Definitions and interpretation



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PART 22

RELATIONSHIP BETWEEN THE PARTIES
6. The Agreement is a contract for the provision of services. The Contractor is an independent provider of services and is not an employee, partner or agent of the Board. The Contractor must not represent or conduct its activities so as to give the impression that it is the employee, partner or agent of the Board.
7. The Board does not by entering into this Agreement, and shall not as a result of anything done by the Contractor in connection with the performance of this Agreement, incur any contractual liability to any other person.
8. This Agreement does not create any right enforceable by any person not a party to it.2
9. In complying with this Agreement, in exercising its rights under the Agreement and in performing its obligations under the Agreement, the Contractor must act reasonably and in good faith.
10. In complying with this Agreement, and in exercising its rights under the Agreement, the Board must act reasonably and in good faith and as a responsible public body required to discharge its functions under the 2006 Act.
11. Clauses 9 and 10 above do not relieve either party from the requirement to comply with the express provisions of this Agreement and the parties are subject to all such express provisions.
12. The Contractor shall not give, sell, assign or otherwise dispose of the benefit of any of its rights under this Agreement, [save in accordance with Schedule 1]3. The Agreement does not prohibit the Contractor from sub-contracting its obligations arising under the Agreement where such sub-contacting is expressly permitted by the Agreement.
PART 3

NHS CONTRACT1
14. The Contractor has [not] elected to be regarded as a health service body for the purposes of section 9 of the 2006 Act. Accordingly, this Agreement is [not] an NHS contract.2

PART 4

COMMENCEMENT OF THE AGREEMENT
15. This Contract shall commence on [date].3
Duration of the Agreement
16. [Subject to clause 17]4 the Agreement shall subsist until [insert date] or [it is terminated in accordance with the terms of this Agreement or the general law.] 5
17. [The Agreement must specify whether mandatory services and/or additional services including advanced mandatory services are to be provided under the Agreement and that is a matter for negotiation between the parties. Details in relation to the period for which each of service is to be provided should be inserted here: the period for which each of such services will be provided is a matter for negotiation between the parties] 6
18. [ ]
19. [ ]
20. [ ]
PART 51

WARRANTIES

21. Each of the parties warrants that it has power to enter into this Agreement and has obtained any necessary approvals to do so.


22. The Contractor warrants that:―
22.1 all information in writing provided to the Board in seeking to become a party to this Agreement was, when given, true and accurate in all material respects, and in particular that the Contractor satisfied the conditions set out in regulations 4 [and 5] 2 of the Regulations;
22.2. no information has been omitted which would make the information that was provided to the Board materially misleading or inaccurate;
22.3. no circumstances have arisen which materially affect the truth and accuracy of such information;
22.4 it is not aware as at the date of this Agreement of anything within its reasonable control which may or will materially adversely affect its ability to fulfil its obligations under this Agreement.
23. The Board warrants that:―
23.1. all information in writing which it provided to the Contractor specifically to assist the contractor to become a party to this Agreement was, when given, true and accurate in all material respects;
23.2. no information has been omitted which would make the information that was provided to the Contractor materially misleading or inaccurate;
23.3. no circumstances have arisen which materially affect the truth and accuracy of such information.
24. The Board and the Contractor have relied on, and are entitled to rely on, information provided by one party to the other in the course of negotiating the Agreement.
PART 61

