The National Health Service (General Medical Services Contracts) (Wales) Regulations 2023

Prospective

PART 11 E+W Variation and termination of contracts

Variation of a contract: general E+W

109.—(1) Subject to paragraphs 76(8), 110, 111 and 124 of this Schedule no amendment or variation has effect unless it is in writing and signed by or on behalf of the Local Health Board and the contractor.

(2) In addition to the specific provision made in paragraphs 110(6), 111(11), and 124 the Local Health Board may vary the contract without the contractor’s consent where it—

(a) is reasonably satisfied that it is necessary to vary the contract so as to comply with the Act, any regulations made pursuant to that Act, or any direction given by the Welsh Ministers pursuant to that Act, and

(b) notifies the contractor in writing of the wording of the proposed variation and the date upon which that variation is to take effect, and

where it is reasonably practicable to do so, the date that the proposed variation is to take effect must not be less than 14 days after the date on which the notice under paragraph (b) is served on the contractor.

Commencement Information

I1 Sch. 3 para. 109 in force at 1.10.2023, see reg. 1(2)

Variation provisions specific to a contract with an individual medical practitioner E+W

110.—(1) If a contractor which is an individual medical practitioner proposes to practise in partnership with one or more persons during the existence of the contract, the contractor must notify the Local Health Board in writing of—

(a) the name of the person or persons with whom it proposes to practise in partnership, and

(b) the date on which the contractor wishes to change its status as a contractor from that of an individual medical practitioner to that of a partnership which must not be less than 28 days after the date upon which it has served the notice on the Local Health Board pursuant to this sub-paragraph.

(2) A notice under sub-paragraph (1) must in respect of the person or each of the persons with whom the contractor is proposing to practise in partnership, and also in respect of itself as regards the matters specified in paragraph (c)—

(a) confirm that the person is either—

(i) a medical practitioner, or

(ii) a person who satisfies the conditions specified in section 44(2)(b)(i) to (iv) of the Act,

(b) confirm that the person satisfies the conditions imposed by regulations 5 and 6,

(c) state whether the partnership is to be a general partnership or a limited partnership and give the names of the limited partners and the general partners in the partnership, and

the notice must be signed by the individual medical practitioner and by the person, or each of the persons (as the case may be), with whom the medical practitioner is proposing to practise in partnership.

(3) The contractor must ensure that any person who is to practise in partnership with it is bound by the contract, whether by virtue of a partnership agreement or otherwise.

(4) If the Local Health Board is satisfied as to the accuracy of the matters specified in sub-paragraph (2) that are included in the notice, the Local Health Board must give notice in writing to the contractor confirming that the contract continues with the partnership entered into by the contractor and its partners, from a date that the Local Health Board specifies in that notice.

(5) Where it is reasonably practicable, the date specified by the Local Health Board pursuant to sub-paragraph (4) is the date requested in the notice served by the contractor pursuant to sub-paragraph (1), or, where that date is not reasonably practicable, the date specified is to be a date after the requested date that is as close to the requested date as is reasonably practicable.

(6) Where a contractor has given notice to the Local Health Board pursuant to sub-paragraph (1), the Local Health Board—

(a) may vary the contract but only to the extent that it is satisfied it is necessary to reflect the change in status of the contractor from an individual medical practitioner to a partnership, and

(b) if it does propose to so vary the contract, it must include in the notice served on the contractor pursuant to sub-paragraph (4) the wording of the proposed variation and the date upon which that variation is to take effect.

Commencement Information

I2 Sch. 3 para. 110 in force at 1.10.2023, see reg. 1(2)

Variation provisions specific to a contract with two or more individuals practising in partnership E+W

111.—(1) Subject to sub-paragraph (4), where a contractor consists of two or more individuals practising in partnership in the event that the partnership is terminated or dissolved, the contract continues with that partnership unless the contract is terminated by the contractor or Local Health Board under the provisions of this Part and the contract may only continue with just one of the former partners if that partner is—

(a) nominated in accordance with sub-paragraph (3), and

(b) a medical practitioner who meets the condition in regulation 5(1)(a),

and provided that the requirements in sub-paragraphs (2) and (3) are met.

