The National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009

Regulation 5(10)

SCHEDULE 3 S THE BOARD

Receipt and notification of applications S

1.—(1)  [F1 The Board shall within 10 working days of receiving an application to which regulation 5(10) applies, or receiving further information submitted under regulation 5(2E) (whichever is the later), give written notice of the application to]–

(a) the Area Pharmaceutical Committee;

(b) the Area Medical Committee;

(c) any person whose name is included in the pharmaceutical list or the provisional pharmaceutical list and whose interests may, in the opinion of the Board, be significantly affected if the application were granted;

(d) any Board whose boundary is within two kilometres of the proposed premises,

and any person or body so notified may, within 30 days from the date on which the notification was sent to such person or body, make written representations about the application to the Board.

(2) Any Board which is notified under sub-paragraph (1)(d) above shall, within 5 working days, give written notice of the application to–

(a) its Area Pharmaceutical Committee;

(b) its Area Medical Committee;

(c) any person whose name is included in its pharmaceutical list or the provisional pharmaceutical list and whose interests may, in the opinion of the said Board be significantly affected if the application were granted,

and any person so notified may, within 30 days from the date on which the notification was sent to the said Board, make written representations to the Board to whom the application was made.

(3) Any notice given under sub-paragraph (1) or (2) above shall include a statement of the right to make representations in accordance with that sub-paragraph.

Textual Amendments

F1 Words in sch. 3 para. 1(1) substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(2) (with reg. 10)

Commencement Information

I1 Sch. 3 para. 1 in force at 1.7.2009, see reg. 1

Public consultation S

2.  The Board shall, on receipt of an application to which regulation 5(10) applies, take reasonable steps to consult with persons to whom pharmaceutical services may be provided as a result of that application.

Commencement Information

I2 Sch. 3 para. 2 in force at 1.7.2009, see reg. 1

[F2 Dispensing doctor notification S

2A.   The Board shall, at the same time as giving written notice of the application under paragraph 1(1), give written notice of the application to any dispensing doctor who dispenses from premises in the neighbourhood to which the application relates.]

Textual Amendments

F2 Sch. 3 para. 2A inserted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(3) (with reg. 10)

Determination of applications S

3.—(1) In considering an application to which regulation 5(10) applies, the Board shall have regard to–

(a) the pharmaceutical services already provided in the neighbourhood of the premises named in the application by persons whose names are included in a pharmaceutical list;

(b) pharmaceutical services to be provided in the neighbourhood at these premises by any person whose name is included in the provisional pharmaceutical list;

(c) any representations received by the Board under paragraph 1;

(d) any information available to the Board which, in its opinion, is relevant to the consideration of the application; F3 ...

[F4 (e) any responses received in the 60 days following consultation in accordance with paragraph 2; and

(f) the pharmaceutical care services plan.]

(2) The Board may, in accordance with this Schedule, determine any application in such manner as it thinks fit and may, if it considers that oral representations are unnecessary, determine the application without hearing any oral representations.

(3) In any case in which the Board decides to hear oral representations, it shall give the applicant and any person from whom it received representations under paragraph 1 reasonable notice of the meeting at which such representations are to be heard.

(4) The applicant and any person mentioned in sub-paragraph (3) shall be permitted to be assisted in making representations at any such meeting by some other person, but that other person shall not appear in the capacity of counsel, solicitor or paid advocate, nor shall that person be entitled to speak on behalf of the applicant or any person mentioned in sub-paragraph (3).

(5) The procedure by which representations are heard shall be such as the Board may determine.

(6) The functions of the Board under this paragraph shall be exercised on behalf of the Board by the Pharmacy Practices Committee established within the terms of Part I of Schedule 4.

Textual Amendments

F3 Word in sch. 3 para. 3(1)(d) omitted (1.4.2011) by virtue of The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(4)(a) (with reg. 10)

F4 Sch. 3 para. 3(1)(e)(f) substituted for sch. 3 para. 3(1)(e) (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(4)(b) (with reg. 10)

Commencement Information

I3 Sch. 3 para. 3 in force at 1.7.2009, see reg. 1

Notification of decisions S

[F5 4.— (1) The Board shall, within 5 working days of having been notified in accordance with paragraph 6 of Part I of Schedule 4, intimate the decision on the application and the reasons for it, and any right of appeal applicable under paragraph 5, to the applicant and the persons or bodies mentioned in paragraph 1.

