The National Health Service (General Medical Services Contracts) (Wales) Regulations 2004

PART 2 CONTRACTORS

3.  Subject to the provisions of any order made by the Assembly under section 176 of the Health and Social Care (Community Health and Standards) Act 2003 (general medical services : transitional) a Local Health Board may only enter into a contract if the conditions set out in regulations 4 and 5 are met.

Conditions : General

4.—(1) In the case of a contract to be entered into with a medical practitioner, that practitioner must be a general medical practitioner.

(2) In the case of a contract to be entered into with two or more individuals practising in partnership —

(a) at least one partner (who must not be a limited partner) must be a general medical practitioner; and

(b) any other partner who is a medical practitioner must —

(i) be a general medical practitioner, or

(ii) be employed by a Local Health Board, Primary Care Trust, (in England and Wales and Scotland) NHS Trust, an NHS foundation trust, (in Scotland) a Health Board or (in Northern Ireland) a Health and Social Services Trust.

(3) In the case of a contract to be entered into with a company limited by shares —

(a) at least one share in the company must be legally and beneficially owned by a general medical practitioner; and

(b) any other share or shares in the company that are legally and beneficially owned by a medical practitioner must be so owned by —

(i) a general medical practitioner, or

(ii) a medical practitioner who is employed by a Local Health Board, a Primary Care Trust, (in England and Wales and Scotland) a NHS Trust, a NHS foundation trust, (in Scotland) a Health Board or (in Northern Ireland) a Health and Social Services Trust.

General condition relating to all contracts

5.—(1) It is a condition in the case of a contract to be entered into —

(a) with a medical practitioner, that the medical practitioner;

(b) with two or more individuals practising in partnership, that any individual or the partnership; and

(c) with a company limited by shares that —

(i) the company,

(ii) any person legally and beneficially owning a share in the company, and

(iii) any director or secretary of the company,

must not fall within paragraph (2).

(2) A person falls within this paragraph if —

(a) he, she or it is the subject of a national disqualification;

(b) subject to paragraph (3), he, she or it is disqualified or suspended (other than by an interim suspension order or direction pending an investigation) from practising by any licensing body anywhere in the world;

(c) within the period of five years prior to the signing of the contract or commencement of the contract, whichever is the earlier, he or she has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body and paragraph (4) applies to him or her unless he or she has subsequently been employed by that health service body or another health service body or that dismissal was the subject of a finding of unfair dismissal by any competent tribunal or court;

(d) within the period of five years prior to signing the contract or commencement of the contract, whichever is the earlier, he, she or it has been removed from, or refused admission to, a primary care list by reason of inefficiency, fraud or unsuitability (within the meaning of section 49F(2), (3) and (4) of the Act respectively) unless his or her name has subsequently been included in such a list;

(e) he or she has been convicted in the United Kingdom of murder;

(f) he or she has been convicted in the United Kingdom of a criminal offence other than murder, committed on or after 26th August 2002, and has been sentenced to a term of imprisonment of over six months;

(g) subject to paragraph (5) he or she has been convicted elsewhere of an offence

(i) which would, if committed in England and Wales, constitute murder; or

(ii) committed on or after 26th August 2002, which would if committed in England and Wales constitute a criminal offence other than murder, and had been sentenced to a term of imprisonment of over six months;

(h) he or she has been convicted of an offence referred to in Schedule 1 to the Children and Young Persons Act 1933 M1 (offences against children and young persons with respect to which special provisions of this Act apply) or Schedule 1 to the Criminal Procedure Act (Scotland) 1995 (offences against children under the age of 17 years to which special provisions apply) M2 committed on or after 1st March 2004.

(i) he, she or it has been —

(i) adjudged bankrupt or had sequestration of his or her estate awarded unless (in either case) he or she has been discharged or the bankruptcy order has been annulled;

(ii) made the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986 M3 unless that order has ceased to have effect or has been annulled, or

(iii) made a composition or arrangement with, or granted a trust deed for, his, her or its creditors unless he, she or it has been discharged in respect of it;

(j) he or she has been —

(i) removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which he or she was responsible or to which he or she was privy, or which he or she by his or her conduct contributed to or facilitated, or

(ii) removed under section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 M4 (powers of the Court of Session to deal with management of charities), from being concerned in the management or control of any body; or

(k) he or she is subject to a disqualification order under the Company Directors Disqualification Act 1986 M5 , the Companies (Northern Ireland) Order 1986 M6 or to an order made under section 429(2)(b) of the Insolvency Act 1986 M7 (failure to pay under county court administration order).

(3) A person shall not fall within paragraph (2)(b) where the Local Health Board is satisfied that the disqualification or suspension from practising is imposed by a licensing body outside the United Kingdom and it does not make the person unsuitable to be —

(a) a contractor;

(b) a partner, in the case of a contract with two or more individuals practising in partnership;

(c) in the case of a contract with a company limited by shares?

(i) a person legally and beneficially holding a share in the company, or

(ii) a director or secretary of the company,

as the case may be.

(4) Where a person has been employed as a member of a health care profession any subsequent employment must also be as a member of that profession if the exception in paragraph(2)(c) is to apply to him or her.

(5) A person shall not fall within paragraph (2)(g) where the Local Health Board is satisfied that the conviction does not make the person unsuitable to be ?

(a) a contractor;

(b) a partner, in the case of a contract with two or more individuals practising in partnership;

(c) in the case of a contract with a company limited by shares ?

(i) a person legally and beneficially holding a share in the company, or

(ii) a director or secretary of the company,

as the case may be.

Marginal Citations

M1 1933 c 12 as amended by the Criminal Justice Act 1988 ( c.33), section 170, Schedule 15, paragraph 8 and Schedule 16, paragraph 16; Sexual Offences Act 1956 (c. 69), sections 48 and 51 and Schedules 3 and 4 and as modified by the Criminal Justice Act 1988, section 170(1), Schedule 15, paragraph 9.

M2 1995 c. 46.

M3 1986 c. 45 Schedule 4A was inserted by section 257 of and Schedule 20 to the Enterprise Act 2002 (c. 40).

M4 1990 c. 40.

M5 1986 c. 46 as amended by the Insolvency Act 2000 (c. 39).

M6 S.I.1986/1032 (N.1.6).

M7 1986 c. 45.

Reasons

6.—(1) Where a Local Health Board is of the view that the conditions in regulation 4 or 5 for entering into a contract are not met it shall notify in writing the person or persons intending to enter into the contract of its view and its reasons for that view and of his, her or its or their right of appeal under regulation 7.

(2) The Local Health Board shall also notify in writing of its view and its reasons for that view, if any person legally and beneficially owning a share in, or a director or secretary of, a company that is notified under paragraph (1) where its reason for the decision relates to that person or those persons.

Appeal

7.  A person who has been served with a notice under regulation 6(1) may appeal to the FHSAA against the decision of the Local Health Board that the conditions in regulation 4 or 5 are not met by giving notice in writing to the FHSAA within the period of 28 days beginning on the day that the Local Health Board served its notice.

Prescribed period under section 28D(1)(bc) of the Act

8.  The period prescribed for the purposes of section 28D(1)(bc) of the Act (persons with whom agreements may be made) is six months.