Dental services

Parts 4 to 7 of the National Health Service (Wales) Act 2006 (NHSWA 2006) make provision about the various health services that are to be provided under the Act:

Primary dental services – General Dental Services contracts

Section 56 of the NHSWA 2006 provides that each Local Health Board (LHB) must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers to provide primary dental services in its area, or ensure that such services are provided. A LHB may, in addition to any other power conferred on it, provide primary dental services itself (whether within or outside its area). The Welsh Ministers may make regulations to set out that services of a particular description must, or must not, be regarded as primary dental services.

Section 57 provides that a LHB may enter into a contract, known as a General Dental Services Contract, under which primary dental services are to be provided. The contract may make such provision as is agreed between the parties in relation to the services to be provided, remuneration under the contract, and any other matters. The services to be provided under such a contract may include services which are not primary medical services and may include services to be provided outside the area of the LHB. Section 58 provides that the contract must require the person entering into the contract with the LHB (the contractor) to provide such primary dental services as are prescribed in regulations made by the Welsh Ministers.

The National Health Service (General Dental Services Contracts) (Wales) Regulations 2006 (GDSCR 2006) provide, at regulations 14 to 16 and Schedule 1, for the ‘mandatory’ and ‘additional’ services which are to be provided under the contract. By virtue of section 4 of, and paragraph 1(2) of Schedule 2 to, the National Health Service (Consequential Amendments) Act 2006, the Regulations have effect as if made under section 58 of NHSWA 2006. A summary of the mandatory and additional services is provided below.

Mandatory services

Contractors must, during normal surgery hours (i.e. the times which are specified in the General Dental Services contract as those on which the surgery will be open to patients for the provision of services), provide to its patients all proper and necessary dental care and treatment (see list below) which includes the care which a dental practitioner usually undertakes for a patient, urgent treatment, and the referral of the patient for further services.

The contractor must provide urgent treatment and all the other services listed below that are necessary to meet the reasonable needs of its patients during normal surgery opening hours:

examination,
diagnosis,
advice and planning of treatment,
preventative care and treatment,
periodontal treatment,
conservative treatment,
surgical treatment,
supply and repair of dental appliances,
the taking of radiographs,
the supply of listed drugs and listed appliances, and
the issue of prescriptions.

Additional services

Contractors may be required to provide domiciliary or sedation services and orthodontic treatment.

Eligibility

Section 59 of NHSWA 2006 provides that a LHB may, subject to such conditions as may be prescribed in regulations made by the Welsh Ministers, enter into a General Dental Services contract with a dental practitioner, a dental corporation, or with two or more individuals practising in partnership where the statutory conditions of section 59(2) are satisfied. Section 206 of the NHSWA Act 2006 defines a ‘dental practitioner’ as a person registered in the dentists register under the Dentists Act 1984. Section 59(4) provides that ‘dental corporation’ means a body corporate which is carrying on the business of dentistry in accordance with the Dentists Act 1984.

Regulations 3 to 7 of GDSCR 2006 make further provision about eligibility to enter into General Dental Services contract. The Regulations have effect as if made under section 59 of the NHSWA 2006.

Regulation 4 provides that subject to exceptions set out in regulation 4(4)-(6), contracts may not be entered into with a person, including any director, chief executive or secretary of a dental corporation, if that person:

is subject to a national disqualification,
is disqualified or suspended from practising by any licensing body in the world,
has been dismissed from employment in a health service body in the last five years,
has been removed from, or refused admission to, a primary care list,
has been convicted of murder,
has been convicted of committing another criminal offence since August 2002 and sentenced to a term of imprisonment of over six months,
has been convicted of an offence elsewhere which would, if committed in England and Wales, constitute murder, or which if committed in England and Wales since August 2002, would have led to a sentence of a term of imprisonment of over six months,
has been convicted of an offence against children or young persons under the Children and Young Persons Act 1933,
has been adjudged bankrupt, or made the subject of a bankruptcy restriction order, or debt relief restriction order,
has been removed from office as a trustee of a charity, or
is disqualified from being a company director.