(2) A contractor must notify the Local Health Board in writing at least 28 days in advance of the date on which the contractor proposes to change its status from that of a partnership to that of an individual medical practitioner pursuant to sub-paragraph (1).

(3) A notice under sub-paragraph (2) must—

(a) specify the date on which the contractor proposes to change its status from that of a partnership to that of an individual medical practitioner,

(b) specify the name of the medical practitioner with whom the contract is to continue, which must be one of the partners, and

(c) be signed by all of the persons who are practising in partnership.

(4) Where a contractor consists of two persons practising in partnership and the partnership is terminated or dissolved because one of the partners has died, the remaining partner in the partnership must give notice in writing to the Local Health Board of that death as soon as is reasonably practicable and, in that case, sub-paragraphs (5) and (6) apply.

(5) If the remaining partner in the partnership is a general medical practitioner, the contract is to continue with that general medical practitioner.

(6) If the remaining partner in the partnership is not a general medical practitioner, the Local Health Board—

(a) must enter into discussions with that partner and use reasonable endeavours to reach an agreement to enable the provision of clinical services to continue under the contract,

(b) may, if it considers it appropriate, consult the Local Medical Committee (if any) for the area in which the partnership was providing clinical services under the contract or such other person as the Local Health Board considers necessary,

(c) may, if it considers it appropriate to enable the provision of clinical services under the contract to continue, offer the remaining partner in the partnership reasonable support, and

(d) must give notice to the remaining partner in the partnership if agreement has been reached in accordance with sub-paragraph (7) or, in the event that agreement cannot be reached, in accordance with sub-paragraph (8).

(7) If the Local Health Board reaches an agreement, the Local Health Board must give notice in writing to the remaining partner in the partnership confirming—

(a) the terms upon which the Local Health Board agrees to the contract continuing with that partner including the period, as specified by the Local Health Board, during which the contract is to continue (“the interim period”) and such a period must not exceed 6 months,

(b) that the partner agrees to the employment or engagement of a general medical practitioner for the interim period to assist in the provision of clinical services under the contract, and

(c) the support, if any, which the Local Health Board is to provide to enable the provision of clinical services under the contract to continue during the interim period.

(8) If—

(a) the remaining partner in the partnership does not wish to employ or engage a medical practitioner,

(b) an agreement in accordance with sub-paragraph (6) cannot be reached, or

(c) the remaining partner in the partnership would like to withdraw from the agreed arrangements at any stage during the interim period,

the Local Health Board must give notice in writing to that partner terminating the contract with immediate effect.

(9) If, at the end of the interim period, the contractor has not entered into partnership with a general medical practitioner who is not a limited partner in the partnership, the Local Health Board must give notice in writing to the contractor terminating the contract with immediate effect.

(10) Where a contractor gives notice to the Local Health Board under sub-paragraph (2) or (4), the Local Health Board must—

(a) acknowledge receipt of the notice in writing, and

(b) in relation to a notice given under sub-paragraph (2), acknowledge receipt of the notice before the date specified in accordance with sub-paragraph (3)(a).

(11) Where a contractor gives notice to the Local Health Board under sub-paragraph (2) or (4), the Local Health Board may vary the contract but only to the extent that it is satisfied it is necessary to reflect the change in status of the contractor from that of a partnership to an individual medical practitioner.

(12) If the Local Health Board varies the contract under sub-paragraph (11), the Local Health Board must give notice in writing to the contractor of the wording of the proposed variation and the date upon which that variation is to take effect.

(13) In this paragraph “general medical practitioner” has the same meaning as in regulation 5(1).

(14) Sub-paragraphs (5) to (9) do not affect any other right which the Local Health Board may have under the contract to vary or terminate the contract.

Commencement Information

I3 Sch. 3 para. 111 in force at 1.10.2023, see reg. 1(2)

Termination by agreement E+W

112.  The Local Health Board and the contractor may agree in writing to terminate the contract, and if the parties so agree, they must agree the date upon which that termination is to take effect and any further terms upon which the contract should be terminated.

Commencement Information

I4 Sch. 3 para. 112 in force at 1.10.2023, see reg. 1(2)

Termination on the death of an individual medical practitioner E+W

113.—(1) Where the contractor is an individual medical practitioner and the contractor dies, the contract terminates at the end of the period of 7 days beginning with the date of the contractor’s death unless, before the end of that period sub-paragraph (2) applies.

