A fantastic dento-legal conference – believe me, it was well worth attending and I recommend that everyone keeps an eye out for the next one.
Chris Baker of Corona Design & Communication reports on a very informative day at the Lowry Hotel in Manchester…
Time was when most dentists would only require the services of a solicitor when they either bought or sold a practice. Times they are a-changing! The law firm Pannone recently organised an excellent conference which discussed the way that the new dental contracts have had a significant impact on practitioners and the legal issues that can arise.
Dr Colin Hancock, Chairman of Denticare – the leading provider of dental care in England and Wales, kicked the day off with a discussion on 2 really big issues, Clawback and Goodwill. He began with a Samuel Goldwyn quote, “A verbal contract is not worth the paper it is written on”. This was to be a theme of the whole day – if you don’t record it, it didn’t happen. On the issue of clawback his message was clear: challenge the underperformance demand and detail the issues that were out of your (the practitioner) control and launch a counterclaim. Items such as FTAs and failure to recruit can be considered to be beyond your control and not part of ‘reasonable underperformance’. Also, ongoing costs such as heat, light etc. will be incurred anyway and should be offset against the demand. A member of the audience questioned Colin on the amount of clawback paid by his organisation in the last 4 years and the answer was simple; “none”. Colin also spoke on the subject of goodwill and stated that it is neither reasonable for a healthcare authority to ‘pirate’ a Provider’s goodwill. Goodwill is in effect a relationship between 2 parties NOT 3!
Former BDA Chairman, John Renshaw then took us through the process (and hoops?) that need to be negotiated to gain a new NHS contract. He said to delegates who are considering applying to tender, there can be a large resentment in the NHS towards the private dentist and this shouldn’t be underestimated. He pointed out that the new PDS+ contracts need to be viewed with caution as many can involve huge commitments including 8am to 8pm service, 357 days a year!
After coffee and refreshments, James Lister a partner at Pannone LLP, discussed employment issues and in particular redundancy and flexible working. He began by dispelling the myth that redundancy only comes into play in ‘bad times’ and when there is a shortage of work. In reality, redundancy is related to you, as a business owner, having the right mix of skills and costs to make a profit ie. right people, right job at the right cost. Redundancy is overwhelmingly in favour of the employer and he illustrated this with examples that showed even an inept redundancy program will save money. There is however, a right and proper way of doing things and he took us through selection criteria for redundancy.
Flexible working will become a greater part of all our lives and all full-time employees who have the responsibility of care of a child up to the age 18 or care of an adult spouse, cohabitee or relative, have a right to request flexible hours. This request should be made in writing but informal requests should not be ignored. Again, a paper trail and correct procedure are vital. He concluded by notifying the audience that most employment tribunals’ default position is that employers can offer flexible working in the majority of cases.
The afternoon session got going with Simon Butler of Ely Place Chambers talking us through dental agreements between PCTs and practitioners and the ‘fair and sensible’ test. Simon was the barrister who represented Eddie Crouch in his case against South Birmingham PCT and the clause in the NHS Dental Contract that allowed bosses to terminate dental contracts without cause or notice.
The principle of Promissory estoppel means that when two people enter into a contract, if one leads the other to believe that a certain state of affairs exists, they cannot go back on it when it is unjust or inequitable to do so. For instance, if a PCT should have clawed back funds in year 1 or 2, don’t, and then try and do so in year 4, this could be considered inequitable. As you would expect, Simon also spoke about the process of termination and used the case of Dr Crouch vs South Birmingham Primary Care Trust to illustrate that is unfair for a retrospective clause to be enforced. It is retrospective because as a practitioner, you will have made decisions eg. investment, premises, staffing etc., upon the initial agreement. He told us that it is “a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.”¹
Nicola Marchant, a partner at Pannone LLP, informed of us of the huge importance of having partnership agreements (illustrated by pictures of Ashley and Cheryl Cole!). Without a formal agreement, practitioners can find themselves bound by the 1890 Partnership Act which is very rigid in its guidelines. She then went on to look at what needs to be considered when drawing one up such as:
- Defining entitlements/obligations
- Performance issues
- Holiday, sick leave, locum provision
A good agreement won’t prevent disputes but it does mean that there is a clear process to follow, should one arise! Nicola then spoke about other business structures and how these can be utilised to avoid disrupting a PCT contract (which many PCTs view as between an individual and a ‘personal contract’.) For instance, it is perfectly possible to leave a PCT contract in a partnership or name and then set up a company that will deal with any private work carried out by the practice. Hopefully in time, this can then take over the contract.
Roger Matthews the Chief Dental Officer of Denplan’s presentation was entitled, “Parallel Paths or Collision Course?” Roger made the point that the public and private sectors should work better together for the sake of patients but that this isn’t necessarily happening. It is human nature that everyone acts in their own self interest. He went on to illustrate how since 2006, NHS dentistry has seen inconsistencies of both care and contract enforcement across the UK. One very telling set of figures showed that since the 1st April 2006, the NHS is seeing 129,000 more adults and 111,000 fewer children. This means a net increase of 18,000 patients by 30th September 2009 at a investment of an extra £1.2 billion.² Value for money?! He was concerned that PCTs are deciding to enforce guidelines when they like and that this is bad news for the small practice.
Finally, Eddie Crouch guided the audience through the Steele pilots and what these could lead to in the way of a potential new contract. The Steele Review principally identified in current provision:
- Poor communication and lack of information
- PCTs experience of rushed and poorly supported implementation
- The profession’s frustration with the new contract
- Need for new contractual arrangements to support
- The delivery of new pathways of care
- Better IT infrastructure
The Review’s principal recommendations were:
- Clearer incentives for improving health, access and quality
- Incentives passed to performers ie. not just practice owners
- An annual per person registration payment to dentists
- Quality of service to be recognised in the reward system
The pioneer Steele pilots commenced last month, with a further rollout likely to be in 2011 (depending upon election results!). Eddie has been a member of the Contracts Group within the Steele implementation board looking at producing a list of contract options with a view to the new system being complete around April 2015.
Ample question and answer sessions were provided throughout the day for those needing more clarification or to elaborate on matters further. Legal issues can sometimes be a little dry but I would like to commend Pannone and all of the speakers on making the entire day interesting, engaging and relevant. I look forward to more in the future.
¹Interpretation of Statutes (12th edition, 1969, Sweet & Maxwell)