PATIENTS

Persons to whom mandatory or additional services may be provided
25. The Contractor may agree to provide mandatory services and additional services under the Contract to any person, unless clause 26 applies, if a request is made for such services by―
25.1. the person who requires the services; or
25.2. a person specified in clause 26, on behalf of the person who requires those services.
26. The Contractor shall provide mandatory services and additional services [for a period of ] 2 only to any person who is [ ] 3.
27. A request may be made―
27.1. on behalf of any child
27.1.1. by either parent,
27.1.2. by a person duly authorised by a local authority to whose care the child has been committed under the Children Act 1989, or
27.1.3. by a person duly authorised by a voluntary organisation by which the child is being accommodated under the provisions of that Act;
27.2. on behalf of any adult who is incapable of making such an application or authorising such an application to be made on his behalf, by a relative or primary carer of that person.
28. The Contractor shall only refuse to provide services under this Agreement to a person if it has reasonable grounds for doing so which do not relate to―
28.1. a person’s age, sex (reassigned or otherwise), religion or belief, sexual orientation, race, cultural and linguistic background, any disability they may have, or medical or dental condition, or
28.2. a person’s decision or intended decision to accept private services in respect of himself or a family member.
29. Clause 25 does not apply where the Contractor is providing mandatory services or additional services in a prison or to the provision of dental public health services. 1
Patient preference of practitioner
30. Where the Contractor has agreed to provide services to a patient pursuant to clause 25 or 26, it shall―
30.1. inform the patient (or, in the case of a child or incapable adult, the person making the request on their behalf) of the patient’s right to express a preference to receive services from a particular performer; and
30.2. record in writing any such preference expressed by or on behalf of the patient.
31. The Contractor shall endeavour to comply with any reasonable preference expressed under clause 30 but need not do so if the preferred performer has reasonable grounds for refusing to provide services to the patient, or does not routinely perform the service in question within the practice.
32. Clauses 30 and 31 do not apply where the Contractor is providing mandatory services or additional services in a prison or to the provision of dental public health services. 2
Violent patients
33. Where―
33.1. a patient of the Contractor has committed an act of violence against, or behaved in such a way against any of the persons specified in clause 34 as a consequence of which that person has feared for his safety; and
33.2. the Contractor has reported the incident to the police,
the Contractor may notify the Board that it will no longer provide services to that patient under the Agreement.
34. The persons referred to in clause 33 are―
34.1. if the Agreement is with an individual dental practitioner, that individual;
34.2. any member of the Contractor’s staff;
34.3. a person employed or engaged by the Contractor to perform or assist in the performance of services under the Agreement; or
34.4. any other person present on the practice premises or in the place where services where provided to the patient under the Agreement.
35. Notification under clause 32 may be given by any means including telephone, email, or fax but if not given in writing shall subsequently be confirmed in writing within seven days (and for this purpose a faxed or email notification is not a written one).
36. The time at which the Contractor notifies the Board shall be the time at which it makes the telephone call or sends or delivers the notification to the Board.
37. The Board shall―
37.1. acknowledge in writing receipt of the notice from the Contractor under clause 33; and
37.2. take all reasonable steps to inform the patient concerned as soon as is reasonably practicable.
Patients who refuse to pay NHS charges prior to the commencement of, or during, treatment
38. The Contractor may―
38.1. refuse to begin a course of treatment or an orthodontic course of treatment; or
38.2. terminate a course of treatment or orthodontic course of treatment prior to its completion,
if the Contractor has, in accordance with the NHS Charges Regulations, requested that the patient pay a charge in respect of that course of treatment or orthodontic course of treatment, and that patient has failed to pay that charge.
Irrevocable breakdown in relationship between Contractor and patient
39. Where―
39.1. in the reasonable opinion of the Contractor, there has been an irrevocable breakdown in the relationship between patient and that Contractor, and
39.2. notice of such a breakdown has been given to the patient by the contractor,
the Contractor may notify the Board that it will no longer provide services to that patient under the Agreement.
PART 7

LEVEL OF SKILL1
40. The Contractor shall carry out its obligations under the Agreement with reasonable care and skill.
PROVISION OF SERVICES1

