Powys Teaching Local Health Board v Dusza & Anor

In a standard NHS dental-services contract, the meaning of examination depends on its contractual context. It has a default meaning of a full mouth examination for a non-urgent banded course of treatment, but not where the context, such as urgent or orthodontic treatment, requires a different meaning.

A contractual duty to keep full and accurate patient records does not, without clear language, make recording the examination a condition precedent to payment for treatment actually provided. Records are evidence of work done; they are not themselves the service for which payment is made. Nor does failure to undertake a required full mouth examination automatically eliminate all payment entitlement. Payment is assessed by the units of dental activity actually provided, with an appropriate pro rata reduction for an incomplete course.

The respondents were dental practitioners providing NHS dental treatment under a standard General Dental Services Contract with the appellant Health Board. The Board sought repayment of £110,021.42, contending that patient records did not show that full mouth examinations had been carried out before claimed Band 2 and Band 3 courses of treatment.

On judicial review, Wyn Williams J held that examination meant a full mouth examination and that clause 202 required an accurate record of it. He also held that a failure to record it was not a precondition to payment for treatment actually rendered. The Board appealed that latter conclusion. The practitioners cross-appealed the construction of examination. The Court of Appeal also considered whether failure to conduct a required examination wholly disentitled the practitioner to payment.

1. Appeal and cross-appeal dismissed. The judge was correct that, for a non-urgent banded course of treatment, the contractual term examination ordinarily means a full mouth examination. The term must nevertheless be construed in its particular contractual context. Urgent treatment, orthodontic assessment and prescriptions are contexts in which a full mouth examination is not required.

2. The definition of a course of treatment places the initial examination, assessment and treatment planning at the centre of the remuneration scheme. Construing examination as something less than a full mouth examination in the ordinary non-urgent case would undermine that structure and create risks of treatment-splitting and overcharging. The clinical and regulatory background supported that construction.

3. Clause 202 imposed an undoubted obligation to keep full, accurate and contemporaneous patient records, including a record of the examination. But neither the contract nor its payment machinery made compliance with that recording obligation a condition precedent to payment. A breach did not go to the substance of the entitlement to payment, applying the reasoning in Schuler v Wickman Machine Tools [1974] AC 235. Patient records were evidence of work done, rather than the work for which the practitioner was paid. The Board's acceptance that a treatment plan or third-party records could establish that an examination had occurred reinforced that conclusion.

4. No term making a record of the examination a precondition to payment could be implied. Under the approach in Att-Gen of Belize v Belize Telecom Ltd [2009] UKPC 10, such a term neither expressed the reasonable meaning of the contract nor was necessary for business efficacy.

5. Failure to conduct a full mouth examination when required likewise did not extinguish all entitlement to payment for treatment actually performed. The provisions for incomplete courses required payment to reflect completed or commenced components. The proper consequence was therefore a pro rata reduction by reference to the units of dental activity actually provided.

• Court of Appeal (Civil Division): by a judgment of the court, dismissed the Health Board's appeal and the practitioners' cross-appeal: [2015] EWCA Civ 15.
• High Court of Justice, Queen's Bench Division, Administrative Court: Wyn Williams J allowed the judicial-review claim to the extent stated in his judgment of 21 February 2014. He held that examination meant a full mouth examination, but that recording it was not a precondition to payment.