Sep 6, 2021
On 6 April 2021, changes to tax law were introduced that dental practice owners and staff should be aware of. The new ‘IR35’ off-payroll working rules are intended to prevent the avoidance of employment tax and national insurance contributions (NICs) by workers treating themselves as self-employed when their actual working practice is consistent with being an employee.
Ahead of the change, there was confusion about what it would mean for the employment status of associate dentists, hygienists and other dental therapists. Many were concerned about inadvertently falling foul of the rules and being subject to additional tax payments, especially as HMRC was seen to increase activity in the dental sector.
Now that the new IR35 rules are in place, be sure you know how and when they apply, and what actions you need to take to ensure compliance.
IR35: how do the rules apply?
Changes to the IR35 off-payroll working rules mean that all public authorities and medium or large-sized private-sector companies are responsible for deciding the employment status of workers. Public sector employers (including NHS dental practices) have long held this responsibility. Now, the rules also apply to private companies meeting two or more of the following conditions:
- annual turnover >£10.2 million
- balance sheet total >£5.1 million
- >50 employees.
In a medium or large private dental practice (or practice group), the responsibility for determining employment status lies with the person engaging the worker, usually the Principal Dentist or practice owner.
If you are an associate dentist or hygienist providing services to a small private dental practice, your own intermediary (usually a limited company) will remain responsible.
Status Determination Statement (SDS) for every contract
If you hold responsibility for determining employment status in a private dental practice, you must prepare an SDS for every worker operating through their own intermediary (even those provided by an agency).
The SDS states the conclusion, with reasons, and is required for each new contract or change in working practice. You must share the SDS with the worker and the person or organisation the contract is with. You are expected to take reasonable care to make an accurate determination and to introduce a process to consider the worker’s views if they disagree.
Keep detailed records. Failure to provide an SDS or take reasonable care could result in the worker’s income tax and NICs becoming your responsibility.
Most associate dentists are self-employed
If you are a dentist employed by a practice, your earnings will be taxed as employment income and subject to Class 1 NICs.
However, if you are an associate dentist, engaged through a standard form of agreement, you are likely to be considered self-employed, even if you operate through an intermediary. Your income is assessable as trading income and you will pay Class 2/4 NICs.
According to James Goldman, writing for the British Dental Association (BDA), it is likely that most associate dentists will continue to be considered self-employed under the new IR35 rules. However, each case should be determined individually.
Goldman says that “for an associate to be self-employed they must:
- Have clinical freedom. They should have the ability to choose their own hours at least to some extent.
- Be involved in complaints against them.
- Be able to affect their income by, for example, providing private treatment.
- Be able to arrange a locum to do work for them.
- Decide what they charge.”
What is the risk for dentists and hygienists?
The risk comes if HMRC decides that your working practice is consistent with that of an employee. This applies even if you are an associate dentist engaged through a standard agreement. Also consider this if you are a hygienist or dental therapist – you may not have the same freedoms and independence as associate dentists so the risk may be increased.
HMRC may challenge your employment status if it finds a discrepancy between your contract and the nature of your working relationship. If you are deemed to be an employee, PAYE and Class 1 NIC would be due.
The risk for the Principal Dentist or practice owner is that they would become liable for the tax and NICs, so contracts are likely to include an indemnity clause to recover those costs.
What actions are required?
Principal Dentists and practice owners are advised to review contracts for all self-employed workers, and to use a standard agreement, such as the BDA model associate agreement. Ensure each contract reflects the true nature of the engagement and prepare an SDS when relevant.
Associate dentists, hygienists and other dental therapists should also review their contracts.
The Check Employment Status for Tax service can help determine if the off-payroll working rules apply. You may want to consult a specialist accountant with knowledge of the dental industry.
If HMRC contact you with questions about employment status, seek advice before you respond.
For any questions about contracts and employment status, please get in touch with our specialist team at Dental Defence Society.
Aug 9, 2021
Dentists have been eager to know whether easing of national restrictions would be reflected in a revised standard operating procedure (SOP) for dental practice. However, the reopening of society comes amid a surge in COVID-19 cases and the updated SOP, published on 16 July, reiterates the importance of infection prevention and control (IPC) measures.
