Powys Teaching Local Health Board v Dusza & Anor

This is the judgment of the court to which all members of the constitution have contributed.

This is an appeal by the Powys Teaching Local Health Board ("the Board") against an order of Wyn Williams J made on 21 February 2014 ("the order") whereby he gave judgment for the claimants, Piotr Dusza and Hako Sobhani ("the Respondents") to the extent indicated in his judgment ("the judgment") in respect of their claim for judicial review. It is also a cross-appeal by the Respondents against certain aspects of the judgment.

The Respondents are registered dental practitioners who practise together in partnership in Powys. The Board is responsible for the provision of NHS dental treatment in the Powys. The Respondents entered into a standard contract with the Board dated 1 January 2009 for the provision of NHS dental treatment. That contract is known as a Standard General Dental Services Contract ("the GDS Contract") and was entered into in accordance with The National Health Service (General Dental Services Contracts) (Wales) Regulations 2006 ("the 2006 Regulations"). Both appeal and cross-appeal concern the proper interpretation of the GDS Contract.

The new GDS contract replaced the previous contractual system of payment per item of work done. Payment per piece of work done is replaced by a contractual scheme which credits dentists with "units of dental activity" ("UDAs”) for completing courses of treatment and paying them according to the number of UDAs credited. Dental work is "banded" with different bands of work attracting different numbers of UDAs. Dental work is charged to the patient and the dentist remunerated by the NHS according to the band in which the work falls. These higher bands include the more difficult, and thus more expensive, dental work and consequently merit a greater number of UDAs and higher overall payments to the dentist. According to the NHS Website the three bands (and the relevant charges for the patient) are currently as follows:

“There are three bands of charges for all NHS dental treatments.

The current dental charges are:

Band 1 dental treatment: £18.50

Depending on what’s necessary, this can cover:

•

a clinical examination, assessment and report 

•

an orthodontic assessment and report

•

advice, diagnosing and planning your treatment 

•

X-rays

•

moulds (casts) of your teeth, for example, to see how your teeth bite together

•

taking coloured photographs

•

advice on preventing future problems, such as diet advice and cleaning instructions 

•

applying sealants or fluoride preparations to the surfaces of your teeth 

•

a scale and polish

•

marginal correction of fillings

•

taking a sample of cells or tissue from your mouth to examine (pathological examination)

•

adjusting dentures (false teeth) or orthodontic appliances, such as braces

•

treating sensitive cementum (the tissue that covers the root of a tooth)

Urgent treatment when you need to see a dentist immediately also costs £18.50.

Band 2 dental treatment: £50.50

Depending on what’s necessary, this can cover everything listed in band 1 above, plus:

•

non-surgical treatment of periodontitis (a severe form of gum disease) – such as root planing (cleaning bacteria from the roots of your teeth) or deep scaling and a polish

•

surgical treatment of periodontitis: such as removing some gum tissue (gingivectomy)

•

free gingival grafts: when healthy tissue from the roof of your mouth is grafted (attached) to your teeth where the root is exposed 

•

fillings 

•

sealant restorations: when sealant is used to fill a small hole and seal any grooves in your teeth 

•

root canal treatment (endodontics) 

•

pulpotomy: removing dental pulp (the soft tissue at the centre of a tooth)

•

apicectomy: removing the tip of the root of a tooth

•

transplanting teeth

•

removing teeth (extraction)

•

oral surgery, such as removing a cyst (fluid-filled sac)

•

soft tissue surgery to the mouth or lips

•

frenectomy, frenoplasty or frenotomy: surgery to the folds of tissue that connect your tongue, lips and cheeks to your jaw bone 

•

relining and rebasing dentures 

•

adding to your dentures, such as adding a clasp or a tooth

•

splinting loose teeth, for example, after an accident or due to periodontitis – this doesn’t include laboratory made splints

•

bite-raising appliances (similar to a mouth guard), for example, to correct your jaw alignment – this doesn’t include laboratory made appliances

Band 3 dental treatment: £219

Depending on what’s necessary, this can cover everything listed in bands 1 and 2 above, plus:

•

veneers and palatal veneers: new surfaces for the front or back of a tooth

•

inlays, pinlays and onlays: used to restore damaged teeth

•

crowns: a type of cap that completely covers your real tooth

•

bridges: a fixed replacement for a missing tooth or teeth dentures

•

orthodontic treatment and appliances: such as braces

•

other custom-made applications, not including sports guards

Treatments such as veneers and braces are only available on the NHS if there’s a clinical need for them (not for cosmetic reasons).”

