The National Health Service (General Dental Services Contracts) Regulations 2005

PART 1 E+W GENERAL

Citation, commencement and application E+W

1.—(1) These Regulations may be cited as the National Health Service (General Dental Services Contracts) Regulations 2005 and shall come into force on 1st January 2006.

(2) These Regulations apply in relation to England only M1 .

Marginal Citations

M1 As regards Wales, the functions of the Secretary of State under sections 28L, 28M, 28O, 28P and 126(4) of the Act and section 4 of the 1990 Act were transferred to Wales under S.I. 1999/672, article 2 and Schedule 1, as amended by the 1999 Act, section 66(5) and as read with section 40(1) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17) (“the 2002 Act”) and section 197(1) of the 2003 Act.

Interpretation E+W

2.—(1) In these Regulations—

“the Act” means the National Health Service Act 1977;

“the 1990 Act” means the National Health Service and Community Care Act 1990;

“additional services” means one or more of—

(a)

advanced mandatory services;

(b)

dental public health services;

(c)

domiciliary services;

(d)

orthodontic services; and

(e)

sedation services;

“adjudicator” means the Secretary of State or a person or persons appointed by the Secretary of State under section 4(5) of the 1990 Act (NHS contracts) or paragraph 55(4) of Schedule 3 (NHS dispute resolution procedure);

“advanced mandatory services” means any primary dental service that would fall within the services described in regulation 14 (mandatory services), but by virtue of the high level of facilities, experience or expertise required in respect of a particular patient, is provided as a referral service;

“Band 1 course of treatment” means a course of treatment, including a course of treatment consisting of urgent treatment, provided to a patient in respect of which a Band 1 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;

“Band 2 course of treatment” means a course of treatment provided to a patient in respect of which a Band 2 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;

“Band 3 course of treatment” means a course of treatment provided to a patient in respect of which a Band 3 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;

“banded course of treatment” means a Band 1, Band 2 or Band 3 course of treatment;

“bank holiday” means any day that is specified or proclaimed as a bank holiday in England pursuant to section 1 of the Banking and Financial Dealings Act 1971 M2 ;

“bridge” means a fixed or removable bridge which takes the place of any teeth;

“case assessment”, in respect of an orthodontic course of treatment, means a clinical examination of the patient, including the taking of such radiographs, colour photographs and models as are required in order to determine what orthodontic treatment (if any) is to be provided to the patient;

“charge exempt course of treatment” means a course of treatment that involves the examination and assessment of a patient leading to—

(a)

the issue of a prescription;

(b)

the repair of a dental appliance;

(c)

the arrest of bleeding; or

(d)

the removal of sutures,

which, by virtue of regulation 3(2)(d) or (e) of the NHS Charges Regulations, is provided free of charge to the patient;

“charity trustee” means one of the persons having the general control and management of the administration of a charity;

“child” means a person who has not attained the age of 16 years;

“complete”, in relation to—

(a)

a course of treatment, means that—

(i)

where no treatment plan has to be provided in respect of a course of treatment pursuant to paragraph 7(5) of Schedule 3 (treatment plans), all the treatment recommended to, and agreed with, the patient by the contractor at the initial examination and assessment of that patient has been provided to the patient; or

(ii)

where a treatment plan has to be provided to the patient pursuant to paragraph 7 of Schedule 3, all the treatment specified on that plan by the contractor (or that plan as revised in accordance with paragraph 7(3) of that Schedule) has been provided to the patient; and

(b)

an orthodontic course of treatment, means that—

(i)

where the contractor determines in accordance with paragraph 4(3) of Schedule 1 (patients to whom orthodontic treatment may be provided) that no orthodontic treatment should be provided following the case assessment, the completion of the case assessment; or

(ii)

where the contractor has determined that orthodontic treatment should be provided following the case assessment, all of the orthodontic treatment specified on the orthodontic treatment plan by the contractor pursuant to paragraph 6 of Schedule 1 (orthodontic treatment plans) (or that plan as revised in accordance with paragraph 6(3) of that Schedule) has been provided to the patient,

and “completed” shall be construed accordingly;

“contract” means, except where the context otherwise requires, a general dental services contract under section 28K of the Act M3 (general dental services contracts: introductory);

“course of treatment” means—

(a)

an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment; and

(b)

the provision of any planned treatment (including any treatment planned at a time other than the time of the initial examination) to that patient,

provided by, except where expressly provided otherwise, one or more providers of primary dental services, but it does not include the provision of any orthodontic services or dental public health services;

“dental appliance” means a denture or bridge and for the purposes of this definition, a denture includes an obturator;

“dental care professional” means a person whose name is included in the register of dental care professionals or on the appropriate roll for dental auxiliaries established in accordance with Part II of the Dental Auxiliaries Regulations 1986 M4 ;

“dental corporation” means a body corporate carrying on the business of dentistry in accordance with the Dentists Act;

“dental performers list” means a list of dental practitioners prepared in accordance with regulations made under section 28X of the Act M5 (persons performing primary medical and dental services);

“dental public health services” means services provided by the contractor by virtue of section 16CB(4)(c) of the Act M6 (dental public health);

