The National Health Service (Tribunal) (Scotland) Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations consolidate, with amendments, those provisions of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992 (S.I. 1992/434) (“the 1992 Regulations”) relating to the NHS Tribunal and representations to and procedures before it.

These Regulations are consequential upon the coming into force of amendments made by:

(a) the Health Act 1999 (“the 1999 Act”) and the Community Care and Health (Scotland) Act 2002 (“the 2002 Act”) to the sections of the National Health Service (Scotland) Act 1978 (“the 1978 Act”), dealing with the NHS Tribunal and the disqualification of practitioners; and

(b) the 2002 Act to Schedule 1 to the National Health Service (Primary Care) Act 1997 (“the 1997 Act”), dealing with representations to the NHS Tribunal against preferential treatment on transferring to medical lists.

Those provisions of the 1999 Act and the 2002 Act were commenced on 4th March 2004 by Article 2(2) of the Health Act 1999 (Commencement No. 14) (Scotland) Order 2004 (S.S.I. 2004/32) and Article 2 of the Community Care and Health (Scotland) Act 2002 (Commencement No. 3) Order 2004 (S.S.I. 2004/33).

The changes to the 1978 Act by the 1999 Act include powers and duties for the NHS Tribunal to inquire into representations that a practitioner meets a new second condition for disqualification (which are referred to in the Act as “fraud cases”), powers to make a conditional disqualification (a disqualification which is to come into effect only if the NHS Tribunal determine on a review that a person subject to the inquiry has failed to comply with any conditions), and new powers and duties in relation to reviews of disqualifications, conditional disqualifications or declarations of unfitness. The changes to the 1978 Act by the 2002 Act include extending the jurisdiction of the Tribunal to include inquiries into representations concerning a practitioner on a list of persons approved to assist in the provision of general medical services. The changes to the 1997 Act by the 2002 Act give the Tribunal power to inquire into representations that applicants with preferential treatment to be included in a medical list meet the new second condition for disqualification. These Regulations make amendments consequential upon these changes, and other amendments, to the relevant provisions of the 1992 Regulations.

Part I of these Regulations makes general provisions for the purpose of these Regulations. Regulation 3 prescribes the additional health and medical schemes that will be included in the definition of health schemes in section 29 of 1978 Act for the purposes of the new second condition for disqualification.

Part II of these Regulations consolidates the provisions of the 1992 Regulations relating to the appointment of members and officers of the NHS Tribunal.

Part III of these Regulations make provisions for the making of representations to the NHS Tribunal and for the procedure that inquiries under section 29 to 29C of the 1978 Act and paragraph 3 of Schedule 1 to the 1997 Act are to be held in accordance with.

The principal changes in Part III from the provisions of the 1992 Regulations as a result of the coming into force of the amendments made by the 1999 Act are:

(a) regulation 6(3) prescribes the time within which representations that the second condition for disqualification is met and which relate to a practitioner who has applied to join a list, must be made;

(b) regulations 9(3) and 15(3)(c) make provision for notifying Health Boards and primary care NHS trusts when a person is subject to an inquiry in a fraud case and when those representations are withdrawn; and

(c) regulation 17(1) provides that where it would be the duty of the NHS Tribunal to inquire into both an efficiency case and a fraud case in respect of the same person it may inquire into one case before the other.

The other principal changes in Part III from the provisions of 1992 Regulations are:

(a) regulation 6(5) prescribes that the time limit for submitting representations may be extended by the Tribunal, and confers on the Tribunal power to do so;

(b) regulations 9(1) and (2) and 11(4) and (6) require the clerk to the Tribunal to give additional information to all parties about documents submitted to the Tribunal;

(c) regulation 16 makes provision for where any party which has received notice of an inquiry fails to appear at the inquiry;

(d) regulation 17(2) makes provision that inquiries before the NHS Tribunal may not be adjourned solely because of an investigation into the same facts by the respondent’s professional body;

(e) regulation 21(4) makes additional provision for the Scottish Ministers to publish decisions of the Tribunal by sending them to respondents' professional bodies.

Part IV of these Regulations make provision for, and for the determination of, procedure in relation to determining applications for interim suspension under the 1978 Act. The principal change from the 1992 Regulations is to make provision, in regulation 22(7), for the time limits for submitting a statement-in-answer and for notice of the date and time of an inquiry to be varied, provided that the respondent still has an opportunity to appear before the NHS Tribunal and to be heard and call witnesses and produce other evidence.

Part V of these Regulations makes provision for inquiries for the purposes of a review under the 1978 Act or an inquiry under paragraph 5(2) of Schedule 1 to the 1997 (which relates to the termination of directions by the NHS Tribunal made as a result of representations against preferential treatment). The principal change from the 1992 Regulations is to make provision, in regulation 24(7), for certain applications for review under the 1978 Act of a conditional disqualification by a Health Board or primary care NHS trust.

Part VI of these Regulations consolidate various miscellaneous provisions in the 1992 Regulations. The principal change to those provisions as a result of the coming into force of amendments made by the 1999 Act is provision, in regulation 26, for the purpose of securing that a person subject to an inquiry in a fraud case is not added to any list until proceedings in that case are finally concluded.

The other principal change in Part VI from the 1992 Regulations is to make provision for the Scottish Ministers, in certain circumstances, after notifying the practitioner and giving them an opportunity to make representations, to direct Health Boards and primary care NHS trusts to recover amounts from practitioners where there has been a decision of the NHS Tribunal against that practitioner.

In Part VI also, regulation 34 makes transitional provisions and regulation 35 and Schedule 3 repeal the provisions of the 1992 Regulations relating solely to the NHS Tribunal and amendments made to those provisions.

Schedule 1 makes provisions for procedure at all inquires before the NHS Tribunal. The principal change to equivalent provisions in the 1992 Regulations is that the maximum level of fine for which a person shall be liable for on summary conviction of an offence under paragraph 6 has been increased to level five on the standard scale.

Schedule 2 sets out the prescribed forms for use in proceedings in connection with representations and applications to the NHS Tribunal.