Under the terms of the GDS Contract, the Respondents are entitled to a contract sum of £510,762 payable in equal monthly instalments in arrears as consideration for the provision of 19,347 UDAs during each financial year. If a dentist fails to meet his UDA targets for the year, the Board can claw back monies that have been paid.

In 2011 the Board sought to disallow a number of the Respondents' claims on the basis that those claims allegedly did not record specifically (on the patient records) that a full mouth examination had been undertaken, or indeed that any dental/oral examination had been undertaken. Thus on 18 September 2012, Dr Brendan Lloyd (Medical Director of the Board) informed the Respondents' solicitor, Jane Lang, by letter of that date, that the Board's view was that, because of a failure on the Respondents' part to complete full, accurate and contemporaneous records, there was no evidence in certain cases that a full mouth examination had been completed, only that a Band 2 or Band 3 course of treatment had been claimed. Dr Lloyd further stated that:

“The lack of recording a full mouth examination in conjunction with the clinical concerns relating to patient outcomes during the period 2009/10 and 2010/11, as identified through national reporting methods provide sufficient evidence to the Health Board that inappropriate claims have been made.”

He accordingly went on to require the Respondents to repay the sum of £110,021.42 in respect of sums paid to them pursuant to the payment recoupment provisions contained in the Regulations.

The Respondents disputed the claim to repayment, both as a matter of principle (alleged non-recording of examinations) and also as to the amount and calculation of the sum to be repaid. In summary the Respondents' contention was that, in respect of the cases identified and records considered, there had necessarily been examination due to the nature of the dental work/treatment undertaken and, or alternatively, examinations had already been undertaken within the preceding six months, and that the absence of an express record did not bar a claim or payment for work validly done and services rendered under the GDS Contract.

The Respondents issued judicial review proceedings challenging the Board's decision dated 18 September 2012. Permission to bring such proceedings was granted byHH Judge Keyser QC at a contested oral hearing on 25 March 2013.

By the time of the judicial review hearing before Wyn Williams J on 19 December 2013, the dispute between the parties focused on two issues of interpretation of the GDS Contract, namely:

In summary the judge held (Footnote: ¹):

The judge's reasoning for reaching these conclusions is set out in paragraphs 23 - 25 of the judgment. Having considered the appropriate principles governing the approach to the interpretation of contracts as set out in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1WLR 896, he said as follows:

“23.

I turn, first, to consider whether the word "examination" which appears on many occasions in the contract should be taken to mean "full mouth examination". What would the word "examination" convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the conclusion of the contract. In my judgment the probability is that the reasonable person would conclude that the word did mean a "full mouth examination". I accept the submission of Mr Williams QC [leading counsel for the Board] that the purpose of an examination, at least in the vast majority of cases, must be to facilitate an assessment of a patient's oral health overall. That can be done, effectively and efficiently, by the carrying out of a "full mouth examination" when a patient first visits the dentist. The carrying out of such an examination is not unduly time consuming and I can think of no sensible reason why an examination in the context of this contract should not extend to seeking to ascertain the true state of the patient's oral health overall at the first reasonable opportunity. As Mr Williams QC pointed out during the course of argument it would constitute an unsatisfactory state of affairs if the word examination was so interpreted so as to lead to the likelihood of "successive examinations" limited to particular areas of the mouth in respect of individual patients. In my judgment it would be wrong to restrict the meaning of the word examination so that it meant no more than an examination of the particular point in the mouth about which a patient may complain.

24.