“Dentists Act” means the Dentists Act 1984 M7 ;

“Dentists Act Order” means the Dentists Act 1984 (Amendment) Order 2005 M8 ;

“Dentists Register” means the register maintained by the General Dental Council pursuant to section 14 of the Dentists Act M9 (the dentists register and the registrar);

“domiciliary services” means a course of treatment, or part of a course of treatment, provided at a location other than—

(a)

the practice premises of any provider of primary dental services;

(b)

a mobile surgery of any provider of primary dental services; or

(c)

a prison;

“exempt person” means a person who is, by virtue of either Schedule 12ZA to the Act M10 (dental charging: exemptions) or the NHS Charges Regulations, exempt from the need to pay an NHS Charge in respect of the services he has received under the contract;

“family member” means—

(a)

a spouse;

(b)

a civil partner;

(c)

a person whose relationship with the registered patient has the characteristics of the relationship between husband and wife or civil partners;

(d)

a parent or step-parent;

(e)

a son;

(f)

a daughter;

(g)

a child of whom the person is—

(i)

the guardian; or

(ii)

the carer duly authorised by the local authority to whose care the child has been committed under the Children Act 1989 M11 ; or

(h)

a grandparent;

“FHSAA” means the Family Health Services Appeal Authority constituted under section 49S of the Act M12 (the Family Health Services Appeal Authority);

“financial year” means a period of 12 months ending with 31st March in any year;

“health care professional” has the same meaning as in section 28M of the Act M13 (persons eligible to enter into GDS contracts) and “health care profession” shall be construed accordingly;

“health service body” has, unless the context otherwise requires, the meaning given to it in section 4(2) of the 1990 Act M14 (NHS contracts);

“licensing body” means any body that licenses or regulates any profession;

“listed”, in relation to drugs, medicines or appliances, means such drugs, medicines or appliances as are included in a list for the time being approved by the Secretary of State for the purposes of section 41(1)(c) of the Act M15 (arrangements for pharmaceutical services);

“mandatory services” means the services described in regulation 14;

“mobile surgery”, except where expressly provided otherwise in these Regulations, means any vehicle in which services under the contract are to be provided;

“national disqualification” means—

(a)

a decision made by the FHSAA under section 49N or under regulations corresponding to that section made under section 28X(4) of the Act M16 (national disqualifications);

(b)

a decision under provisions in force in Scotland or Northern Ireland corresponding to section 49N of the Act; or

(c)

a decision by the NHS Tribunal which is treated as a national disqualification by the FHSAA by virtue of regulation 6(4)(b) of the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2001 M17 or regulation 6(4)(b) of the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2002 M18 ;

“NHS Charge” means a charge made to the patient for provision of services pursuant to the NHS Charges Regulations;

“NHS Charges Regulations” means the National Health Service (Dental Charges) Regulations 2005 M19 ;

“NHS contract” has the meaning assigned to it in section 4(1) of the 1990 Act;

“NHS dispute resolution procedure” means the procedure for disputes specified in paragraphs 55 and 56 of Schedule 3;

“NHS Tribunal” means the Tribunal constituted under section 46 of the Act M20 for England and Wales, and which, except for prescribed cases, had effect in relation to England only until 14th December 2001 and in relation to Wales only until 26th August 2002 M21 ;

“normal surgery hours” means the times at which the contractor has agreed with the Primary Care Trust (and specified in the contract) that the surgery will be open to patients for the provision of services;

“NPSA” means the National Patient Safety Agency established as a Special Health Authority by the National Patient Safety Agency (Establishment and Constitution) Order 2001 M22 ;

“orthodontic appliance” means a device used in the mouth to move or immobilise the teeth in order to correct or prevent malocclusion;

“orthodontic course of treatment” means—

(a)

a case assessment of a patient; and

(b)

the provision of any orthodontic treatment that the contractor determines should be provided to the patient in accordance with Part 2 of Schedule 1 (orthodontic services);

“orthodontic services” means the provision of orthodontic courses of treatment or the services referred to in paragraph 5(2) of Schedule 1 (repairs);

“orthodontic treatment” means treatment of, or treatment to prevent, malocclusion of the teeth and jaws, and irregularities of the teeth;

“parent”, in relation to any child, means a parent or other person who has parental responsibility for that child;

“patient” means, unless the context otherwise requires, a person to whom the contractor is providing services under the contract;

“patient record” means a form supplied by a Primary Care Trust for the purpose of maintaining a record of treatment;

“practice” means the business operated by the contractor for the purpose of delivering services under the contract;

“practice premises”, except where expressly provided otherwise in these Regulations, means an address specified in the contract as one at which services are to be provided under the contract but does not include a mobile surgery;

“prescriber” means a dental practitioner who is either engaged or employed by the contractor or is a party to the contract;

“primary care list” means—

(a)

a list of persons performing primary medical or dental services under section 28X of the Act;

(b)

a list of persons undertaking to provide general ophthalmic services or, as the case may be, pharmaceutical services prepared in accordance with regulations made under section 39, 42 or 43 of the Act M23 ;

