Challenge ready to take on the government
 

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Challenge ready to take on the government

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Challenge ready to take on the government

 

Challenge ready to take on the government

A new pressure group for dentists is urging practitioners upset with how the new contract has affected their business to take legal action against the Department of Health (DoH).

Challenge was established last month to provide help and support for dentists who feel they have been dealt with harshly by Primary Care Trusts (PCTs) following the introduction of the new contract in April.

The organisation is now calling for dentists to come forward and join together in taking their issues to court.

Eddie Crouch, a founding member of Challenge, said: ‘There is no doubt that some of the terms within the contract have affected the businesses and livelihoods of many. If you have been damaged by an unfair contract, it remains open to challenge. Many would feel, and rightly so, that their human rights have been infringed. This too should be tested in court.

‘There are multiple examples of where a legal challenge could originate; unfair calculation of UDA targets and the destruction of practice goodwill are just two. Each of us has a contract that varies slightly, but common themes are emerging. One victory in court will force change for the better for everyone. I urge you all to seek challenge through the courts with our help and support.’

Mr Crouch, who is also committee secretary for Birmingham Local Dental Committee, believes that the authorities are failing to deal effectively with the contracts that were signed ‘in dispute’.
‘The introduction of a non-negotiated and enforced contract has left many in the dental profession feeling powerless,’ he added. ‘Even more so when the promised dispute resolution machinery, the NHS Litigation Authority in Harrogate, proves non investigative and biased towards the Primary Care Trusts. The PCT’s evidence goes unchallenged and that results, not surprisingly, in most disputes being rejected.
‘This is compounded by unhelpful advice from our supporting bodies. Many individual practitioners have descended into depression and a fatalistic acceptance of their unfair treatment. For most that has meant an end to their fight for justice. Just because terms and conditions exist in regulations does not make them fair.
‘The new NHS contracts were hurriedly introduced and most PCTs lacked the skill and experience to implement such a new system so rapidly. Errors have been made in drafting legislation and by PCTs in constructing contracts. Alternative legal opinion would say the contract is littered with holes and it is via these holes that legal challenge can and will in certain circumstances be successful.’

Mr Crouch feels there are many grounds on which a legal challenge can be based.
‘In English law, one essential requirement to form a contract is mutual assent,’ he said. ‘Mutuality implies that the contracting parties understood and agreed to the basic substance and terms of the contract. According to one legal opinion at least, the DoH abused its economic power as a major purchaser of dental services, and took away dentists’ fundamental freedom to evaluate and agree the terms of the proposed contracts.
‘A challenge can be mounted on grounds that the contract is oppressive, inconsistent with the conventions of English contract law and counter to natural justice. The duty to act fairly can be enforced by means of Judicial Review, and this option is open to those that are still within the time frame allowed (three months from the time of the NHS Litigation decision).
‘There may be other similar grounds within the contract that groups of practitioners wish to gather around and take some form of collective class action. It is hoped that Challenge will be the body to unite you in doing so. It only needs one practitioner in the group to have legal cover in his practice insurance for this action to be risk and cost free for the practitioner, and may allow others without such insurance to join in the class action. Whilst Judicial Review has a tight time frame, commercial law on contracts allows up to six years for a challenge to be made.’

 Posted on : Mon 6th - Nov - 2006

 

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