It’s often said that if a policeman asks you to move along, then it’s probably best just to move along. As a dentist recently found out, the same may be true of requests by the NHS, no matter how reasonable (or unreasonable) the dentist might think those requests are.
David Krebs was a dentist practising in North West England. He had an NHS contract with Salford PCT. That contract, in common with most, required the dentist to co-operate with an assessment by the National Clinical Assessment Service when requested to do so by the PCT. It also required the PCT to act “reasonably and in good faith”.
As early as 2008, the PCT had raised concerns with Mr Krebs about his practice in relation to poor diagnosis and treatment, poor record keeping and potentially excessive claims for remuneration. Mr Krebs failed to deal with those concerns or respond to the PCT in any meaningful way.
Presumably in order to assist with its investigation of these concerns, the PCT requested copies of his patient claims data and notes. Mr Krebs refused to provide these, arguing that there was no reasonable justification for doing so.
In October 2011, the PCT served a remedial notice on Mr Krebs requiring access to the patient records. A month later the PCT issued another notice referring him to NCAS (or at least, the predecessor to NCAS). The National Clinical Assessment Service helps to resolve concerns about the professional practice of healthcare professionals, including dentists. In the meantime, the PCT’s clinical advisor visited Mr Krebs and produced a report which was highly critical of his performance in his practice.
Having initially agreed to co-operate with the NCAS assessment, Mr Krebs subsequently refused. The PCT issued a second remedial notice regarding his refusal to engage with the NCAS assessment He continued to refuse to meet with NCAS and a termination notice was served on September 27, 2012, for his failure to comply with the remedial notice. That termination notice was suspended following correspondence from his solicitors.
Shortly after, the PCT also made a reference to the NHS Salford Lists and Contracts Panel to consider his removal from the Performers List. In November 2012, the panel decided to remove Mr Krebs from the Performers’ List. Mr Krebs appealed that decision. The appeal tribunal concluded – by consent it would appear – that Mr Krebs would be conditionally removed from the Performers List, the condition being that he would attend an NCAS assessment.
Following the conclusion of the Performers List appeal, NHS England lifted the suspension of the termination of Mr Krebs’s contract for dental services and purported to terminate the contract. Mr Krebs brought court proceedings against NHS England.
The case recently came before the Court of Appeal. The court had to decide several issues. In particular: whether the NHS was required to act reasonably when it first referred Mr Krebs to NCAS; whether the contract between the NHS and the dentist was a private agreement between the parties (even though one of them was a public body), or whether public law principles should apply to the dental contract; and whether the suspension of the notice terminating Mr Krebs’s contract meant that the NHS was required to issue a fresh remedial notice.
Firstly, the court determined that the contract should be considered a private agreement between the NHS and the dentist. Even though the PCT was a public body, public law principles (which would have given the dentist greater scope for challenging the PCT’s actions) did not apply to the dispute between the parties.
In relation to the question of “reasonableness”, it had already been agreed by the parties that the dental services contract between Mr Krebs and the NHS required him to “co-operate with an assessment by [NCAS] when requested to do so”. However, the contract also required the NHS to act “reasonably”. This raised an interesting question for the Court of Appeal. If the NHS’s referral to NCAS was unreasonable, did the dentist still have to co-operate with NCAS?
The court concluded that the dentist was required to comply with the requirement that he co-operate with NCAS, even if he considered that the request for him to do so was made unreasonably.
In fact, the court went on to state that it did not believe Mr Krebs had been able to show that the NHS had acted unreasonably. Mr Krebs had repeatedly shown that he was not prepared to abide by the terms of his contract; he had first agreed to cooperate with NCAS and then changed his mind for no adequate reason; he had been shown a considerable amount of indulgence by the NHS, and the issues did not relate solely to “contractual discipline” but extended to the welfare of patients.
Finally, the court considered whether the remedial notice, which related to the dentist’s failure to cooperate with NCAS, had effectively been cancelled when it was suspended by agreement whilst the legal proceedings were concluded.
If the remedial notice had been cancelled by the suspension the NHS would have needed to issue a new remedial notice requiring co-operation with NCAS, this would have given Mr Krebs the opportunity to co-operate and, consequently, to preserve his NHS contract. Unfortunately for Mr Krebs, the court held that the remedial notice had not been cancelled. The NHS was therefore permitted to lift the suspension and to terminate the dental services contract by reason of Mr Krebs’s failure to comply with the remedial notice. The consequence of the court’s decision was that Mr Krebs’s dental services contract was terminated.
It is, of course, impossible to know whether the outcome of this case would have been different had Mr Krebs complied with the PCT’s initial request for disclosure of patient records and subsequent request to co-operate with NCAS. However, the court has sent a clear message to NHS dentists: refusing to comply with requests from the NHS which come within the scope of the dental contract – even if the dentist thinks that those requests are unreasonable – may put the dentist in breach of that contract.
Experience suggests that a dentist who works to address issues or concerns which are raised (whether by patients, the NHS or the GDC) will usually be given credit for those actions. A dentist who refuses to engage, even if he believes he has done nothing wrong, may only end up making matters worse. A stitch in time really can save nine.