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Dental services – Department of Health update
10 June 2009
Following the recent judgement in R (on the application of
Crouch) v Secretary of State [2008] EWCH CIV 1365, in which
the court considered whether a Primary Care Trust (PCT) could
terminate an agreement by serving a written notice on the relevant
contractor at any time, the Department of Health (DOH) has issued
standard variation notices in respect of both the General Dental
Services Contract ('GDS Contract') and the Personal Dental Services
Agreement ('PDS Agreement').
The Court of Appeal in R. Crouch v South Birmingham Primary
Care Trust considered the challenge brought by Dr Crouch in
respect of the terms of paragraph 67 of Schedule 3 to the PDS
Regulations 2005. Dr Crouch had been offered a PDS agreement by the
PCT, including clauses which reflected the provisions of paragraph
67 (which allowed “the Relevant Body to terminate the agreement by
serving notice in writing on the contractor at any time”, and
“where [such a notice] is served… the agreement shall terminate on
the date provided for in the agreement”).
The main consideration of the Courts in this instance related to
whether the terms of paragraph 67 allowed a PCT an absolute right
to terminate an agreement, without cause, at any time during the
course of that agreement, simply by serving a notice of termination
on the contractor.
In December 2008, the Court of Appeal held in its judgement that
the terms of paragraph 67 did not confer such a right on PCTs,
rather that an agreement can only be terminated by serving a
written notice in the contractor where specific grounds for serving
such a notice have been established in accordance with the terms of
paragraphs 68 to 72 of Schedule 3.
As you may be aware, these grounds include:
- The provision of untrue information by the contractor
- Unsuitability of the contractor
- Patient safety and material financial loss
- Remedial and breach notices
- Additional provisions relating to contracts with qualifying
bodies
Any notices served under these provisions should give not less
than 28 days notice of termination of the agreement.
In addition to the above grounds for termination, PCTs have the
ability, under the provisions of paragraph 75 of the Regulations,
to terminate a contract giving less than 28 days notice under
certain circumstances (for example, where patient safety is at
risk). When considering this course of action however, PCTs must
take into account the requirements of the dispute resolution
procedure.
Following the Crouch judgement, standard variation notices have
been issued by the Department in relation to both the PDS and GDS
standard contracts (29 May 2009). These variations relate to the
following provisions:
GDS Contract:
- Part 13 (Records, Information, Notification and Rights of
Entry)
- Part 20 (Complaints)
- Part 22 (Variation and Termination of the Contract)
PDS Contract:
- Part 8 (Mandatory Services)
- Part 13 (Records, Information, Notification and Rights of
Entry)
- Part 20 (Complaints)
- Part 22 (Variation and Termination of the Contract)
What should you do now?
PCTs will now need to undertake a full review of the terms of
all of their existing PDS and GDS, so as to ensure that they accord
with the following:
- The provisions of the Crouch judgement
- The variations included within the Department’s guidance
- The Regulations
In addition, a review of any ‘standard documentation’ which has
been developed in relation to dental contracting by PCTs will also
need to be reviewed in light of these new developments and the
associated guidance.
Our specialist team are experienced in dealing with all matters
connected with NHS and Dental Contracting, including PDS and GDS
agreements. We are able to provide effective commercial advice and
are currently assisting PCTs in relation to contracting issues. We
have also assisted PCTs in dealing successfully with contractual
disputes and dispute resolution procedures.
We would be pleased to assist you with any issues or queries you
may have in relation to any aspect of dental contracting. If you
would like to discuss this bulletin, or any specific issue further,
please do not hesitate to contact a member of our specialist
team.
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of aspects of the subject matter and does not provide comprehensive
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