Definitions and interpretation



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STANDARD CLAUSES FOR A PERSONAL DENTAL SERVICES AGREEMENT


(LAST REVISED APRIL 2013)

CONTENTS


Part.

Headings

Clause No.

PART 1

DEFINITIONS AND INTERPRETATION

1-5


PART 2

RELATIONSHIP BETWEEN THE PARTIES

6-13

PART 3

NHS CONTRACTS

14

PART 4

COMMENCEMENT OF THE AGREEMENT

DURATION OF THE AGREEMENT



15

16-20


PART 5

WARRANTIES

21-24

PART 6

PATIENTS

25-39

PART 7

LEVEL OF SKILL

PROVISION OF SERVICES



40 – 73


PART 8

MANDATORY SERVICES

74-100

PART 9

ADDITIONAL SERVICES

101-167

PART 10

FURTHER SERVICES

168-172

PART 11

SUPPLY OF DRUGS AND PRESCRIBING

173-177

PART 12

PERSONS WHO PERFORM SERVICES

178-201

PART 13

RECORDS, INFORMATION, NOTIFICATION AND RIGHTS OF ENTRY

202-236


PART 14

PAYMENT UNDER THE AGREEMENT

237-239

PART 15

FEES AND CHARGES AND FINANCIAL INTERESTS OF THE CONTRACTOR

240-243

PART 16

CLINICAL GOVERNANCE AND QUALITY ASSURANCE

DUTY AS TO EDUCATION AND TRAINING



244-249
249A

PART 17

INSURANCE

250-253

PART 18

GIFTS

254-259

PART 19

COMPLIANCE WITH LEGISLATION AND GUIDANCE

260

PART 20

COMPLAINTS

261-277

PART 21

DISPUTE RESOLUTION

278-285

PART 22

VARIATION AND TERMINATION OF THE AGREEMENT

286-338

PART 23

EVIDENCE

NON-SURVIVAL OF TERMS

ENTIRE AGREEMENT

GOVERNING LAW AND JURISDICTION

WAIVER, DELAY OR FAILURE TO EXERCISE RIGHTS

FORCE MAJEURE

SEVERANCE

SERVICE OF NOTICE



339-342

343


344-345

346-348


349

350-353


354-356

357-360


PART 24

SIGNING OF DOCUMENTS

361-362


SCHEDULES







SCHEDULE 1

CONTACTOR’S DETAILS (INDIVIDUAL)




SCHEDULE 1

CONTRACTOR’S DETAILS (DENTAL CORPORATION)




SCHEDULE 1

CONTRACTOR’S DETAILS (COMPANY LIMITED BY SHARES)




SCHEDULE 1

CONTRACTOR’S DETAILS (LIMITED LIABILITY PARTNERSHIP)




SCHEDULE 2

SIGNATURES OF THE PARTIES TO THE AGREEMENT




SCHEDULE 3

INFORMATION TO BE INCLUDED IN PATIENT LEAFLETS




SCHEDULE 4

PAYMENT SCHEDULE





THIS AGREEMENT is made on the day of 20[ ]

BETWEEN
(1) The National Health Service Commissioning Board whose name and address appears at Schedule 1 to this Agreement (called “the Board”) and
(2) The contractor(s) whose name(s) appear(s) at Schedule 1 to this Agreement (called “the Contractor”)
BACKGROUND
A. The Board is a statutory body established by orders made pursuant to section 1H of the National Health Service Act 2006. It is the duty of the Board to exercise its powers so as to secure the provision of primary dental services throughout England.
B. In order to achieve this object, the Board is empowered by Part 5 of the National Health Service Act 2006, and the regulations made thereunder1, to enter into personal dental services agreements with specified categories of person.
C. The Contractor falls within one of the specified categories of person.
D. By virtue of a property transfer scheme made under section 300 of the Health and Social Care Act 2012, a personal dental services agreement which was entered into before 1st April 2013 is to transfer to the Board on that date.
E. The Board and the Contractor wish to enter into a personal dental services agreement under which the Contractor is to provide personal dental services and other services in accordance with the provisions of this Agreement.
PART 12