(2) This sub-paragraph applies where—

(a) the Local Health Board agrees in writing with the contractor’s personal representatives that the contract is to continue for a further period, not exceeding 28 days, from the end of the period of 7 days, and

(b) the contractor’s personal representatives confirm in writing to the Local Health Board that they wish to employ or engage one or more general medical practitioners to assist in the continuation of the provision of clinical services under the contract and, after discussion with the Local Health Board—

(i) the Local Health Board agrees to provide reasonable support which would enable clinical services under the contract to continue;

(ii) the Local Health Board and the contractor’s personal representatives agree the terms on which the provision of clinical services can continue; and

(iii) the Local Health Board and the contractor’s personal representatives agree the period during which clinical services must be provided being a period of not more than 28 days beginning on the day after the end of the period of 7 days referred to in sub-paragraph (1).

(3) This paragraph does not affect any other rights to terminate the contract which the Local Health Board or contractor may have.

Commencement Information

I5 Sch. 3 para. 113 in force at 1.10.2023, see reg. 1(2)

Termination by the contractor E+W

114.—(1) A contractor may terminate the contract by serving notice in writing on the Local Health Board at any time.

(2) Where a contractor serves notice pursuant to sub-paragraph (1), the contract must, subject to sub-paragraph (3), terminate 6 months after the date on which the notice is served (“the termination date”), save that if the termination date is not the last calendar day of a month, the contract must instead terminate on the last calendar day of the month in which the termination date falls.

(3) Where the contractor is an individual medical practitioner and sub-paragraph (2) applies to the contractor, the Local Health Board has discretion to agree an earlier termination date if exceptional circumstances exist which make it reasonable for the termination date to be brought forward. If the termination date is to be brought forward, this date is to be agreed by the Local Health Board and the contractor.

(4) This paragraph is without prejudice to any other rights to terminate the contract that the Local Health Board or contractor may have.

Commencement Information

I6 Sch. 3 para. 114 in force at 1.10.2023, see reg. 1(2)

Late payment notices E+W

115.—(1) The contractor may give notice in writing (a “late payment notice”) to the Local Health Board if the Local Health Board has failed to make any payments due to the contractor in accordance with any term of the contract regarding prompt payment which has the effect specified in regulation 20(1) and the contractor must specify in the late payment notice the payments that the Local Health Board has failed to make in accordance with that regulation.

(2) Subject to sub-paragraph (3), the contractor may, at least 28 days after having served a late payment notice, terminate the contract by a further written notice if the Local Health Board has still failed to make the payments due to the contractor, and that were specified in the late payment notice served on the Local Health Board pursuant to sub-paragraph (1).

(3) If, following receipt of a late payment notice, the Local Health Board refers the matter to the NHS dispute resolution procedure within 28 days of the date upon which it is served with the late payment notice, and it notifies the contractor in writing that it has done so within that period of time, the contractor may not terminate the contract pursuant to sub-paragraph (2) until—

(a) there has been a determination of the dispute pursuant to paragraph 106 and that determination permits the contractor to terminate the contract, or

(b) the Local Health Board ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(4) This paragraph is without prejudice to any other rights to terminate the contract that the contractor may have.

Commencement Information

I7 Sch. 3 para. 115 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board: general E+W

116.  The Local Health Board may only terminate the contract in accordance with—

(a) the provisions in this Part, or

(b) such other termination provisions as the contractor and Local Health Board include in the contract.

Commencement Information

I8 Sch. 3 para. 116 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board for breach of conditions in regulation 5 E+W

117.—(1) Subject to sub-paragraph (2), the Local Health Board must serve notice in writing on the contractor terminating the contract with immediate effect where, in any case, a contractor who is an individual medical practitioner has ceased to be a general medical practitioner.

(2) Where the contractor referred to in sub-paragraph (1) has ceased to satisfy the condition specified in regulation 5(1)(a) as a result of a suspension specified in sub-paragraph (6), sub-paragraph (1) does not apply unless—

(a) the contractor is unable to satisfy the Local Health Board that it has in place adequate arrangements for the provision of clinical services under the contract for so long as the suspension continues, or

(b) the Local Health Board is satisfied that the circumstances of the suspension are such that if the contract is not terminated forthwith—

(i) the safety of the contractor’s patients is at serious risk, or

(ii) the Local Health Board is at risk of material financial loss.