Sara Hurley, Chief Dental Officer England, emphasised that current IPC guidance for dentistry should be followed in full. She said: “Our key message for patients is that dental services are safe and open for face to face care but it is not yet business as usual.”
Vital as IPC measures are, they continue to reduce the capacity of dental practices to deliver services. Dental practices and their patients are likely to endure challenging times ahead, but there are some reasons for optimism.
Ongoing pressure on NHS practices
As the first wave of the pandemic took hold in 2020, practices with NHS contracts had some financial protection as they continued to receive payment for full contract value. This ended on 1 January 2021, when NHS England introduced a target of 45% of contracted Units of Dental Activity (UDAs), with steep financial penalties for practices not reaching that target. From 1 April to 30 September, that target rose to 60% of contracted UDAs.
The British Dental Association (BDA) and MPs have strongly criticised the targets for prioritising volume over need, incentivising routine care over time-consuming urgent treatments.
NHS practices struggle to meet UDA targets
Shawn Charlwood, chair of the BDA’s general dental practice committee, said: “Practices are already working unsustainably to try and meet perverse targets, and now hundreds face an existential threat.”
According to the BDA, over 10% of practices delivered less than 36% of pre-COVID activity in Quarter 1 and would need to return most of their NHS funding. In March, over half of practices were failing to reach 60% of UDAs. Consequently, there are concerns about whether the 60% target is achievable for practices delivering dental care safely according to guidelines.
As COVID-19 infections rise again, issues such as cancelled appointments may add to difficulties meeting the target. In a Q&A session with Practice Plan, Eddie Crouch, Chair of the BDA’s Principal Executive Committee, recommended keeping accurate records of cancellations: “We have been told that mitigation will be heard by NHS England based on evidence submitted, and this should be flagged with NHS England at the earliest opportunity including the issue of a force majeure notice.”
Growth in private practice
The financial and other pressures on NHS dental practices have contributed to the rising number of dentists interested in private dentistry, which has a more positive outlook.
Private practices with patients on membership plans have fared well financially despite the interruptions to normal business. These practices found that most patients continued to pay for the plan even when the practice was closed.
Unsurprisingly, as challenges for UK dentistry continue, 70% of practices questioned by Dentistry and Dentistry Online expect to do more private work in the coming year, with cosmetic work an area of robust growth. Almost half of practices are actively trying to grow their businesses and demand to buy dental practices is strong, particularly amongst associates who have felt vulnerable throughout the pandemic with reduced income and little government support available.
COVID-19 has fuelled poor access to dental care
Especially during the pandemic, people have struggled to find appointments, even for urgent dental care. A report from England’s Chief Medical Officer Chris Whitty recently highlighted poor access to dental services in coastal areas, exacerbated by staff recruitment and retention problems. Such problems exist in other areas of the country too. Feedback to Healthwatch regarding access to dentistry has increased at a much higher rate than for other health and social care services.
The result is that people unable to book a dental appointment may experience fear and anxiety, pain and avoidable deterioration of their condition, and need to travel long distances to access care.
Although evidence suggests that dental practices have focused on supporting vulnerable groups, some vulnerable people, including children, may have lacked access to routine dental care, with potentially negative impacts on long-term health.
In her recent update, Sara Hurley stressed the importance of “actively reaching out to high needs dental patients and vulnerable groups most at risk of avoidable dental disease.”
COVID-19 impact on oral cancer
As patients have been unable or reluctant to access dental care during the pandemic, dentists have been increasingly concerned about the lack of opportunity for detection of oral cancers. Early detection and rapid referral for secondary care is crucial for successful treatment of oral cancer but referrals reportedly fell by 65% between 2020 and 2021.
Dentists fear that the coming months will see thousands of patients presenting with late-stage oral cancer, poor prognosis and a need for complex treatment, having gone undiagnosed during the pandemic. This influx of cases will come when all health services are under extreme pressure to manage a backlog of patients.
As we recover from the pandemic and access to appointments remains limited, this issue is likely to persist. To improve the situation, dentists are encouraged to perform intraoral and extraoral examinations routinely, and to discuss the importance of early detection and self-examination with patients.
