How will the “new dawn” affect the dentistry profession?

By Jonathan Jacobs, Head of Healthcare at Prosperity Law LLP

As the dental profession begins to wake up again after almost three months in slumber, there are many burning questions that will need to be addressed. Some relate to how dental practices will be permitted to operate whilst at the same time ensuring that there is adherence to being Safe, Caring, Responsive, Efficient and Well-led and others relate to the financial impact that compliance with these principles will have on the economics of dentistry as a business.

This article is a summary of the latest developments insofar as a return to dentistry is concerned.

As many of you will know, over the course of the 11 weeks since lockdown, there have been many discussions, some of these at a very high level and which have resulted in several letters of preparedness being issued by the Chief Dental Officer, meetings of the hierarchy of general dental practice and postings between practitioners in the many social media groups that already existed and which have been formed to deal with the present situation. The British Association of Private Dentistry and Business Interruption Dentists being just two of these.

It is not the purpose of this article to try and distinguish between NHS and private dentistry. Practitioners in both spheres have been markedly affected by the closure of all dental practice on 25th March 2020 and pressure has been brought to bear upon the insurance industry with the Financial Conduct Authority taking up the fight on behalf of practitioners, many of whom have been faced with a blanket denial of responsibility from their insurer for the interruption to their businesses as a result of Covid-19 which could reap serious financial consequences.

Equally, the question of the jurisdiction of the Care Quality Commission and General Dental Council in supporting the Government’s decision to close down all dental practices at the commencement of lockdown is to be tested in the Courts by way of a Judicial Review, the purpose of which is to seek a declaration that these bodies acted unlawfully. If this is successful, a right to commence legal proceedings against them for damages to reflect the losses sustained may follow.

Hark back to the letter of preparedness of 25th March 2020 in which the CDO confirmed that payments under the GDS contract were to be maintained at 1/12 monthly installments on the understanding that there would be an abatement to take into account lower overheads during the period of lockdown and that Principal Dentists would maintain levels of pay  to all Associates, DCPs and other staff whilst at the same time allowing those who wish to be furloughed to do so and those who wish to be redeployed to the “front line” to be so seconded if that was their wish.

At that time and indeed even at the time of my writing, there has been no decision formally announced as to what , if anything is to happen as regards the performance of the many GDS contracts that are now about to restart after having an “extended holiday”.

We know that measures were put in place to account for the fact that March 2020 was an extremely fallow month in terms of performance and that practitioners could choose to either start the last NHS contract year on 1st March 2019 and run through until 29th February 2020 or could begin the year on 1st April 2019 and end it on 29th February 2020, taking an average of a 3 month UDA performance to act as the 12th month.

We still do not know how clawback is to operate. It has been stated that there will be a clawback for the year 2019-20 but it remains to be seen when that will be done and on what basis it will be addressed.

Insofar as private dentistry is concerned, one must take account of this simple fact. Patients who are on a capitation plan, be it with Denplan, Practiceplan, Patient Plan Direct or any others, do not pay for dental treatment. Their payments are a subscription to the scheme of which they are members which entitles them to receive treatment. If a patient cancels their direct debit or their payments cannot be collected, their membership of the scheme determines.

None of the above organisations have been reported to have ceased or abated payments under their schemes and in my experience, the vast majority of patients have continued to make their monthly payments, despite not being able to see their dentist.

Why then, has it been the case in some instances that Principals have attempted to suspend payments to Associates or to attempt to significantly reduce these, despite the practice being paid as normal? 

The BDA has suggested that where as a result of Covid-19, a practice is struggling financially and an Associate is not being properly remunerated, the Principal should discuss the situation with the Associate and both parties should reach an agreement as to how this should be dealt with. For the Principal to impose a material change on an Associate is a breach of the terms of engagement with the Associate and could very well lead to a dispute between them.

Even given the fact that practices are now readying themselves for a return on 8th June 2020 with deep cleaning happening and attempts being made to secure the necessary PPE in order to practice safely, issues between Principal and Associate will not disappear simply as a result of being back in work.

In the NHS, Principals might argue that they have received an abated payment from NHS England and so should only have to pay an abated fee to the Associate. Not so. It was made clear that continued receipt of the monthly contract payments would only happen if the Principal gave assurances that Associates would continue to be paid.

It is imperative that any disagreements are resolved before 8th June 2020 if a smooth transition into “New Dentistry” is to be achieved. Any disputes that are left festering and unresolved may well end in mediation proceedings which if not successful, will lead to litigation.