I turn, next, to the submission that the failure to record the carrying out of such an examination in the patient record of a particular patient means that the Claimants have no entitlement to payment in respect of the course of treatment provided to the patient in question. I cannot accept that this is how the contract is to be interpreted. I say that for a number of reasons. First, I can see no reason why the contract would not have specified, in terms, that the making of a complete and accurate record of all treatment provided including any examination undertaken was a pre-condition to payment for that course of treatment if that was what the parties intended. Second, clause 202 imposes an express obligation upon the Claimants to make complete and accurate records of patient treatment. If it was intended that payment for a course of treatment was dependent upon all treatment (including the fact of an examination) being accurately recorded I would have expected that the consequences of a failure to comply with clause 202 would have been spelled out in unequivocal language. Third, I do not consider that the reasonable man would expect that a failure to record an aspect of treatment, such as an examination, should have the consequence that no payment would be made to a dentist in respect of a course of treatment provided to a patient. Fourth, it must be possible, at least in the vast majority of cases, to determine whether an examination has been conducted to an individual patient from the nature and extent of the treatment afforded about which there can be no doubt. It would be fanciful to suppose that no examination had been conducted in cases when it is known full well that complicated dentistry has been performed upon the patient. In my judgment this factor would reinforce the view of the reasonable man that payment for services provided should not depend upon whether the fact of an examination has been recorded in the patient record.

25.

In reaching the conclusion expressed above I do not intend to denigrate the need for the keeping of accurate and complete records of patient treatment. The importance of such records is self-evident insofar as it relates to the patient and his/her treatment. I accept too that such records are also a useful means by which those charged with ensuring that a dentist is paid only for the work which he or she performs can ensure that they perform their function appropriately. When claims for payment are made I can well understand why the content of the patient record is important to those considering what work has been done. To repeat, however, I cannot interpret this contract as making it a pre-condition to payment for work done that the fact of an examination is recorded in the patient record or that a breach of clause 202 should always have the consequence that there will be no payment for a course of treatment provided to the particular patient. I make it clear that I have reached this conclusion having paid proper regard to the Regulations which underpin the contract and such guidance as exists which throws light on this issue."

The judge came to this conclusion without taking into account extrinsic evidence which the Respondents had obtained as a consequence of the freedom of information request under the 2000 Act and which they sought to adduce in relation to what was said to be the practice which other Health Boards, in the position of the Board, had adopted when determining whether payments should be made in respect of UDAs/courses of treatment when the fact of an examination had not been recorded in patient records. The judge concluded that such evidence was not admissible as a guide to the proper interpretation of the GDS Contract as it did not satisfy any of the criteria for the admissibility of extrinsic evidence set out in Volume 1, Chitty on Contracts 21^st Edition, Chapter 12 paragraph 12-095 et seq.

The judge refused the Board's application for permission to appeal. However permission was granted to the Board by Richards LJ on 14 July 2014 to appeal against the judge's determination that the failure to record the carrying out of a full mouth examination in the patient record of a particular patient did not mean that practitioners had no entitlement to payment in respect of the course of treatment provided to the patient in question, and that such record making was not a precondition to payment.

Permission was granted to the Respondents by Longmore LJ on 15 October 2014 to cross-appeal against the determination by the judge that, in the GDS Contract, "examination" should be interpreted as meaning "full mouth examination".

The GDS Contract is a comprehensive written document in standard form. It contains 24 parts and a number of schedules. It is intended to be used generally; i.e. between dentists (referred to as "the Contractor" in the contract) and local health boards (referred to as "the LHB" in the contract) throughout Wales.

For present purposes the principal relevant clauses of the GDS Contract are the following (Footnote: ²):

Part 14 of the GDS Contract provides for payment under the contract, including the circumstances in which payment may be withheld:

““PART 14 (Footnote: ⁴)”

PAYMENT UNDER THE CONTRACT

239.

The LHB shall make payments to the Contractor under the Contract promptly and in accordance with both the terms of the Contract (including, for the avoidance of doubt, any payment due pursuant to clause 20), and any other conditions relating to the payment contained in directions given by the National Assembly for Wales under section 28N of the Act subject to any right the LHB may have to set off against any amount payable to the Contractor under the Contract any amount -

239.1.

that is owed by the Contractor to the LHB under the Contract;

239.2.

has been paid to the Contractor owing to an error in circumstances when it was not due; or

239.3.

that the LHB may withhold from the Contractor in accordance with the terms of the Contract or any other applicable provisions contained in directions given by the National Assembly for Wales under section 28N of the Act.

239.4.

Subject to Clause 239.5, the LHB shall make payments to the Contractor in such amount and in such manner as specified in any directions for the time being in force under section 17 or 28N of the Act, the LHB is required to make a payment to the Contractor under the Contract but subject to conditions, those conditions are to be a term of the Contract.