(c)

a list of persons approved for the purposes of assisting in the provision of any services mentioned in paragraph (b) or (d) prepared in accordance with regulations made under section 43D of the Act M24 ;

(d)

a list of persons who undertook to provide general medical services or general dental services prepared in accordance with regulations made under section 29 or 35 of the Act M25 ;

(e)

a services list which fell within the meaning of section 8ZA of the National Health Service (Primary Care) Act 1997 M26 ;

(f)

a list corresponding to a services list prepared by virtue of regulations made under section 41 of the Health and Social Care Act 2001 M27 ; or

(g)

a list corresponding to any of the above lists in Scotland or Northern Ireland;

“Primary Care Trust” means, unless the context otherwise requires, the Primary Care Trust which is a party, or prospective party, to the contract;

“prison” includes a young offender institution but not a secure training centre or a naval, military or air force prison, and for the purposes of this definition—

(a)

“secure training centre” means a place in which offenders subject to detention and training orders under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 M28 (offenders under 18: detention and training orders) may be detained and given training and education and prepared for their release; and

(b)

“young offender institution” means a place for the detention of offenders sentenced to detention in a young offender institution or to detention in a young offender institution as part of a longer custodial sentence, including custody for life;

“private”, in the context of services or treatment, means otherwise than under the contract or Part 1 of the Act, and “privately” shall be construed accordingly;

“professional registration number” means the number against a dental practitioner's name in the Dentists Register;

“referral notice” means the notice referred to in paragraph 9(2)(a) of Schedule 3 (referral to another contractor, a hospital or other relevant service provider for advanced mandatory, domiciliary or sedation services);

“referral service” means one or more of advanced mandatory services, domiciliary services or sedation services provided by the contractor to a patient who has, during a course of treatment, been referred to the contractor by—

(a)

another contractor; or

(b)

another provider of primary dental services under Part 1 of the Act,

for the provision of one or more of those services as part of that course of treatment;

“referral treatment plan” means a treatment plan provided pursuant to paragraph 2(1) of Schedule 1 or that plan as varied in accordance with paragraph 2(3) of that Schedule;

“register of dental care professionals” means the register maintained by the General Dental Council under section 36B of the Dentists Act M29 (the dental care professionals register);

“relevant Strategic Health Authority” means the Strategic Health Authority established for an area which includes the area for which the Primary Care Trust is established;

“sedation services” means a course of treatment provided to a patient during which the contractor administers one or more drugs to a patient, which produce a state of depression of the central nervous system to enable treatment to be carried out, and during and in respect of that period of sedation—

(a)

the drugs and techniques used to provide the sedation are deployed by the contractor in a manner that ensures loss of consciousness is rendered unlikely; and

(b)

verbal contact with the patient is maintained in so far as is reasonably possible;

“trauma” means damage to teeth, gingival tissues or alveoli caused by a force arising outside the mouth, resulting in mobility, luxation, subluxation or fracture of the hard tissues or injury to the soft tissues;

“unit of dental activity” means the unit of activity which is in the contract used to—

(a)

express the amount of; and

(b)

measure in accordance with Part 1 of Schedule 2 the provision of,

mandatory services and advanced mandatory services provided under the contract;

“unit of orthodontic activity” means the unit of activity which is in the contract used to—

(a)

express the amount of; and

(b)

measure in accordance with Part 2 of Schedule 2 the provision of,

orthodontic services provided under the contract;

“urgent treatment” means a course of treatment that consists of one or more of the treatments listed in Schedule 4 to the NHS Charges Regulations (urgent treatment under Band 1 charge) that are provided to a person in circumstances where—

(a)

a prompt course of treatment is provided because, in the opinion of the contractor, that person's oral health is likely to deteriorate significantly, or the person is in severe pain by reason of his oral condition; and

(b)

treatment is provided only to the extent that is necessary to prevent that significant deterioration or address that severe pain; and

“working day” means any day apart from Saturday, Sunday, Christmas Day, Good Friday or a bank holiday.

(2) In these Regulations—

(a) the use of the term it in relation to the contractor shall be deemed to include a reference to a contractor that is an individual dental practitioner or two or more individuals practising in partnership and related expressions shall be construed accordingly; and

(b) references to forms supplied by the Primary Care Trust to contractors includes electronic forms and forms which are generated electronically, but does not include prescription forms.

Marginal Citations

M2 1971 c. 80.

M3 Section 28K was inserted into the Act by section 172(1) of the 2003 Act.

M4 S.I. 1986/887; relevant amending instruments are S.I. 1999/3460, 2003/3105 and 2002/1671.

M5 Section 28X was inserted into the Act by section 179(1) of the 2003 Act.

M6 Section 16CB was inserted into the Act by section 171(1) of the 2003 Act.

M7 1984 (c. 24) amended by section 41(1) of, and Schedule 2 paragraph 62 to, the National Health Service (Primary Care) Act 1997 (c. 46), sections 31 and 37 of, and Schedule 9 to, the 2002 Act, section 187 of, and Schedule 12 to, the 2003 Act and S.I. 1987/2047, 1991/1705, 1996/1496, 1998/811 and 2840, 2001/3926, 2002/3135, 2003/833, 2004/1947 and 2005/2011.