DEFINITIONS AND INTERPRETATION

1. The following terms and phrases shall have the following meanings for the purposes of this Agreement:―


“the 1977 Act” means the National Health Service Act 1977;
“the 2006 Act” means the National Health Service Act 2006;
“additional services” means one or more of―
(a) advanced mandatory services,

(b) dental public health services,

(c) domiciliary services,

(d) orthodontic services, and

(e) sedation services;
“adjudicator” means the Secretary of State or a person or persons appointed by the Secretary of State under section 9(8) of the 2006 Act or paragraph 55(4) of Schedule 3 to the Regulations;
“advanced mandatory services” means any primary dental service that would fall within the services described in clauses 74 and 75, but by virtue of the high level of facilities, experience or expertise required in respect of a particular patient, the service is provided as a referral service;
“agreement” means this agreement which is made under section 107 of the 2006 Act between the Board and the Contractor named in Schedule 1;
“Band 1 course of treatment” means a course of treatment, including a course of treatment consisting of urgent treatment, provided to a patient in respect of which a Band 1 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;
“Band 1A course of treatment” means a course of treatment, provided to a patient who is receiving treatment under a Capitation and Quality Scheme 2 Agreement in respect of which a Band 1A NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;

“Band 2 course of treatment” means a course of treatment provided to a patient in respect of which a Band 2 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;


“Band 3 course of treatment” means a course of treatment provided to a patient in respect of which a Band 3 NHS Charge is payable pursuant to the NHS Charges Regulations, or would be payable if the patient was not an exempt person;
“banded course of treatment” means a Band 1, Band 1A, Band 2 or Band 3 course of treatment;
“bank holiday” means any day that is specified or proclaimed as a bank holiday in England pursuant to section 1 of the Banking and Financial Dealings Act 1971;
“bridge” means a fixed or removable bridge which takes the place of any teeth;
“Capitation and Quality Scheme 2 Agreement” means an agreement containing such terms and conditions relating to the provision of primary dental services as are required by, and which is made in accordance with, directions given by the Secretary of State under section 114A of the 2006 Act 2006;
“case assessment”, in respect of an orthodontic course of treatment, means a clinical examination of the patient, including the taking of such radiographs, colour photographs and models as are required in order to determine what orthodontic treatment (if any) is to be provided to the patient;
“charge exempt course of treatment” means a course of treatment that involves the examination and assessment of a patient leading to―
(a) the issue of a prescription,

(b) the repair of a dental appliance,

(c) the arrest of bleeding, or

(d) the removal of sutures,


which, by virtue of regulation 3(2)(d) or (e) of the NHS Charges Regulations, is provided free of charge to the patient;
“charity trustee” means one of the persons having the general control and management of the administration of a charity;
“child” means a person who has not attained the age of 16 years;
“clinical governance arrangements” means arrangements through which the Contractor endeavours to continuously improve the quality of its services and safeguard high standards of care by creating an environment in which clinical excellence can flourish;
“complete”, in relation to―
(a) a course of treatment, means―

(i) where no treatment plan has to be provided in respect of a course of treatment pursuant to clause 51, all the treatment recommended to, and agreed with, the patient by the Contractor at the initial examination and assessment of that patient has been provided to the patient; or

(ii) where a treatment plan has to be provided to the patient pursuant to clause 47, all the treatment specified on that plan by the Contractor (or that plan as revised in accordance with clause 49) has been provided to the patient, and

(b) an orthodontic course of treatment, means―

(i) where the Contractor determines in accordance with clause 144 that no orthodontic treatment should be provided following the case assessment, the completion of the case assessment; or

(ii) where the Contractor has determined that orthodontic treatment should be provided following the case assessment, all of the orthodontic treatment specified on the orthodontic treatment plan by the Contractor pursuant to clause 151 (or that plan as revised in accordance with clause 153) has been provided to the patient,


and “completed” shall be construed accordingly;
“course of treatment” means―
(a) subject to paragraph (c), an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment,

(b) the provision of any planned treatment (including any treatment planned at a time other than the time of the initial examination) to that patient, and

