Dentists win in Court of Appeal against clawback
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- Published: Wednesday, 04 February 2015 07:56
- Written by News Editor
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Two dentists from Powys Wales, Piotr Dusza and Hako Sobhani, have won their case in the Court of Appeal. They took their local Health Board to judicial review after the latter refused to pay for courses of treatment where no specific mention was made of a clinical examination having been carried out. The dentists won the case, but the Health Board had appealed.
GDPUK believes this case may help other dentists who have similar cases of clawback.
The Powys Teaching Local Health Board lost their appeal against an order of Wyn Williams J made on 21 February 2014 in which he gave judgment for the dentists, in respect of their claim for judicial review.
Briefly the facts of the case are as follows:
The dentists entered into a GDS contract on 1 January 2009 with a contract value of £510,762 payable in equal monthly instalments in arrears for providing 19,347 UDAs during each financial year.
In 2011, however, the Health Board tried to disallow a number of the dentists' claims on the grounds that that these did not record on the patient records that a full mouth examination had been undertaken, or indeed that any dental/oral examination had been undertaken.
On 18 September 2012, Dr Brendan Lloyd (Medical Director of the Board) informed the dentists' solicitor that, because of their failure to complete ‘full, accurate and contemporaneous records’, there was no evidence in certain cases that a full mouth examination had been completed, only that a Band 2 or Band 3 course of treatment had been claimed.
Dr Lloyd further stated that: "The lack of recording a full mouth examination in conjunction with the clinical concerns relating to patient outcomes during the period 2009/10 and 2010/11, as identified through national reporting methods provide sufficient evidence to the Health Board that inappropriate claims have been made." He accordingly went on to require the Respondents to repay the sum of £110,021.42 in respect of sums already paid to them.
The dentists took the Board to judicial review before Judge Wyn Williams who ruled in their favour. He held that:
- that the word "examination" in the GDS Contract meant a "full mouth examination";
- that a dentist was obliged to make a full and accurate record of the treatment afforded to a particular patient in the patient record (including the carrying out of an examination);
- but the failure to record the fact of an examination in the patient record did not mean that the dentist had no entitlement to be paid for "the units of dental activity" or "course of treatment" provided to the particular patient;
- the dentist's entitlement would depend upon whether or not it was established that he had provided the "units of dental activity" which justified the payment.
This is the judgement that the Board was appealing and the Court of Appeal ruled against them.
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