The National Health Service (Clinical Commissioning Groups) Regulations 2012

Regulation 7(2)

SCHEDULE 1 Factors relating to applications for CCG establishment or merger

Interpretation

1.—(1) In this Schedule—

(a) references to “the CCG” (and to its members) are to the CCG which would be established if an application for its establishment were granted (and to those who would be its members); and

(b) references to an application are to such an application (and references to applicants are to be construed accordingly).

(2) In sub-paragraphs (d) and (e) of paragraph 2—

(a) “unitary local authority” means—

(i) the council of a county for which there are no district councils,

(ii) the council of a district in an area for which there is no county council,

(iii) a London borough council,

(iv) the Common Council of the City of London,

(v) the Council of the Isles of Scilly,

(vi) a county borough council;

(b) “upper-tier county council” means a county council for each part of whose area there is a district council.

Factors

2.  The following are the factors referred to in regulation 7(2)—

(a) Whether the application demonstrates that the CCG has made arrangements to ensure the effective participation of each member in the exercise of the CCG’s functions. (Paragraphs (a) and (e))

(b) Whether the application demonstrates that the CCG’s proposed financial arrangements and controls will be appropriate to secure proper stewardship of and accountability for public money. (Paragraphs (a), (d), (e) and (f))

(c) Whether most of the persons who are to be provided with primary medical services by a member of the CCG usually reside in the area specified in the CCG’s constitution. (Paragraphs (c) and (e))

(d) Whether the area specified in the CCG’s constitution crosses the boundary of a unitary local authority or an upper-tier county council; and, if it does, the extent to which the application demonstrates that the proposed arrangements would be in the best interests of the persons for whom the CCG would have responsibility. (Paragraphs (c) and (e))

(e) Whether any unitary local authority or upper-tier county council whose area coincides with, or includes the whole or any part of, the area specified in the CCG’s constitution considers that the arrangements made by the applicants to ensure that the CCG will be able to discharge its functions are appropriate. (Paragraphs (c) and (e))

When considering this factor, the Board must also take into account any observations by the applicants on the views expressed by the local authority.

(f) Whether the application demonstrates that any arrangements proposed by the CCG for working with local authorities(1) whose area coincides with, or includes the whole or any part of, the area specified in the CCG’s constitution are appropriate. (Paragraphs (c) and (e))

(g) Whether the application demonstrates that any arrangements proposed by the CCG under section 14Z3 of the 2006 Act (which provides for a CCG to make arrangements with one or more other CCGs in relation to the exercise of their commissioning functions) are appropriate. (Paragraph (e))

(h) Whether the application demonstrates that any services or facilities provided to the CCG in order to support it in discharging its commissioning functions will be of an appropriate nature and quality. (Paragraph (e))

For the purposes of this sub-paragraph, a CCG’s commissioning functions are the functions of the group in arranging for the provision of services as part of the health service.

(i) Whether the application demonstrates how the CCG will be able to draw on the expertise and knowledge of its members. (Paragraph (e))

(j) Whether the application demonstrates that appropriate arrangements have been made for recruiting, training and otherwise supporting employees of the CCG. (Paragraph (e))

(k) Whether the application demonstrates that those who would assume leadership roles in the CCG have appropriate aptitudes, qualifications and experience. (Paragraphs (e) and (f))

(l) Whether the application demonstrates that appropriate arrangements have been made to secure that the CCG will continue to have in its leadership roles persons with appropriate aptitudes, qualifications and experience. (Paragraphs (e) and (f))

Regulation 9(2)

SCHEDULE 2 Factors relating to applications to vary CCG constitution

The following are the factors referred to in regulation 9(2)—

(a) Whether the Board would be satisfied as to all the matters mentioned in section 14C(2) of the 2006 Act if the CCG’s constitution were varied as requested.

(b) The likely impact of the requested variation on the persons for whom the CCG has responsibility.

(c) The likely impact of the requested variation on the amounts allotted or to be allotted to the CCG, and to any other CCG which would be affected by the variation, under section 223G of the 2006 Act (expenditure of CCGs to be met out of public funds), in respect of the financial year in which the variation to the CCG’s constitution would take effect.

(d) The likely impact of the requested variation on the Board’s functions.