Course of treatment
41. Except in the case of orthodontic services and dental public health services, the Contractor shall provide mandatory and additional services to a patient by providing to that patient a course of treatment.
42. The Contractor shall use its best endeavours to ensure that a course of treatment is completed, and that it is so completed within a reasonable time from the date on which―
42.1. the treatment plan was written in accordance with clause 47; or
42.2. where a treatment plan is not required pursuant to clause 51, the initial examination and assessment of the patient took place.
43. Where the Contractor provides urgent treatment to a patient, the urgent treatment provided shall constitute a course of treatment and no other services shall be provided during that course of treatment.
44. If a course of treatment is―
44.1. terminated before it has been completed; or
44.2. otherwise not completed within a reasonable time as required by clause 42,
any further services to be provided to that patient under the Agreement must be provided as a new course of treatment.
45. A course of treatment may only be terminated by―
45.1. the Contractor by virtue of―
45.1.1. a notice under clause 33,
45.1.2. clause 38; or
45.1.3. clause 39
45.2. the patient; or
45.3. a person specified in clause 27 acting on the patient’s behalf.
46. If the Contractor is unable to complete the course of treatment which has been commenced for reasons beyond his control, he shall give notice to the Board of the extent of the treatment so provided and the reason for his inability to complete the remainder.
Treatment plans
47. Subject to clause 51, where the Contractor agrees to provide a course of treatment to a patient, it shall, at the time of the initial examination and assessment of that patient, ensure that the patient is provided with a treatment plan on a form supplied for that purpose by the Board which shall specify―
47.1. the name of the patient;
47.2. the name of the Contractor;
47.3. particulars of the places where the patient will receive services;
47.4. the telephone number at which the Contractor may be contacted during normal surgery hours;
47.5. details of the services (if any) which are, at the date of the examination, considered necessary to secure the oral health of the patient;
47.6. the NHS charge, if any, in respect of those services if provided pursuant to the Agreement; and
47.7. any proposals the Contractor may have for private services as an alternative to the services proposed under the Agreement, including particulars of the cost to the patient if he were to accept the provision of private services.
48. If the patient, having considered the treatment plan provided pursuant to clause 47, decides to accept the provision of private services in place of all or part of services under the Agreement, the Contractor shall ensure that the patient signs the treatment plan in the appropriate place to indicate that he has understood the nature of the private services to be provided and his acceptance of those services.
49. Where the services included in the treatment plan need to be varied for clinical reasons, the Contractor shall provide the patient with a revised treatment plan in accordance with clause 47.
50. Subject to clause 45, the Contractor shall provide the services which are detailed in the treatment plan, or where the treatment plan is revised, the revised treatment plan.
51. The obligation to provide a treatment plan shall not apply to a Band 1 course of treatment or a charge exempt course of treatment unless―
51.1. the Contractor is providing privately any part of that course of treatment pursuant to clause 58 to 60; or
51.2. the patient has requested that he be provided with written details of the course of treatment to be provided or that has been provided to him, whether or not he specifically requests a treatment plan.
52. The Contractor shall provide the patient with a summary of the care and treatment provided under the treatment plan where the patient so requests because that patient intends to receive services from another contractor.
52.1. The summary shall be supplied to the patient on a form supplied by the Board for that purpose within 28 days of the patient’s request.
Completion of courses of treatment
53. The Contractor shall indicate on the form supplied by the Board pursuant to clause 221 whether the course of treatment was completed, and if the course of treatment was not completed, provide the reason for the failure to complete the course of treatment.
54. If the Board—
54.1. determines that the number of courses of treatment provided by the contractor which have not been completed is excessive; and
54.2. does not consider that the reasons given by the contractor for the failure to complete the courses of treatment are satisfactory,
it shall be entitled to exercise its powers under clause 97 on the grounds that the Contractor is not, pursuant to clause 42, using its best endeavours to ensure courses of treatment are completed.
Referral to another contractor, a hospital or other relevant service provider for advanced mandatory, domiciliary or sedation services
55. Where a patient requires advanced mandatory services, domiciliary services or sedation services that are not provided under the Agreement by the Contractor, it shall, if the patient agrees, refer that patient in accordance with clause 56 for the provision of a referral service by an alternative contractor, a hospital or other relevant service provider under Part 5 of the 2006 Act.
56. In referring a patient pursuant to clause 55, the Contractor shall provide—
56.1. to the patient being referred, a referral notice on a form supplied for that purpose by the Board which shall specify the services detailed on the treatment plan which will be carried out by the alternative contractor, hospital or other relevant service provider; and
56.2. to the alternative contractor, hospital or other relevant service provider, either at the time of referral or as soon as reasonably practicable thereafter—
56.2.1. a copy of the treatment plan provided to the patient pursuant to clause 47,
56.2.2. a copy of the referral notice, and
56.2.3. a statement of the amount paid to it, or due to be paid to it, by the patient under the NHS Charges Regulations in respect of the course of treatment during which the referral is made.
57. Where the patient notifies the Contractor, whether verbally or in writing, that he does not wish to be referred to the alternative contractor, hospital or other relevant service provider selected by the Contractor, the Contractor shall, if requested to do so by the patient, use its best endeavours to refer the patient to another suitable contractor, hospital or other relevant service provider under Part 5 of the 2006 Act for the provision of the referral service.
Mixing of services provided under the Agreement with private services
58. Subject to the requirements in clauses 47.7 and 48, the Contractor may, with the consent of the patient, provide privately any part of a course of treatment or orthodontic course of treatment for that patient, including in circumstances where that patient has been referred to the Contractor for a referral service.
59. The Contractor shall not, with a view to obtaining the agreement of a patient to undergo services privately
59.1. advise a patient that the services which are necessary in his case are not available from the Contractor under the Agreement; or
59.2. seek to mislead the patient about the quality of the services available under the Agreement.
60. The Contractor when mixing services provided under the agreement with private services—
60.1. in respect of an orthodontic course of treatment
60.1.1. shall provide the case assessment wholly privately or wholly under the Agreement, and
60.1.2. shall provide the orthodontic treatment wholly privately or wholly under the Agreement; and
60.1.3. may not provide privately any treatment that involves the administration of general anaesthesia or the provision of sedation or may not provide under the agreement any treatment that involves the administration of general anaesthesia or the provision of sedation.
Repair or replacement of restorations
61. Subject to clause 63, where a restoration specified in clause 62 needs to be repaired or replaced, the Contractor shall repair or replace the restoration at no charge to the patient.
62. The restorations referred to in clause 61 are―
62.1 any filling, root filling, inlay, porcelain veneer or crown provided by the Contractor to a patient in the course of providing services under the Agreement, which within the relevant period has to be repaired or replaced to secure oral health; and
62.2. is a banded course of treatment for the purposes of calculating the number of units of dental activity.
63. Clause 61 shall not apply where—
63.1. within the relevant period, a person other than the Contractor has provided treatment on the tooth in respect of which the restoration was provided;
63.2. the Contractor advised the patient at the time of the restoration and indicated on the patient record that—
63.2.1. the restoration was intended to be temporary in nature; or
63.2.2. in its opinion, a different form of restoration was more appropriate to secure oral health but, notwithstanding that advice, the patient nevertheless requested the restoration which was provided;
63.3. in the opinion of the Contractor, the condition of the tooth in respect of which the restoration was provided is such that the restoration cannot satisfactorily be repaired or replaced and different treatment is now required; or
63.4. the repair or replacement is required as a result of trauma.
64. In clauses 62 and 63, “the relevant period” means the 12 month period beginning on the date on which the restoration was provided, and ceasing twelve months after that date.
Premises, facilities and equipment