(c) but where the course of treatment is an interim care course of treatment provided under a Capitation and Quality Scheme 2 Agreement in the context of regulation 13A of the NHS Charges Regulations, it does not include the treatment mentioned in paragraph (a).
provided by, except where expressly provided otherwise, one or more providers of primary dental services, but it does not include the provision of any orthodontic services or dental public health services;
“dental appliance” means a denture or bridge and for the purposes of this definition, a denture includes an obturator;
“dental care professional” means a person whose name is included in the register of dental care professionals or on the appropriate roll for dental auxiliaries established in accordance with Part II of the Dental Auxiliaries Regulations 1986;
“dental corporation” means a body corporate carrying on the business of dentistry in accordance with the Dentists Act;
“dental performers list” means a list of dental practitioners maintained by the Board in accordance with regulations made under section 106 of the 2006 Act;
“dental public health services” means services provided by the contractor by virtue of section 111(2)(c) of the 2006 Act;
“Dentists Act” means the Dentists Act 1984;
“Dentists Act Order” means the Dentists Act 1984 (Amendment) Order 2005;1
“Dentists Register” means the register maintained by the General Dental Council pursuant to section 14 of the Dentists Act;
“domiciliary services” means a course of treatment, or part of a course of treatment, provided at a location other than―
(a) the practice premises of any provider of primary dental services,

(b) a mobile surgery of any provider of primary dental services, or

(c) a prison;
“exempt person” means a person who is, by virtue of either section 177 of the 2006 Act or the NHS Charges Regulations, exempt from the need to pay an NHS Charge in respect of the services he has received under the Agreement;
“family member” means―
(a) a spouse,

(b) a civil partner,

(c) a person whose relationship with the registered patient has the characteristics of the relationship between husband and wife or civil partners,

(d) a parent or step-parent,

(e) a son,

(f) a daughter,

(g) a child of whom the person is―

(i) the guardian, or

(ii) the carer duly authorised by the local authority to whose care the child has been committed under the Children Act 1989, or

(h) a grandparent;


“FHSAA” means the Family Health Services Appeal Authority constituted under section 49S of the 1977 Act;
“financial year” means a period of 12 months ending with 31st March in any year;
“health care professional” has the same meaning as in section 102 of the 2006 Act and “health care profession” shall be construed accordingly;
“health service body” has, unless the context otherwise requires, the meaning given to it in section 9(4) of the 2006 Act;
“Health Service Commissioner” means the person appointed Health Service Commissioner for England in accordance with section 1 of, and Schedule 1 to, the Health Service Commissioners Act 1993;
“insurance” means a contact of insurance or other arrangement made for the purpose of indemnifying the Contractor;
“licensing body” means any body that licenses or regulates any profession;
“listed”, in relation to drugs medicines or appliances, means such drugs, medicines or appliances as are included in a list for the time being approved by the Secretary of State for the purposes of section 126 of the 2006 Act;
“local authority” means any of the bodies listed in section 1 of the Local Authority Social Services Act 1970, the Council of the Isles of Scilly or a council constituted under section 2 of the Local Government etc, (Scotland) Act 1994;
“mandatory services” means the services described in clauses 74 to 76;
“mandatory term” means a term required to be included in the Agreement by the Regulations;
“mobile surgery”, except where expressly provided otherwise in the Agreement, means any vehicle in which services under the Agreement are to be provided;
“national disqualification” means―
(a) a decision made by the First-tier Tribunal under section 159 of the 2006 Act,

(b) a decision under provisions in force in Scotland or Northern Ireland corresponding to section 159 of the 2006 Act, or