M8 S.I. 2005/ 2011.

M9 Section 14 of the Dentists Act is prospectively substituted by article 6 of the Dentists Act Order.

M10 Schedule 12ZA is inserted into the Act by section 183(2) of the 2003 Act.

M11 1989 c. 41.

M12 Section 49S was inserted into the Act by section 27(1) of the 2001 Act.

M13 Section 28M was inserted into the Act by section 172(1) of the 2003 Act.

M14 Section 4(2) was amended by the Health Authorities Act 1995 (c. 17), Schedule 1, paragraph 68, the 1999 Act Schedule 4, paragraph 76(a) and Schedule 5, the 2002 Act, Schedule 1, paragraph 40 and Schedule 5, paragraph 31.

M15 Section 41 of the Act was substituted by the 2001 Act, section 42(1) and amended by the 2002 Act, section 2(5) and Schedule 3, paragraphs 1 and 13, by the 2003 Act, section 184 and Schedule 11, paragraphs 7 and 18(1), (2) and (3) and by S.I. 2003/1590, article 3 and the Schedule, paragraph 3.

M16 Section 49N was inserted into the Act by section 25 of the 2001 Act. Section 28X was inserted by section 179 of the Act.

M17 S.I. 2001/3744 amended by S.I. 2002/2469.

M18 S.I. 2002/1920.

M19 S.I. 2005/ [ ].

M20 Section 46 was revoked by the 2001 Act, section 67, Schedule 5, paragraph 5 and Schedule 6, Part 1.

M21 See S.I. 2001/3738, article 2(5) and (6)(b), which sets out the prescribed cases for England and S.I. 2002/1919, article 2(2) and (3)(b), which sets out the prescribed cases for Wales.

M22 S.I. 2001/1743.

M23 Section 39 is amended by sections 1 and 2 of, paragraph 52 of Schedule 1 to, the Health Services Act 1980 (c. 53); sections 1 and 24 of, Schedule 9 to, the Health and Social Security Act 1984 (c. 48); section 9 of the 1999 Act; section 20 of the 2001 Act; and section 2 of, paragraphs 1 and 12 of Schedule 2 to, the 2002 Act. Section 42 is amended by section 3 of the National Health Service (Amendment) Act 1986 (c. 66); section 2 of, paragraph 30 of Schedule 1 to, the Health Authorities Act 1995 (c. 17); sections 20, 23, 43 and 67 of, Schedule 6 to, the 2001 Act; and section 2 of, paragraphs 1 and 16 of Schedule 2 to, the 2002 Act. Section 43 is amended by section 21 to the Health Services Act 1980; section 66 of, paragraph 18 of Schedule 9 to, the 1990 Act; section 2 of, paragraph 31 of Schedule 1 to, the Health Authorities Act 1995; sections 29 and 41 of, paragraph 14 of Schedule 2 to, the 1997 Act; section 1 of, paragraph 6 of Schedule 1 to, the Pharmacists (Fitness to Practice) Act 1997 (c. 19); section 20 of the 2001 Act; sections 2 and 42 of, paragraphs 1 and 17 of Schedule 2 to, the 2002 Act; and section 184 of, paragraphs 7 and 19 of Schedule 11 to, the 2003 Act.

M24 Section 43D was inserted into the Act by section 24 of the 2001 Act.

M25 Sections 29 and 36 were repealed by sections 175(2) and 196 of, and Schedule 14 Part 4 to the 2003 Act.

M26 1997 c. 46. Section 8ZA was inserted into the Act by section 26(2) of the 2001 Act and repealed by section 196 of, and Schedule 14, Part 4 to the 2003 Act.

M27 2001 c. 15.

M28 2000 c. 6.

M29 Section 36B is prospectively inserted into the Dentists Act by the Dentists Act Order, article 29.

PART 2 E+W CONTRACTORS

Conditions: introductory E+W

3.  Subject to the provisions of any order made by the Secretary of State under section 173 of the Health and Social Care (Community Health and Standards) Act 2003 M30 (general dental services: transitional), a Primary Care Trust may only enter into a contract if the conditions set out in—

(a) regulation 4; and

(b) in the case of a contract to be entered into with a dental corporation on or after the coming into force for all purposes of article 39 of the Dentists Act Order (substitution of sections 43 and 44), regulation 5,

are met.

Marginal Citations

M30 2003 c. 43.

General prescribed conditions relating to all contracts E+W

4.—(1) For the purposes of section 28M of the Act (conditions upon which a general dental services contract may be entered into) the prescribed condition is that a person must not fall within paragraph (3).

(2) The reference to a person in paragraph (1) includes any director, chief executive or secretary of a dental corporation.

