The National Health Service (General Medical Services Supplementary Lists) (Scotland) Regulations 2003

Citation, commencement and extent

1.—(1) These Regulations may be cited as the National Health Service (General Medical Services Supplementary Lists) (Scotland) Regulations 2003 and, subject to paragraph (2), come into force on 28th February 2003.

(2) Regulation 15(b) will come into force on 1st August 2003.

(3) These Regulations extend to Scotland only.

Interpretation

2.  In these Regulations, unless the context otherwise requires–

“the 1995 Regulations” means the National Health Service (General Medical Services) (Scotland) Regulations 1995(1);

“the Agency” means the Common Services Agency for the Scottish Health Service constituted under section 10 of the Act;

“the Act” means the National Health Service (Scotland) Act 1978;

“Area Medical Committee” means the committee of that name recognised under section 9 of the Act in whose area services under these Regulations are provided;

“Area Pharmaceutical Committee” means the committee of that name recognised under section 9 of the Act in whose area service under these Regulations are provided;

“Board” means a Health Board or a National Health Service trust having functions under section 19(1) of the Act;

“child health surveillance services” means the medical services set out in Schedule 3 to the 1995 Regulations;

“contraceptive services” means–

(i)

the giving of advice to women on contraception,

(ii)

the medical examination of such women,

(iii)

the contraceptive treatment of such women, and

(iv)

the supply to such women of contraceptive substances and appliances;

“Drug Tariff” has the meaning assigned to it in regulation 9 of the National Health Service (Pharmaceutical Services) (Scotland) Regulations 1995(2);

“EEA state” means a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992(3) as adjusted by the Protocol signed at Brussels on 17th March 1993(4);

“GP Registrar” means a doctor who is being trained in general practice by a doctor whose name is included in a medical list;

“maternity medical services” has the meaning assigned to it by regulation 2(1) of the 1995 Regulations;

“medical practitioner” means a registered medical practitioner;

“Medical Register” shall be construed in accordance with section 34 of the Medical Act 1983(5);

“minor surgery services” has the meaning assigned to it by regulation 2(1) of the 1995 Regulations;

“nationally disqualified” means disqualified for inclusion in all lists by the Tribunal in accordance with section 29(3) of the Act or in accordance with any corresponding provisions in force in England, Wales or Northern Ireland;

“nurse prescriber” has the meaning assigned to it by regulation 1(1A) of the 1995 Regulations;

“pharmacist” means a registered pharmacist within the meaning of the Medicines Act 1968(6) who provides pharmaceutical services, or a person lawfully conducting a retail pharmacy business in accordance with section 69 of that Act who provides such services;

“principal” means the medical practitioner, who is assisted in the provision of general medical services by a person whose name is included in a supplementary list;

“relevant service” means whole time service in the armed forces of the Crown in a national emergency, as a volunteer or otherwise, or compulsory whole-time service in those forces, including any service resulting from any reserve liability, or any equivalent service by a person liable for compulsory whole-time service in those forces;

“scheduled drug” means a drug or other substance specified in Schedule 10 or, except where the conditions specified in paragraph 10(2) of Schedule 1 to these Regulations are satisfied, Schedule 11 to the 1995 Regulations;

“suspended” means suspended as respects the provision of general medical services by a direction of the Tribunal made pursuant to section 32A(2) or 32B(1) of the Act or under or by virtue of any provisions corresponding thereto in England, Wales or Northern Ireland;

“Tribunal” means the Tribunal constituted under section 29 of the Act.

Supplementary lists

3.  A medical practitioner whose name is included in a supplementary list shall comply with the terms and conditions for inclusion in a supplementary list set out in Schedule 1 to these Regulations.

Contents of supplementary lists

4.—(1) Each Board shall prepare a supplementary list of all medical practitioners approved by it to assist in the provision of general medical services which it has arranged in accordance with section 19(1) of the Act.

(2) A medical practitioner’s name may be included in a supplementary list for the purpose of assisting in the provision of general medical services which may include either or both of the following:–

(a) child health surveillance services;

(b) minor surgery services.

