Will the rest of the social care industry follow dentistry into top-up fees?

Background

In the recent case of The General Dental Council v Lucy Jane Williams [2023] EWCA Civ 481, the Court of Appeal confirmed the National Health Service (General Dental Services Contracts) Regulations 2005 (“regulations”) did not prevent “two different parts of a course of treatment” – for example NHS and private treatment – being carried out on a single tooth.

This is a significant development within dentistry claiming, and will have far reaching implications for dentists – but will it also have a direct bearing and impact on the social care funding landscape?

The decision

The registrant was a dentist and was subject to a Fitness to Practise hearing before the General Dental Council’s (“GDC”) Professional Conduct Committee (“PCC”). The allegations centred on the dentist providing more than one patient with a porcelain bonded crown on the NHS, then offering the patient a more aesthetically-pleasing ceramic crown at an additional fee – a top-up fee – which would be paid for privately by the patient.

In accordance with the widely accepted interpretation of the regulations, the PCC considered the dentist’s actions to be inappropriate and dishonest on the basis that “it was impermissible to mix the payment structure of the NHS and private payments in this way” and the dentist was subsequently erased from the register.

Appeal

The dentist appealed the decision to the High Court, which was permitted in respect of the top-up fees but quashed the findings of dishonesty in connection with these patients. The High Court also changed the dentist’s sanction of erasure to one of suspension for nine months.

The GDC appealed the High Court’s decision to the Court of Appeal, with the consent of the dentist, on the basis that the judge’s interpretation of the regulations was incorrect. The Regulations at the centre of the appeal concerned the interpretation of the following clauses:

“Fees, charges and financial interests of the contractor”

Regulation 22 (1): “The contract must contain terms relating to fee, charges and financial interests which have the same effect as those set out in paragraphs (2) to (4).

(2) The contractor shall not, either itself or through any other person, demand or accept a fee or other remuneration for its own or another’s benefit from—

(a) any patient of its for the provision of any treatment under the contract, except as otherwise provided in the NHS Charges Regulations…” (emphasis added)

Whilst Paragraph 10, Schedule 3, Part 2 of the Regulations states:

“Mixing of services provided under the contract with private services”

10. (1) Subject to sub-paragraph (2) and the requirements in paragraphs 2 (referral services) and 6 (orthodontic treatment plans) of Schedule 1 and paragraph 7(1)(g) of this Schedule, a contractor may, with the consent of the patient, provide privately any part of a course of treatment or orthodontic course of treatment for that patient, including in circumstances where that patient has been referred to the contractor for a referral service. (emphasis added)

‘Course of treatment’ is subsequently defined within the Schedule as:

• an examination of a patient, an assessment of that patient’s oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment; and
• the provision of any planned treatment (including any treatment planned at a time other than the time of the initial examination) to that patient up to the date on which—

1. each and every component of the planned treatment has been provided to the patient, or
2. the patient either voluntarily withdraws from, or is withdrawn by the provider from, treatment, by, unless the context otherwise requires, one or more providers of primary dental services, except that it does not include the provision of orthodontic services or dental public health services …”

After hearing submissions on the interpretation of the regulations from all parties, the judge dismissed the appeal and confirmed that “there is no rule that two different parts of a course of treatment (as defined) cannot be carried out to a single tooth. Say the same tooth requires a filling and then a crown. Those are two parts of a course of treatment. By agreement with the patient, paragraph 10(1) of Schedule 3 provides that one can be provided under the contract, and the other can be paid for privately.”

Implications for dentists and patients

As a result of this decision, the following is apparent:

• From a legal perspective, it will no longer be contrary to the regulations for dentists to charge top-up fees to patients
• Any registrants currently facing Fitness to Practise allegations concerning top-up fees will, inevitably, have these allegations withdrawn by the GDC and any associative allegations of dishonesty or inappropriateness
• Registrants who have faced allegations of a similar nature in the past may seek to challenge their historic Fitness to Practise decision(s).
• Training provided to dental students regarding NHS claiming will need to be updated
• Patients should be able to receive a collective mix of NHS and private treatment.

From a dentistry and disciplinary perspective, we will wait to see how this decision filters down to GDC Fitness to Practise and NHS matters and whether further legal challenge(s) will arise in due course.

Impact on social care

Within social care accommodation, for those requiring significant healthcare support, there has developed a paradox that for those who receive continuing healthcare funded by the NHS, the accommodation provided or funded by the NHS is provided free to the user at the point of delivery, irrespective of the individual user’s personal wealth.

In contrast, those whose needs are limited to personal care with ancillary nursing care are means-tested. Therefore, their assets are diminished by contribution until reduced below a threshold. In reality, there may be little apparent difference between continuing healthcare and social or personal care with ancillary nursing.

The difference is that those with means and support resource are able to rebadge their needs so as to qualify for a free service, but those with limited means lack the support resource to qualify for the free NHS service.

To reinforce the objective unfairness of the paradox, those with greater resource have more funds with which to purchase higher-quality amenities; for example a larger space or a better location.

Those have been relieved of the burden to pay for basic accommodation and nursing by the NHS underwriting the standard service. Of course, extra cannot be paid for the standard service, and care may only be at an enhanced charge where it is clearly chosen in addition to the standard service. In social care, enhanced service may not be funded by the user. There is no such restriction with enhancements to NHS care.

For many years, it was argued that if the NHS were commissioning, no one else could contribute to service payments – in effect preventing an NHS funded patient paying for enhancements. This argument is less often advanced now. This may be because over the last couple of decades, enhanced services have become more available in response to a wealthier client base with the desire and the need to purchase comfort.

No one should suggest that the NHS shall fund unnecessary comfort and facilities that some might describe as luxurious. We can find nothing in NHS legislation to support the contrary argument.

In reality, this has nothing to do with NHS law and is based on basic contractual principles. If A agrees to purchase services from B at a price fixed, neither B nor anyone else can enforce payment of additional monies for the same services.

In legal terms, there is a failure of value moving to A. It is quite different where the services are additional to the specification agreed by A with B. In that case, A receives additional value. It is the same principle with the porcelain tooth but here with goods rather than services but one would expect to see a distinction between the skilled service and the higher quality crown.

Conclusion

We see this judgment in the Court of Appeal as a welcome confirmation of the professional right to contract for additional services or higher quality goods over and beyond services and goods provided at public expense, which must always be at the same value for all recipients.

Of course, the private additional payments must be subject to the protection of consumer rights legislation so that there is transparency and free choice involved in the contract purchase decision.