239.5

Payments to be made to the Contractor (and any relevant conditions to be met by the Contractor in relation to such payments) in respect of services where payments, or the amount of any such payments, are not specified in directions pursuant to clause 239.4, are set out in schedule 4 to this Contract.

240.

The Contractor shall make payments promptly to the LHB and in accordance with both the terms of the contract and any other conditions relating to payment contained in directions given by the national Assembly for Wales under section 28N of the Act, subject to any right the LHB has to set off against any amount referred to in clause 239.1 or 239.3.”

As the judge pointed out, clauses 261, 315 to 346 and 366 should also be noted. Clause 261 imposes upon the Respondents an obligation to "comply with all relevant legislation and have regard to all relevant guidance issued by the Board or the National Assembly for Wales". Clauses 315 to 346 contain detailed provisions empowering the Board to terminate the contract in specified situations and/or to impose sanctions. Section 341 defines "contract sanction" to include "withholding or deducting monies otherwise payable under the Contract" and the circumstances in which such a sanction can be imposed are specified in paragraphs 342 to 345. Clause 366 makes it plain that the contract constitutes "the entire agreement between the parties with respect to its subject matter."

In addition, pursuant to Schedule 1, Part 3, paragraph 12.7 of the Directions to Local Health Boards as to the General Dental Services Statement of Financial Entitlements 2006, made under section 28N of the National Health Service Act 1977 (now contained in Schedule 1 Part 3 paragraph 11.7 of the Directions to Local Health Boards as to General Dental Services Statement of Financial Entitlements 2009 (made under section 60 of the National Health Service (Wales) Act 2006), it is provided as follows:

“Overpayments and withheld amounts

11.7

Without prejudice to the specific provisions elsewhere in this SFE relating to overpayments of particular payments, if an LHB makes a payment to a Contractor under its GDS contract pursuant to this SFE and -

(a)

the Contractor was not entitled to receive all or part thereof, whether because -

(i)

it or a person employed or engaged by it did not meet the eligibility criteria for the payment, or

(ii)

the payment was calculated incorrectly (including where a payment on account overestimates the amount that is to fall due);

(b)

the LHB was entitled to withhold all or part of the payment because of a breach of a condition attached to the payment, but is unable to do so because the money has already been paid; or

(c)

the LHB is entitled to repayment of all or part of the money paid,

the LHB may recover the money paid by deducting an equivalent amount from any payment payable pursuant to this SFE (in instalments, where appropriate), and where no such deduction can be made, it is a condition of the payments made pursuant to this SFE that the Contractor must pay to the LHB that equivalent amount.”

As the judge also correctly pointed out, the word "examination" appears at various points within the contract. In the witness statements relied upon by the Board the phrase "full mouth examination" is equated to "examination" within the GDS Contract. However the phrase "full mouth examination" does not appear in the contract; nor does it appear in the 2006 Regulations, which provide the statutory underpinning for the contract.

The issues or construction in relation to the GDS Contract arising on the appeal and the cross-appeal can be shortly stated as follows:

This issue arises on the cross-appeal. Ms Mary O'Rourke QC and Ms Nicola Newbegin, respectively leading and junior counsel appearing on behalf of the Respondents, whilst accepting that "a course of treatment", by virtue of the definition of "course of treatment" contained in clause 1, always involved an examination, nonetheless submitted that there was no obligation on the Respondents, as part of a banded course of treatment, to perform a full mouth examination in respect of each patient, regardless of the circumstances in which the Respondents were called upon to provide a course of treatment. They submitted that ‘examination’ must mean an examination that was clinically appropriate in context. In support of their argument they relied upon clauses in the GDS Contract and practical examples that related to urgent treatment, orthodontic treatment and the provision of prescriptions. Mr Rhodri Williams QC and Mr Carl Harrison, respectively leading and junior counsel for the Board, submitted that the carrying out a banded course of treatment upon a patient necessarily involved an obligation on the part of the Respondents to carry out a full mouth examination of the patient and relied upon the reasoning of the judge.