(3) A person falls within this paragraph if—

(a) he or it is the subject of a national disqualification;

(b) subject to paragraph (4), he or it is disqualified or suspended (other than by an interim suspension order or direction pending an investigation) from practising by any licensing body anywhere in the world;

(c) within the period of five years prior to the date the contract is to be commenced or, if earlier, the date on which the contract is to be signed—

(i) he has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body, unless he has subsequently been employed by that health service body or another health service body and paragraph (5) applies to him or that dismissal was the subject of a finding of unfair dismissal by any competent tribunal or court; or

(ii) he or it has been removed from, or refused admission to, a primary care list by reason of inefficiency, fraud or unsuitability (within the meaning of section 49F(2), (3) and (4) of the Act respectively M31 ) unless his or its name has subsequently been included in such a list;

(d) he has been convicted in the United Kingdom of—

(i) murder; or

(ii) a criminal offence other than murder, committed on or after 14th December 2001, and has been sentenced to a term of imprisonment of over six months;

(e) subject to paragraph (6), he has been convicted outside the United Kingdom of an offence—

(i) which would, if committed in England and Wales, constitute murder; or

(ii) committed on or after 14th December 2001, which would if committed in England and Wales, constitute a criminal offence other than murder, and been sentenced to a term of imprisonment of over six months;

(f) he has been convicted of an offence referred to in Schedule 1 to the Children and Young Persons Act 1933 M32 (offences against children and young persons with respect to which special provisions of this Act apply) or Schedule 1 to the Criminal Procedure (Scotland) Act 1995 M33 (offences against children under the age of 17 years to which special provisions apply) committed on or after 1st April 2006;

(g) he or it has—

(i) been adjudged bankrupt or had sequestration of his estate awarded unless (in either case) he has been discharged or the bankruptcy order has been annulled;

(ii) been made the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986 M34 unless that order has ceased to have effect or has been annulled; or

(iii) made a composition or arrangement with, or granted a trust deed for, his or its creditors unless he or it has been discharged in respect of it;

(h) an administrator, administrative receiver or receiver is appointed in respect of it;

(i) he has within the period of five years prior to the date the contract is to be commenced or, if earlier, the date on which the contract is to be signed—

(i) been removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which he was responsible or to which he was privy, or which he by his conduct contributed to or facilitated; or

(ii) been removed under section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 M35 (powers of the Court of Session to deal with management of charities), from being concerned in the management or control of any body; or

(j) he is subject to a disqualification order under the Company Directors Disqualification Act 1986 M36 , the Companies (Northern Ireland) Order 1986 M37 or to an order made under section 429(2)(b) of the Insolvency Act 1986 M38 (failure to pay under county court administration order).

(4) A person shall not fall within paragraph (3)(b) where the Primary Care Trust is satisfied that the disqualification or suspension from practising is imposed by a licensing body outside the United Kingdom and it does not make the person unsuitable to be—

(a) a contractor M39 ; or

(b) a director, chief executive or secretary of a corporation entering into a contract, in the case of a contract with a dental corporation,

as the case may be.

(5) Where a person has been employed as a member of a health care profession any subsequent employment must also be as a member of that profession.

(6) A person shall not fall within paragraph (3)(e) where the Primary Care Trust is satisfied that the conviction does not make the person unsuitable to be—

(a) a contractor; or

(b) a director, chief executive or secretary of a corporation entering into a contract, in the case of a contract with a dental corporation,

as the case may be.

Marginal Citations

M31 Section 49F was inserted into the Act by section 25 of the 2001 Act and amended by the 2002 Act, Schedule 2 , paragraph 21 and the 2003 Act, Schedule 14, Part 2.

M32 1933 c. 12 as amended by the Domestic Violence, Crime and Victims Act 2004 (c. 28), section 58(1), Schedule 10, paragraph 2; the Sexual Offences Act 2003 (c. 42), section 139 and Schedule 6, paragraph 7; the Criminal Justice Act 1988 (c. 33), section 170 and Schedule 15, paragraph 8 and Schedule 16, paragraph 16; and the Sexual Offences Act 1956 (c. 69), sections 48 and 51 and Schedules 3 and 4; and modified by the Criminal Justice Act 1988, section 170(1), Schedule 15, paragraph 9.

M33 1995 c. 46.

M34 1986 c. 45. Schedule 4A was inserted by section 257 of, and Schedule 20 to, the Enterprise Act 2002 (c. 40).

M35 1990 c. 40.

M36 1986 c. 46 as amended by the Insolvency Act 2000 (c. 39).

M37 S.I. 1986/1032 (N.I.6).

M38 1986 c. 45.

M39 The term contractor is defined in section 28K of the 1977 Act.

Additional prescribed conditions relating to contracts with dental corporations E+W

5.—(1) Subject to paragraph (2), it is a condition in the case of a contract to be entered into with a dental corporation on or after the date of the coming into force for all purposes of article 39 of the Dentists Act Order that no—

(a) offence has been or is being committed under section 43 of the Dentists Act; or

(b) financial penalty has been imposed under section 43B or 44 of the Dentists Act.

(2) Paragraph (1) shall not apply if the Primary Care Trust is satisfied that any offence under section 43 or penalty imposed under section 43B or 44 of the Dentists Act does not make the dental corporation unsuitable to be a contractor, whether by virtue of the time that has elapsed since any conviction or penalty was imposed, or otherwise.

