Top-up fees: where do we stand three years on from GDC versus Williams?

Three years after GDC versus Williams, uncertainty remains over the lawfulness of additional private charges alongside NHS treatment. Ronuk Vasant examines the implications of the Court of Appeal judgment and argues that clearer guidance is urgently needed for dentists and patients.

Readers may recall the case of the General Dental Council (GDC) versus Williams. The GDC Professional Conduct Committee had initially found that the registrant’s fitness to practice was impaired. Part of the case concerned the lawfulness of additional private charges associated with NHS dental treatment.

The Court of Appeal upheld Mr Justice Ritchie’s conclusion that the regulations permitted the arrangements in question, overturning assumptions that had long informed professional and regulatory guidance. In August 2022, we sent a letter to the BDJ asking whether the NHS Business Services Authority guidance and the NHS dental contract regulations would be amended to provide much-needed clarity for the profession and the public.

Initially, there was a sign of movement. A letter sent to all NHS primary care dental contract holders on 19 June 2023 stated that the matter would be reviewed and that a further statement would be issued. A GDC online news posting dated 25 April 2024 took the clear position that it was for the Department of Health and Social Care and NHS bodies in England ‘to consider necessary actions and communicate any implications for NHS dental charges to patients and dental professionals’.

Yet, three years on from that initial commitment, no further statement has materialised. This has left both the profession and the public facing continuing uncertainty, without clear guidance on how the regulations should be interpreted.

Why did the GDC versus Williams case cause confusion?

During the appeal proceedings, the Court of Appeal directed the parties to seek an advocate to the court from the government legal department to address the proper interpretation of the regulations. The need for such assistance underlines their complexity and lack of clarity. This is particularly concerning because the regulations have been relied upon not merely to determine payment arrangements, but as the basis for professional misconduct proceedings.

Some of the provisions examined by the judges are not unique to crowns. For example, the court considered how granular a ‘part’ of a course of treatment could be. Was subdividing the preparation of a tooth for a crown and the manufacture of the crown a legitimate separation, or should they be considered together?

The concept of a ‘part’ of a course of treatment could apply far beyond crown provision and therefore may be far-ranging. The court itself recognised that the regulations identify no clear division between treatment provided under the NHS contract and treatment provided privately. It also observed that, if mixed funding created a risk of double recovery, the NHS Charges Regulations (and perhaps the Contracts Regulations) would have to be revisited.

The need for guidance

The judgment also makes clear that the distinction between NHS and private treatment may depend upon the agreement reached with the patient, including the identification and proper explanation of the private component. This further underlines the need for practical guidance that can be applied consistently by practitioners, regulators and patients.

The profession and the public should not be left to infer from complex litigation the boundaries between NHS and private charging. NHS England and the Department of Health and Social Care should now publish the clarification promised in 2023.

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