Top-up fees judgement highlights need for consistency in regulation

John Makin on confusion surrounding top-up fees

John Makin advises practices to tread cautiously before making any changes based on the recent top-up fees judgement.

Much debate has followed May’s Court of Appeal ruling against the GDC on the permissibility of top-up fees.

The case itself was highly complex. But one of the Professional Conduct Committee’s (PCC) findings of dishonesty hinged on whether it was permissible to offer NHS patients the option of paying the additional laboratory cost to receive a ceramic crown rather than an alternative.

When the dentist successfully appealed against erasure, the judge ruled that the GDC was in error. This is because the mixing of services was permitted under NHS regulations and the High Court agreed.

Experts agree

Under the current UDA-based contract, it was generally accepted that mixing private and NHS treatment was permissible on one tooth. For example, an NHS root canal followed by a private crown. But it was not thought to be allowed within the same item of treatment.

Careful review of the PCC determination shows experts agreed that: ‘it is not permissible to mix private and NHS charges for the same item of treatment in the same course.’

A couple of paragraphs later this appears to have been misapplied into: ‘However, the Committee was satisfied from the expert evidence that the non-mixing of NHS and private treatment on the same tooth is a fundamental tenet of the NHS regulations’ (my emphases).

In my view, the current confusion may, in part, have arisen from a simple drafting error at the PCC stage. This phrase was then considered to be significant by the judges in the two subsequent appeal cases.

Registrants are now faced with a situation where they must not only try to interpret the regulations, something described in the judgement as being ‘fiendishly tricky’, but also the Court of Appeal’s ruling and the extent to which top-up fees are permissible.

NHS England has issued an interim statement explaining that it intends to review the guidance and regulations around charging but that in the meantime ‘the ruling does not change the principle that patients should be able to receive clinically necessary treatment needed to keep their mouth, teeth and gums healthy and free of pain through NHS dental treatment.’

The statement also reminds practitioners: ‘Decisions about which treatment is appropriate should be based on clinical assessment and judgment.’

Call for clarity

The DDU has already met with the DHSC urging it to act with urgency to clarify the position. Until then, we have suggested that dental practices and contract holders proceed cautiously before introducing any changes.

However, this is not the only aspect of the Contract and Charges Regulations where there is now uncertainty.

As I wrote in Dentistry earlier this year, NHS England introduced a radical policy change. This stated that current regulations do not prevent suitably qualified, competent and indemnified therapists and hygienists from providing NHS courses of treatment under direct access. This leads to questions such as who has responsibility for treatment provided by dental professionals not on the performer’s list.

With the GDC also consulting on scope of practice, we recommend practices carry out a risk assessment before embarking on changes to working practices.

The uncertainty surrounding top-up fees and direct access arrangements exemplifies the difficulties dental professionals face. They lack a clear regulatory framework and ethical standards to support their decision making.

Going by the calls to the DDU advice line, practitioners simply want to do the right thing. It is hardly their fault that the goalposts keep moving.

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