65. The address of each of the premises to be used by the Contractor or any sub-contractor for the provision of services under the Agreement is as follows:


66. The Contractor shall ensure that the practice premises used for the provision of services under the Agreement are—
66.1. suitable for the delivery of those services; and
66.2. sufficient to meet the reasonable needs of the Contractor’s patients.
67. The obligation in clause 66 includes providing proper and sufficient waiting-room accommodation for patients.
68. The Contractor shall provide, in relation to all of the services to be provided under the Agreement, such other facilities and equipment as are necessary to enable it to properly perform that service.
69. In clause 66, “practice premises” includes a mobile surgery.
Telephone services
70. The Contractor shall not be a party to any agreement or other arrangement under which the number for telephone services to be used by—
70.1. patients to contact the practice for any purpose related to the Agreement; or
70.2. any other person to contact the practice in relation to services provided as part of the health service,
starts with the digits 087, 090 or 091 or consists of a personal number, unless the service is provided free to the caller.
National Institute for Clinical Excellence guidance
71. The Contractor shall provide services under the Agreement in accordance with any relevant guidance that is issued by the National Institute for Clinical Excellence, in particular the guidance entitled “Dental recall - Recall interval between routine dental examinations” (available at www.nice.org.uk).
Infection control
72. The Contractor shall ensure that it has appropriate arrangements for infection control and decontamination.
Treatment under general anaesthesia: prohibition
73. The Contractor shall not provide any services under the Agreement that involve the provision of general anaesthesia.

