A GDS contract runs to several hundred clauses over approximately one hundred and fifty pages. Not all of the provisions are relevant to each practice, and a contract might state ‘Reserved’ in the case of a number of the provisions. This would be the case where the contractor is an individual, and the PCT omitted provisions that apply to partnerships or dental corporations. In some contracts the PCT will omit the clauses which relate to additional and further services where there are none.
Clause 65 should contain the address of the practice, and the surgery’s normal hours should be incorporated in Clause 75, with Clauses 77 and 78 dealing with the vital issue of the number of UDAs that are allocated. It is sometimes the case that all these points, as well as others, are incorporated in a separate Schedule 5 at the end of the document. A PCT may also include specific quality standards in a Schedule 6.
There is a pro forma GDS contract, but each document is individual to both the practice and the PCT; it should never be assumed that there are no deviations from the standard form. In the case of corporate contractors, the NHS may incorporate a totally new provision, either in the main body of the agreement or one of its schedules, to the effect that a change of control within the company will require the approval of the NHS or necessitate the contract being put out to tender. The impact of European regulations on the procurement of public service contracts has been reflected in the careful review of applications by dentists for their sole provider contracts to become corporate ones, and the determination will reflect individual circumstances.
Nevertheless, there are provisions that will be unchanged and can be expected to be present in all GDS contracts. Part 1 deals with the definitions and interpretations and is useful in explaining the meaning of terms used in the document.
Clause 12 of Part 2 is pivotal, it prevents any transfer of the performer’s rights under the GDS contract unless in accordance with the agreement. The one exception that is specifically stipulated is sub-contracting. The effect of Clause 12 is to ensure that the GDS contract cannot be used to distort competition in the provision of NHS dental services, and also to favour the existing contractor against other possible service providers.
Sub-contracting is covered in Clauses 198 – 200, essentially it is permitted where it is reasonable in the circumstances and if the sub-contractor is properly qualified. These clauses may be useful if the contract is to remain in the name of the individual but performed by his company, and may be considered as an alternative to having the contract vested in the company on incorporation. Notice must be served on the NHS in accordance with Clause 199, and it may seek a formal contract variation.
Otherwise, save for the provisions of the contract which deals with the inclusion of a new partner, the contractor named in Schedule 1 of the GDS contract is the contracting party and is unable to dispose of his rights to it or entitlements under it. The partnership provisions are the subject of a recent NHS Commissioning Board instruction to its local area teams, explaining the process and the relevance of checking the partnership’s registration with the Care Quality Commission. This has caused some consternation in the sector, engendering additional work for the CQC, and may be a question of ‘watch this space’.
For more information call Goodman Grant Solicitors on 0151 707 0090 or email Julia Posener [email protected]
A NASDAL and ASPD MEMBER