(3) A supplementary list shall contain–

(a) the name and professional registration number in the Medical Register of each medical practitioner approved;

(b) if appropriate, the services set out in paragraph (2)(a) or (b) which each such medical practitioner will provide; and

(c) provided that the medical practitioner consents to its inclusion, the practitioner’s date of birth or, if there is no consent, the date of first full registration as a medical practitioner (whether pursuant to the Medical Act 1983 or otherwise).

Amendment of or withdrawal from supplementary list

5.—(1) A medical practitioner shall, unless it is impracticable to do so, give notice to the Board within 30 days of any occurrence requiring a change in the information recorded in the supplementary list.

(2) A medical practitioner shall, unless it is impracticable to do so, give notice in writing to the Board at least 90 days in advance of any date on which the practitioner intends either–

(a) to withdraw from the supplementary list; or

(b) to cease to assist in providing child health surveillance services, or minor surgery services.

(3) Subject to paragraph (5) the Board shall–

(a) on receiving notice from any practitioner pursuant to paragraph (1), so amend the supplementary list; and

(b) in the case of a notice pursuant to paragraph (2), so amend the supplementary list, either–

(i) on the date which falls 90 days after the date of the notice or, if later, the date with effect from which the practitioner has indicated in the notice pursuant to paragraph (2) of withdrawal; or

(ii) on the date from which the Board has agreed that the withdrawal or cessation shall take effect,

whichever is the earlier.

(4) Any notice pursuant to paragraph (2) may not be withdrawn except with the consent of the Board.

Removal from supplementary list of names of medical practitioners not providing services

6.—(1) Where a Board, with a view to securing that arrangements are such that all persons in the area who avail themselves of general medical services receive adequate personal care and attendance, has determined in accordance with the provisions of this regulation that a medical practitioner whose name is included in a supplementary list has for the preceding 12 months not assisted in the provision of general medical services personally for persons in the area, it may, after giving 30 days' notice in writing of its intention to do so, remove the practitioner’s name from such list, unless the Scottish Ministers direct to the contrary, in accordance with the following provisions.

(2) In calculating the period of 12 months referred to in paragraph (1) the Board shall disregard any period during which the medical practitioner was suspended

(3) If in the case of a medical practitioner whose name is included in the supplementary list–

(a) a Board has determined that the practitioner has not for the preceding 12 months assisted in the provision of general medical services personally for persons in the area, and

(b) section 19(7) (which deals with suspension of the registration of a doctor) of the Act applies,

the Board may after giving the medical practitioner 30 days' notice in writing of its intention to do so, remove his name from the supplementary list, unless the Scottish Ministers direct to the contrary, in accordance with the following provisions.

(4) Before making any determination under paragraphs (1) or (3) the Board shall afford the medical practitioner an opportunity to make representations to it in writing or, if requested, orally, to a committee appointed by the Board for the purpose, of which committee at least one-third of the members shall be medical practitioners.

(5) A medical practitioner to whom notice has been given under paragraphs (1) or (3) may within 21 days of receiving such notice appeal to the Scottish Ministers against the decision of the Board and, pending the decision on any such appeal, the Board shall not remove the practitioner’s name from the list by reason of the determination against which appeal has been so lodged. The notice of appeal shall be in writing and shall set out the facts and contentions on which the practitioner intends to rely. If the Scottish Ministers allow the appeal, they shall direct the Board not to remove the name of the practitioner from the list by reason of the determination appealed against.

(6) Nothing in this regulation shall affect a medical practitioner who is performing a period of relevant service and no determination under this regulation shall be made in respect of any such doctor until 6 months after he has completed the said relevant service.

Removal from supplementary list on grounds of death etc.

7.  Where a Board determines that a medical practitioner whose name has been included in a supplementary list–

(a) has died;

(b) is no longer a medical practitioner;

(c) is the subject of a direction given by the Professional Conduct Committee under section 36 of the Medical Act 1983 (erasure of name from the register or suspension of registration) or of an order made by that Committee under section 38(1) of that Act (immediate suspension);

(d) has been convicted in the United Kingdom of murder; or

(e) has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of at least six months,

it shall remove the practitioner’s name from the supplementary list with effect from the date of its determination or, in the case of (c) above, the date on which the direction or order takes effect, if that date is later than the date of the Board’s determination.

Application for inclusion in supplementary list

8.—(1) Application by a medical practitioner for inclusion in a supplementary list shall be made to the appropriate Board in writing and shall include the information and undertakings specified in Schedule 2 to these Regulations.