Bear in mind at this stage, solicitors do not want to be involved but where legal advice is required, there are those who are positioned to be so and understand the profession.

What of the steps that are being put into place as of Monday 8th June 2020?

We referred earlier to “SCREW” – this is the acronym that covers the five criteria that CQC inspectors will look for when assessing a practice for registration.

In order to comply with these, practices are now required to have the correct PPE, avoid undertaking Aerosol Generating Procedures (AGPs) or Aerosol Generating Exposure (AGE) where possible, ensure that there is adequate ventilation at the practice (if possible), have procedures in place to maintain social distancing for staff and patients alike, disinfect the surgery rooms between patients and adopt the various risk assessments that have been recommended in the recent document from the Faculty of General Dental Practice – “Implications of Covid-19 for the Safe Management of General Dental Practice”.

A link to that report can be found at https://www.fgdp.org.uk/implications-covid-19-safe-management-general-dental-practice-practical-guide

The BDA have also prepared up to date guidance entitled “Returning to Face To Face Care”.

A link to that report can be found at https://bda.org/advice/Coronavirus/Pages/returning-to-work.aspx

Several questions arise from these reports: –

1.      Who is going to fund the costs of the additional PPE now required?

2.      If the patient is private, will the practice simply add in the cost of the PPE kit to the patient’s fees?

3.      How will that work for patients on a Scheme? Will the Scheme operator foot the bill for the PPE?

4.      If the patient is NHS, will the Government fund these costs?

5.      If not, how can it lawfully be added to the Patient Charge Revenue generated by the practice?

The above list is not exhaustive and as time passes, further questions will undoubtedly come to light.

The reports referred to above discuss a fallow time between patients IE where no treatment can be performed of up to 60 minutes where the most high-risk treatments have been carried out.

Imagine a typical working day.

Prior to Covid-19 an NHS dentist might have a contract with 8,000 UDAs. He takes 5 weeks holiday and so over 47 weeks he must perform 35 UDAs every day. He would allocate 20 minutes to each patient for examination and longer for more complicated work. At the end of the financial year, he is expected to have performed at least 96% of his contract value IE 7,680 UDAs or face a breach notice in addition to a financial clawback.

The above figures are no longer relevant in this Post-Lockdown world. It will be impossible for the dentist to achieve his required UDA target. After each patient, the surgery will need to be disinfected and time taken to limit the prospect of the virus still being in the surgery’s atmosphere.

The administration of the practice will be impacted, with patients likely to be told to stay in their cars and not enter the practice until the preceding patient has left. To save  time, it may be that the patients are asked to complete as much paperwork as they can from home and email it to the practice.

In short, the GDS contract needs to undergo a “root and branch” review. In this “brave new world” not even the most efficient of dentists will be able to work at the same rates as they did and should not be expected to do so. How this review will take form is yet to be formulated or if it has, disclosure to the profession is awaited.

The future of dentistry

As the world opens up again and assuming that we do not see significant further waves that place the country back into lockdown, there will continue to be a need for dentists.

Prior to Covid, the GDS contract was in any event undergoing change. It was 2006 when the current contract came into existence and an update was expected in 2013. Since then we have seen pilots and prototype contracts and seven years later, it appeared possible that in April 2020, a “new” contract would be unveiled…

… and then came Covid-19.

This has had an equal impact on both NHS and private dentistry. In the private part of the profession, practitioners have relied upon the continuing support of their Scheme members to ensure that payments are made. Fee per item work disappeared and with the impact on the economic climate who is in a position to forecast: –

a)      Will “fee per item” patients return?

b)     If so, when will that be?

c)      Will the patients attend less frequently than before?

It is human nature to suggest that in the early weeks following 8th June and certainly whilst we continue to experience social distancing that there will be those patients who become very uncomfortable with the idea of being in an enclosed environment having an invasive examination or procedure. It is impossible to predict how long this will continue for, at present.

This is a fundamental change to the landscape for all businesses, dental and otherwise. Those who determine the way forward for dentistry have very few options. At the heart of all of this, for NHS dentistry, survival of the profession is crucial. Without some equally fundamental changes to the UDA system in light of Covid-19 and workable, reasonable, lawful provisions to protect private dentistry, one can only but wonder where the future lies for those dentists who entered the profession to provide a health service and not just to make money?