Cautious optimism for NHS contract reform
Healthwatch highlighted reports that people felt pressure to pay for private dental care, which is especially difficult for those on low incomes. Clearly the lack of incentives for dentists to pursue NHS contracts is intensifying problems of access and inequality in oral care.
However, there is cautious optimism that a meaningful reform of the NHS contract system is now being initiated by NHS England working together with the BDA.
Shawn Charlwood said: “We are committed to finding a way forward that delivers for patients, supports dedicated practitioners, and makes prevention a reality.”
For advice regarding NHS targets or any other issues covered above, please contact our medico-legal team at Dental Defence Society.
Jun 25, 2021
In a recent landmark judgement, a former dental practice owner was held vicariously liable for the negligent acts of their dental associates. The wider implications of this case have led to concerns among practice owners, who were previously under the impression that they would not be held responsible for the actions of associate dentists working at their practice as self-employed and independent contractors.
With vicarious liability now in the spotlight, many dental practice owners are asking how they can protect themselves against similar claims.
The judgement that raised the issue of vicarious liability in dentistry
The landmark judgement in the case, Breakingbury v Croad, was handed down on 19 April 2021. It confirmed that the former practice owner, Dr Croad, had a non-delegable duty of care to a registered patient and was vicariously liable for the errors of his associates.
The patient brought the claim in relation to allegedly negligent bridgework treatment performed by associate dentists when the practice was owned by Dr Croad. Two of three associates involved were no longer on the GDC register, having left the UK, and there was no evidence of indemnity for any of them.
The judgement means that Dr Croad will become liable, several years after he sold the practice, for costs and damages awarded if any subsequent civil claim by the patient is successful. For the patient, it provides a route to claim compensation to pay for corrective treatment even though the individual treating dentists have left the country.
The judge noted that the defendant may seek indemnity and contribution from the associates involved. Yet it seems unlikely that would be possible in this particular case. Any claim by a dental practice owner against an associate will only be successful if the associate is contactable and has assets or insurance.
When does vicarious liability apply?
Vicarious liability is established to mean that an employer can be held responsible for the negligent acts and omissions of an employee. However, what is considered an employer-employee relationship has shifted over time. Each court is free to decide whether a particular working relationship is ‘akin to employment’.
In this case, the verdict of vicarious liability rested on the level of control of the practice owner in the relationship with the associate dentists, even though they were not employees.
Dr Croad, as practice owner and principal dentist, held the NHS contract and was judged to be the ‘provider’ of NHS dental care with an obligation to ensure safe standards of care for its patients. The practice owner also set targets for the work of the dental associates, which was performed on behalf of, and for the benefit of, the practice. This level of control over the associates’ work was regarded as ‘akin to employment’.
What does the judgement mean for other dental practice owners?
The judgement does not automatically set a precedent but if you are a dental practice owner, it would be wise to:
- Understand vicarious liability and how it applies to you and your dental associates.
- Know who is ultimately responsible for the dental treatment your patients receive. If you are the holder of the NHS contract for your practice, you are responsible for ensuring that treatment related to that contract is delivered in a satisfactory manner and you may be held responsible if a patient complains about treatment.
- Ensure that your indemnity insurance covers vicarious liability for associates’ actions.
The British Association of Private Dentistry recently hosted a Q&A webinar session in which six indemnity providers discussed how vicarious liability affects practice owners and associates. The take home message was that vicarious liability cover is essential for principals and corporates. The providers also stressed the importance of a clear contract between associates and practice owners.
How dental practice owners can protect themselves
Practice owners are rightfully concerned about the risk of being held vicariously liable for their associates’ errors, as a result of this judgement. However, you can take a number of steps to mitigate that risk, as explained by James Goldman, writing for the BDA:
- Carefully check associates’ references before hiring.
- Have a robust written contract that will help to support a claim against the associate if there is a problem.
- Confirm that associates have adequate indemnity and keep copies of certificates. Occurrence-based contractual cover is considered the gold standard.
- Conduct regular clinical audits to ensure good patient service and identify potential issues with associates’ work.
- Keep up-to-date contact details for associates and former associates.
- Deal with complaints quickly and efficiently, with the support of your indemnity provider. Do not let problems escalate.