(e) The extent to which the CCG has sought the views of the following, what those views are, and how the CCG has taken them into account—

(i) unitary local authorities and upper-tier county councils (within the meaning of paragraph 1(2) of Schedule 1) whose area coincides with, or includes the whole or any part of, the area specified in the CCG’s constitution (as it would be varied),

(ii) any other CCG which in the CCG’s view would be affected by the variation requested,

(iii) any other person or body which in the CCG’s view might be affected by the variation requested.

(f) The extent to which the CCG has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the CCG has taken them into account.

“Relevant health services” means any services which are provided as part of the health service pursuant to arrangements made by the CCG in the exercise of its functions.

(g) How often the CCG has applied for variations of the kind requested.

Regulation 9(3)

SCHEDULE 3 Factors relating to applications for CCG dissolution

The following are the factors referred to in regulation 9(3)—

(a) The likely impact of the dissolution on the persons for whom the CCG to be dissolved has responsibility.

(b) The likely impact of the dissolution on the amounts allotted or to be allotted under section 223G of the 2006 Act (expenditure of CCGs to be met out of public funds) to any CCG which would be affected by the dissolution, in respect of the financial year in which the dissolution would take effect.

(c) The likely impact of the dissolution on the Board’s functions.

(d) The extent to which the CCG to be dissolved has sought the views of the following, what those views are, and how the CCG has taken them into account—

(i) unitary local authorities and upper-tier county councils (within the meaning of paragraph 1(2) of Schedule 1) whose area coincides with, or includes the whole or any part of, the area specified in the CCG’s constitution,

(ii) any other CCG which in the CCG’s view would be affected by the dissolution,

(iii) any other person or body which in the CCG’s view might be affected by the dissolution.

(e) The extent to which the CCG to be dissolved has sought the views of individuals to whom any relevant health services are being or may be provided, what those views are, and how the CCG has taken them into account.

“Relevant health services” means any services which are provided as part of the health service pursuant to arrangements made by the CCG in the exercise of its functions.

Regulation 12(5)

SCHEDULE 4 Individuals excluded from being lay members of CCG governing bodies

1.  An employee of a local authority in England and Wales or of any equivalent body in Scotland or Northern Ireland.

2.  An officer or employee of the Department of Health.

3.  A chairman, director, member or employee of an NHS body(2), other than a CCG, an NHS foundation trust(3) or a Primary Care Trust(4).

4.  A chairman, director, governor, member or employee of an NHS foundation trust.

5.  An employee of a Primary Care Trust.

6.  A member or employee of the Care Quality Commission.

7.  A member or employee of Monitor(5).

8.  An individual who provides any services as part of the health service pursuant to arrangements made by the CCG in the exercise of its commissioning functions, or an employee or member (including shareholder) of, or a partner in, a body which does so.

For the purposes of this paragraph, a CCG’s commissioning functions are the functions of the group in arranging for the provision of services as part of the health service.

9.  An individual who provides any services as part of the health service pursuant to arrangements made by the Board in the exercise of its commissioning functions, or an employee or member (including shareholder) of, or a partner in, a body which does so.

10.  For the purposes of this paragraph, the Board’s commissioning functions are the functions of the Board in arranging for the provision of services as part of the health service.

11.  A person who contracts with a local authority to provide services in pursuance of the social services functions of the authority within the meaning of the Local Authority Social Services Act 1970(6), or an employee of such a person.

12.  An employee of a party to arrangements to perform dental services pursuant to arrangements made under section 25 of the National Health Service (Scotland) Act 1978(7) or section 57 of the National Health Service (Wales) Act 2006(8), where the employee is employed for purposes connected with the provision of those services.

13.  An employee of a party to arrangements to perform ophthalmic services pursuant to arrangements made under section 26 of the National Health Service (Scotland) Act 1978(9) or section 71 of the National Health Service (Wales) Act 2006, where the employee is employed for purposes connected with the provision of those services.

14.  An employee of a party to arrangements to provide pharmaceutical services under section 27 or 27A of the National Health Service (Scotland) Act 1978(10) or section 80 or 81 of the National Health Service (Wales) Act 2006, or provide local pharmaceutical services under section 92 of, or Schedule 7 to, the National Health Service (Wales) Act 2006, where the employee is employed for purposes connected with the provision of those services.

(1) For the purposes of this paragraph a person included in a pharmaceutical list is a party to arrangements to provide pharmaceutical services.

15.  An employee of a party to arrangements to perform primary medical services under section 17C of the National Health Service (Scotland) Act 1978(11) or section 41 of the National Health Service (Wales) Act 2006, where the employee is employed for purposes connected with the provision of those services.

