AC-2023-LON-002171 - [2024] EWHC 132 (Admin)

By the time of the hearing before the PCC, the correct approach to making claims for dental treatment under the GDS contract was not in dispute. The contested issues concerned Dr Imani’s state of mind at the time when the claims were made.

The GDS Contract was introduced by the National Health Service (General Dental Services Contracts) Regulations 2005 (“the GDS Regulations”) and the National Health Service (Dental Charges) Regulations 2005 (“the Charges Regulations”). A dentist who contracts to work for the NHS agrees to deliver an annual number of UDAs. The dentist is then paid monthly pro rata the value of the annual contract. There is no additional payment made for extra UDAs undertaken, but, in the circumstances that I indicate below, the NHS can clawback funds which have been overpaid if UDA targets are not met. Every dental provider is required by their contract to furnish details of the clinical activity undertaken by the contractor’s performers. The notification has to be given within two months of the completion of a course of treatment. From 2013 this is given to NHS England.

Clinical activity is measured in terms of UDAs with respect to a completed course of treatment. There are three main charging Bands: Band 1 attracts 1 UDA and covers, for example, examination, diagnosis and preventive care; Band 2 work attracts three UDAs and includes treatment covered by Band 1 with additional treatment such as filings, root canal treatment and extractions; and Band 3 is assigned 12 UDAs and includes treatment that is covered by Bands 1 and 2 plus more complex dental work such as the provisions of crowns and dentures. The provider is expected to know, and to indicate on the FP17 form (para 16 below), the correct Band for the treatment that they provide.

The contractor is expected to use their best endeavours to ensure that the course of treatment is completed within a reasonable time: clause 41 of the GDS Contract and Sch 3 Part 2, para 6(2) of the GDS Regulations. A course of treatment encompasses: examination of a patient, assessment of their oral health, the planning of any treatment to be provided and the provision of the planned treatment up to the date on which every component has been provided to the patient (or they voluntarily withdraw or are withdrawn from the treatment): regulation 2(1) of the Charges Regulations. UDAs are attributable when the course of treatment is complete: regulation 2(1) of the GDS Regulations. Accordingly, the accrual of UDAs for a GDS Contract is directly related to the course of treatment completed during a particular contract year, or, to put it another way, the date of completion of a course of treatment determines the contract year to which the relevant UDAs will be attributed.

The contractor is required to notify NHS England on the prescribed form (“the FP17”) within two months of the date of completion of each course of treatment. At the relevant time, the FP17 could be submitted in paper format or electronically. Its contents provide the basis upon which UDAs are attributed under the contract. If a contractor fails to provide the prescribed number of UDAs in a contract year, pursuant to regulation 19 of the GDS Regulations, NHS England may seek to recover the shortfall if it exceeds 4% of the contracted total.

Dentists were issued with the “NHS Dental Services – Completion of form guidance FP17 – England” (“the Guidance”). The version considered by the PCC was published by the BSA in July 2017. I understand that the contents are not materially different from earlier iterations. Part 1 of the form requires details relating to the patient’s NHS number, the provider and the performer. Part 2 relates to the patient’s basic information in terms of their name, address, date of birth and so forth.

Part 3 of the FP17 is headed “Incomplete Treatment and Treatment Dates”. By the words “Incomplete Treatment” the form indicates that the “Band for ACTUAL treatment provided” (emphasis in original) is to be indicated by placing a cross in either Box 1, 2 or 3 (to denote Band 1, 2 or 3). Further boxes in this section of the form, require insertion of the TAD and an indication of whether the TCD is the same as the date of acceptance or, where it is not, the date of completion or the patient’s last visit. The Guidance in relation to Part 3 included the following:

“Incomplete treatment – For banded courses of treatment commenced but not completed, cross one of the boxes 1, 2 or 3 to show the work that has been completed. The patient charge will be calculated against whichever of these boxes is crossed. A charge band must also be present in part 5, showing the treatment that has been started, so the band crossed in part 5 must be the same as, or higher than, the band crossed in part 3.

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Completion or Last Visit – Enter date of completion if the course was completed, or the date of last visit if it was not completed. All forms should be submitted within 2 months of the date of completion. If a decision is made to mark the form as incomplete, it should be submitted as quickly as possible.”

Part 4 of the FP17 concerns patient exemptions and remissions. Part 5 is headed “Treatment Category”. The various bands are then set out with a box by each so that a cross can be placed to denote the correct band. The Guidance notes indicate that only one of the boxes can be crossed on each form. The notes also include the following:

“Band 1 – Cross this box for a course of treatment that falls into charge band 1.

Band 2 – Cross this box for a course of treatment that falls into charge band 2.

Band 3 – Cross this box for a course of treatment that falls into charge band 3.”

In Part 5A of the form “the Clinical Data Set” (the nature of the treatment provided) is indicated by placing a cross by the appropriate options.

Part 9 of the form contains the declarations. In the paper version of the form, the declaration must be signed by the performer. The Guidance indicates that the first declaration must be signed and dated by a qualified dentist, who would usually be the “Performer responsible for the course of treatment”. The declaration includes the statement that “the information I have given on this form is correct and complete”. There are two boxes in which a cross may be placed by the declaration. The text by the first box says: “All the necessary care and treatment that the patient is willing to undergo will be provided.”. The text by the second box states: “All the currently necessary care and treatment that the patient is willing to undergo has been carried out”. The Guidance says that both boxes should be crossed save for instances where the performer decides to discontinue the course of treatment. Part 9 also contains the patient declaration. The Guidance indicates that the patient is to sign this part of the form before NHS dental services are provided. The declaration conveys the patient’s consent to examination and to the provision of any necessary care and treatment that they are willing to undergo and their agreement to pay the statutory charges for NHS dental services, if applicable. There is then a section which the patient can complete to claim free or reduced cost NHS dental services.

Performers are expected to report on the FP17 Form when a planned course of treatment has been terminated by either the dentist or the patient: clauses 45 and 46 of the GDS Contract and Schedule 3, Part 2 para 8 of the GDS Regulations. A patient may terminate a course of treatment at any time, but the contractor may only do so in certain prescribed circumstances.

Under the GDS arrangements, dentists must provide patients with a treatment plan, known as the FP17 DC form. This is a two-party form of which the top copy is given to the patient and the carbon copy retained by the practice with the patient’s records. The FP17 DC indicates both private and NHS treatment.