Gaming the NHS system in Q4 of the contract year

Sometimes I get a question that throws me so far off balance that I seek the advice of other professionals, largely to make sure that I'm not misinterpreting a situation.

"Hi Chris,

Our associates have reached their 45% target. they are adamant about not seeing any more exams/new patients or carry on long treatments. This is because they believe that as they have reached their target they would not be paid any more or the practice would not be paid but in fact lose money from this.

(they understand that patients in pain must be seen)

This is causing disruption as clinicians are not willing to attend and constantly requesting time blocked off the diary.

Any ideas on how this can be resolved?"

I sat at my desk a few mornings ago, thinking "is it me?" and forwarded the email to some respected colleagues, whose responses I reproduce here (with their permission).

Alan Suggett - UNW dental accountants:

"This is a really tricky one as it no comprehensive instructions have been given for this situation by the CDO/NHSE.

I think we really need to include Sarah Buxton in on this as I think that the associate contracts/agreements are relevant (in fact may well be the overriding factor).

From an equitable perspective I think that the associates’ stance is appalling – in high level terms my understanding of what the NHSE Q4 deal is, is as follows:

1. NHS practices should do their best to hit the normal UDA target (ie the normal, pre COVID number of UDAs);

2. If practices don’t achieve 100%, but achieve 45% or more, they will be paid in full (less a fair abatement adjustment);

3. The principle of 2 also applies to associate pay – so an associate who does more than 45% is already being paid as if they’ve done 100%, so aren’t entitled to more than 100%;

4. The principle of downing tools when the 45% threshold is reached is morally appalling and not at all what was intended (but a regrettable factor of some human beings selfishness).

The NHS has financially supported practices through the pandemic, some give and take is appropriate."

Sarah Buxton - FTA Law:

"I totally agree with Alan’s comments.

Most Associate Agreements/Side Agreements which were drafted and put in place for the 4th quarter state that the Associate has to do a minimum of 45% of the NHS Contract this is not a target. It would be useful to see the written agreement that is in place.

The Associates are being paid 100% for performing anywhere between 45% and 100%. If they refuse to do more than 45% then they are in breach of contract plus the Practice Owner has an argument not to pay the Associate the full 100% but this will need exploring further depending on the written agreement which is in place.

The issue for the Associate is that by refusing to work and being in breach of contract means that they could be responsible for any clawback (another common provision found in written associate agreements)."

David McEwan - Corporate Lawyer - Schofield Sweeney

"I agree with all of the comments.

Associates who are refusing to work and see patients normally just because they have done their 45% (thereby possibly putting the practice in breach of the CDO’s letters for a variety of different reasons) don’t deserve a job!

I have seen a couple of situations where associates have worked very long hours/6.5 days and achieved 100% ++ because other associates/principals have either been ill/lazy, and in both cases required to be paid more before doing any further work, but that is a quite different situation."

One has to be very careful before accusing others of actions that are morally indefensible. In this case, I feel justified and supported in so doing.

I wonder if The Treasury/NHS will be cognisant of this behaviour when establishing targets for Q1 of the new contract year?