The Court of Appeal held that the NHS Contracts Regulations did not prevent dentists from charging a private “top up” fee in order to provide more aesthetically pleasing crowns on the NHS.
In General Dental Council v Williams  EWCA Civ 481 (05 May 2023), Lord Justice Coulson that, properly construed, the Contracts Regulations did not prevent a dentist from mixing NHS and private treatment on the same tooth. This did not contravene the overarching principle that NHS dental treatment should be free of charge. Indeed, the ability of patients to “top up” their NHS care privately – without having to pay for the whole of their treatment themselves – was much closer to the spirit of free dental services than the interpretation advanced by the General Dental Council (GDC).
The Court of Appeal also held that, regardless of the way in which the Regulations were interpreted, the PCC’s determination on dishonesty was flawed. The PCC did not have before it copies of the Regulations and the registrant was not cross examined on them. Reliance on expert evidence as to what the Regulations meant without sight of the Regulations was a manifest error. The registrant was not challenged on her evidence that she had not covered this aspect of the Regulations in her foundation year training. As to her state of mind, it was also relevant that – at the material time – she had worked in an unpleasant, pressurized and poorly supported situation at the Practice.
The issue stems from a case in which the GDC removed a dentist from its register because she offered patients a porcelain bonded crown on the NHS. However, she advised them that she could provide a better looking ceramic crown for an additional fee to be paid privately: between £30 and £65. This was to cover the additional laboratory cost of a ceramic crown.
On appeal, the High Court overturned the GDC decision. The Judge hearing the appeal found that the proper interpretation of the Contract Regulations did allow for top-up fees in certain circumstances.
The GDC appealed that judgment to establish clarity regarding how the Contract Regulations should be interpreted for dental professionals, dental practices, NHS bodies in England, and for the purposes of our own regulatory activities.
Following the ruling by Coulson LJ, the GDC said:
“It will be for 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 following the outcome of this appeal and to communicate any implications for NHS dental charges to patients and dental professionals. We have been in contact with those organisations throughout the development of this case.”
Cautioning against any sudden changes by dentists, the British Dental Association warned:
“We are aware that there have been comments on social media that have suggested the position has been changed by this recent legal decision. We trust that our members will pay as much attention to uninformed social media chat room comments about this decision as they hope their patients do about esoteric non evidenced based dental remedies.”
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