(3) Except in a case to which paragraph 111(4) applies, where the contractor is—

(a) two or more persons practising in partnership, and the condition specified in regulation 5(1)(b) is no longer satisfied, or

(b) a company limited by shares, and the condition specified in regulation 5(1)(c) is no longer satisfied,

sub-paragraph (4) applies.

(4) Where sub-paragraph (3)(a) or (b) applies, the Local Health Board must, subject to sub-paragraph (8)—

(a) serve notice in writing on the contractor terminating the contract forthwith, or

(b) serve notice in writing on the contractor confirming that the Local Health Board is to allow the contract to continue, for a period specified by the Local Health Board in accordance with paragraph (5) (the “interim period”), during which time the Local Health Board must, with the consent of the contractor, employ or supply one or more general medical practitioners to the contractor for the interim period to assist the contractor in the provision of clinical services under the contract.

(5) The period specified by the Local Health Board under sub-paragraph (4)(b) must not exceed—

(a) 6 months, or

(b) in a case where the failure of the contractor to continue to satisfy the condition in regulation 5(1)(b) or, as the case may be, 5(1)(c), is the result of a suspension referred to in sub-paragraph (6), the period for which that suspension continues.

(6) The suspensions referred to in sub-paragraphs (2) and (5)(b) are suspension—

(a) by a Fitness to Practise Panel under—

(i) section 35D (functions of a fitness to practise panel) of the Medical Act 1983 in a health case, other than an indefinite suspension under section 35D(6), or

(ii) section 38(1) (power to order immediate suspension etc. after a finding of impairment of fitness to practise) of that Act, or

(b) by a Fitness to Practise Panel or an Interim Orders Panel under section 41A (interim orders) of that Act.

(7) In paragraph (6), “health case” has the meaning given in section 35E(4) of the Medical Act 1983.

(8) Before deciding which of the options in sub-paragraph (4) to pursue, the Local Health Board must, whenever it is reasonably practicable to do so, consult the Local Medical Committee (if any) for its area.

(9) If the contractor does not, pursuant to sub-paragraph (4)(b), consent to the Local Health Board employing or supplying a general medical practitioner during the interim period, the Local Health Board must serve notice in writing on the contractor terminating the contract with immediate effect.

(10) If, at the end of the interim period, the contractor still falls within sub-paragraph (3)(a) or (b), the Local Health Board must serve notice in writing on the contractor terminating the contract with immediate effect.

(11) In this paragraph “general medical practitioner” has the same meaning as in regulation 5(2).

Commencement Information

I9 Sch. 3 para. 117 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board for the provision of untrue etc. information E+W

118.  The Local Health Board may serve notice in writing on the contractor terminating the contract with immediate effect, or from such date as may be specified in the notice if, after the contract has been entered into, it comes to the attention of the Local Health Board that written information provided to the Local Health Board by the contractor—

(a) before the contract was entered into, or

(b) pursuant to paragraph 96(1)(a) or 97(1)(b),

in relation to the conditions set out in regulations 5 and 6 (and compliance with those conditions) was, when given, untrue or inaccurate in a material respect.

Commencement Information

I10 Sch. 3 para. 118 in force at 1.10.2023, see reg. 1(2)

Other grounds for termination by the Local Health Board E+W

119.—(1) The Local Health Board may give notice in writing to a contractor terminating the contract with immediate effect, or from such date as may be specified in the notice, if sub-paragraph (3) applies to the contractor—

(a) during the existence of a contract, or

(b) if later, on or after the date on which a notice in respect of the contractor’s compliance with the condition in regulations 5 and 6 was given under paragraph 96(1)(a) or 91(1).

(2) Sub-paragraph (3) applies—

(a) where the contract is with a general medical practitioner, to that general medical practitioner,

(b) where the contract is with two or more persons practising in partnership, to the partnership or any partner in the partnership, and

(c) where the contract is with a company limited by shares to—

(i) the company,

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

(iii) any director or secretary of the company.

