Nandhra v Lothian Health Board
Although the recent judgment in the Scottish case of Nandhra v Lothian Health Board [2026] CSIH 11 concerned a dentist who had been providing NHS services, the law is equally applicable to pharmacy owners in Scotland and England (read on).
The case sheds an interesting light on how, in certain circumstances, a pharmacy owner might lose an NHS contract, even in a case where a pharmacy owner acted honestly and lawfully, but a Health Board or Integrated Care Board objected to the way a pharmacy owner maximised the available NHS income.
The facts of the Nandhra case
During the COVID-19 pandemic, the Scottish Government supported NHS dental practices by way of a “top-up payment”. NHS dental practices would be paid on an unconditional basis, 85% of their pre-COVID gross income. Entitlement to the payment of 85% of pre-COVID gross income required a practice to achieve a throughput of NHS patients of at least 20% of pre-pandemic levels. At the other end of the scale, no NHS activity and deregistration of NHS patients would result in withdrawal of NHS financial support entirely.
On 18 January 2021, Dr Nandhra, a dental practice owner, emailed dentists he employed, saying:
“The grant is now guaranteed… I think we should slow down on the number of patients we see daily. This is because we are still getting the grant whether we see 10 or 100 patients…”
Section 29 of the NHS Scotland Act 1978
Section 29 of the National Health Service (Scotland) Act 1978 provides that if the NHS Tribunal receives representations from a Health Board, that a person who is included in a performers list (as Dr Nandhra was) is unsuitable (by virtue of professional or personal conduct) to continue to be included, in the list, the Tribunal must inquire into the case and disqualify the performer if unsuitability is found.
The allegation
The allegation against Dr Nandhra was that his email was a profit-motivated instruction to exploit the system by reducing the number of NHS patients seen, damaging patients’ interests because of, for example, waiting lists increasing.
There was also an allegation of fraud.
Tribunal findings
- The instruction in the email to “slow down on the number of patients we see daily” was plainly an instruction to see fewer patients.
- The purpose of the NHS was to provide high-quality healthcare, free at the point of use, in a timely manner.
- A dentist is obliged to put patient care first. Dr Nandhra had undermined that purpose. He had drawn funds from the NHS without providing the expected level of patient care and he had, by reducing the availability of appointments, created a systemic burden of increasing waiting times.
- An allegation of fraud was not proved because Dr Nandhra had not secured a benefit to which he was not entitled.
- Whilst accepting that Dr Nandhra claimed only payments he was legally entitled to, he had artificially limited the number of NHS patients his practice would see, maximising his return from the scheme in a manner compliant with its letter, but not its spirit. He chose profit over patient care.
- Dr Nandhra’s deliberate approach displayed a complete lack of concern for delivery on behalf of the NHS and/or for patient care. It was a conscious decision to adopt a tack which he knew would be detrimental to patients’ interests for no reason other than to benefit his practice financially. This amounted to exploitation of the system at the expense of both the NHS and patient care.
- The Tribunal said:
“The top up payment of 85% was intended to act as a safety net to ensure preservation of practices and continuity of income. It was not intended to act as a lavish gift or an invitation to be unethically abused for financial advantage. The clear intention behind remobilisation was to encourage practices to speed up seeing and caring for patients, in order to begin to tackle the backlog of patients awaiting care and to meet ever-increasing patient needs.”
The Tribunal found the unsuitability ground made out. The Tribunal disqualified Dr Nandhra from providing NHS dental services.
The appeal
Dr Nandhra appealed against the Tribunal decision to the Second Division, Inner House of the Court of Session (Lord Justice Clerk, Lord Malcolm and Lord Armstrong). The Court dismissed the appeal. The Court ruled:
- Dr Nandhra’s policy was at odds with the primary obligation of dentists to put patients interests first.
- The Tribunal’s function was to balance the interests of the public in relation to the proper operation of the health service and the interests of persons pursuing a dental career.
- The professional requirements of a person carrying out skilled dental procedures at the expense of the public purse – for which the trust of individual patients, patients generally and health boards is essential – could not be met by Dr Nandhra.
- The finding that Dr Nandhra had exploited the system and sought to sustain a level of payment under a scheme intended to mobilise dental services after their pandemic-enforced disruption, whilst reducing the numbers of patients he treated for financial benefit, and no therapeutic reasons so far as his patients were concerned, demonstrated a serious lack of integrity even if the tribunal did not use that term and even though Dr Nandhra had not been found to be dishonest.
- The reduction in the number of appointments available and maximisation of practice income over a period of four months at the expense of patients was a paradigm of lack of professional integrity.
- If Dr Nandhra had not been disqualified from the health board list but his patients knew what he had done and why, the Court considered that his patients would have been unlikely to continue to seek his services.
Applicability to pharmacy owners and to England
Section 29 of the National Health Service (Scotland) Act 1978, which was the basis of the Tribunal case against Dr Nandhra, applies to all NHS providers in Scotland, including pharmacy owners. It has a parallel in section 151 of the National Health Service Act 2006, which applies to England.
Section 151 provides that if it is established that a pharmacy owner is unsuitable to be included in the pharmaceutical list, NHS England may remove the pharmacy owner from the list (ie take away the NHS contract). If the pharmacy owner is a company, then the company may be removed from the pharmaceutical list if anyone who controls the company is unsuitable.
Reflections
- Unsuitability cases in England have so far been exceedingly rare.
- The Court of Session looked at whether Dr Nandhra lacked integrity. Dr Nandhra’s case was not a Fitness to Practise case. Lack of integrity – which is distinct from dishonesty – is a concept that is often considered in Fitness to Practise and disciplinary cases when a healthcare professional or practitioner is accused of misconduct (see chapter 25 of Dale & Appelbe’s Pharmacy and Medicines Law, 13th edition – pages 554 and 555 of the print edition).
- If a pharmacy owner arranged to provide services in a particular way, while complying with the terms of the Drug Tariff or in accordance with contractual terms laid down by an NHS commissioner, and the pharmacy owner acted honestly, is the pharmacy owner at risk if the motivation is to maximise NHS income?
- Would a lawyer whose advice was sought on arrangements have to advise on ethics as well as the law?