As we have already stated, the judge concluded (at paragraph 23) that “examination” should be taken to mean full mouth examination because “the purpose of an examination, at least in the vast majority of cases, must be to facilitate an assessment of a patient’s oral health overall” and that could be done effectively and efficiently only by carrying out a full mouth examination. It is clear from what the judge said that he was focusing on the occasion “when a patient first visits the dentist”, was influenced by the fact that “carrying out…such an examination is not unduly time consuming”, and could “think of no sensible reason why an examination in the context of this contract should not extend to ascertaining the true state of the patient’s oral health overall at the first reasonable opportunity”. He accepted Mr Rhodri Williams’ argument that it would be unsatisfactory if the word “examination” was interpreted in a way which led to the likelihood of examinations between routine six-month check-ups (referred to by the judge as “successive examinations”) being limited to particular areas of the mouth in respect of individual patients.

The submissions presented by Ms O'Rourke in support of cross-appeal on this issue have two main limbs. The first is the fact that the GDS contract and relevant regulations such as the NHS (Dental Charges) (Wales) Regulations 2006 SI 2006 No. 491 (W.60) (“the Dental Charges Regulations”) do not define “examination” as “full mouth examination”. Ms O'Rourke submits that, for the term to be given that meaning, one has to read words into the contract and the regulations, and there is no good reason to do so. Although Miss O’Rourke did not develop the point this way, some support for her submissions is provided by the contrast in the Dental Charges Regulations between the “clinical examination” referred to in sub-paragraph (a) of Schedule 1 for the purposes of Band 1 and the term “examination” in sub-paragraph (a) of Schedule 4 for the purpose of urgent treatment under Band 1.

Secondly, Miss O’Rourke submitted that a number of provisions in the contract use the term “examination” in a way where it simply cannot mean “full mouth examination”. She relied in particular on the provisions dealing with “urgent treatment”, the referral service, “charge exempt course of treatment” and orthodontic treatment. She submitted that where a term is used in a contract it must have the same meaning throughout. The consequence, she submitted, was that the term “examination” means whatever examination is clinically appropriate in the circumstances of particular case, and that is a matter for the clinical judgment of the dentist in question. Miss O’Rourke was critical of the submissions made by Mr Williams on behalf of the Board because, she said, to require a full mouth examination in all cases would remove this matter from the clinical judgment of dentists and replace it with a “tickbox” approach. She also submitted that there was a latent inconsistency in the judge’s approach because his acceptance in paragraph 23 of the proposition that “the purpose of an examination, at least in the vast majority of cases, must be to facilitate an assessment of a patient’s oral health overall” acknowledged that “examination” cannot mean full mouth examination “in all cases”. The criticism was that the judge did not reflect that when ascribing a meaning to the term, and so brought about the result that a full mouth examination was required for the minority of cases where the purpose of the examination was not to facilitate an assessment of a patient’s oral health overall.

Ms O'Rourke's submissions as to the provisions in the GDS Contract using the term “examination” in a way which simply could not mean “full mouth examination” may be summarised as follows. First, “urgent treatment”: the contract defines this to mean a “course of treatment” the provision of which has to be given promptly for two specified reasons; that, in the opinion of the dentist, the patient’s oral health is likely to deteriorate significantly and that the patient is in severe pain by reason of his oral condition. The definition in the contract of “course of treatment” in clause 1 includes an examination of the patient. In cases where the patient’s condition requires “urgent treatment”, the treatment is to be “… provided only to the extent that is necessary to prevent that significant deterioration or address that severe pain.” Miss O’Rourke submitted that because an urgent course of treatment includes an “examination” but only includes treatment to prevent the deterioration or address the severe pain, and in the light of the contractually and clinically limited nature of the treatment, it cannot be the case that, in that context, “examination” means full mouth examination. Her second example was based upon the references to “examination”, including a “first examination” as part of a "referral service". In that case she submitted the examination must of necessity be limited by the nature and purpose of the referral, and not be the same as an examination on a first visit to general practice. Her submissions based on other examples, the use of the term “examination” in the definition of “charge exempt course of treatment”, and the definition of “case assessment” for the purpose of determining whether and, if so, what orthodontic treatment was to be provided, were similar in nature.