Reasons E+W

6.—(1) Where a Primary Care Trust is of the view that the conditions in regulation 4 or 5 for entering into a contract are not met it shall notify in writing the person or persons intending to enter into the contract of its view and its reasons for that view and of his, its, or their right of appeal under regulation 7.

(2) The Primary Care Trust shall notify in writing of its view and its reasons for that view, a director, chief executive or secretary of a dental corporation that is notified under paragraph (1) where its reason for the decision relates to that person or those persons.

Appeal E+W

7.  A person who has been served with a notice under regulation 6(1) may appeal to the FHSAA against the decision of the Primary Care Trust that the conditions in regulation 4 or 5 are not met by giving notice in writing to the FHSAA within the period of 28 days beginning on the day that the Primary Care Trust served its notice.

PART 3 E+W PRE-CONTRACT DISPUTE RESOLUTION

Pre-contract disputes E+W

8.—(1) Subject to paragraphs (2) and (3), if, in the course of negotiations intending to lead to a contract, the prospective contracting parties are unable to agree on a particular term of the contract, either party may refer the dispute to the Secretary of State to consider and determine the matter in accordance with the procedure provided for in paragraphs 55(2) and (3) of Schedule 3.

(2) Paragraph (1) does not apply in the case where both parties to the prospective contract are health service bodies (in which case section 4(4) of the 1990 Act (NHS contracts) applies).

(3) Before referring the dispute for consideration and determination under paragraph (1), both parties to the prospective contract must make every reasonable effort to communicate and co-operate with each other with a view to resolving it.

(4) Disputes referred to the Secretary of State in accordance with paragraph (1), or section 4(4) of the 1990 Act, shall be considered and determined in accordance with the provisions of paragraphs 55(4) to 55(13) and 56(1) of Schedule 3, and paragraph (5) (where it applies) of this regulation.

(5) In the case of a dispute referred to the Secretary of State under paragraph (1), the determination—

(a) may specify terms to be included in the proposed contract;

(b) may require the Primary Care Trust to proceed with the proposed contract, but may not require the proposed contractor to proceed with the proposed contract; and

(c) shall be binding upon the prospective parties to the contract.

PART 4 E+W HEALTH SERVICE BODY STATUS

Health service body status E+W

9.—(1) Where a proposed contractor elects in a written notice served on the Primary Care Trust at any time prior to the contract being entered into to be regarded as a health service body for the purposes of section 4 of the 1990 Act, it shall be so regarded from the date on which the contract is entered into.

(2) If, in accordance with paragraph (1) or (5), a contractor is to be regarded as a health service body, that fact shall not affect the nature of, or any rights or liabilities arising under, any other contract with a health service body entered into by that contractor before the date on which the contractor is to be so regarded.

(3) Where a contract is made with an individual dental practitioner or two or more persons practising in partnership, and that individual or that partnership is to be regarded as a health service body in accordance with paragraph (1) or (5), the contractor shall, subject to paragraph (4), continue to be regarded as a health service body for the purposes of section 4 of the 1990 Act for as long as that contract continues and irrespective of any change in—

(a) the partners comprising the partnership;

(b) the status of the contractor from that of an individual dental practitioner to that of a partnership; or

(c) the status of the contractor from that of a partnership to that of an individual dental practitioner.

(4) A contractor may at any time request a variation of the contract to include or remove provision from the contract that the contract is an NHS contract, and if it does so—

(a) the Primary Care Trust shall agree to the variation; and

(b) the procedure in paragraph 60(1) of Schedule 3 shall apply (variation of a contract: general).

(5) Where, pursuant to paragraph (4), the Primary Care Trust agrees to a variation of the contract, the contractor shall—

(a) be regarded; or

(b) subject to paragraph (7), cease to be regarded,

as a health service body for the purposes of section 4 of the 1990 Act from the date that variation takes effect pursuant to paragraph 60(1) of Schedule 3.

(6) Subject to paragraph (7), a contractor shall cease to be regarded as a health service body for the purposes of section 4 of the 1990 Act if the contract is terminated.

(7) Where a contractor ceases to be a health service body pursuant to—

(a) paragraph (5) or (6), it shall continue to be regarded as a health service body for the purposes of being a party to any other NHS contract entered into after it became a health service body but before the date on which the contractor ceased to be a health service body (for which purposes it ceases to be such a body on the termination of that NHS contract);

(b) paragraph (5), it shall, if it or the Primary Care Trust has referred any matter to the NHS dispute resolution procedure before it ceases to be a health service body, be bound by the determination of the adjudicator as if the dispute had been referred pursuant to paragraph 54 of Schedule 3 (dispute resolution: non-NHS contracts); or

(c) paragraph (6), it shall continue to be regarded as a health service body for the purposes of the NHS dispute resolution procedure where that procedure has been commenced—

(i) before the termination of the contract; or

(ii) after the termination of the contract, whether in connection with or arising out of the termination of the contract or otherwise,

for which purposes it ceases to be such a body on the conclusion of that procedure.