(2) An application under this regulation by a medical practitioner who is a national of an EEA state shall be accompanied by evidence that the doctor has a knowledge of English which, in the interests of himself and his patients, is necessary for assisting in the provision of general medical services.

(3) A medical practitioner may apply to be approved to assist in the provision of child health surveillance services or minor surgery services at the same time as the practitioner applies for inclusion in the supplementary list.

(4) Where paragraph (3) applies the applicant shall provide–

(a) details of medical experience and qualifications relevant to any such services after first date of registration; and

(b) where practicable, at least one reference relative to such experience in relation to any such services.

(5) A Board shall consider and determine an application to assist in the provision of any such services at the same time as it considers and determines an application under paragraph (1) and shall give reasons for its determination.

Consideration of applications

9.—(1) Before determining an application in accordance with this regulation, a Board shall check, so far as practicable, the information provided by the applicant and any relevant documents.

(2) A Board shall refuse to include the name of an applicant in its supplementary list if–

(a) it is not satisfied that the applicant either is suitably experienced within the meaning of section 21 of the Act or is a GP Registrar;

(b) it is not satisfied that he has the knowledge of English which, in the applicant’s own interests and those of patients, is necessary for assistance in the provision of general medical services;

(c) the applicant has been convicted in the United Kingdom of murder;

(d) the applicant has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of at least six months;

(e) the applicant has been nationally disqualified; or

(f) having contacted referees provided by the applicant, it is not satisfied with the references.

(3) If a Board refuses to include an applicant’s name in its list, it shall notify the applicant of its decision and the reasons for it (including any facts on which it has relied) and of any right of appeal under regulation 14.

(4) A Board shall defer determination of an application for inclusion in a supplementary list–

(a) where the applicant is the subject of criminal proceedings in the United Kingdom, conviction in respect of which would be likely to lead to refusal to include in, or removal from, a supplementary list;

(b) where the applicant is the subject of investigation or proceedings relating to the applicant’s professional conduct by any regulatory body in the United Kingdom the outcome of which could result in refusal to include in, or removal from, a supplementary list;

(c) where the applicant is the subject of proceedings in the United Kingdom which could result in the applicant being removed, or suspended, from a medical list or any corresponding or similar list in England, Wales or Northern Ireland;

(d) where the applicant is suspended; or

(e) where the applicant has appealed against a suspension referred to in sub paragraph (d),

and the Board shall notify the applicant of the deferral and its reasons in writing.

(5) A Board shall defer a determination under paragraph (4) only until the outcome of the relevant event is known.

(6) Once the outcome of the relevant event is known, the Board shall require the applicant to update the application within 28 days (or such longer period as the Board specifies) with any further relevant information and on the expiry of the relevant period shall again consider the application and notify the applicant of its determination and the reasons for it (including any facts relied on) and any right of appeal.

Reinclusion in supplementary list

10.  Where a medical practitioner’s name has been removed from a supplementary list on grounds of conviction of a criminal offence and that conviction is overturned on appeal, the Board may include that medical practitioner’s name in its supplementary list without a full application being made in accordance with regulation 8 if it is satisfied that there are no other matters which it should consider and provided that it receives undertakings to comply with these Regulations.

Publication of particulars

11.—(1) A Board shall make available for inspection at its office copies of–

(a) the supplementary list; and

(b) the terms and conditions for medical practitioners included the supplementary list as set out (from time to time) in Schedule 1 to these Regulations,

and shall keep them up-to-date.

(2) A Board may make either of the documents described in paragraph (1) available for inspection at such other places as appear convenient for informing all persons interested, or may publish at such places a notice of the places and times at which copies of any of those documents may be inspected.

(3) Subject to paragraph (4), the Board shall–

(a) send a copy of the supplementary list to the Scottish Ministers, the Area Medical Committee and the Area Pharmaceutical Committee and to all pharmacists providing pharmaceutical services in the area; and

(b) at intervals of not more than 90 days notify them of any alterations.

(4) If the Board considers that only parts of the medical list, or that only some alterations, are likely to concern the Area Medical and Pharmaceutical Committees or pharmacists, it may send to them a copy of those parts or alterations only.