Regulation 12(6)

SCHEDULE 5 Individuals disqualified from membership of CCG governing bodies

1.  A Member of Parliament, Member of the European Parliament or member of the London Assembly.

2.  A member of a local authority in England and Wales or of an equivalent body in Scotland or Northern Ireland.

3.—(1) An individual who, by arrangement with the CCG, provides it with any service or facility in order to support the CCG in discharging its commissioning functions, or an employee or member (including shareholder) of, or a partner in, a body which does so.

(2) The services and facilities mentioned in sub-paragraph (1) do not include services commissioned by the CCG in the exercise of its commissioning functions.

(3) In this paragraph, the “commissioning functions” of a CCG are the functions of the group in arranging for the provision of services as part of the health service.

4.  A person who, within the period of five years immediately preceding the date of the proposed appointment, has been convicted—

(a) in the United Kingdom of any offence, or

(b) outside the United Kingdom of an offence which, if committed in any part of the United Kingdom, would constitute a criminal offence in that part,

and, in either case, the final outcome of the proceedings was a sentence of imprisonment (whether suspended or not) for a period of not less than three months without the option of a fine.

5.  A person who is subject to a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986(12), sections 56A to 56K of the Bankruptcy (Scotland) Act 1985(13) or Schedule 2A to the Insolvency (Northern Ireland) Order 1989(14) (which relate to bankruptcy restrictions orders and undertakings).

6.—(1) A person who, has been dismissed within the period of five years immediately preceding the date of the proposed appointment, otherwise than because of redundancy, from paid employment by any of the following(15)—

(a) the Board,

(b) a CCG,

(c) a Strategic Health Authority(16),

(d) a Primary Care Trust(17),

(e) an NHS trust(18),

(f) an NHS foundation trust,

(g) a Special Health Authority(19),

(h) a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006,

(i) a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978(20),

(j) a Scottish NHS trust established under section 12A of the National Health Service (Scotland) Act 1978(21),

(k) a Health and Social Services Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972(22),

(l) the Care Quality Commission established by section 1 of the Health and Social Care Act 2008(23),

(m) the Health Protection Agency established by section 1 of the Health Protection Agency Act 2004(24),

(n) Monitor(25),

(o) the Wales Centre for Health established by section 2 of the Health (Wales) Act 2003(26),

(p) the Common Services Agency for the Scottish Health Service constituted by section 10 of the National Health Service (Scotland) Act 1978(27),

(q) Healthcare Improvement Scotland, established by section 10A of the National Health Service (Scotland) Act 1978(28),

(r) the Scottish Dental Practice Board constituted under section 4 of the National Health Service (Scotland) Act 1978(29),

(s) the Northern Ireland Central Services Agency for the Health and Social Services established under the Health and Personal Social Services (Northern Ireland) Order 1972(30),

(t) the Regional Health and Social Care Board established under section 7 of the Health and Social Care (Reform) Act (Northern Ireland) 2009(31),

(u) the Regional Agency for Public Health and Wellbeing established under section 12 of the Health and Social Care (Reform) Act (Northern Ireland) 2009,

(v) the Regional Business Services Organisation established under section 14 of the Health and Social Care (Reform) Act (Northern Ireland) 2009,

(w) Health and Social Care trusts (formerly known as Health and Social Services trusts), established under the Health and Personal Social Services (Northern Ireland) Order 1991(32),

(x) Special health and social care agencies (formerly known as Special health and social services agencies), established under the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990(33);

(y) The Patient and Client Council established under section 16 of the Health and Social Care (Reform) Act (Northern Ireland) 2009; and

(z) The Health and Social Care Regulation and Quality Improvement Authority (formerly known as The Northern Ireland Health and Personal Social Services Regulation and Improvement Authority), established under the Health and Personal Social Services (Quality Improvement and Regulation) (Northern Ireland) Order 2003(34).

(2) For the purposes of sub-paragraph (1), a person is not to be treated as having been in paid employment merely because of being—

(a) in the case of a body listed in sub-paragraph (1) which is not an NHS trust or an NHS foundation trust, its chairman, or one of its members whom it does not employ;

(b) in the case of an NHS trust, its chairman or one of its non-executive directors;

(c) in the case of an NHS foundation trust, its chairman or one of its governors or non-executive directors.

