Marcus Cameron assesses the unfairness of charges within the NHS dental system.
The NHS is lauded with praise by everyone. The public and politicians of all backgrounds hail our NHS as a crown jewel in this country as it is “free at the point of use”. It is a very different story for people wanting a different type of crown when they see their NHS dentist.
Prescriptions and dental treatments are just a couple of services subject to charges. These charges are downplayed somewhat necessary to keep up with demand for different things, but the charges seem completely extortionate for the ordinary person. While this country currently faces a cost-of-living crisis brought on by rising inflation from the war in Ukraine, the Truss & Kwarteng failure of a mini budget and, undisputedly, the mishandling of Brexit, people are being taxed out of dental treatments within the NHS and even from getting affordable prescriptions for medicine they need.
Now, the NHS do outline exemptions to charges for certain services on their website and, to a degree, they all seem fair. However, there have been cases recently where patients are suddenly subject to be charged for services and are given the wrong information and are then liable for fines. For example, the NHS Business Services Authority (BSA) had checked that a man who used to be exempt was provided with the wrong information by dental staff about his NHS Medical Exemption Certificate being applicable for free dental treatment, as it is for his prescription charges. This was not the case, a simple mistake, but the man was then informed he was apparently liable to pay a £100 Penalty Charge for the unintentional breach. The man in question was on the Autism Spectrum and relied on the simplified judgement of the clinic staff to help with his application to the clinic. Thankfully, after weeks and weeks of work having to operate within the NHS BSA’s needlessly difficult regulations, the case was finally resolved. However, this will not be the case for hundreds of people going through the same application and falling into similar circumstances. This is not their fault. It is the NHS BSA’s fault.
Firstly, under the law, any term of contract that does not regulate individuals on a case-by-case basis regarding the facts of their case are likely not binding and therefore an individual should not be held liable under s.62(1) and s.62(4) of the Consumer Rights Act 2015 as it would be unfair under necessary consideration. It is a great shame in cases involving medical treatment in the UK that the CRA 2015 should be mentioned at all. Furthermore, the ruling of the common law case Parker v South Eastern Railway  implies that, in cases in which terms of contract are not expressly disclosed at the point of signing, the person who signed cannot be held liable for these “hidden” clauses and are not obligated by law to fulfil punishments for proven unintentional breaches. The NHS BSA has flagrantly violated these terms in certain cases, either through act or omission.
It appears that when it comes to cases that happen by accident, there is no official way to mitigate or remedy the case beyond submitting information one might not have into an automatic system and letting an algorithm decide whether a challenge is valid or not. This is a specific case regarding the governance of NHS BSA and how it operates in relation to cases where people may not be fully aware of details they would need to know when challenging a case and acting appropriately on the initial application form. And the NHS BSA are getting away with using it and it is ordinary people that are suffering from this. It’s a wonder, with the state of the NHS BSA, why more people are ambivalent about signing up to NHS dental clinics when you consider both fees and unfair fines.
What can people do currently? They can always notify their MP when cases arise, but there’s minimal chance of them being able to bring it up in Parliament. They can notify the Parliamentary & Health Services Ombudsman, but cases take nearly a year to resolve according to their own website. As a dramatic alternative, people can try and take the NHS BSA to court, but it wouldn’t be worth it for the legal fees alone (let alone the fact that this is not a blanket issue that can be solved with a simple court ruling).
Labour desperately needs to advocate for better services provided by the NHS when in government, but this is always a practical guarantee under a Labour government. Crucially however, Labour should consider extending exemptions for people, particularly those in extraordinary circumstances, starting with bridging the gap between what constitutes as a prescription exemption and what is considered a dental charge exemption and making both kinds of exemptions universal for both services. Labour also needs to rectify the issues with raising disputes with the NHS BSA in order to ensure that cases involving unintentional breaches of contract by the patient when it comes to their treatment are dealt with fairly and equitably. If the NHS is truly “free at the point of use”, it also needs to show the same compassion to patients who are caught in these cases. Otherwise that crown jewel we all hold on its pedestal, very correctly so, will start to lose its shine.
Marcus Cameron is an actor, singer and activist based in Warrington, Cheshire. He is studying Law at University of Law, Manchester. He tweets at @MCLabActivist.