THINKING BUSINESS
a blog by Chris Barrow

On the matter of declaring private turnover to the NHS



“Chris,

To date I have not heard any discussion about the request which I understand will be made by the NHS for practices to declare their private turnover to the NHS at year end.

I am uncertain of the authority which would enable the NHS to request this as we have never to my knowledge had to supply this before.

Further, what is the relevance of private turnover given that the hourly rates (which we have increased thanks to your input on costs per surgery per hour etc) compared with lower NHS rates?

We have met and exceeded every requirement the NHS has set in place and have seen more than 6 times as many NHS patients as private patients despite turnover previously being roughly a 75% NHS/ Private split.

As you know, we had made the decision for our Principal to go private prior to Covid and had engaged further Associate days to ensure we could (as we have always done) meet our NHS target.

We did not implement this change until we were certain we could continue to meet our NHS target. This is not a unique position for a Principal with a NHS contract to adopt.

We are confident that with our proposed investment in certified ventilation improvements and the general recovery from Covid restrictions that in due course we can continue to meet/exceed NHS targets whilst maintaining our vastly increased private income.

My concern relates to my increasing understanding of the workings of the NHS who seem to accept, without providing evidence to us, (anonymised if necessary) the complaints of, in our case, just 2 patients post Covid whereas the 3600 plus satisfied patients we had seen by mid March seems to count for nothing.

I have no problem advising the NHS of that figure as opposed to a figure below 600 for private patients.

Some of those 3600 have chosen private treatment over NHS treatment post first NHS consultation but under current arrangements that is to my knowledge permitted (I note the warning as to potential future arrangements set out in recent NHS communications).

As you know we extended our NHS and private hours pro rata during contracted hours and opened Friday afternoons and Saturdays largely but not exclusively to try and recover the 3 months loss of income from private dentistry without which the practice could not deliver NHS treatment.

As a result of a number of factors private income has risen substantially as planned. As outlined above we are confident it will remain at or around those levels even when we are able to deliver 100% UDAs.

Do you think David McEwan could shed any light on the NHS contract and the right of the NHS to request details of private turnover? I could not find any such provision in a brief review of the NHS contract but David will probably be able to answer this very quickly based on his excellent knowledge of the contract.

I have not seen the precise wording of the declaration but it occurs to me that a practice could possibly sign it before this year’s accounts are finalised therefore using last year’s private turnover figure thereby defeating the whole point of the exercise!

We are not a practice who has sought to benefit from Covid as others may have by abusing the situation and as you know long term the NHS may well be driving us away. I do not want to be in conflict with the NHS but equally I fail to see why we should disclose private turnover to the NHS.

Regards”

David McEwan, corporate lawyer from Schofield Sweeney responds:

“Dear Chris

I had to think about your question relating to the year end Annual Declaration and, in particular, the requirement to declare the proportion of NHS and private turnover.

In short, I think the NHS has the right to require that the information is provided as part of the Annual Declaration; and if there was a challenge that no such legal right exists, then I think the Government would simply legislate through secondary legislation to put it beyond doubt that the right exists (and I do not think that such secondary legislation could easily be successfully challenged through judicial review proceedings).

Clauses 211 and 212 of the GDS Contract comprise a very wide provisions giving the Board the right to require any information in connection with the GDS contract (as amended from time to time); and, in addition, the letters of the CDO, which implement the secondary “emergency” legislation passed in March 2020 temporarily amending/suspending UDAs and re-prioritising dental services and dental staff, require that the Annual Declaration is made as part of a new information requirement (including the proportion of NHS and private turnover) to justify the continuing NHS payments during the period of the pandemic.

However, what is not clear is what happens if you refuse to provide any of the information requested, or if it turns out that any of the other requirements of the CDO’s letters have not been complied with. On the face of it, there could be clawback (or similar remedy), but I think that to be able to claim any clawback (or similar remedy) the Government would have to pass further secondary legislation which is what I am anticipating is quite likely to happen (just as the Government has had to pass secondary legislation to give the NHS power to clawback the 16.75% abatement relating to the period of closure last year.

David.”


David McEwan

Corporate Lawyer

01274350846

+447595992830


DavidMcEwan@schofieldsweeney.co.uk

Church Bank House, Church Bank

Bradford

BD1 4DY


www.schofieldsweeney.co.uk


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