Regulation 5 provides that it is a condition of any contract entered into with dental corporations after 19 July 2005, that no offence has been or is being committed under section 43 of the Dentists Act 1984 and that no financial penalty has been imposed under section 43B of the Dentists Act 1984.

Regulations 6 and 7 provide that where a LHB is of the opinion that the conditions set out in regulations 4 and/or 5 are not satisfied, it must write to the person who has applied to enter into the contract, setting out the reason for the refusal and informing the person of the right of appeal to the First-Tier tribunal provided by regulation 7.

Payments

Section 60 of NHSWA 2006 makes provision about the payments to be made under General Dental Service contracts. Section 60(1) provides that the Welsh Ministers may give directions, as to the payments to be made. A contract must require payments to be made in accordance with any directions issued under section 60.

In particular, the directions may:

provide for payments to be made by reference to compliance with standards or the achievement of levels of performance,
provide for payments to be made by reference to any scheme or scale specified in the direction, or a determination made by any person in accordance with factors specified in the direction,
provide for the making of payments in respect of individual practitioners,
provide that the whole or any part of a payment is subject to conditions, and
make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

Before issuing a direction, the Welsh Ministers must consult any body appearing to them to be representative of persons to whose remuneration the direction would relate, and may consult such other persons as they consider appropriate.

The Welsh Ministers have made the Directions to Local Health Boards as to the General Dental Services Statement of Financial Entitlements 2009 (2009 No 18) (GDS SFE 2009) in exercise of their power under section 60 of NHSWA 2006. The GDS SFE 2009 makes detailed provision about the content of General Dental Service contracts in relation to payment. It has been amended by further directions issued by the Welsh Ministers and so care should be taken to ensure that the up to date version of GDS SFE 2009 is consulted. Since it is a non-statutory instrument, GDS SFE 2009 does not appear on the legislation.gov.uk website but may be found in the ‘Legislation’ section of the Welsh Government website.

Other required contract terms

Section 61 of NHSWA 2006 provides that a General Dental Service contract must contain such provision as may be prescribed by the Welsh Ministers in regulations. In particular, any such regulations may make provision as to:

the manner in which, and standards to which, services must be provided,
the persons who perform services,
the persons to whom services will be provided,
the variation of contract terms,
rights of entry and inspection,
the circumstances in which, and the manner in which, the contract may be terminated,
enforcement and the adjudication of disputes.

Any regulations made by the Welsh Ministers under section 61 must make provision as to the right of patients to choose the persons from whom the receive services.

Regulations 10 to 24 of GDSCR 2006 make provision about the other required contract terms. These Regulations have effect as if made under section 61 of NHSWA 2006. They require a General Dental Service contract to include terms specifying:

the names of the parties,
whether the contract is to be regarded as an NHS contract,
that a contract with a partnership is to be regarded as a contract with the partnership as constituted from time to time,
the duration of the contract,
the mandatory and additional services (see above),
the number of units of dental activity to be provided per year by the contractor,
the number of units of orthodontic activity to be provided per year by the contractor,
that the LHB may not take action for breach of contract where the contractor has failed to provide the required number of units of dental activity or the required number of units of orthodontic activity, where that failure amounts to less than 5% of the number of units that ought to have been provided, and where the contractor agrees to provide that number of units within a specified period,
the number of any domiciliary or sedation courses of treatment that the contractor is to provide,
payments, including that the contract must include all the provisions of GDS SFE 2009,
fees and charges,
the rights of termination.

Resolution of disputes

Section 62 of NHSWA 2006 provides that the Welsh Ministers may make regulations regarding the resolution of disputes as to the terms of a proposed General Dental Service contract, including provision for the referral of the terms of a proposed contract to the Welsh Ministers, and for the Welsh Ministers, or a person appointed by them, to determine the terms on which the contract may be entered into.

Regulations may also make provision for a person entering into a General Dental Service contract to be regarded as a health service body in circumstances where that person so chooses, and for a contract with a partnership to be regarded as an NHS contract where the partners elect to become a health service body and there is a change in the membership of the partnership. If the provider is a health service body, this affects how any dispute relating to the contract is dealt with.