- Take advice from your defence organisation to deal with claims from patients treated by associates.
At Dental Defence Society we are always available to provide support in handling a vicarious liability claim. We can also help to protect you against future litigation.
May 20, 2021
Dental practices in the UK have been hit hard financially by the COVID-19 pandemic. The initial closure of practices, reduced capacity as services resumed, and costs of new infection control measures caused a substantial loss of profitability for many. With dental practices and their staff struggling to make ends meet, there have been fears that many practices would fold.
In this post we examine the financial impact of COVID-19, strategies that dental practices are using to survive this turbulent time and future prospects for the industry in 2021.
Dental practices faced difficult times due to COVID-19
The General Dental Council (GDC) commissioned a report in 2020 on the impact of COVID-19 on dental professionals. It highlighted the severe financial impact, with 80% of dental business owners reporting a fall in income and 65% expecting income to fall over the following year. Many expected to make workers redundant.
Fears were raised that many private practices could collapse, creating long-lasting issues for patient access to dental treatment.
Falling income, rising costs
Key reasons for the loss of income include initial practice closures and, as services resumed, a considerable fall in patient numbers due to reduced capacity and patient hesitancy.
At the same time, costs rose sharply. Infection control procedures meant practices had to pay for additional personal protective equipment, ventilation equipment, and longer working hours to encompass fallow times and cleaning routines. A key issue has been the need for fit testing of respiratory masks for all clinical staff, due to the considerable expense involved. Initial demand for fit testing also meant long waits for appointments, which delayed reopening of many practices after the first lockdown and contributed to their worsening financial situation.
These problems were compounded by a lack of government support for the dental industry to cover fixed costs like business rates, leaving many private practices in financial difficulty, despite high-profile campaigns by industry leaders such as the British Dental Association (BDA).
Falls in personal income
With low patient numbers, changes to working patterns and contracts, as well as restrictions on dental procedures, dental professionals commonly experienced a significant loss of personal income. The GDC report found that over half expected their personal income to fall by an average of 43% during the next year. Many were considering leaving the profession altogether.
Self-employed dental professionals and associated staff such as dental technicians working with the NHS have felt the impact keenly. One survey revealed that half of dental nurses experienced a negative financial effect, a third had difficulty paying their GDC registration, and two-thirds considered leaving dentistry.
Long-lasting effects will impact dental patients
The financial difficulties experienced by dental practices will have a knock-on effect for patients. The GDC report highlighted that patients now face higher charges as dental practices try to cover costs. It is clear that patients are also more likely to experience difficulties in accessing treatment.
As the industry recovers from the turmoil caused by COVID-19, many dental practices will feel pressure to raise their income by offering more private dental treatments. Patients may find it harder to access NHS dental services. The huge backlog of patients needing dental care will only exacerbate this problem.
Are there solutions?
Financial support is available for some. The BDA provides a wealth of information and advice, including a summary of government business support. The Furlough scheme remains open until September 2021 and other grants and loans may be available.
Many practices have had to raise patient fees or revise staff contracts and profit-sharing arrangements to remain financially viable. Despite the awkward situation, clear communication with all those involved is recommended to foster support and avoid confusion.
For business owners, a flexible approach may help generate new avenues of income. Some practices have taken the opportunity to advance their skills and increase the range of treatments they offer, including private and cosmetic treatments.
Dental practices that provided care solely through the NHS, and private practices with a majority of patients on dental plans, seem to have fared best. For certain private practices, introducing patient finance plans may be a sensible approach.
Hopes of recovery
Despite widespread pessimism in 2020, the situation does appear to be improving as restrictions are eased and the vaccination campaign progresses. By March 2021, there were signs of a ‘strong recovery’, with 35% of practice owners reporting higher revenue now than before COVID-19. About 85% believed that revenue will have fully recovered by the end of quarter two.
Nevertheless, dental practices may struggle to meet pent-up demand, especially while infection control measures and restrictions on patient numbers remain. The offer of a 1% pay rise to NHS staff has also dented morale at a time when NHS dentistry needs to attract and retain skilled workers to address the backlog.