Miss O’Rourke accepted that a full mouth examination would be required in most cases but, in order to show that “examination” did not inevitably mean full mouth examination, she focused on four situations. These involved scenarios in which a patient, who had been given a full mouth examination had to come back to a dentist or to a hygienist within two or three weeks of the full mouth examination because of an unforeseen event where the effect on the patient meant that the case did not qualify under the contract for “urgent treatment”. Three of her scenarios were: (a) the development of an abscess under a tooth which had been filled as part of the treatment plan and now required root canal treatment, (b) a fracture in a tooth caused by biting on something hard, which required a crown, and (c) the loss of a filling after a routine check-up and treatment and before the next routine check-up. Her fourth scenario involved a full mouth examination which led the dentist to conclude that no treatment was required immediately, but that the condition of the patient’s gums etc mean that the patient should be seen by a hygienist before the time for the next six month check-up. This scenario, in our judgment, was a bad example and does not support Miss O’Rourke because the visit to the hygienist falls within the definition of “course of treatment” triggered by the initial visit and the full mouth examination then conducted, because it is “the provision of…treatment planned at a time other than the time of the initial examination…to that patient”.

Leaving aside the fourth scenario, do the other three scenarios and Miss O'Rourke’s other points show that the term “examination” means whatever examination was clinically appropriate in the particular circumstances, and that that was a matter for the clinical judgment of the dentist in question? Does the word “examination”, as Ms O'Rourke submits, have the same meaning throughout the contract? We do not accept either proposition.

First, in our judgment, the meaning of the term “examination” in the contract must be assessed by reference to the context of the particular reference to that term. Accordingly, the meaning of the term “examination” in the contract’s provisions in relation to “urgent treatment”, the referral service, “charge exempt course of treatment” and “orthodontic treatment” must be determined in the light of the particular contexts, which vary. A context dependent on meaning is not inconsistent with according the term “examination” a “default” meaning of full mouth examination.

It is clear from the judgment that the judge was not considering the meaning of the term “examination” in relation to the contexts relied on by Miss O’Rourke. Those contexts show that a different meaning is required. In the case of an urgent course of treatment, this is because of the limited form of dental treatment authorised. That is supported by the fact that the Dental Charges Regulations (in Schedule 4) only use the term “examination” in the context of urgent treatment whereas the term “clinical examination” is used in Schedule 1 in the context of other Band 1 treatment. Similarly, the “case assessment” for orthodontic treatment is in a different category from the “clinical examination” and has a different purpose. Its purpose is not to assess general dental health, but to assess whether orthodontic intervention should be provided.

Secondly, as to Ms O'Rourke's submission that there was no good reason to read words into the contract and the regulations, it is important to take account of the regulatory and professional background to this contract. It is clear from the guidance to clinicians by the Faculty of General Dental Practice in its publication, Clinical Examination and Record Keeping, that at each attendance at a dentist’s clinic, the face and neck, the soft tissues of the mouth and tongue, and the teeth and restorations should be examined and new abnormalities or changes, or the absence of any change or abnormality, should be noted: see section 4, page 21 and 4.4.1 and 4.4.2. Although, in relation to soft tissue examination, the guidance is for a “thorough and methodical examination… at each course of treatment” or “at reasonable intervals” because of oral conditions that can precede oral carcinoma, in relation to tooth examination, the advice that “a full dental charting should be recorded” contains no such qualification. Miss O’Rourke relied on section 6 of the Faculty of General Dental Practice’s guidance which deals with “clinical examinations in special situations” and the statement on the first page of that section which states “examination and record-taking for patients attending for emergency/unplanned visits should focus on the resolution of the presenting complaint”. In our judgment, she is not assisted by that because it is in substance addressing the situation which in the contract is dealt with by the provisions on “urgent treatment”.

Thirdly, as we have already stated, the new GDS contract replaced the previous contractual system of payment per item of work done. Payment per piece of work done was replaced by a contractual scheme which credits dentists with UDAs for completing courses of treatment and paying them according to the number of UDAs credited. The introduction of the concept of “course of treatment” has important repercussions for the dentist’s remuneration under the contract. Although not relevant to this appeal, it also has important repercussions for what charges can be made to a patient who is not exempt from paying charges. The definition of the concept of “course of treatment” as meaning an examination of the patient, an assessment of his or her oral health, the planning of treatment to be provided, and the provision of any planned treatment, also informs what is required.

