Unlike a personal dental services agreement, which in most cases will not accommodate partnership, a general dental services (GDS) contract is specifically designed for use either with an individual provider or a partnership comprising two or more providers, or a dental corporation.
There are specific provisions throughout the contract that are referable to each of these three options and in particular the clauses dealing with termination. The GDS contract recognises that there are different circumstances which would apply depending on whether the contractor is a single person, more than one person or an artificial person in the form of a company.
In the case of a partnership, clause 231 deals specifically with how its composition can be changed without affecting the validity of the GDS contract. All that is required in the case of a new partner joining an existing partnership, or a retiring partner leaving a continuing one, is that the NHS is informed by written notice.
An individual dentist can also take on a partner without compromising the GDS contract and is permitted to share it in such circumstances. However, in this case it is necessary for more than a simple notification to be sent: the notice must deal with the requirements of clauses 292 to 294, and provide confirmation that the incomer is a person who is able to hold a GDS contract.
The new partner need not be a dentist as long as they are a registered dental health professional, although such a person cannot be a sole provider. Whilst not specifically a written requirement of the GDS contract, it is has become routine for the NHS to establish that the proposed new partner is a performer in their area.
Since the abolition of PCTs on April 1, 2013, there is a single national performer’s list maintained by NHS England’s commissioning board. The new partner must be included in this list, but in addition he or she would need to check that they meet the requirements of the individual local area team in which the practice is located, as these vary throughout the country.
A recent NHS England unwritten requirement for a new partnership is that in order for it to be recognised, the partnership must be registered as such with the Care Quality Commission. This was established in 2013 by the NHS England Policy for Variations of Primary Dental Care Contracts which confirms that: “the contract holder should also show that they have received CQC registration under the partnership agreement” notwithstanding that this had not previously been considered to be a pre-condition of acceptance of a new partnership.
Single providers should carefully consider the advantages of ensuring that their GDS contract is in a partnership name as, under clause 306 of the GDS contract, on the death of any individual practitioner the contract terminates within just seven days unless the NHS has agreed with the personal representatives for an extension which cannot exceed six months. It is therefore always sensible for a sole provider to consider the advantages of taking on a partner, for the purposes of ensuring the continuation of the contract.
For partnerships, a further important consideration is a termination right that the NHS may seek to exercise under clause 339. This stipulates that the NHS can terminate a contract where one or more partners have left the practice if, in its reasonable opinion, it considers that the change in membership of the partnership: “Is likely to have a serious adverse impact on the ability of the contractor or the PCT to perform its obligations under the contract”. A case of heads you win and tails I lose?