7.  A health care professional (within the meaning of section 14N of the 2006 Act)(35) or other professional person who has at any time been subject to an investigation or proceedings, by any body which regulates or licenses the profession concerned (“the regulatory body”), in connection with the person’s fitness to practise or any alleged fraud, the final outcome of which was—

(a) the person’s suspension from a register held by the regulatory body, where that suspension has not been terminated,

(b) the person’s erasure from such a register, where the person has not been restored to the register,

(c) a decision by the regulatory body which had the effect of preventing the person from practising the profession in question, where that decision has not been superseded, or

(d) a decision by the regulatory body which had the effect of imposing conditions on the person’s practice of the profession in question, where those conditions have not been lifted.

8.  A person who is subject to—

(a) a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986(36) or the Company Directors Disqualification (Northern Ireland) Order 2002(37), or

(b) an order made under section 429(2) of the Insolvency Act 1986(38) (disabilities on revocation of administration order against an individual).

9.  A person who has at any time been removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners for England and Wales(39), the Charity Commission, the Charity Commission for Northern Ireland or the High Court, on the grounds of misconduct or mismanagement in the administration of the charity for which the person was responsible, to which the person was privy, or which the person by their conduct contributed to or facilitated.

10.  A person who has at any time been removed, or is suspended, from the management or control of any body under—

(a) section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(40) (powers of the Court of Session to deal with the management of charities), or

(b) section 34(5)(e) or (ea) of the Charities and Trustee Investment (Scotland) Act 2005(41) (powers of the Court of Session to deal with the management of charities).

(1)

“Local authority” is defined in section 275(1) of the 2006 Act.

(2)

“NHS body” is defined in section 275(1) of the 2006 Act. The definition is inserted by paragraph 138(2)(c) of Schedule 4 to the 2012 Act, and is to be read with paragraph 138(4) and (5) of that Schedule.

(3)

NHS foundation trusts are provided for by section 30 of, and Schedule 7 to, the 2006 Act, and by Part 4 of the 2012 Act.

(4)

Primary Care Trusts are to be abolished when section 34 of the 2012 Act comes into force.

(5)

“Monitor” is the new name given to the Independent Regulator of NHS Foundation Trusts by section 61(1)(b) of the 2012 Act.

(6)

1970 c. 42. The definition is in section 1A, inserted by section 102(3) of the Local Government Act 2000 (c. 22).

(7)

1978 c. 29. Relevant amendments were made by section 15 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13).

(8)

2006 c. 42.

(9)

Relevant amendments to section 26 of the National Health Service (Scotland) Act 1978 were made by the Health and Social Security Adjudication Act 1984 (c. 48), Schedule 1, Part 2, paragraph 1 and by section 13(2) of the Smoking, Health and Social Care (Scotland) Act 2005 .

(10)

Relevant amendments to section 27 of the National Health Service (Scotland) Act 1978 were made by the Health Services Act 1980 (c. 53), section 20(2), by the National Health Service and Community Care Act 1990 (c. 19), Schedule 9, paragraph 19(7), by the Medicinal Products: Prescription by Nurses etc. Act 1992 (c. 28), section 3, and by the Health and Social Care Act 2001 (c.15), section 44(2). Section 27A was inserted by the National Health Service (Primary Care) Act 1997 (c. 46), section 27(2).

(11)

Section 17C was inserted into the National Health Service (Scotland) Act 1978 by section 21(2) of the National Health Service (Primary Care) Act 1997. Relevant amendments were made to section 17C by section 2 of the Primary Medical Services (Scotland) Act 2004 (asp 1).

(12)

1986 c. 45. Schedule 4A was inserted by the Enterprise Act 2002 (c. 40), Schedule 20.

(13)

1985 c. 66. Sections 56A to 56K were inserted by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), section 2(1).

(14)

S.I. 1989/2405 (N.I. 19). Schedule 2A was inserted by S.I. 2005/1455 (N.I. 10).

(15)

The list that follows contains the names of certain bodies currently included in the definition of “health service body” in section 9(4) of the 2006 Act, the names of certain bodies which will become included in that list by virtue of amendments made by the 2012 Act, and certain other bodies. The bodies listed in paragraphs (a), (b), and (q) of this sub-paragraph will be added to the list in section 9(4) by the 2012 Act, which will also remove from that list the bodies listed in paragraphs (c), (d) and (m) of this sub-paragraph. See the following provisions of the 2012 Act: paragraph 6(2) of Schedule 4, paragraph 18 of Schedule 7, and paragraph 6 of Schedule 21.