PART 81

MANDATORY SERVICES
Mandatory services
74. The Contractor must provide to its patients, during the period specified in clause 75, all proper and necessary dental care and treatment which includes—
74.1. the care which a dental practitioner usually undertakes for a patient and which the patient is willing to undergo;
74.2. treatment, including urgent treatment; and
74.3. where appropriate, the referral of the patient for advanced mandatory services, domiciliary services, sedation services or other relevant services provided under Part 5 of the 2006 Act.
75. The Contractor must provide—
75.1. urgent treatment, during the following periods/times2:―
75.1.1. [ ]
75.1.2. [ ]; and
75.1.3. all other services described in clause 76, during normal surgery hours to the extent that is necessary to meet the reasonable needs of its patients.
76. The care and treatment referred to in clause 74 includes—
76.1. examination;
76.2. diagnosis;
76.3. advice and planning of treatment;
76.4. preventative care and treatment;
76.5. periodontal treatment;
76.6. conservative treatment;
76.7. surgical treatment;
76.8. supply and repair of dental appliances;
76.9. the taking of radiographs;
76.10. the supply of listed drugs and listed appliances; and
76.11. the issue of prescriptions,
but it does not include additional services.
Units of dental activity to be provided1
77. [The Contractor shall provide [ ] units of dental activity during each financial year.]2.
78. [The Contractor shall provide [ ] units of dental activity during [insert relevant period] and [ ] units of dental activity in each financial year thereafter].
Calculation of the number of units of dental activity provided
79. Where the Contractor provides a banded course of treatment, the Contractor provides the number of units of dental activity specified in the appropriate row of Table A below.
80. Where the Contractor provides a charge exempt course of treatment, the Contractor provides the number of units of dental activity specified in the appropriate row of Table B below.
81. Where a banded course of treatment is provided by more than one contractor because a patient has been referred by or to the Contractor for part of that course of treatment, clause 79 shall apply in respect of the Contractor, irrespective of which parts of that banded course of treatment the Contractor provided.
82. Where a banded course of treatment is commenced but not completed, the appropriate number of units of dental activity provided shall be calculated on the basis of the components of the course of treatment which has been completed, or commenced but not completed.
Table A

Units of dental activity provided under the Agreement in respect of banded courses of treatment


Type of course of treatment

Units of dental activity provided

Band 1 course of treatment (excluding urgent treatment)

1.0

Band 1 course of treatment (urgent treatment only)

1.2

Band 2 course of treatment

3.0

Band 3 course of treatment

12.0

Table B

Units of dental activity provided under the Agreement in respect of charge exempt courses of treatment

Type of charge exempt course of treatment

Units of dental activity provided

Repair of a dental appliance (denture)

1.0

Repair of a dental appliance (bridge)

1.2

Removal of sutures

1.0

Arrest of bleeding

Conservation treatment of deciduous teeth in a patient who is aged under 18 years at the beginning of a course of treatment



1.2

3.0



Under provision of units of dental activity
83. The Board shall not pursuant to Part 22 of this Agreement be entitled to take any action for breach of clause [77] [78]1 (including termination of the agreement) where clause 84 applies.
84. This clause applies where the Contractor has failed to provide the number of units of dental activity it is agreed to provide pursuant to clause [77] [78]2 where—
84.1. that failure amounts to 4 per cent or less of the total number of units of dental activity that ought to have been provided during a financial year, and
84.2. the Contractor agrees to provide the units it has failed to provide within such time period as the Board specifies in writing, such period to consist of not less than 60 days.
84.3. [ ]1.
85. Clauses 83 and 84 shall not prevent the Board from taking action under Part 22 of this Agreement for breach of the Agreement (including terminating the Agreement) on other grounds.
86. When a banded course of treatment is commenced but not completed for whatever reason, the appropriate number of units of dental activity provided shall be calculated on the basis of the components of the course of the treatment which has been―
86.1. completed; or
86.2. commenced but not completed.