(3) This sub-paragraph applies if—

(a) the contractor does not satisfy the conditions prescribed in sections 44(2) or (3) of the Act (persons eligible to enter into GMS contracts);

(b) the contractor is the subject of a national disqualification;

(c) subject to sub-paragraph (4), the contractor has been disqualified or suspended (other than by an interim suspension order or direction pending an investigation or a suspension on the grounds of ill health) from practising by a licensing body anywhere in the world;

(d) subject to sub-paragraph (5), the contractor has been dismissed (otherwise than by reason of redundancy) from employment by a health service body unless, before the Local Health Board has given notice to the contractor terminating the contract under this paragraph, the contractor is employed by the health service body from which the contractor was dismissed or by another health service body;

(e) the contractor has been removed from, or refused admission to, a primary care list by reason of inefficiency, fraud or unsuitability (within the meaning of section 107(2), (3) and (4) of the Act respectively) unless the contractor’s name has subsequently been included in such a list;

(f) the contractor has been convicted in the United Kingdom of murder;

(g) the contractor has been convicted in the United Kingdom of a criminal offence other than murder and has been sentenced to a term of imprisonment of longer than 6 months;

(h) subject to sub-paragraph (6), the contractor has been convicted elsewhere of an offence which would, if it were committed in England and Wales constitute murder, and—

(i) the offence was committed on or after 26 August 2002, and

(ii) the contractor was sentenced to a term of imprisonment of longer than 6 months;

(i) the contractor has been convicted of an offence, referred to in Schedule 1 to the Children and Young Persons Act 1933(1) (offences against children and young persons, with respect to special provisions of this Act apply), or in Schedule 1 to the Criminal Procedure (Scotland) Act 1995(2) (offences against children under the age of 17 years to which special provisions apply);

(j) the contractor has at any time been included in—

(i) any barred list within the meaning of the Safeguarding Vulnerable Groups Act 2006(3), or

(ii) any barred list within the meaning of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007(4) (barred lists),

unless the contractor was removed from the list either on the grounds that it was not appropriate for the contractor to have been included in it or as the result of a successful appeal;

(k) the contractor has, within the period of 5 years before the signing of the contract, been removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commission, the Charity Commission for Northern Ireland or the High Court, and that order was made on the grounds of misconduct or mismanagement in the administration of a charity for which the contractor was responsible or to which the contractor was privy, or which was contributed to, or facilitated by, the contractor’s conduct;

(l) the contractor has, within the period of 5 years before the signing of the contract or commencement of the contract (whichever is earlier), been removed from being concerned with the management or control of a body in any case where removal was by virtue of section 34(5)(e) of the Charities and Trustees Investment (Scotland) Act 2005(5) (powers of Court of Session); or

(m) the contractor—

(i) has been made bankrupt and has not been discharged from the bankruptcy or the bankruptcy order has not been annulled, or

(ii) has had sequestration of the contractor’s estate awarded and has not been discharged from the sequestration;

(n) the contractor is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986(6) (bankruptcy restrictions order and undertaking), or Schedule 2A to the Insolvency (Northern Ireland) Order 1989(7) (bankruptcy restrictions order and undertaking) or Part 13 of the Bankruptcy (Scotland) Act 2016(8) (bankruptcy restrictions orders and interim bankruptcy restrictions orders), unless the contractor has been discharged from that order or that order has been annulled;

(o) the contractor—

(i) is subject to a moratorium period under a debt relief order under Part VIIA of the Insolvency Act 1986 (debt relief orders) applies, or

(ii) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to that Act (debt relief restrictions orders and undertakings), unless that order has ceased to have effect or has been annulled;

(p) the contractor has made a composition agreement or arrangement with, or a trust deed has been granted for, the contractor’s creditors and the contractor has not been discharged in respect of it;

(q) the contractor is a company which has been wound up under Part IV of the Insolvency Act 1986 (winding up of companies registered under the Companies Acts);

(r) the contractor has had an administrator, administrative receiver or receiver appointed in respect of it;

(s) the contractor has had an administration order made in respect of the contractor under Schedule B1 to the Insolvency Act 1986 (administration);

(t) the contractor is a partnership and—

(i) the partnership is dissolved by one of the partners, or a dissolution of the partnership is ordered by any competent court, tribunal or arbitrator, or

(ii) an event happens that makes it unlawful for the business of the partnership to continue, or for members of the partnership to carry on in partnership;

