The National Health Service (Clinical Negligence and Other Risks Indemnity Scheme) (Scotland) Amendment Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the National Health Service (Clinical Negligence and Other Risks Indemnity Scheme) (Scotland) Regulations 2000 (“the principal Regulations”). The principal Regulations establish the Clinical Negligence and Other Risks Indemnity Scheme (“the Scheme”) which makes provision for meeting liabilities and indemnity in respect of other financial loss by scheme members . By virtue of the principal Regulations, all Health Boards, other statutory health bodies and the Mental Welfare Commission must be members of the scheme.

These Regulations amend the provisions of the principal Regulations so that integration joint boards and local authorities may become members of the Scheme, and to adjust the liabilities of a Health Board that are covered by the scheme.

Regulation 2(2) amends regulation 1 of the principal Regulations. Regulation 2(2)(a), (b) and (c) insert new definitions for the purpose of the other amendments.

Regulation 2(2)(d) amends the definition of “relevant functions” in order that liabilities and losses relating to all integrated health and social care functions may be covered by the Scheme. The liabilities and losses to which the Scheme applies are described in regulation 4 of the principal Regulations. Regulation 2(2)(d) also extends the application of the Scheme to Health Board functions to cover forensic services that a Health Board provides to third parties as an income-generation activity under the Health and Medicines Act 1988.

Regulation 2(3) inserts new regulations 3A and 3B into the principal Regulations. New regulation 3A makes provision allowing local authorities and integration joint boards to join the scheme. Membership of the scheme is not mandatory for these bodies. An application is to be considered by Scottish Ministers before a body may become a scheme member. New regulation 3A(3) – (9) set out this application process, including the information that is to be provided. The Scottish Ministers may not reject an application, but must notify the member of information about the likely determination of the contributions to be made by the applicant under regulation 7 of the principal regulations. This information reflects the risk associated with the applicant’s membership of the scheme. The applicant may withdraw its application within 30 days after it has been notified of this information.

When an application is made and not withdrawn, membership of the scheme is to begin on 1st April in the calendar year after the application is made, except during the period from the coming into force of the Regulations until 31st October 2016.

Provision is made in new regulation 3B for bodies which become members to terminate their membership of the scheme, or for Scottish Ministers to terminate membership if there is a default in financial contributions which are due in respect of a body’s membership of the Scheme.

Regulation 2(4) amends regulations 4 of the principal Regulations. Sub-paragraphs (a) and (b) provide that the Scheme is only to cover liabilities and losses from incidents arising on or after a local authority or integration joint board becomes a member of the scheme. If a body’s membership of the Scheme is terminated, the effect of regulation 4 of the principal Regulations is that the scheme will not apply to claims to which the body is subject after the body ceases to be a member of the Scheme. Sub-paragraph (c) provides that the definition of “relevant person” is to include a councillor of a local authority.

Regulation 2(5) amends regulation 7 of the principal Regulations, in order that, for a member of the Scheme which is a local authority or integration joint board, any claims against the body during the period of up to 5 years preceding the body’s membership of the scheme will be taken into account in determination of the body’s contributions to the Scheme.