important to note that the decision was situation specific, and the Court did
not rule that any kind of 'top up fee', in any circumstance and at any level, was permitted.
What does this mean for the delivery of NHS care in the mixing of part of it with private fees from the patient?
Firstly, there is no doubt that you can mix on the same tooth e.g. an NHS crown with a private root filling and this has been the case since 2006 notwithstanding dental guidance issued to practitioners throughout the intervening 17 years to indicate otherwise.
Secondly, under this interpretation, the judgement re-states the importance of ensuring a treatment plan is signed when the patient accepts the provision of private services in place of all, or part, of the services under the NHS contract 
One of the unintended consequences of the judgement is that this close legal analysis of the wording of the regulations has resulted in a description of what might constitute "a component of the planned treatment" or "a part of the course of treatment".
The judges accept that because there is no qualification of the words "any part" , significant granularity is inevitable. The case however was essentially about an NHS crown where the choice of ceramic material was not clinically necessary for oral health  but was provided for aesthetic reasons where there was an additional laboratory charge incurred by the dentist. Perhaps then charging "top up" fees under a band three course of treatment, involving more aesthetically focussed lab work, where the additional fee is modest  may be all that the implication of this case extends to for the time being.
We need clarity
As well as wider clarification on the implications, NHS England will also need to confirm whether the guaranteed treatment provisions along with the two-month charging rule applies where patients have agreed to top up their treatment with private fees. One could argue there is no reason for the current rules not applying.
This case revolved around fee paying patients but would probably also apply to exempt patients who choose to pay a private fee for more aesthetic crowns.
NHS England will need to reflect on this decision and amend its guidance accordingly and/or in the longer term amend the regulations. It may require a revision of the way in which the various regulations operate alongside each other; all sides in the case agreed that greater clarity is needed. The challenge will be to achieve this without constraining patient choice or the ability of NHS practices to remain viable. We are already in the process of seeking answers from NHS England.
There are also significant considerations for the GDC coming out of this case. It will need to reflect on whether this interpretation of the regulation has implications for other historic fitness to practise cases where charges of dishonesty have relied upon registrants' approaches to mixing NHS and private treatment. In many cases, that will not be a straightforward assessment, given that there will often have been multiple charges of dishonesty brought. Nevertheless, the regulator has an obligation to review previous approaches.
Particularly until we have greater clarity, practitioners should familiarise themselves with the relevant regulations again, read this judgement carefully and ensure they do the following to avoid any misunderstanding:
- Discuss with your patient their treatment options under the NHS and privately, explaining the outcomes, differences and costs clearly
- Provide a treatment plan and ensure where private treatment is agreed, the patient signs the FP17DC or equivalent
- Ensure that you carefully document in the clinical notes, the conversations you have with your patient regarding the options available to them.
Head of BDA Indemnity
 General Dental Council v Lucy Williams  EWCA Civ 481
 Lucy Williams v General Dental Council  EWHC 1380(Admin)
 National Health Service (General Dental Services) Regulation 1992 Schedul 1 (part 1) 16 (3) (a)
 Rattan R, D'Cruz L Grey matters: 2006 and all that
Prim Dent J 2019 ;8(2):22-28
 Hughes v Rattan  EWCA Civ107