The National Health Service (Tribunal) (Scotland) Regulations 2004

PART V PROCEDURE FOR DEALING WITH REVIEW

Procedure in regard to application to the Tribunal for a review

24.—(1) An application to the Tribunal shall–

(a) be made in terms of Form 5 and shall–

(i) contain a concise statement of the alleged facts and grounds upon which the applicant intends to rely; and

(ii) be signed by the applicant or on the applicant’s behalf by some person authorised by the applicant;

(b) subject to paragraph (2), be accompanied by 2 copies of each document which the applicant proposes to put in evidence; and

(c) be sent together with the copies of each document relevant to it to the clerk to the Tribunal.

(2) If a document which the applicant proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the applicant shall not be required to submit copies of it.

(3) If it appears to the Tribunal, after due consideration of an application, that no good cause has been shown why an inquiry should be held for the purposes of any review, it may refuse to hold an inquiry and shall inform the applicant of its refusal to hold an inquiry, and its reasons for that refusal in writing.

(4) Where the Tribunal considers that an inquiry should be held, the clerk to the Tribunal shall send to the respondent and to any Health Board or primary care NHS trust (not being the applicant or the respondent) which was represented at the inquiry following which the decision, in respect of which the application relates, was made–

(a) a notice in terms of Form 6 informing the respondent or the Health Board or primary care NHS trust that an application has been made by the applicant and that the Tribunal considers that an inquiry should be held;

(b) 1 copy of the application and of each document, if any, which accompanied it; and

(c) information as to arrangements by which any document which the applicant proposes to put in evidence, but which the applicant is not required to submit copies of in accordance with paragraph (2), may be examined by the respondent and any such Health Board or primary care NHS trust.

(5) As soon as may be practicable after sending a copy of the application in terms of paragraph (4), the clerk to the Tribunal shall–

(a) fix a date and time at which an inquiry shall commence and the place where it will be held; and

(b) not less than 2 weeks before the date fixed for the inquiry to commence, send to–

(i) the applicant;

(ii) the respondent; and

(iii) any Health Board or primary care NHS trust to whom a notice in terms of Form 6 has been sent pursuant to paragraph (4),

a notice in terms of Form 7 containing the information referred to in sub-paragraph (a).

(6) Except where the application is made by a Health Board or primary care NHS trust under section 30(3)(b) or (c) of the 1978 Act(1), an applicant may at any time before the inquiry commences, with the consent of the Tribunal and on such terms as it thinks fit, withdraw the application by giving notice of withdrawal to the clerk to the Tribunal and the clerk to the Tribunal shall so inform the rest of the parties in writing.

(7) Where the application is made by a Health Board or primary care NHS trust under section 30(3)(b) or (c) of the 1978 Act the provisions of regulations 7 (power of the Tribunal to require further statement), 14 (power to treat representations as withdrawn in certain cases), 15 (withdrawal of representations), 20 (power to dispense with oral inquiry), 22 (applications for interim suspension) and 23 (statement by the Tribunal following an inquiry on interim suspension) shall have effect with respect to an application as they apply to representations as if–

(a) in regulation 7–

(i) “complainer” read “applicant” in both places where it appears;

(ii) in paragraph (a) “representations are” read “application is”;

(iii) in paragraph (b) “complainer's” read “applicant's” in both places where it appears; and

(iv) in paragraph (c) “representations” read “application”;

(b) in regulation 14–

(i) “complainer” read “applicant” in both places where it appears;

(ii) in paragraph (a) “regulation 12 (notice of inquiry)” read “regulation 24(5)”; and

(iii) “representation” read “application”;

(c) in regulation 15–

(i) in paragraph (1) “complainer” read “applicant”;

(ii) in paragraphs (1) and (2) “representations” read “application”;

(iii) in paragraph (3)–

(aa) “representations have” read “application has”;

(bb) sub-paragraph (c) were omitted; and

(iv) paragraph (4) were omitted;

(d) in regulation 20–

(i) in paragraph (1)–

(aa) “Subject to paragraph (2),” were omitted;

(bb) “representations are” read “an application is”; and

(cc) “representations” in the second place where it occurs read “application”; and

(ii) paragraph (2) were omitted;

(e) in regulation 22–

(i) “complainer” read “applicant” at every place where it appears; and

(ii) the provisions referred to in paragraph (9) shall have effect as indicated but, additionally, as if “complainer” read “applicant”; and

(f) in regulation 23(2) “complainer” read “applicant”.

(8) The provisions of regulations 13 (power to postpone inquiry), 16 (failure to appear at inquiry), 18 (representation and evidence at inquiry) and 19 (procedure at and provisions as to inquiry) shall have effect with respect to an inquiry held in relation to an application as they apply to an inquiry held in relation to a representation as if–

(a) in regulation 13 “complainer” read “applicant”;

(b) in regulation 16(1) “regulation 12 (notice of inquiry)” read “regulation 24(5)”; and

(c) in regulation 18–

(i) in paragraph (1)(b), “complainer (not being a Health Board or primary care NHS trust) and the respondent” read “applicant and the respondent (other than an applicant or respondent which is a Health Board or primary care NHS trust)”; and

(ii) in paragraphs (1)(b)(iii),(iv) and (2) “complainer” read “applicant”.

Statement by the Tribunal following review

25.—(1) As soon as may be practicable after the conclusion of an inquiry in relation to an application, the Tribunal shall prepare a statement under the hand of the chairman of the Tribunal who presided over the inquiry stating–

(a) its findings of fact;

(b) the conclusions it has reached;

(c) any determination it makes in accordance with section 30(2) or (5), and where applicable, subsection (6), of the 1978 Act, or where it is of the opinion that the disqualification of the applicant for inclusion in any list to which a direction under paragraph 4(1) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act related should be removed, a direction under paragraph 5 (termination of directions) of the said Schedule to that effect; and

(d) any order it makes as to expenses.

(2) The clerk to the Tribunal shall–

(a) send a copy of the statement prepared pursuant to paragraph (1) to–

(i) the Scottish Ministers;

(ii) the applicant; and

(iii) the respondent;

(b) where the Tribunal, following a review –

(i) in the case of a practitioner subject to a disqualification, or a conditional disqualification, does not remove the disqualification or conditional disqualification, under section 30(2) or (5) of the 1978 Act;

(ii) in the case of a practitioner subject to a declaration of unfitness, does not provide that a declaration of unfitness is to cease to have effect under section 30(2) of the 1978 Act; or

(iii) in the case of a practitioner subject to a direction under paragraph 4(1) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act, does not make a direction under paragraph 5 (termination of directions) of Schedule 1 to the 1997 Act(2),

inform the practitioner of the practitioner’s right of appeal under section 11 of the Tribunal and Inquiries Act 1992 in respect of the Tribunal’s decision.

(3) Except for a Health Board or primary care NHS trust to whom a copy of the statement has been sent pursuant to paragraph (2)(a), the Scottish Ministers shall send a copy of the statement to such Health Boards or primary care NHS trusts or relevant professional body as appear to them concerned.

(1)

1978, c. 29; section 30(3)(b) and (c) of the 1978 Act were substituted by the Health Act 1999 (c. 8), section 58.

(2)

1997, c. 46.