Arrangements for supply of drugs and appliances

12.  Where a Board has required a principal, in accordance with regulation 34 of the 1995 Regulations (arrangements for supply by doctors of drugs and appliances), to supply drugs and appliances to a person for whose treatment he is responsible, a medical practitioner who assists that principal in the supply of such drugs and appliances shall comply with any requirement imposed on the principal by the Board or by these Regulations.

Payments

13.—(1) Where the Agency considers that–

(a) a payment made by it in accordance with regulation 35 of the 1995 Regulations was not due; and

(b) a medical practitioner whose name is included in a supplementary list has assisted in relation to any matter related to the claim made in respect of it,

the Board may draw the overpayment to the attention of that practitioner and invite that practitioner to make representations in relation to it or the assistance which that practitioner may have rendered.

(2) Where the Board decide that there has been an overpayment for which the practitioner is responsible, in whole or in part, the amount overpaid or such part shall be recoverable from the practitioner as a debt.

Appeal to the Scottish Ministers

14.—(1) A medical practitioner whose–

(a) application for inclusion in a supplementary list is refused under regulation 9; or

(b) application to be approved to assist in the provision of services under regulation 8(3) is refused,

may appeal on a point of law to the Scottish Ministers.

(2) A practitioner may appeal by sending to the Scottish Ministers a notice of appeal within 21 days, or within such longer period as the Scottish Ministers may for reasonable cause allow, of the date on which notice of the decision of the Board is given to that practitioner.

(3) A notice of appeal shall contain a concise statement of the point or points of law in respect of which the practitioner contends that the decision of the Board is erroneous.

(4) If it appears to the Scottish Ministers that the appeal is of such a nature that it can properly be determined without a hearing, they may determine the appeal summarily without a hearing and shall send their decision to the appellant and the Board.

(5) If the Scottish Ministers are of the opinion that a hearing is required, they shall appoint–

(a) a person who is an advocate or a solicitor; and

(b) where they see fit, one or more other persons,

to hear the appeal.

(6) A hearing shall take place at such time and place as the Scottish Ministers may direct and notice of the hearing shall be sent by post to the appellant and the Board not less than 14 days before the date fixed for the hearing.

(7) The appellant may attend and be heard in person or by counsel or solicitor or other representative and the Board may be represented at the hearing by any duly authorised member or official or by counsel or solicitor.

(8) Subject to the provisions of this regulation, the procedure at the hearing shall be such as the person or persons hearing the appeal may determine.

(9) The person or persons hearing the appeal shall report thereon to the Scottish Ministers, stating the relevant facts and conclusions, and the Scottish Ministers after taking such report into consideration shall give their decision and send it to the appellant and the Board.

(10) Where, on allowing an appeal, the Scottish Ministers remit an application to the Board for reconsideration–

(a) they shall give to the Board such directions as appear to them to be desirable with a view to ensuring the proper determination of the application in accordance with the relevant law; and

(b) the Board shall redetermine the application and in so doing shall comply with any directions given by the Scottish Ministers under sub-paragraph (a).

Consequential amendments

15.  Schedule 1 to the 1995 Regulations is amended as follows–

(a) in paragraph 18(1) there is inserted after “sub paragraph (2),” “(2A),”;

(b) after paragraph 18(2) there is inserted–

“(2A) The practitioner shall only appoint an assistant or deputy whose name is included in the appropriate medical list or supplementary list.”;

(c) in paragraph 18(5) there is inserted after “sub-paragraph (6)”, “or (6AA)”;

(d) there is inserted after paragraph 18(6A),

“(6AA) Where a doctor whose name is included in the supplementary list of a Board or primary care NHS trust assists another doctor whose name is included in the medical list of that Board or trust in the provision of general medical services, the first named doctor shall alone be responsible for his acts and omissions in relation to the obligations under the terms and conditions applying by virtue of the inclusion of that doctor’s name in that supplementary list and for the acts and omissions of any person employed or acting on behalf of that doctor.”.

(e) in paragraph 19 there is inserted after sub paragraph (2)(a)(iv)–

“and

(v) will be included in the appropriate medical list or supplementary list; and”.

MALCOLM CHISHOLM

A member of the Scottish Executive

St Andrew’s House, Edinburgh

5th February 2003