(u) the contractor is subject to—

(i) a disqualification order under section 1 of the Company Directors Disqualification Act 1986(9) (disqualification orders: general) or a disqualification undertaking under section 1A of that Act (disqualification undertakings: general),

(ii) a disqualification order or disqualification undertaking under article 3 (disqualification orders: general) or article 4 (disqualification undertakings: general) of the Company Directors Disqualification (Northern Ireland) Order 2002(10), or

(iii) a disqualification order under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of administration order against an individual);

(v) the contractor has refused to comply with a request by the Local Health Board for the contractor to be medically examined because the Local Health Board is concerned that the contractor is incapable of adequately providing services under the contract and, in a case where the contract is with two or more individuals practising in partnership or with a company, the Local Health Board is satisfied that the contractor is taking adequate steps to deal with the matter; or

(w) the contractor or its employees or agents (or anyone acting on its or their behalf) commits any prohibited act in relation to the contract with or without the knowledge of the Local Health Board.

(4) The Local Health Board must not terminate the contract under sub-paragraph (3)(c) where the Local Health Board is satisfied that the disqualification or suspension imposed by a licensing body outside the United Kingdom does not make the person unsuitable to be—

(a) a contractor,

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

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

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

(ii) a director or secretary of the company,

as the case may be.

(5) The Local Health Board may not terminate the contract under sub-paragraph (3)(d)—

(a) until a period of at least 12 weeks has elapsed since the date of the dismissal of the person concerned, or

(b) if, during the period specified in paragraph (a), the person concerned brings proceedings in any competent tribunal or court in respect of the person’s dismissal, until proceedings before that tribunal or court are concluded,

and the Local Health Board may only terminate the contract at the end of the period specified in paragraph (b) if there is no finding of unfair dismissal at the end of those proceedings.

(6) The Local Health Board must not terminate the contract under sub-paragraph (3)(h) 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 persons practising in partnership, or

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

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

(ii) a director or secretary of the company,

as the case may be.

Commencement Information

I11 Sch. 3 para. 119 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board where patients’ safety is seriously at risk or where there is risk of material financial loss to Local Health Board E+W

120.  The Local Health Board may serve notice in writing on the contractor terminating the contract forthwith or with effect from such date as may be specified in the notice if—

(a) the contractor has breached the contract and as a result of that breach, the safety of the contractor’s patients is at serious risk if the contract is not terminated, or

(b) the contractor’s financial situation is such that the Local Health Board considers that the Local Health Board is at risk of material financial loss.

Commencement Information

I12 Sch. 3 para. 120 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board for unlawful sub-contracting E+W

121.  If the contractor breaches the condition specified in paragraph 76(11) and it comes to the Local Health Board’s attention that the contractor has done so, the Local Health Board must serve a notice in writing on the contractor—

(a) terminating the contract with immediate effect, or

(b) instructing the contractor to terminate the sub-contracting arrangements that give rise to the breach with immediate effect, and if it fails to comply with the instruction, the Local Health Board must serve a notice in writing on the contractor terminating the contract forthwith.

Commencement Information

I13 Sch. 3 para. 121 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board: remedial notices and breach notices E+W

122.—(1) Where a contractor has breached the contract other than as specified in paragraphs 117 to 121 and the breach is capable of remedy, the Local Health Board must, before taking any action it is otherwise entitled to take by virtue of the contract, serve a notice on the contractor requiring it to remedy the breach (“remedial notice”).

(2) A remedial notice must specify—

(a) details of the breach,

(b) the steps the contractor must take to the satisfaction of the Local Health Board in order to remedy the breach, and

(c) the period during which the steps must be taken (“the notice period”).

(3) The notice period must, unless the Local Health Board is satisfied that a shorter period is necessary to—

(a) protect the safety of the contractor’s patients, or

(b) protect itself from material financial loss,

be no less than 28 days from the date that notice is given.

(4) Where a Local Health Board is satisfied that the contractor has not taken the required steps to remedy the breach by the end of the notice period, the Local Health Board may terminate the contract with effect from such date as the Local Health Board may specify in a further notice to the contractor.