(2) The Board shall within 5 working days of such intimation publish on its website the decision on the application and the reasons for it.]

Textual Amendments

F5 Sch. 3 para. 4 substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(5) (with reg. 10)

Commencement Information

I4 Sch. 3 para. 4 in force at 1.7.2009, see reg. 1

Appeals S

5.—(1) Subject to sub-paragraph (2) the applicant or any person mentioned in paragraph 1 may appeal against the decision of the Board on the application, and must give notice of any such appeal to the Board within 21 days from the date on which notification of the Board’s decision was sent to the applicant or person mentioned in paragraph 1.

(2) Any person mentioned in paragraph 1 who was notified of an application under that paragraph but made no written representations to the Board about it shall not be entitled to appeal against a decision of the Board in relation to that application.

[F6 (2A) The grounds of appeal are limited to where the circumstances in sub-paragraph (2B) have occurred or where the Board has erred in law in its application of the provisions of these Regulations.

(2B) The circumstances are—

(a) there has been a procedural defect in the way the application has been considered by the Board;

(b) there has been a failure by the Board to properly narrate the facts or reasons upon which their determination of the application was based; or

(c) there has been a failure to explain the application by the Board of the provisions of these Regulations to those facts.]

[F7 (3) Any notice of appeal under this paragraph shall contain a concise statement detailing the circumstances in sub-paragraph (2B) or other points of law in respect of which the appellant contends that the decision of the Board is erroneous.]

(4) The Board shall refer a notice of appeal under this paragraph to the chair of the National Appeal Panel [F8 together with the decision of the Board on the application].

[F9 (5) The Chair, after considering the notice of appeal and the decision of the Board, shall—

(a) dismiss the appeal, if the Chair is of the opinion that:

(i) the notice discloses no reasonable grounds of appeal; or

(ii) the appeal is otherwise frivolous or vexatious; or

(b) remit the decision back to the Board for reconsideration if the Chair is of the opinion that any of the circumstances in sub-paragraph (2B) have occurred,

and the Chair’s decision is final.]

(6) In any other case the National Appeal Panel shall be convened in accordance with Part II of Schedule 4 and the said Panel shall thereafter determine the appeal.

[F10 (7) Where the Chair remits an application back to the Board for reconsideration—

(a) the Chair shall give to the Board such advice as appears to the Chair to be desirable with a view to remedying the defect or failure that has led to the decision to remit;

(b) the Chair shall send a copy of the remitted application and the advice issued to the Scottish Ministers; and

(c) the Board shall reconsider the application.]

F11 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Sch. 3 para. 5(2A)(2B) inserted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(a) (with reg. 10)

F7 Sch. 3 para. 5(3) substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(b) (with reg. 10)

F8 Words in sch. 3 para. 5(4) substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(c) (with reg. 10)

F9 Sch. 3 para. 5(5) substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(d) (with reg. 10)

F10 Sch. 3 para. 5(7) substituted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(e) (with reg. 10)

F11 Sch. 3 para. 5(8) omitted (1.4.2011) by virtue of The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(6)(f) (with reg. 10)

Commencement Information

I5 Sch. 3 para. 5 in force at 1.7.2009, see reg. 1

[F12 Form of Appeal S

6.— (1) If it appears to the National Appeal Panel that an appeal can properly be determined without a hearing, it may determine the appeal without a hearing.

(2) If the National Appeal Panel determines that a hearing is required, it shall take place at such time and place as the National Appeal Panel may direct and notice shall be sent by post to the interested parties and the Board not less than 14 days before the date fixed for the hearing.

(3) The interested parties may attend and be heard in person or be represented by counsel or a solicitor or other representative at the hearing and the Board may attend and be represented at the hearing by any duly authorised official or by counsel or a solicitor.

(4) The Administrative Justice and Tribunals Council or its Scottish Committee shall be given not less than 14 days notice of any Panel hearing and a member of the Council or its Scottish Committee shall be entitled to be present at any such hearing.

(5) Subject to the provisions of these Regulations, the National Appeal Panel shall determine an appeal (including its procedure) as it thinks fit and its decision in respect of an appeal shall be final.

(6) In this paragraph “interested parties” means the appellant, the applicant and any person mentioned in paragraph 1 who makes written representations to the Board about the application.]

Textual Amendments

F12 Sch. 3 para. 6 inserted (1.4.2011) by The National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/32), regs. 1, 8(7) (with reg. 10)