(c) a decision by the NHS Tribunal which is treated as a national disqualification by the FHSAA by virtue of regulation 6(4)(b) of the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2001 or regulation 6(4)(b) of the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2002;
“NHS body” means the Board, an NHS trust, an NHS foundation trust, a Local Health Board, a Health Board, a Health and Social Services Board or a Health and Social Services Trust or, a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978;
“NHS Charge” means a charge made to the patient for provision of services pursuant to the NHS Charges Regulations;
“NHS Charges Regulations” means the National Health Service (Dental Charges) Regulations 2005;
“NHS contract” has the meaning assigned to it in section 9(1) of the 2006 Act;
“NHS dispute resolution procedure” means the procedure for disputes specified in Part 21;
“NHS Tribunal” means the Tribunal constituted under section 46 of the 1977 Act for England and Wales, and which, except for prescribed cases, had effect in relation to England only until 14th December 2001 and in relation to Wales only until 26th August 2002;
“normal surgery hours” means the times at which the contractor has agreed with the Board (and specified in the agreement) that surgery will be open to patients for the provision of services;
“orthodontic appliance” means a device used in the mouth to move or immobilise the teeth in order to correct or prevent malocclusion;
“orthodontic course of treatment” means―
(a) a case assessment of a patient, and

(b) the provision of any orthodontic treatment that the Contractor determines should be provided to the patient in accordance with clauses 142 to 163;


“orthodontic services” means the provision of orthodontic courses of treatment or the services referred to in clause 146;
“orthodontic treatment” means treatment of, or treatment to prevent, malocclusion of the teeth and jaws, and irregularities of the teeth;
“parent”, in relation to any child, means a parent or other person who has parental responsibility for that child;
“patient” means a person to whom the Contractor is providing services under the Agreement;
“patient record” means a form supplied by the Board for the purpose of maintaining a record of treatment;
“personal number” means a telephone number which starts with the number 070 followed by a further 8 digits;
“practice” means the business operated by the Contractor for the purpose of delivering services under the Agreement;
“practice premises”, except where expressly provided otherwise in the Agreement, means an address specified in the Agreement as one at which services are to be provided under the Agreement but does not include a mobile surgery;
“prescriber” means a dental practitioner who is either engaged or employed by the Contractor or is a party to the Agreement;
“prescription form” means a form that is supplied for the purposes of clauses 175 and 176;
“primary care list” means―
(a) a list of persons performing primary medical services, primary ophthalmic services, or primary dental services under sections 91, 106 or 123 of the 2006 Act,1

(b) a list of persons undertaking to provide general ophthalmic services or, as the case may be, pharmaceutical services prepared in accordance with regulations made under sections 39, 42 or 43 of the 1977 Act,

(c) a list of persons approved for the purposes of assisting in the provision of any services mentioned in paragraph (b) or (d) prepared in accordance with regulations made under section 147A of the 2006 Act,

(d) a list of persons who undertook to provide general medical services or general dental services prepared in accordance with regulations made under sections 29 or 35 of the 1977 Act,

(e) a services list which fell within the meaning of section 8ZA of the National Health Service (Primary Care) Act 1997,

(f) a list corresponding to a services list prepared by virtue of regulations made under section 41 of the Health and Social Care Act 2001, or

(g) a list corresponding to any of the above lists in Scotland or Northern Ireland;
“prison” includes a young offender institution but not a secure training centre or a naval, military or air force prison, and for the purposes of this definition―

(a) “secure training centre” means a place in which offenders subject to detention and training orders under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18: detention and training orders) may be detained and given training and education and prepared for their release, and

(b) “young offender institution” means a place for the detention of offenders sentenced to detention in a young offender institution or to detention in a young offender institution as part of a longer custodial sentence, including custody for life;
“private”, in the context of services or treatment, means otherwise than under the Agreement or Part 5 of the 2006 Act, and “privately” shall be construed accordingly;
“professional registration number” means the number against a dental practitioner’s name in the Dentists Register;
“provision of sedation” means the provision of one or more drugs to a patient in order to produce a state of depression of the central nervous system to enable treatment to be carried out.
“referral notice” means the notice referred to in clause 56;
“referral service” means one or more of advanced mandatory services, domiciliary services or sedation services provided by the Contractor to a patient who has, during a course of treatment, been referred to the Contractor by―
(a) another contractor, or