(16)

Strategic Health Authorities are continued in existence or established under section 13 of the 2006 Act. They are abolished by section 33 of the 2012 Act.

(17)

Primary Care Trusts are continued in existence or established under section 18 of the 2006 Act. They are abolished by section 34 of the 2012 Act.

(18)

NHS trusts are established under section 25 of the 2006 Act or section 18 of the National Health Service (Wales) Act 2006 (c. 42). NHS Trusts in England are abolished by section 179 of the 2012 Act.

(19)

Special Health Authorities are established under section 28 of the 2006 Act or section 22 of the National Health Service (Wales) Act 2006.

(20)

Section 2 was amended by paragraph 1 of Schedule 7 to the Health and Social Services Adjudications Act 1983 (c. 41), section 28 of, and paragraph 19(1) of Schedule 9 and paragraph 1 of Schedule 10 to, the National Health Service and Community Care Act 1990 (c. 19), paragraph 1(2) of Schedule 1 to the National Health Services Reform (Scotland) Act 2004 (asp 7), paragraph 2(2) of Schedule 2 to the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) and section 2(1) of the Health Boards (Membership and Elections) (Scotland) Act 2009 (asp 5).

(21)

Section 12A was inserted by section 31 of the National Health Service and Community Care Act 1990 and amended by paragraph 34 of Schedule 2 to the National Health Service (Primary Care) Act 1997 (c. 46) and sections 46(1) and 48 of, and paragraph 45 of Schedule 4 to, the 1999 Act.

(22)

S.I. 1972/1265 (N.I. 14). Health and Social Services Boards were dissolved by section 1(1) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(23)

2008 c. 14.

(24)

2004 c. 17. The Health Protection Agency is abolished by section 56 of the 2012 Act.

(25)

“Monitor” is the new name given to the Independent Regulator of NHS Foundation Trusts: see section 61 of the 2012 Act, and generally, Chapter 1 of Part 3 of that Act.

(26)

2003 c. 4. The Wales Centre for Health is abolished under S.I. 2009/2653 (W215).

(27)

Section 10 was amended by paragraph 2 of Schedule 6 to the Health Services Act 1980 (c. 53), paragraph 1 of Schedule 10 to the National Health Service and Community Care Act 1990, paragraph 44 of Schedule 8 to, the Health Act 1999(c. 8) and paragraph 2(4) of Schedule 2 to the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13).

(28)

Section 10A was inserted by section 108 of the Public Services Reform (Scotland) Act 2010 (asp 8).

(29)

Section 4 was amended by section 12(3) of, and Schedule 3 to, the Health and Medicines Act 1988 (c. 49) and paragraph 2(3) of Schedule 2 to the Smoking, Health and Social Care (Scotland) Act 2005.

(30)

The Northern Ireland Central Services Agency for the Health and Social Services was dissolved by section 1(1) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(31)

2009 c. 1 (N.I).

(32)

S.I. 1991/194 (N.I. 1). Health and social services trusts established under Article 10 of S.I. 1991/194 (N.I.) were renamed Health and social care trusts under section 1(3) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(33)

S.I. 1990/247 (N.I. 3) . Special health and social services agencies established under Article 10 of the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990 were renamed Special health and social care agencies under section 1(3) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(34)

S.I. 2003/431 (N.I.9). The Northern Ireland Health and Personal Social Services Regulation and Improvement Authority established under Article 10 of S.I. 2003/431 (N.I.9) was renamed The Health and Social Care Regulation and Quality Improvement Authority under section 1(2) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(35)

“Health care professional” is defined for the purposes of section 1 of the 2006 Act in subsection (6) of that section.

(36)

1986 c. 46.

(37)

S.I. 2002/3150 (N.I. 4).

(38)

1986 c. 45. The original subsections (1) and (2) were substituted by paragraph 3(2) of Schedule 16 to the Tribunals, Courts and Enforcement Act 2007 (c. 15), and subsection (2) was amended by paragraph 15 of Schedule 23 to the Enterprise Act 2002 (c. 40).

(39)

The Charity Commissioners for England and Wales were replaced by the Charity Commission: section 6 of the Charities Act 2006 (c. 50).

(40)

1990 c. 40. Section 7 was repealed by paragraph 7(b) of Schedule 4 to the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).

(41)

2005 (asp 10). Section 34 was amended by section 122 of the Public Services Reform (Scotland) Act 2010 (asp 8).