We accept Mr Williams’ submission that to interpret the term “examination”, in relation to non-urgent banded courses of treatment, as being anything other than a full mouth examination is inconsistent with the guidance given by the Faculty of General Dental Practice as to what is required on “each attendance”. It would also reduce the clinical effectiveness of an examination and thus risk failing to diagnose dental problems at an early stage. It would also increase the risk of overcharging and treatment-splitting.

It was common ground that, in the scenarios raised by Miss O’Rourke in her examples, where the course of treatment has not been completed, it was possible to reband treatment as a result of the contingency in question, so that a course of treatment which initially was thought to be Band 1 or Band 2 might, as a result of the contingency, be classified as Band 3. But the contingency would not permit an additional payment where “the course of treatment” set has already been categorised as Band 3 even though the subsequent event involves additional work, save where there was a new “course of treatment”. Miss O’Rourke’s approach would enable it to be treated as a new course of treatment without the examination which should precede a new course of treatment.

Miss O’Rourke accepted that treatment splitting was wrong. She, however, submitted that the question of whether, in a particular case, the dormant problem that erupts after the full mouth examination should have been spotted by the dentist conducting the full mouth examination can and should be determined by an adjudicator. She also submitted that the question whether the dentist’s clinical judgement that a full mouth examination was not required was wrong, could and should be determined by an adjudicator. In our judgment, her approach is inconsistent with the structure of the contract and the centrality it accords to the concept of “course of treatment”, because it carves out an uncertain exception to the principle that dentists should be remunerated for courses of treatment and that what is required should be planned at the outset. It is also likely to lead to an elaborate, burdensome and expensive adjudicative process.

For these reasons, we agree with the judge. He was addressing what might be called the “standard” first visit. He was addressing the term “examination” in relation to non-urgent banded courses of treatment. His decision does not require a full mouth examination in the cases where the context of the contract indicates that such is not required, i.e. urgent treatment, orthodontic treatment, and the provision of prescriptions.

Accordingly for those reasons, which largely reflect those given by the judge, we would dismiss the cross-appeal.

As before the judge, the Respondents did not dispute that a dentist, having conducted a full mouth examination, was obliged to make a record of the fact that he had done so. Ms O' Rourke correctly accepted that such an obligation was imposed by virtue of clause 202. The issue which arose on the appeal (as below) was whether a dentist's failure to comply with his obligation to record the fact that he had conducted a full mouth examination (if indeed, as I have held, he was under an obligation to conduct such an examination) entitled the Board to withhold payment for treatment or services actually rendered or to reclaim money which had been paid over for such treatment or services.

Mr Williams repeated the submissions which he had made to the judge. He contended that in the absence of an express recording of a full mouth examination, there was no entitlement to payment in respect of the course of treatment, as compliance with the Respondents' clause 202 obligation was a precondition to payment. He submitted that there should be implied into paragraph (a) of the definition of "course of treatment" in clause 1, the additional words "the recording of that examination and assessment either in writing or electronically" to reflect that the course of treatment included the actual recording of the examination. He referred to Schedule 1 of the Charges Regulations, where reference was made to "clinical examination, case assessment and report" as well as to certain provisions in a publication entitled "Clinical Examination & Record-Keeping", second edition published 2009 by the Faculty of General Dental Practice (UK). He submitted that these also supported his argument that there was a requirement for records for full mouth examinations to be maintained as a precondition to payment.

Mr Williams further submitted that it was for the Board to prove that a course of treatment had not been completed (and that accordingly the Respondents had been overpaid) and if the Board could not rely upon proper dental records to do so, the Board was placed in an impossible situation. However Mr Williams made two important concessions in response to questions from the court: first of all, he conceded that, if a treatment plan had been provided to the patient by the Respondents, it might be a reasonable inference from that plan, that a full mouth examination had indeed been conducted; in that event he accepted that the Respondents would be entitled to claim payment for UDAs; secondly, he conceded that, in circumstances where third party records (such as those of a dental technician's) showed that a full mouth examination necessarily must have been carried out, then the Respondents would have been entitled to payment.