(5) Where a contractor has breached the contract other than as specified in paragraphs 117 to 121 and the breach is not capable of remedy, the Local Health Board may serve notice on the contractor requiring the contractor not to repeat the breach (“breach notice”).

(6) If, following a breach notice or a remedial notice, the contractor—

(a) repeats the breach that was the subject of the breach notice or the remedial notice, or

(b) otherwise breaches the contract resulting in either a remedial notice or a further breach notice,

the Local Health Board may serve notice on the contractor terminating the contract with effect from such date as may be specified in that notice.

(7) The Local Health Board must not exercise its right to terminate the contract under sub-paragraph (6) unless it is satisfied that the cumulative effect of the breaches is such that the Local Health Board considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract.

(8) If the contractor is in breach of any obligation and a breach notice or a remedial notice in respect of that default has been given to the contractor, the Local Health Board may withhold or deduct monies which would otherwise be payable under the contract in respect of that obligation which is the subject of the default.

Commencement Information

I14 Sch. 3 para. 122 in force at 1.10.2023, see reg. 1(2)

Termination by the Local Health Board: additional provisions specific to contracts with two or more individuals practising in partnership and companies limited by shares E+W

123.—(1) Where the contractor is a company limited by shares, if the Local Health Board becomes aware that the contractor is carrying on any business which the Local Health Board considers to be detrimental to the contractor’s performance of its obligations under the contract—

(a) the Local Health Board is entitled to give notice to the contractor requiring that it ceases carrying on that business before the end of a period of not less than 28 days beginning on the day on which the notice is given (“the notice period”), and

(b) if the contractor has not satisfied the Local Health Board that it has ceased carrying on that business by the end of the notice period, the Local Health Board may, by a further written notice, terminate the contract forthwith or from such date as may be specified in the notice.

(2) Where the contractor is two or more persons practising in partnership, the Local Health Board is entitled to terminate the contract by notice in writing on such date as may be specified in that notice where one or more partners have left the practice during the existence of the contract if in its reasonable opinion, the Local Health Board considers that the change in membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the Local Health Board to perform its obligations under the contract.

(3) A notice given to the contractor pursuant to sub-paragraph (2) must specify—

(a) the date upon which the contract is to be terminated, and

(b) the Local Health Board’s reasons for considering that the change in the membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the Local Health Board to perform its obligations under the contract.

Commencement Information

I15 Sch. 3 para. 123 in force at 1.10.2023, see reg. 1(2)

Contract sanctions E+W

124.—(1) In this paragraph and paragraph 125, “contract sanction” means—

(a) termination or suspension of specified reciprocal obligations under the contract; and/or

(b) withholding or deducting monies otherwise payable under the contract.

(2) Subject to sub-paragraph (4), where the Local Health Board is entitled to terminate the contract under paragraphs 118, 119, 120, 122(4) or 122(6) or 123, it may instead impose any of the contract sanctions if the Local Health Board is reasonably satisfied that the contract sanction to be imposed is appropriate and proportionate to the circumstances giving rise to the Local Health Board’s entitlement to terminate the contract.

(3) If the Local Health Board decides to impose a contract sanction, it must notify the contractor in writing of the contract sanction that it proposes to impose, the date upon which that sanction is to be imposed and provide in that notice an explanation of the effect of the imposition of that sanction.

(4) Subject to paragraph 125, the Local Health Board must not impose the contract sanction until at least 28 days have elapsed, beginning with the date on which it served notice on the contractor pursuant to sub-paragraph (5) unless the Local Health Board is satisfied that it is necessary to do so in order to—

(a) protect the safety of the contractor’s patients,

(b) ensure continuity of care for the contractor’s patients, or

(c) protect itself from material financial loss.

(5) Where the Local Health Board imposes a contract sanction, the contractor must provide all information and assistance to the Local Health Board, throughout the period that the contract sanction applies, as the Local Health Board may reasonably require.

(6) Where the Local Health Board imposes a contract sanction, the Local Health Board is entitled to charge the contractor the reasonable costs that the Local Health Board has incurred in order to impose, or as a result of imposing, the contract sanction.

Commencement Information

I16 Sch. 3 para. 124 in force at 1.10.2023, see reg. 1(2)

Contract sanctions and the NHS dispute resolution procedure E+W

125.—(1) If there is a dispute between the Local Health Board and the contractor in relation to a contract sanction that the Local Health Board is proposing to impose, the Local Health Board must not, subject to sub-paragraph (4), impose the proposed contract sanction except in the circumstances specified in sub-paragraph (2)(a) or (b).

