The British Dental Association (BDA) has joined an ongoing legal battle with the Department of Health (DoH) over the new NHS dental contract.
It has formally lodged papers with the Court of Appeal to fight the DoH’s challenge of Eddie Crouch’s legal victory earlier this year.
The Birmingham orthodontist won a judicial review judgment in February when he took Birmingham primary care trust (PCT) to court over the terms of his PDS contract.
The review found that it was unlawful for PCTs to include a clause that allowed contracts to be ended without reason or any significant period of notice. The DoH was granted leave to appeal at the start of July.
The BDA has described the disputed clauses as ‘unlawful and unreasonable’, and expressed its disappointment at the appeal.
Chief executive Peter Ward said: ‘This is already a very difficult time for dentists, and we are deeply disappointed that the DoH is trying to add an extra burden that is surely going to make practitioners’ lives even more problematic.’
He confirmed the BDA’s involvement in the appeal case would be extensive, and denied suggestions that, as an ‘intervening party’, it had not been fully involved until now.
He explained: ‘While we disagreed over one point of Eddie’s case, we have backed his argument over the termination clause from the beginning.
‘We believe our argument represents his absolutely. It’s important to understand our role in this – we aren’t just sitting on the sidelines twiddling our thumbs and nodding. We are actively involved with the case.’
A large part of the Association’s legal argument revolves around the uncertainty that that decision would cause in the profession.
The ‘no notice or reason’ clauses effectively render large sections of the PDS contract irrelevant – when the PCT can choose to cancel the contract at any point, there is no need for provisions dealing with ‘bad behaviour’ or agreements running to term.
Mr Ward explained that the case was far from clear-cut, despite its apparent simplicity. He said: ‘To any rational person, these clauses would appear completely unreasonable, but of course it’s up to the judge to interpret them in relation to the law.
‘Effectively the department is saying that a primary care trust should be able to say to a dentist: “Your contract will come to an end tomorrow, just because we feel like it.” Every right-minded person can see that this would destroy the viability of family dental practices.’
When pressed on how far the BDA would be willing to fight the case, he said: ‘The mood on the executive board is that this is so important, we need to pursue it as far as we can.
‘The implications of this clause are so profound that it simply must be rejected. It depends very much on our legal advice, but as long as we have a case then we will go as far as we need to ensure this burden does not fall on dentists.’
The judge at the hearing in February was scathing about the regulations facing dentists, describing their situation as ‘like going through a marsh’.
The BDA is due to discuss its approach to the case with Dr Crouch later this month.