PART 5 E+W CONTRACTS: REQUIRED TERMS

Parties to the contract E+W

10.  A contract must specify—

(a) the names of the parties;

(b) in the case of a partnership—

(i) whether or not it is a limited partnership; and

(ii) the names of the partners and, in the case of a limited partnership, their status as a general or limited partner; and

(c) in the case of each party, the postal address to which official correspondence and notices should be sent.

NHS contracts E+W

11.  In the case of a contractor who is to be regarded as a health service body pursuant to regulation 9, the contract must state that it is an NHS contract.

Contracts with individuals practising in partnership E+W

12.—(1) Where the contract is with two or more individuals practising in partnership, the contract shall be treated as made with the partnership as it is from time to time constituted, and the contract shall make specific provision to this effect.

(2) Where the contract is with two or more individuals practising in partnership, the contractor must be required by the terms of the contract to ensure that any person who becomes a member of the partnership after the contract has come into force is bound automatically by the contract whether by virtue of a partnership deed or otherwise.

Duration E+W

13.—(1) Except in the circumstances specified in paragraph (2), a contract must provide for it to subsist until it is terminated in accordance with the terms of the contract or the general law.

(2) The circumstances referred to in paragraph (1) are that the Primary Care Trust has terminated the contract of another provider of primary dental services, and as a result of that termination, it wishes to enter into a temporary contract for a period specified in the contract for the provision of services.

(3) Where a contract is entered into pursuant to paragraph (2)—

(a) paragraph 66 (termination by the contractor) of Schedule 3 shall not apply to the contract; and

(b) the parties to the temporary contract may include such terms as to termination by notice as they may agree.

Mandatory services E+W

14.—(1) For the purposes of section 28L of the Act M40 (requirement to provide certain primary dental services), the services which must be provided under a general dental services contract (“mandatory services”) are described in paragraphs (2) to (4).

(2) A contractor must provide to its patients, during the period specified in paragraph (3), all proper and necessary dental care and treatment which includes—

(a) the care which a dental practitioner usually undertakes for a patient and which the patient is willing to undergo;

(b) treatment, including urgent treatment; and

(c) where appropriate, the referral of the patient for advanced mandatory services, domiciliary services, sedation services or other relevant services provided under Part 1 of the Act.

(3) A contractor must provide—

(a) urgent treatment; and

(b) all other services described in paragraph (2),

that are necessary to meet the reasonable needs of its patients during normal surgery hours.

(4) The dental care and treatment referred to in paragraph (2) includes—

(a) examination;

(b) diagnosis;

(c) advice and planning of treatment;

(d) preventative care and treatment;

(e) periodontal treatment;

(f) conservative treatment;

(g) surgical treatment;

(h) supply and repair of dental appliances;

(i) the taking of radiographs;

(j) the supply of listed drugs and listed appliances; and

(k) the issue of prescriptions,

but it does not include additional services.

Marginal Citations

M40 Section 28L was inserted into the Act by section 172(1) of the 2003 Act.

Additional services E+W

15.  In the case where a contract includes the provision of additional services, that contract must contain, in relation to each such service as is included in the contract, terms that have the same effect as those specified in Schedule 1 in so far as they are relevant to that service.

Services: general E+W

16.—(1) A contract must specify—

(a) the services to be provided by the contractor;

(b) the address of each of the premises to be used by the contractor or any sub-contractor for the provision of such services, or, if the contractor is to provide services from a mobile surgery, that fact; and

(c) the hours during which services that are not mandatory services are to be provided.

(2) The reference to premises in paragraph (1)(b) does not include any place in which a patient is residing.

Units of dental activity E+W

17.—(1) The contract must specify the number of units of dental activity to be provided by the contractor—

(a) where the contract begins on 1st April, in each financial year; or

(b) where the contract begins on a date other than 1st April, in the remainder of the financial year in which the contract begins, and in each financial year thereafter.

(2) A contract must contain terms which have the effect of those specified in Part 1 of Schedule 2 in relation to the calculation of the number of units of dental activity that the contractor will provide under the contract.

Units of orthodontic activity E+W

18.—(1) Where a contract includes the provision of orthodontic services, the contract must specify the number of units of orthodontic activity to be provided by the contractor—

(a) where the contract begins on 1st April, in each financial year; or

(b) where the contract begins on a date other than 1st April, in the remainder of the financial year in which the contract begins, and in each financial year thereafter.

(2) Where paragraph (1) applies, the contract must also contain terms which have the effect of those provisions specified in Part 2 of Schedule 2 in relation to the calculation of the number of units of orthodontic activity that the contractor will provide under the contract.

Under provision of units of dental activity or units of orthodontic activity E+W

19.—(1) The contract shall provide that the Primary Care Trust shall not pursuant to Part 9 of Schedule 3 (variation and termination of agreements) be entitled to take any action for breach of a term of the contract giving effect to regulation 17 or 18 (including termination of the contract) where paragraph (2) applies.

