Powys Teaching Local Health Board v Dr Piotr Dusza and Dr Hako Sobhani [2015] EWCA Civ 15

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Powys Teaching Local Health Board v Dr Piotr Dusza and Dr Hako Sobhani [2015] The Court of Appeal stated that the default meaning of the word "examination" in relation to treatment provided under a General Dental Services Contract means "full mouth examination" and the failure to record having completed a full mouth examination in a patient's record does not preclude payment for treatment provided under such contract.

Facts

The appeal was brought by Powys Teaching Local Health Board ["the Appellant"] against an Order of Wyn Williams J whereby a case was found for the claimants Piotr Dusza and Hake Sobhani ["the Respondents"] in respect of their claim for judicial review. The judicial review related to the provision of NHS dental treatment under a Standard General Dental Services ["GDS"] contract held by the Respondents under which the Appellant had issued a decision to claw back money from the Appellant.

Payment under a GDS contract is issued on a credit style basis whereby Units of Dental Activity ["UDAs"] are recorded for offering treatment to NHS patients. The treatments provided under a GDS contract are banded and attract differing amounts of UDAs and thus different payments.

In 2011 the Appellant sought to disallow a number of the Respondent's claims on the basis that those claims did not record (on the patient records) that a full mouth examination had been done. The Appellant sought to claim back £110,021.42 and the Respondents disputed this decision. The Respondents said that there had necessarily been an examination due to the nature of the dental work undertaken or alternatively, examinations had already taken place within the preceding six months.

The Respondents issued judicial review proceedings challenging the decision. Wyn Williams J held that the word "examination" meant a full mouth examination and further that the failure to record the carrying out of such an examination, could not mean that the practitioner had no entitlement to payment in respect of the treatment provided. This was not how the GDS contract should have been interpreted and the practitioner's entitlement should depend on whether it could be established that UDAs had been provided.

Grounds of appeal

The Appellant sought to cross-appeal Wyn Williams J judgment on the following grounds:

'i. Is a dentist obliged, when carrying out a banded course of treatment, to conduct a full mouth examination?

ii. Does a dentist's failure to comply with his obligations to record the fact that he has conducted a full mouth examination entitle the Board to withhold payment for treatment or services actually rendered or to reclaim money which has been paid over for such treatment or services?

iii. Does a dentist's failure to comply with his obligations to conduct a full mouth examination (in circumstances where he is under such an obligation) entitle the Board to withhold payment for treatment or services actually rendered or to reclaim money which has been paid over for such treatment or services?'

Judgment

Handed down by Lady Justice Gloster.

Ground 1:

Wyn Williams J said (at para 23) that an "examination" should be taken to mean full mouth examination because "the purpose of an examination, at least in the vast majority of cases, must be to facilitate an assessment of a patient's oral health overall". The Respondents argued that there were a number of provisions in the GDS contract which referred to the word "examination" and in respect of these provisions; it could not mean a "full mouth examination". Gloster LJ said that in the Court of Appeal's judgment, although the meaning of the word "examination" must be assessed in reference to the context in which it is being used, this is not inconsistent with a "default" meaning of full mouth examination.

Further to this, Gloster LJ agreed with Wyn Williams J in that the Judge was addressing the term "examination" in relation to non-urgent banded courses of treatment and his decision did not require a full mouth examination in cases where the context of the contract indicates that such is not required i.e. urgent treatment.

The first ground of the appeal was dismissed.

Ground 2:

The Respondents did not dispute that if a dentist conducted a full mouth examination then such should be recorded. The requirement for an examination appears under clause 202 of the GDS contract and they argued that compliance with the clause 202 obligation was not a precondition to payment under the contract. The Appellant stated that it was for the local health board to prove that a course of treatment had not been completed and if the board could not rely upon proper dental records then it was left in an impossible situation.

Gloster LJ said that the reasonable man would not expect that a failure to record an aspect of a course of treatment should have a consequence that no payment would be made to a dentist for that treatment. Records are at the most evidence of work done and that payment is for work done, not for the keeping of records of work. She concluded by stating that there is no business reason why compliance with the recording obligation under clause 202 should be construed as a precondition to payment.

The second ground of the appeal was dismissed.

Ground 3:

Gloster LJ said that she agreed with Wyn Williams J in that under the terms of the GDS contract a dentist's entitlement depends on whether he has provided the UDAs which justified the payment. A dentist is thus entitled to payment for the components which he has provided notwithstanding that the entirety of the course of treatment. The Court of Appeal found that there was nothing in the wording or in the machinery of the GDS contract which deprives a dentist of all entitlement to payment where he has failed to carry out a full mouth examination. A failure to comply with such requirement would lead to a reduction in their entitlement.

The third ground of the appeal was dismissed.

Keziah Pearson
Solicitor