Recovery is in sight but there is no doubt the impact of the pandemic on dental services will be long-lived.
At Dental Defence Society, our expert advisory team provides 24-hour dento-legal advice and support to members. Please contact us for more information about our services.
Feb 23, 2021
The introduction of fallow times after aerosol-generating procedures (AGPs) was one of a barrage of safety measures that enabled dental practices to reopen in 2020, providing reassurance to patients and staff anxious about COVID-19.
Yet, a major downside is that fallow times of up to 60 minutes reduce capacity, hampering dentists’ efforts to provide for the backlog of patients needing oral healthcare.
Fortunately, current guidance includes a useful flow chart showing how to reduce fallow times to as little as 10 minutes with the right set up. This is what you need to know…
When is fallow time essential?
AGPs create a risk for SARS-CoV-2 transmission, so time is needed to allow potentially contaminated aerosols (airborne particles <5 μm) to be removed or diluted, known as Post–AGP Fallow Time.
Procedures using high velocity air and water streams are considered to be AGPs. These include: ultrasonic scalers, high-speed air/electric rotors (>60,000 rpm), Piezo surgical handpieces, and air polishers.
According to official guidance, airborne precautions, including fallow times, are needed when undertaking AGPs on the medium and high-risk pathways.
What are the recommended fallow times?
Within the official guidance published on 20 October 2020, all four UK Chief Dental Officers (CDOs) accepted the recommendations of the Scottish Dental Clinical Effectiveness Programme (SDCEP), including a pragmatic algorithm for determining fallow times based on ventilation and risk mitigation.
The Faculty of General Dental Practice UK (FGDP) and College of General Dentistry (CGDent) similarly updated their guidance.
Key recommendations are:
- No AGPs in a room without natural or mechanical ventilation.
- Baseline post-AGP fallow time of 30 minutes where there is ventilation with 1–5 air changes per hour (ACH) (or where ACH are unknown). Mitigation must also be used, such as high volume suction or a rubber dam.
- Baseline post-AGP fallow time of 20 minutes where there are 6–9 ACH, and 15 minutes where there are ≥10 ACH.
- Use of high-volume suction and a rubber dam reduces the time. With ≥6 ACH, use of both measures reduces the fallow time to a minimum of 10 minutes.
- AGP duration (<5 or ≥5 minutes) may also influence fallow time, which starts when aerosol production ends.
- Where ventilation is poor and suction not used, a fallow time of up to 60 minutes or alternative procedure (e.g. low-speed handpiece or hand scaling) should be considered.
You may find the Fallow Time Calculator useful – built by Flynotes and endorsed by England’s CDO, it incorporates the SDCEP recommendations.
Improving ventilation is key
Some dental surgeries are modern facilities designed for ≥10 ACH. If yours is not one of them, what can you do about it?
Ideally, you want to achieve a total flow rate of ventilation units at least 10× the room volume (ACH ≥10). To increase the total flow rate, consider:
Note that effectiveness of recirculating air purification devices varies depending on their air flow rate, air cleaning efficiency, and the room size. Correct positioning and maintenance are essential. Consequently, their flow rate should be halved when calculating ACH, unless they are independently validated.
Does the evidence justify the impact?
SDCEP recommendations were based on rapid review of the available evidence. The conclusions remain unchanged after an updated evidence review in January.
The review acknowledges that evidence for fallow times is very weak. As yet, no confirmed cases of SARS-CoV-2 transmission via dental aerosols have occurred.
Given the lack of data, dental professionals have challenged the need for fallow times, which have numerous negative impacts on dental services, including:
- Severely reduced capacity leading to unmet patient needs: more serious dental problems, increased antibiotics use, potential reduction in oral cancer diagnosis
- Concerns about ability to meet NHS targets for dental activity
- Loss of financial income, expense of ventilation equipment, uncertain practice viability
- Reduced range of services where ACH is suboptimal
- Longer surgery hours with the inconvenience of changing rooms
- Difficulties of planning patient flow
- Disturbance from noisy ventilation
- Staff anxiety and stress.
This list highlights the importance of optimising ventilation to minimise fallow times and safely increase capacity. Please contact us at Dental Defence Society if you need advice about implementing the guidelines.
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