Mid-year review
87. Clauses 88 to 100 (except clause 95) only apply where services are to be provided under the Agreement from 1st April in the relevant financial year.
88. In clauses 89 to 100, “required to provide” or “required to be provided” in relation to units of dental activity means required to be provided in accordance with clause [77] [78]2.
89. The Board shall, by 31st October in each financial year, determine the number of units of dental activity that the Contractor has provided between 1st April and 30th September of that financial year based on the data provided to it by virtue of clause 221 and 222.
90. Where the Board determines under clause 89 that the Contractor has, between 1st April and 30th September, provided less than 30 per cent of the total number of units of dental activity that it is required to provide in that financial year, clause 91 shall apply.
91. Where this clause applies, the Board may—
91.1. notify the Contractor that it is concerned about the level of activity provided under the Agreement in the first half of the financial year, setting out—
91.1.1. the number of units of dental activity that it has determined that the Contractor has provided;
91.1.2. the percentage of the total number of units of dental activity required to be provided during the financial year that the number in clause 91.1.1 represents; and
91.2. require in that notification that the Contractor participate in a mid-year review of its performance in relation to the Agreement with the Board.
92. Where a mid-year review is required by the Board pursuant to clause 91, the Board and the Contractor shall discuss at that review—

92.1. any written evidence the Contractor puts forward to demonstrate that it has performed a greater number of units of dental activity during the first half of the financial year than those notified to it pursuant to clause 91.1.1; and


92.2. any reasons that the Contractor puts forward for the level of activity in the first half of the financial year.
93. The Board shall prepare a draft record of the mid-year review for comment by the Contractor and, having regard to such comments, shall produce a final written record of the review.
94. A copy of the final record of the mid-year review shall be sent to the Contractor.
95. [Where an agreement does not commence on 1st April clauses 87 to 94 and 96 to 99 are varied to the extent that―
[ ]1
[ ]
[ ]
Action the Board can take following a mid-year review
96. Where, following the mid-year review and the provision of the final record of that review to the Contractor, the Board, having taken account of any evidence or reasons put forward by the Contractor at that review, nevertheless has serious concerns that the Contractor is unlikely to provide the number of units of dental activity that it is required to provide by the end of the financial year, the Board shall be entitled to take either or both of the steps specified in clause 97.
97. The Board may—
97.1. require the Contractor to comply with a written plan drawn up by the Board to ensure that the level of activity during the remainder of the financial year is such that the Contractor will provide the number of units of dental activity it is required to provide; or
97.2. withhold monies payable under the Agreement.
98. The maximum amount that may be withheld pursuant to clause 97.2. is—
98.1. the amount that is payable under the Agreement in respect of the number of units of dental activity required to be provided in a financial year, less
98.2. the amount that would be payable under the Agreement as a relevant proportion of that amount if the Contractor provided in the whole of the financial year only twice the number of units of dental activity that it provided between 1st April and 30th September.
99. Nothing in clauses 96 to 98 shall prevent the Board and the Contractor agreeing to vary the Agreement in accordance with clause 288 to adjust—
99.1. the level of activity to be provided under the Agreement; or
99.2. the monies to be paid by the Board to the Contractor under the Agreement.
100. Where the Board withholds monies pursuant to clause 97.2, it shall ensure that it pays the withheld monies to the Contractor as soon as possible following the end of the financial year where the Contractor has—
100.1. provided the number of units of dental activity required to be provided; or
100.2. failed to provide that number of units of dental activity, but that failure amounts to 4 per cent or less of the total number of units of dental activity that ought to have been provided during that financial year (and therefore clauses 83 to 85 apply).
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