(b) another provider of primary dental services under Part 5 of the 2006 Act,


for the provision of one or more of those services as part of that course of treatment;
“referral treatment plan” means a treatment plan provided pursuant to clause 164 or clause 165;
“register of dental care professionals” means the register maintained by the General Dental Council under section 36B of the Dentists Act (the dental care professionals register);
“the Regulations” means the National Health Service (Personal Dental Services Agreements) Regulations 2005 (S.I. 2005/3373);
“the Secretary of State” means the Secretary of State for Health;
“sedation services” means a course of treatment provided to a patient during which the Contractor administers one or more drugs to a patient, which produce a state of depression of the central nervous system to enable treatment to be carried out, and during and in respect of that period of sedation―
(a) the drugs and techniques used to provide the sedation are deployed by the contractor in a manner that ensures loss of consciousness is rendered unlikely, and

(b) verbal contact with the patient is maintained insofar as is reasonably possible;


“trauma” means damage to teeth, gingival tissues or alveoli caused by a force arising outside the mouth, resulting in mobility, luxation, subluxation or fracture of the hard tissues or injury to the soft tissues;
“unit of dental activity” means the unit of activity which is in this Agreement used to―
(a) express the amount of, and

(b) measure in accordance with clauses 79 to 82 the provision of,


mandatory services and advanced mandatory services provided under this Agreement;
“unit of orthodontic activity” means the unit of activity which is in this Agreement used to―
(a) express the amount of, and

(b) measure in accordance with clauses 119 to 123 the provision of,


orthodontic services provided under the Agreement; and
“urgent treatment” means a course of treatment that consists of one or more of the treatments listed in Schedule 4 to the NHS Charges Regulations (urgent treatment under Band 1 charge) that are provided to a person in circumstances where―
(a) a prompt course of treatment is provided because, in the opinion of the contractor, that person’s oral health is likely to deteriorate significantly, or the person is in severe pain by reason of his oral condition, and

(b) treatment is provided only to the extent that is necessary to prevent that significant deterioration or address that severe pain.


“working day” means any day apart from Saturday, Sunday, Christmas Day, Good Friday, or a bank holiday;
2. In this Agreement unless the context otherwise requires:―
2.1. Defined terms and phrases appear in italics, except for the terms “patient” and “Agreement”.
2.2. Words denoting any gender include all genders and words denoting the singular include the plural and vice versa.
2.3. Reference to any person may include a reference to any firm, company or corporation.
2.4. References to forms supplied by the Board to a Contractor include electronic forms and forms which are generated electronically, but does not include prescription forms.
2.5. Reference to “day”, “week”, “month” or “year” means a calendar day, week, month or year, as appropriate.
2.6. The headings in this Agreement are inserted for convenience only and do not affect the construction or interpretation of this Agreement.
2.7. The Schedules to this Agreement are and shall be construed as being part of this Agreement.
2.8. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated (whether before or after the date of this Agreement), and all statutory instruments or orders made pursuant to it.
2.9. Any obligation to send information to the Board includes the obligation to complete the form supplied by the Board and the agreement may specify the format in which forms (except prescription forms) may be sent by or submitted to, the Board (electronic, paper or otherwise).
2.10. Any obligation on the Contractor to have systems, procedures or controls includes the obligation effectively to operate them.
2.11. Where this Agreement imposes an obligation on the Contractor, the Contractor must comply with it and must take all reasonable steps to ensure that its personnel and contractors comply with it. Similarly, where this Agreement imposes an obligation on the Board, the Board must comply with it and must take all reasonable steps to ensure that its personnel and contractors (save for the Contractor) comply with it.
3. Where there is any dispute as to the interpretation of a particular term in the Agreement, the parties shall, so far as is possible, interpret the provisions of the Agreement consistently with the European Convention on Human Rights, EC law, the Regulations and any other relevant regulations or orders made under the 2006 Act.
4. Where the parties have indicated in writing that a clause in the Agreement is reserved, that clause is not relevant and has no application to the Agreement1.
5. Where a particular clause is included in the Agreement but is not relevant to the Contractor because that clause relates to matters which do not apply to the Contractor (for example, if the clause only applies to partnerships and the Contractor is an individual dental practitioner), that clause is not relevant and has no application to the Agreement.
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