There is a perception among some of the profession that NHS dental practices with a child-only contract are becoming a rarity that are increasingly under threat. Those that have such contracts are often aware of this status and, for some, there is a real concern that when it comes to renewal, they will come under pressure to take on a General Dental Services (GDS) contract as well.
Many practices are very passionate about providing NHS services to children, but – perhaps in large part due to the widely-reported concerns with the general contract and the changes that are afoot with reform – are not willing to take on a GDS contract in order to keep that service. In order to find out more about how real the risk is of losing a child-only contract and how practices may be able to protect themselves, I asked Mark Jarvis, a specialist solicitor at vwv, who has acted for a range of dental care providers as well as LDCs, commissioners and dental unions: What is the risk of losing a children-only NHS contract and how can it be mitigated?
Mark: ‘Children-only contracts were commissioned on the same basis as all primary dental contracts – via GDS or Personal Dental Services (PDS) (though predominately the former). The contractual regime is thus no different to any other PDS or GDS contract so the most likely way of losing the contract will be for reasons of ineligibility, poor performance, etc. It is possible that local provisions may have been included within the contract/agreement which may be applicable, but there are limitations about the ambit of such provisions (particularly on termination which can only be in accordance with the regulatory requirements).
Since the introduction of the new primary dental contracts in 2006, child-only contracts have been under pressure for various reasons and in 2008, the House of Common’s Health Committee published its review into dental services which flagged concerns around children-only contracts. The Committee’s view was that these contracts were continued to ensure access to NHS services in the short term but in the longer term they should be phased out. Specifically, it stated that the Department should make it a priority to remove children-only contracts from NHS dental service provision “as soon as possible”. The Government’s response later that year agreed that child-only contracts were not desirable, noting, in particular, concerns over the effect of pressurising adults to accept private dentistry, so that their children can receive NHS care. They also highlighted BDA figures indicating under-delivery of contracted levels of NHS activity being proportionately higher for child-only contracts. In their response, the Government flagged the importance of a measured approach to phasing out these contracts:
“In its evidence to the Committee, the Department accepted the need to move away from child-only contracts, but in a managed way. The Department issued guidance on this matter to PCTs in January 2008. This made clear that child-only contracts were undesirable, but that they should be managed out in a way that did not threaten children’s access to NHS dental services.”
“It may be fair to say though that child-only contracts may attract more scrutiny as part of an ongoing drive to phase these contracts out.”
The suggestion then does not indicate forcing holders of these contracts to treat adult patients. Examples of a measured approach came in Wales, where the number of children-only contracts were reduced – halved in some areas – by rewarding practitioners who ‘converted’ to full range of patients with a higher UDA rate. It may be fair to say though that child-only contracts may attract more scrutiny as part of an ongoing drive to phase these contracts out.
If the question arises from a concern about losing the contract at no fault of the contractor, then currently, at least, the risk appears low. Of course, with underperformance, there is no distinction between a child-only contract and a full service primary dental contract, although as noted above, the scrutiny of child-only contracts may be higher. In any event, having a contract terminated for repeated underperformance is likely only to be a last resort as the commissioner is likely to initially want to agree a revised UDA target for the following year as well as recover (where applicable), the monies for the undelivered UDAs.
Attempting to transfer a child only contract into a company structure (‘incorporation’) is likely to be refused, or only approved on the basis that the contractor agrees to treat adult patients. As part of the incorporation request, NHS England’s policy guidance on dental contracts has a number of due diligence questions for commissioners and these include whether the contract concerned is a child-only contract. Consequently, incorporation is likely to fall into the category of a circumstance where commissioners would look to phase out the contract using a more measured approach.
While the risk of ‘losing’ a child-only contract may seem low, as with any business facing the loss of a source of income, the key mitigation for the contractor will be planning how best to replace that income stream. It can be expected that a dental practice losing a child-only NHS contract will instead offer either private or membership plan schemes in its place. Contractors who hold child-only contracts will already have arrangements in place to treat adults so doing a bit of research and speaking with your membership plan providers may be good preparation. Depending on the manner of termination, notice periods can be key, so exploring other options at an early opportunity will relieve the pressure should you ever need to pursue them.’
Thanks to Mark for sharing the legal intricacies surrounding this matter. With the Government set on phasing them out as ‘undesirable’, practices that hold a child-only contract may well feel they will soon find themselves in a position of choosing whether to relinquish their contract or widen its scope. The rolling out of a new GDS contract from April 2020 onwards, could add an extra layer to these practice’s considerations. Hopefully Mark’s expertise has provided some insight into where they stand and the landscape around the issue.