Largely for the reasons given by the judge in paragraphs 24 and 25 of the judgment, we consider it impossible to construe the relevant provisions of the GDS Contract, when read in the context of the entire contract and the 2006 Regulations, as imposing, as a precondition to payment in relation to UDAs in respect of a particular course of treatment, compliance with the dentist's undoubted obligation to keep accurate and complete records of that course of treatment, including a record of the examination carried out. There is nothing in the language used in the relevant provisions which could be said expressly to impose compliance with any such requirement as a precondition to payment; the obligation to record the fact of a full mouth examination cannot be said to be so vital to the course of treatment that a failure to record goes to the substance of the dentist's entitlement to be paid for the treatment which he has carried out; see per Lord Simon of Glaisdale in Schuler v Wickman Machine Tools [1974] AC 235, at 264E-G.

Moreover, contrary to Mr Williams' submission, it is impossible to imply any such term, whether in the definition of "course of treatment" or elsewhere in the GDS Contract. As Lord Hoffmann, giving the judgment of the Privy Council, stated in Att-Gen of Belize v Belize Telecom Ltd. [2009] UKPC 10; [2009] 1 W.L.R. 1988

“ … in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such provision would spell out in express words what the instrument read against the relevant background, would reasonably be understood in to mean.”

As the judge said in the present case, the reasonable man would not expect that a failure to record an aspect of course of treatment should have a consequence that no payment would be made to a dentist in respect of a course of treatment actually provided to a patient. The implication of such a term is not necessary to give business efficacy to the GDS Contract, nor does such a term represent the obvious, but unexpressed intention of the parties. Records are at most evidence of work done; payment is made in respect of the work done, not for the keeping of records of work done. Part 14 sets out the conditions for payment under the contract; these are entirely separate from the provisions relating to record keeping contained in Part 13. In addition to the dentist's obligation to keep records under clause 202, the dentist has extensive obligations to notify to the Board of relevant information in relation to courses of treatment under clauses 221 in 222 of Part 13, and the Board has extensive rights to require information from the dentist under clauses 211 and 212 of Part 13. There is no business reason why compliance with the recording obligation under clause 202 should be construed as a precondition to payment, any more than compliance with any of these extensive obligations on the part of the dentist to provide information.

Finally Mr Williams' concession that external evidence, such as the treatment plan or third party records, would be sufficient in appropriate circumstances to demonstrate that a full mouth examination had indeed been conducted, in our view wholly undermines the stance which the Board takes in relation to this issue. Either the recording by the dentist of a full mouth examination is a precondition that has to be satisfied prior to the Board's obligation to pay, or it is not.

For the above reasons the appeal in relation to this issue should be dismissed. For the sake of completeness we should mention that we do not consider that the witness statements produced either by the Board or by the Respondents were of any assistance, in relation to the issue of contractual interpretation in this case, even if, which is doubtful, they were properly admissible for such purpose as factual matrix material.

This issue did not receive express separate consideration by the judge. However it appears to us that it is implicit from the statement in paragraph 28 of his judgment that:

“His entitlement will depend upon whether or not it is established that he has provided the "units of dental activity" which justify the payment”,

that he considered that the answer to the question was "no". We agree with the judge. Under the terms of the GDS Contract a dentist’s entitlement depends upon whether he has provided the UDAs which justified the payment.

In some cases a course of treatment will have been started, but will not have been completed. For example clause 53 requires the dentist to inform the Board on forms supplied pursuant to clause 222 whether the course of treatment started was completed and, if not, why. Clauses 84 and 86 provide that, where a course of treatment has been started, but not completed, the appropriate number of UDAs provided shall be calculated on the basis of

“the components of the course of the treatment which has been completed, or commenced but not completed.”

It is not apparent why there are two such provisions in almost identical form. But what they clearly show is that a dentist is entitled to payment for the components which he has provided, notwithstanding that the entirety of the course of treatment has not been provided to the patient. In other words the terms of the contract themselves provide that payment entitlement in respect of a UDA is pro rata reduced in circumstances where the course of treatment has not been completed.

Apart from the fact that, likewise, there is nothing in the wording, or in the machinery of the GDS Contract, which deprives the dentist of all entitlement to payment where he has failed to carry out a full mouth examination (as we have held he is obliged to do when carrying out a banded course of treatment), these provisions support our conclusion that the fact that a dentist has breached his obligation does not of itself disentitle him to any payment whatsoever for treatment which he has in fact carried out. The consequences of his failure to comply with his obligation to carry out a full mouth examination, will simply be that there will be a pro rata deduction in his entitlement to payment.

For these reasons we would also dismiss the appeal in relation to this issue.