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Mixing NHS and private treatment - a warning about “topping up”

Consent remains key to delivering NHS and private care as part of any treatment plan. 'Topping up' NHS banded charges is not permitted under regulations nor sound ethics.

Len D’Cruz, Kevin Lewis, Victoria Michell

A challenge for dentists operating in a mixed economy is the contractual rules around what is available on the NHS as well as what guidance the GDC offers in these situations.

Mixing of NHS and private treatment has been permitted for the same course of treatment and on the same tooth since 2006 when the 1992 NHS regulations were superseded by the 2005 GDS and PDS Regulations. Whilst it is permissible for a dentist to provide any part of a course of treatment privately if they have first obtained the patient's consent [1], they must not advise the patient 'that the services which are necessary in his/her case are not available from the dentist under the [NHS] contract' or 'seek to mislead the patient about the quality of the services 'under the contract' [2].

The recent judgment in Lucy Jane Williams vs The General Dental Council [2022] has led to a rumour that mixing was permitted in a much broader sense of "top-up fees" being added on a private basis to NHS banded charges.

Our view is that this recent judgment has changed neither the contract nor the GDC's perspective on mixing. The High Court affirmed that treatment can be mixed with the full and informed consent of the patient. Patients must not be misled as to what treatment is available on the NHS or whether they are entitled to that treatment in obtaining this consent. The High Court's judgement focused on the individual facts of this case rather than adjudicating on the legal precedent set down. The decision centred on the individual circumstances of the case i.e., what this dentist did with her patients whilst she worked in a practice as an associate and whether the conduct was dishonest. A full reading of the judgment is worth the effort to understand the context of the Appeal by the dentist against the erasure imposed by the GDC's Professional Conduct Committee. 

A dentist cannot demand or accept a fee or other remuneration except as allowed by the NHS Dental charges regulation.

The GDS contract remains unchanged. A dentist cannot demand or accept a fee or other remuneration except as allowed by the NHS Dental charges regulation [3]. A "top up" fee is therefore not permissible under the GDS regulations. The treatment provided under the "mixing" clause is either wholly NHS or wholly private. 

We are aware that there have been comments on social media that have suggested the position has been changed by this recent legal decision. We trust that our members will pay as much attention to uninformed social media chat room comments about this decision as they hope their patients do about esoteric non evidenced based dental remedies.

Here are some key pointers to help stop dentists from falling foul of the rules:

  1. Always keep clear, accurate and contemporaneous notes of conversations with patients noting any agreement to mix NHS and private treatment
  2. Never mislead patients as to what is available to them on the NHS. Remember an NHS course of treatment includes all necessary treatment to secure oral health
  3. Understand your ethical obligations regarding treatment and speak to your defence union if you are unsure
  4. Discuss with your patient their treatment options under the NHS and privately, explaining outcomes, differences and costs clearly. Remember consent must be free and informed and information as to costs must be clear and unambiguous
  5. Always provide a treatment plan which is clear and cogent and to which the patient has agreed to fully and clearly and signed, preferably an FP17DC
  6. Always keep clear and contemporaneous notes of conversations with patients (repeated as it is very important).


[1] Rattan R, D'Cruz L Grey matters: 2006 and all that Prim Dent J 2019 8(2) 22-28

[2] National Health Service (General Dental Services Contracts) Regulations 2005

[3] Para 22 (2) (a) National Health Services (General Dental Services Contracts ) Regulations 2005