As dental solicitors, we often advise dentists who wish to appeal against a decision by NHS England regarding inclusion on its National Dental Performers List.
Appealable decisions include:
A decision to refuse an application for inclusion in the list
A decision to impose, maintain or vary conditions
A decision to remove a performer from the list.
Procedure
Any such appeal should be made to the First-Tier Tribunal (Primary Health Lists) by completing an appeal form and lodging this – along with a copy of the Notice of Decision (or decision letter from NHS England) – within the required timeframe (usually 28 days). NHS England is then required to provide a formal response. The Tribunals Service will acknowledge the application and arrange a Telephone Case Management Hearing. At the TCMH, a judge will give directions setting a timetable and dealing with matters such as any witnesses either party intends to call; any documentary evidence to be presented to the Tribunal; the likely length of the hearing; and any other legal or procedural issues. This is to ensure that when it comes to the hearing, all issues have been dealt with so that it runs smoothly; all the necessary evidence is available; and enough time has been allocated.
The appeal will take place by way of an oral hearing unless the dentist, NHS England and the Tribunal agree that it can be decided on the papers. An oral hearing will be required if there is a dispute about the facts of the case. Where the appeal is to be determined at a hearing, it will be heard by a panel, normally consisting of a tribunal judge, a specialist member (a dentist) and a lay person with relevant experience. Oral hearings usually take place in public, unless the Tribunal decide otherwise – for example if there are matters to be explored that relate to the dentist’s health.
Decisions
At the hearing it is open to the Tribunal to make any decision NHS England could make under the Performers List regulations. While the Tribunal may give its decision orally at the hearing, it usually provides a written decision within 10 days. Costs orders can be made but usually only if the Tribunal considers that a party has acted unreasonably.
Further appeal
The dentist can apply to have the decision set aside in certain circumstances (a relevant document was sent to a party or to the Tribunal; the dentist or their representative was not present at the hearing; or there was some other procedural irregularity). This must be done within 28 days.
Alternatively, if the panel made an error of law, the dentist can appeal the decision to the Upper Tribunal Administrative Appeals Chamber. Permission to appeal must first be obtained, and this application must be made within 28 days of the Tribunal’s decision.
A dentist cannot appeal simply because they do not like or agree with the decision. To help ensure the best possible outcome we therefore recommend any dentist considering an appeal to obtain early legal advice.
Examples of appeal decisions
- A dentist whose application to join the Dental Performers List was refused on the basis that he was not suitable because he had failed to disclose that he had been the subject of a fitness to practise investigation by the GDC where the outcome was adverse. The Tribunal determined that the dentist should be conditionally included on the Dental Performers List.
- A dentist appealed against his removal from the Dental Performers List on the ground of unsuitability because his English was inadequate for practise as a dentist. The Tribunal agreed that the dentist was unsuitable and rejected the appeal.
- A dentist appealed the decision to remove him from the List. The Tribunal decided that the dentist had failed to comply with previous conditions and removed him from the List.
- A decision to remove a dentist from the List was replaced with conditions.
- A decision to remove a dentist from the List on the grounds of unsuitability was upheld due to the dentist’s lack of integrity and insight.
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