Regulation 13 of GDSCR 2006 makes provision about the resolution of disputes. The Regulations have effect as if made under section 62 of NHSWA 2006. Regulation 13 provides that unless both parties to the prospective contract are health service bodies (in which case section 4(4) of the National Health Service and Community Care Act 1990 applies), if the parties cannot agree on a particular contract term, either party may refer the dispute to the Welsh Ministers to consider and determine the matter. Before referring the dispute for consideration and determination by the Welsh Ministers, both parties to the prospective contract must make every reasonable effort to communicate and co-operate. The determination may specify the terms to be included in the contract, may require the LHB to proceed with the proposed contract, but may not require the proposed contractor to proceed with the proposed contract, and shall be binding on the prospective parties.

Performers lists

Section 63 of NHSWA 2006 provides that the Welsh Ministers may make regulations setting out that a healthcare professional of a description prescribed in the regulations may not perform any primary dental service for which a LHB is responsible unless the healthcare professional is included in a list maintained under the regulations by a LHB.

The regulations may make provision, in particular, as to:

the preparation, maintenance and publication of a list,
eligibility,
applications for inclusion,
grounds on which an application may or must be granted or refused,
requirements with which a person included in a list must comply,
suspension or removal from a list,
circumstances in which a person may not withdraw from the list,
payments to be made in respect of a person suspended from the list,
the criteria to be applied in making decisions under the regulations,
appeals against decisions made by a LHB under the regulations,
disclosure of information about applicants for inclusion in the performers list, grants or refusals of applications, suspensions or removals, and
disqualification of practitioners.

The regulations may also provide for:

a person’s inclusion in a list to be subject to conditions determined by a LHB,
the LHB to vary the conditions or impose different ones,
the consequences of failing to comply with a condition, and
the review by the LHB of decisions made by it by virtue of the regulations.

The National Health Service (Performers Lists) (Wales) Regulations 2004 make provision about performers lists and have effect as if made under section 63 of NHSWA 2006.

Regulation 3 of these Regulations imposes a requirement on each LHB to prepare and publish a medical performers list and a dental performers list and make them available for public inspection. Regulation 4 provides for applications for inclusion in the list, including the documents and declarations that are required to be sent with the application.

Regulation 6 provides for the general grounds on which medical and dental practitioners may or must be refused admission to the lists, regulation 9 provides for the conditions with which a person on a performers list must comply, regulations 10 to 12 provide for removal from the list, regulation 13 provides for suspension from the list, and regulation 15 provides for appeals against the LHB’s decision. Regulations 28 to 33 make further and specific provision about dental performers lists.

Other arrangements for the provision of primary dental services – Personal Dental Services agreements

Section 64 of NHSWA 2006 provides that a LHB may enter into agreements under which primary dental services are provided by persons (other than by the LHB). The agreements must be in accordance with regulations made by the Welsh Ministers under section 66 of the Act (see further below). Section 64 agreements are commonly known as Personal Dental Services agreements (PDS) agreements, and are an alternative to the General Dental Services contracts described above.

Section 64 provides that PDS agreements may not combine arrangements for the provision of primary dental services with arrangements for the provision of primary medical or pharmaceutical services, and section 65 provides that PDS agreements may only be entered into with one or more of the following:

an NHS Trust or an NHS foundation trust,
a dental practitioner who meets conditions prescribed in the Welsh Ministers’ regulations,
a health care professional who meets conditions prescribed in the Welsh Ministers’ regulations,
an individual who is providing services under a General Medical Services contract or a General Dental Services contract (or their equivalent in England), or in accordance with similar arrangements, or
providing particular services in Scotland or Northern Ireland,
an NHS employee,
a company limited by shares which is wholly owned by a person with whom a LHB would otherwise be able to enter into a PDS agreement, or
a LHB.