(2) If the contractor refers the dispute relating to the contract sanction to the NHS dispute resolution procedure within 28 days beginning with the date on which the Local Health Board served notice on the contractor in accordance with paragraph 124(3) (or such longer period as may be agreed in writing with the Local Health Board), and notifies the Local Health Board in writing that it has done so, the Local Health Board must not impose the contract sanction unless—

(a) there has been a determination of the dispute pursuant to paragraph 106 and that determination permits the Local Health Board to impose the contract sanction, or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(3) If the contractor does not invoke the NHS dispute resolution procedure within the time specified in sub-paragraph (2), the Local Health Board is entitled to impose the contract sanction with immediate effect.

(4) If the Local Health Board is satisfied that it is necessary to impose the contract sanction before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor’s patients, or

(b) protect itself from material financial loss,

the Local Health Board is entitled to impose the contract sanction forthwith, pending the outcome of that procedure.

Commencement Information

I17 Sch. 3 para. 125 in force at 1.10.2023, see reg. 1(2)

Termination and the NHS dispute resolution procedure E+W

126.—(1) Where the Local Health Board is entitled to serve written notice on the contractor terminating the contract pursuant to paragraph 118, 119, 120, 122(4) or 122(6) or 123(2), the Local Health Board must, in the notice served on the contractor pursuant to those provisions, specify a date on which the contract terminates that is not less than 28 days after the date on which the Local Health Board has served that notice on the contractor unless sub-paragraph (2) applies.

(2) This sub-paragraph applies if the Local Health Board is satisfied that a period less than 28 days is necessary in order to—

(a) protect the safety of the contractor’s patients, or

(b) protect itself from material financial loss.

(3) In a case falling within sub-paragraph (1) where the exception in sub-paragraph (2) does not apply, where the contractor invokes the NHS dispute resolution procedure before the end of the period of notice referred to in sub-paragraph (1), and it notifies the Local Health Board in writing that it has done so, the contract does not terminate at the end of the notice period but instead only terminates in the circumstances specified in sub-paragraph (4).

(4) The contract only terminates if and when—

(a) there has been a determination of the dispute pursuant to paragraph 106 and that determination permits the Local Health Board to terminate the contract, or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(5) If the Local Health Board is satisfied that it is necessary to terminate the contract before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor’s patients, or

(b) protect itself from material financial loss,

sub-paragraphs (3) and (4) do not apply and the Local Health Board is entitled to confirm, by written notice to be served on the contractor, that the contract is to nevertheless terminate at the end of the period of the notice it served pursuant to paragraph 118, 119, 120, 122(4) or 122(6) or 123(2).

Commencement Information

I18 Sch. 3 para. 126 in force at 1.10.2023, see reg. 1(2)

Consultation with the Local Medical Committee E+W

127.—(1) Whenever the Local Health Board is considering—

(a) terminating the contract pursuant to paragraph 118, 119, 120, 122(4) or 122(6) or 123,

(b) which of the alternative notices in writing available under the provisions of paragraph 121 it will serve, or

(c) imposing a contract sanction,

it must, whenever it is reasonably practicable to do so, consult the Local Medical Committee for its area before it terminates the contract, serves a notice in writing or imposes a contract sanction.

(2) Whether or not the Local Medical Committee has been consulted pursuant to sub-paragraph (1), whenever the Local Health Board imposes a contract sanction on a contractor or terminates a contract pursuant to this Part, it must, as soon as reasonably practicable, notify the Local Medical Committee in writing of the contract sanction imposed or of the termination of the contract (as the case may be).

Commencement Information

I19 Sch. 3 para. 127 in force at 1.10.2023, see reg. 1(2)

(1)

1933 c. 12.

(2)

1995 c. 46.

(3)

2006 c. 47.

(4)

S.I. 2007/1351 (N.I. 11).

(5)

2005 asp 10.

(6)

1986 c. 45.

(7)

S.I. 1989/2405 (N.I. 19).

(8)

2016 asp 21.

(9)

1986 c. 46.

(10)

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