British Dental Association Welcomes High Court's Decision To Reject Unfair Termination Clause In PCT Contracts

Main Category: Dentistry
Article Date: 04 Mar 2008 - 1:00 PDT

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The BDA is delighted that Eddie Crouch won his case against the unreasonable term in his Personal Dental Services agreement with South Birmingham primary care trust. The PCT had amended the Department of Health's model to give it the right to terminate his agreement for no cause at any time and on a period of notice that it could determine.

The BDA supported Dr Crouch's case because of the consequences losing may have had for all dental contracts. We committed significant resources in support of this element of the claim and believe that our submissions materially assisted his victory. We did so because we believed not only that the PCT had misinterpreted the regulations, the model contract and the guidance, but that the clause did not reflect the policy intention of the Department of Health.

The decision to pursue the case through the Courts was Dr Crouch's and he sought his own advice on the matter. The BDA was not approached for help in renegotiating the terms originally offered by the PCT, nor in making submissions in his appeal to the Family Health Services Appeal Unit of the NHS Litigation Authority. Once Dr Crouch had taken the bold decision to proceed with his case, the danger for the profession as a whole was however clear. The Association became involved to assist in overturning an original rejection of his application to Court to go to judicial review, as this would have meant that the Litigation Authority's rejection of his appeal would have stood and the profession would have suffered a very adverse interpretation of the regulations.

At the end of the case the judge made no order for costs, instead taking the view that, in layman's terms, there had been a 'draw' in that Dr Crouch won his argument on the notice of termination point but lost his argument that there should have been a public consultation exercise/needs assessment prior to awarding contracts. The BDA did not support this aspect of the case. We took this view with the benefit of advice from Queen's Counsel.

Dr Crouch has now approached us for support in view of the judgement, and we have arranged to meet with him to discuss the matter prior to formal consideration by our Board.

The Board is aware of the very significant costs the Association has devoted to legal review of the 2006 NHS changes. We took Queen's Counsel's advice on this case; we have taken legal advice on many detailed aspects of the regulations and, most significantly, took extensive advice from Queen's Counsel on whether there was an opportunity to seek judicial review against the Department of Health for the entirety of the 2006 changes and the way that they were implemented. Having considered this last advice, our Board felt that to pursue it would not have been a proper use of members' money.

At the hearing, the judge provided some useful soundbites about the contracts being of 'inordinate length', describing them as 'like going through a marsh, trying to leap from tussock to tussock' and 'I do pity these unfortunate dentists who have to struggle with this [legislation]', as well as suggesting that if PCTs do not provide terms that encourage dentists to work in the NHS, they are letting everyone down. These are matters that the BDA will take up with the Department at an appropriate time.

Although the Judge refused the PCT and the Department of Health leave to appeal to the Court of Appeal it is possible that either or both of these parties may seek permission to do so directly from the Court of Appeal and the BDA would not therefore propose to make any further comment at this stage.

The British Dental Association (BDA) is the professional association for dentists in the UK. It represents over 20,000 dentists working in general practice, in community and hospital settings, in academia and research, and in the armed forces.

British Dental Association

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