The Welsh Ministers may make regulations about PDS agreements. Section 66 provides that any regulations that they make must include provision for participants other than LHBs to withdraw from the arrangements if they wish to do so, must provide for the circumstances in which a person providing services under a PDS agreement must or may accept a person as a patient, may decline to accept a person as a patient, and may terminate its responsibility for a patient, and must provide for patients’ rights to choose the persons from whom they receive services under PDS agreements.

The Welsh Ministers’ regulations may also, in particular:

provide that PDS agreements may be made only in prescribed circumstances or areas,
provide that only prescribed services, or categories of service, may be provided under PDS agreements,
impose conditions to be satisfied by persons performing services under a PDS agreement,
require details of PDS arrangements to be published,
make provision about the variation and termination of PDS agreements,
make provision for the parties to be treated as health service bodies in particular circumstances,
provide for directions as to payments to be enforceable in a county court as if they were judgments or orders of that court.

The regulations may also require payments to be made under PDS agreements in accordance with directions given by the Welsh Ministers, may require in certain conditions a LHB to enter into a General Dental Services contract with any person who is providing services under a PDS agreement and who so requests, and may include provision as to the resolution of disputes as to the terms of the agreement.

The Welsh Ministers have made the National Health Service (Personal Dental Services Agreements) (Wales) Regulations 2006 in exercise of their power under section 66 of the NHSWA 2006. The Regulations require PDS agreements to include terms specifying:

the names of the parties,
whether the contract is to be regarded as an NHS contract,
that a contract with a partnership is to be regarded as a contract with the partnership as constituted from time to time,
the duration of the contract,
the mandatory and additional services,
the number of units of dental activity to be provided per year by the contractor,
the number of units of orthodontic activity to be provided per year by the contractor,
the number of any domiciliary or sedation courses of treatment that the contractor is to provide,
payments, including that the contract must include all the provisions of the PDS SFE 2009 (see below),
fees and charges,
rights termination,
eligibility,
resolution of disputes.

The Welsh Ministers have exercised their direction making power under section 66(4) of NHSWA 2006 to make the Directions to Local Health Boards as to the Personal Dental Services Statement of Financial Entitlements 2009 (2009 No 17) (PDS SFE 2009). PDS SFE 2009 makes detailed provision about the content of PDS contracts in relation to payment.

Assistance and support – General Dental Services contracts and PDS agreements

Section 68 of NHSWA 2006 provides that a LHB may provide assistance or support to any person providing primary dental services under a General Dental Services contract or under a PDS agreement. Assistance includes financial assistance.

Local Dental Committees

Section 69 of NHSWA 2006 provides that a LHB may recognise a committee formed for its area, and that of one or more other LHBs, which it is satisfied is representative of:

each dental practitioner who, under a General Dental Services contract, is providing primary dental services in the committee’s area, and
each other dental practitioner performing primary dental services in the area and who has notified the LHB that they wish to be represented by the committee.

The recognised committee is called the Local Dental Committee for the area for which it is formed. The Welsh Ministers may make regulations to require a LHB to consult any committee recognised by it on such occasions and to such extent as may be prescribed, and a committee has such other functions as may be prescribed by the Welsh Ministers. The Welsh Ministers have not exercised their power to make regulations in this respect.

Dental public health

Section 67 of the NHSWA 2006 provides that a LHB has such function in relation to dental public health as may be prescribed in regulations made by the Welsh Ministers. The Welsh Ministers may also make regulations to set out their own functions in relation to dental public health in Wales. An LHB’s function in relation to dental public health may be discharged by the LHB itself, by two or more LHBs acting jointly, or by another person or body in accordance with arrangements made by the LHB.

The functions of LHBs in relation to dental public health are provided for by the Functions of Local Health Boards (Dental Public Health) (Wales) Regulations 2006. The Regulations have effect as if they were made under section 67 of NHSWA 2006. Regulation 2 provides that a LHB as the function of, to the extent it considers necessary to meet all reasonable requirements within its area, providing or securing the provision of:

oral health promotion programmes,
dental inspection of pupils attending local authority schools, and
oral health surveys.

Published on

29 April 2021

Last updated

15 June 2021