(2) Subject to paragraph (4), this paragraph applies where the contractor has failed to provide—

(a) the number of units of dental activity; or

(b) the number of units of orthodontic activity,

it is contracted to provide pursuant to a term of the contract giving effect to regulation 17 or 18 (as the case may be) where—

(i) that failure amounts to 4 per cent or less of the total number of units of dental activity or units of orthodontic activity (as the case may be) that ought to have been provided during a financial year; and

(ii) the contractor agrees to provide and does so provide the units it has failed to provide within such period as the Primary Care Trust specifies in writing, such period to consist of not less than 60 days.

(3) Paragraphs (1) and (2) shall not prevent the Primary Care Trust from taking action under Part 9 of Schedule 3 for breach of contract (including terminating the contract) on other grounds.

(4) In the case of a temporary contract the reference to a period of not less than 60 days in paragraph (2)(ii) may not apply if the Primary Care Trust considers it not appropriate or considers another period of less than 60 days should apply.

Domiciliary services and sedation services E+W

20.  Where a contract includes the provision of domiciliary services or sedation services, the contract must specify the number of courses of treatment that the contractor is—

(a) to provide; or

(b) to contribute to where provided as a referral service,

that involve the provision of domiciliary services or sedation services—

(i) where the contract begins on 1st April, in each financial year; or

(ii) where the contract begins on a date other than 1st April, in the remainder of the financial year in which the contract begins, and in each financial year thereafter.

Finance E+W

21.—(1) The contract must contain a term which has the effect of requiring—

(a) the Primary Care Trust to make payments to the contractor under the contract promptly and in accordance with both the terms of the contract and any other conditions relating to the payment contained in directions given by the Secretary of State under section 28N of the Act M41 (GDS contracts: payments); and

(b) the contractor to make payments promptly to the Primary Care Trust and in accordance with both the terms of the contract and any other conditions relating to payment contained in directions given by the Secretary of State under section 28N of the Act.

(2) The obligation referred to in paragraph (1) is subject to any right the Primary Care Trust has to set off against an amount payable to the contractor an amount that—

(a) is owed by the contractor to the Primary Care Trust under the contract;

(b) has been paid to the contractor owing to an error or in circumstances when it was not due; or

(c) the Primary Care Trust may withhold from the contractor in accordance with the terms of the contract or any other applicable provisions contained in directions given by the Secretary of State under section 28N of the Act.

(3) The contract must contain a term to the effect that where, pursuant to directions under section 17 M42 (Secretary of State's directions: exercise of functions) or 28N of the Act, a Primary Care Trust is required to make a payment to a contractor under a contract but subject to conditions, those conditions are to be a term of the contract.

Marginal Citations

M41 Section 28N was inserted into the Act by section 172(1) of the 2003 Act.

M42 Section 17 of the Act was substituted by the 1999 Act, section 12(1) and amended by the 2001 Act, Schedule 5, paragraph 5(3) and the 2002 Act, Schedule 1, paragraph 7.

Fees, charges and financial interests of the contractor E+W

22.—(1) The contract must contain terms relating to fee, charges and financial interests which have the same effect as those set out in paragraphs (2) to (4).

(2) The contractor shall not, either itself or through any other person, demand or accept a fee or other remuneration for its own or another's benefit from—

(a) any patient of its for the provision of any treatment under the contract, except as otherwise provided in the NHS Charges Regulations; or

(b) any person who has requested services under the contract for himself or a family member, as a prerequisite to providing services under the contract to that person or his family member.

(3) The contract must contain a term that—

(a) only permits the contractor to collect from any patient of its any charge that that patient is required to pay by virtue of the NHS Charges Regulations, in accordance with the requirements of those Regulations; and

(b) provides for obligations imposed on the contractor by virtue of the NHS Charges Regulations to be terms of the contract.

(4) The contract must contain a term that requires the contractor in making a decision—

(a) as to what services to recommend or provide to a patient who has sought services under the contract; or

(b) to refer a patient for other services by another contractor, hospital or other relevant service provider under Part 1 of the Act,

to do so without regard to its own financial interests.

(5) The term “patient” in paragraph (3) shall have the same meaning as in regulation 2(1) of the NHS Charges Regulations.

Arrangements on termination E+W

23.  A contract shall make suitable provision for arrangements on termination of a contract including the consequences (whether financial or otherwise) of the contract ending.

Other contractual terms E+W

24.—(1) A contract must, unless it is of a type or nature to which a particular provision does not apply, contain other terms which have the same effect as those specified in Schedule 3 except paragraphs 55(4) to 55(13) and 56.

(2) The paragraphs specified in paragraph (1) shall have effect in relation to the matters set out in those paragraphs.

(3) Where a contract does not commence on 1st April in any financial year, there must be a contractual term—

(a) specifying the date and periods for the purposes of a mid-year review of the services provided; and

(b) which, other than as to the date and periods, have similar effect as those specified in paragraphs 58(3) to (8) and 59 of Schedule 3 in respect of the requirement and procedure for carrying out mid-year reviews.

PART 6 E+W TRANSITIONAL PROVISION

Commencement of contract E+W

25.  The contract shall provide for services to be provided under it from any date after 31^st March 2006.

Signed by authority of the Secretary of State for Health

Rosie Winterton

Minister of State,

Department of Health

6th December 2005