Can Dentists Charge “Top-Up” Fees For NHS Treatments? The General Dental Council v Williams Explained

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Can Dentists Charge “Top-Up” Fees For NHS Treatments? The General Dental Council v Williams Explained

Key Contact: Jon Lawley

Author: Joe Smith

When the Court of Appeal handed down a judgment that dentist Lucy Williams was allowed to charge a top-up fee for a better-looking crown than could have been provided on an NHS-only treatment, it challenged an accepted principle of NHS Dentistry.

The General Dental Council (GDC) had long considered that the mingling of NHS and private treatment by offering a privately funded “top up” to patients for single NHS treatments was prohibited under the The National Health Service (General Dental Services Contracts) Regulations 2005 (the Regulations).

However, on 5 May 2023, that all changed. In a landmark ruling, the Court of Appeal rejected the GDC’s argument that combining NHS and private work on a single tooth was not permitted.

For Williams, the ruling had personal significance. She had been erased from the GDC register after a conduct committee previously found that she had acted dishonestly by breaking what it considered to be a fundamental tenet of NHS dentistry. The Court of Appeal, however, held that regardless of how the Regulations were interpreted, the finding of dishonesty should never have been made – and should therefore be quashed.

In 2018, Williams saw three patients for crown treatments. She offered each a porcelain-bonded crown on the NHS but advised that a better-looking ceramic crown could be provided for an additional private fee.

The GDCs established position was that the overriding principle behind the Regulations was to ensure that treatment provided under an NHS contract is free, and that mixing fees was contrary to this principle. The Court rejected this argument on the basis that the ceramic crowns in question are often preferred by a patients for aesthetic reasons, but it is difficult for a dentist to justify their use over any other type of crown for health reasons alone. The GDC conceded that, under its interpretation of the Regulations, a patient who wants a ceramic crown that cannot be justified on medical grounds would have to pay privately for the full cost of it, whereas a patient who is happy with a porcelain crown would pay nothing.

The impact of the ruling

The Court recognised that its decision would have implications for other GDC cases concerning top-up fees:

“It must not be forgotten that these are not simply unclear Regulations concerned with what a dentist can and cannot be paid, but unclear Regulations which have been used as a basis for professional misconduct hearings and, as in this case, findings of dishonesty which led to erasure”, wrote Lord Justice Coulson.

The extent to which this interpretation of the Regulations will have implications for historic fitness-to-practice cases which have hinged upon blending NHS and private treatment remains to be seen. The British Dental Association has remarked that the GDC will need to reflect on this issue on its interpretation of mixed fees under NHS contracts.

As the GDC is yet to respond in detail to the judgment or indicate its acceptance of it, it is difficult to assess the potential scope or impact of the judgment. Until it indicates next steps, dentists should refrain from, or remain cautious about mixing NHS and private services.

Concerned about this issue, or any other dental regulatory matters? Contact our specialist Acuity dental lawyers.

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