Loose ends in policy changes do dental professionals no favours in understanding their responsibilities, says DDU head John Makin.

Dental professionals need to know where they stand if they are to do their best for patients - but two recent episodes have overturned our common understanding of the NHS contract regulations and left everyone in a fog of confusion.

The first was NHS England's decision to allow dental hygienists and therapists to undertake complete NHS courses of treatment using direct access arrangements. Given the pressures on access to NHS dentistry, the motivation for making better use of the skill mix in dental practices is understandable.

However, NHS England's plan to make it happen appears to rely on a minor administrative change to the existing FP17 claim form, rather than any amendment to the terms of the NHS (General Dental Services Contracts) Regulations and the NHS (Dental Charges) Regulations 2005 (which would require parliamentary approval).

The DDU is concerned this policy change leaves a number of loose ends...we recommend that practices make a careful risk assessment before introducing any changes.

It has been widely accepted for many years, including by NHS England itself, that the NHS regulations didn't allow dental hygienists and therapists to provide a course of NHS treatment under direct access, as the only person who could open a course of treatment was a dentist on the Dental Performers' List.

However, NHS England now says it has taken legal advice and is satisfied that the regulations allow therapists and hygienists to "provide direct access to NHS care, where that care is within the GDC scope of practice, if they are qualified, competent and indemnified to do so."

The DDU is concerned this policy change leaves a number of loose ends, not least the fact that dental hygienists and therapists cannot join the Dental Performers List and will therefore have no contractual relationship with the NHS. If something goes wrong, NHS England can only take action against the performer who allowed their number to be used on any claim, or the contract provider, so we recommend that practices make a careful risk assessment before introducing any changes.

The second crunch event concerns the use of so called 'top-up fees' in NHS dental practice. As many of you will know, the Court of Appeal recently found in favour of a dentist who had been erased from the GDC Register last year.

The case itself was highly complex, but one of the Professional Conduct Committee's (PCC) findings of dishonesty hinged on whether it was permissible under the Contract Regulations to offer NHS patients the option of paying extra for a ceramic crown, rather than the alternative. When the dentist successfully appealed against erasure, the judge ruled that the mixing of services was permitted under NHS regulations - and the High Court agreed in May 2023.

Since the introduction of the current UDA based contract, it was generally accepted that the mixing of private and NHS treatment was permissible on the same tooth (such as an NHS root canal followed by a private crown), but not within the same item of treatment.

Some commentators have been critical of the experts in the original GDC hearing for not upholding this commonly held view. However, careful review of the PCC determination shows that it states that the experts agreed that, "…it is not permissible to mix private and NHS charges for the same item of treatment in the same course" [my emphasis].

The DDU has written to and met with the DHSC, urging that this matter be resolved swiftly.

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" [again, my emphasis]. In both subsequent judgments, the four judges who considered the matter cited the latter statement as being incorrect, something that appears to have had a significant bearing on their ruling.

In my view, therefore - and somewhat incredibly - there is a possibility that the current complex confusion may have partially arisen from a simple drafting error at the PCC stage.

Registrants are now faced with a situation where they must not only try to interpret the regulations (something the judge described in part as being "fiendishly tricky"), but also the Court of Appeal's ruling and the extent to which top-up fees may now be permissible.

The GDC has stated it will now be up to, "the DHSC and NHS bodies in England who have responsibility for the Contract Regulations and associated guidance to consider what action they need to take" and update dental practitioners and patients.

DDU dental ethics and law course

The DDU has written to and met with the DHSC, urging that this matter be resolved swiftly. In the meantime, members should be cautious about making changes to their NHS courses of treatment and should give patients clear information and treatment plans.

We receive many calls and emails from members seeking dento-legal advice because they want to stay the right side of the regulatory line. In addition to providing relevant advice and guidance direct to members, we represent their interests as stakeholders, working constructively with the relevant organisations highlighting issues that are giving rise to concern. For example, we recently responded to the GDC's ongoing review of its Scope of Practice guidance, urging clarity so that registrants know where they stand.

All of this brings me back to my opening point; for professional regulation to be fair and effective, the regulations and guidance must be readily understood and consistently applied. And of course, we will continue to campaign for clarity on behalf of our members and the wider profession.

This page was correct at publication on 13/06/2023. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.