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PART I SGENERAL

Citation and commencementS

1.  These Regulations may be cited as the National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006 and shall come into force on 1st April 2006.

InterpretationS

2.—(1) In these Regulations–

“the Act” means the National Health Service (Scotland) Act 1978;

[F1“the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 2007;]

“the Agency” means the Common Services Agency for the Scottish Health Service constituted under section 10 of the Act M1;

“area medical committee” means the committee of that name for the area of a Health Board recognised under section 9 of the Act M2;

“area optical committee” means the committee of that name for the area of a Health Board recognised under section 9 of the Act;

[F1“barred from regulated work” means barred from regulated work with children or adults within the meaning of section 92(1) or (2) (individuals barred from regulated work) of the 2007 Act;]

“Board” means a Health Board constituted for any area under section 2 of the Act M3;

“body corporate” means a body corporate registered in the register of bodies corporate maintained under section 9 of the Opticians Act 1989 M4 carrying on business as an optometrist and includes a partnership and a limited liability partnership, and in relation to such partnerships, the reference to a director or other officer of a body corporate is a reference to a member;

“complex appliance” means an optical appliance at least one lens of which–

(a)

has a power in any one meridian of plus or minus 10 or more dioptres, or

(b)

is a prism controlled bifocal lens;

“condition for disqualification” means the first, second or third condition for disqualification in section 29 of the Act M5;

“conditional disqualification” has the same meaning as in section 29C(1) of the Act M6 and includes a decision under provisions in force in England, Wales or Northern Ireland corresponding (whether or not exactly) to a conditional disqualification, and “conditionally disqualified” shall be construed accordingly;

[F1“considered for listing” means considered for listing by the Scottish Ministers in the children’s list or adult’s list or in both lists in pursuance of section 10, 11, 12 or 13 (consideration whether to list) of the 2007 Act;]

“contractor” means a person who has undertaken to provide general ophthalmic services and whose name is included in the first part of the Ophthalmic List;

“corresponding decision” has the same meaning as in section 32D M7 of the Act;

“day centre” means an establishment attended by patients and accepted by the Board as suitable for the provision of general ophthalmic services in the Board's area for those patients who would have difficulty in obtaining such services from practice premises because of physical or mental illness or disability or because of difficulties in communicating their health needs unaided;

“deputy” means an ophthalmic medical practitioner or optician, whether or not a contractor, who provides general ophthalmic services on behalf of a contractor otherwise than as a director or salaried employee of that contractor;

“director” means–

(a)

a director of a body corporate; or

(b)

a member of the body of persons controlling a body corporate;

[F1“disclosure record” has the meaning given in section 97(1) of the 2007 Act;]

[F1“disclosure request” has the meaning given in section 97(1) of the 2007 Act;]

“disqualification” means disqualification by the Tribunal, (or a corresponding decision under provisions in force in England, Wales or Northern Ireland corresponding to disqualification), but does not include conditional disqualification, and “disqualified” shall be construed accordingly;

“doctor” means a registered medical practitioner;

[F2“EEA state” means a member State, Norway, Iceland or Lichtenstein;]

[F3“electronic communication” has the meaning given by section 15(1) of the Electronic Communications Act 2000;]

[F4“emergency eye examination” means an eye examination carried out, in circumstances that in the professional judgement of an ophthalmic medical practitioner or optician constitute an emergency, on the day that a person presents under regulation 21B or within a reasonable period thereof;]

“enactment” includes an enactment comprised in, or an instrument made under, an Act of the Scottish Parliament;

“enhanced criminal record certificate” has the meaning ascribed in [F5section 113B] of the Police Act 1997 M8;

“equivalent body” means–

(a)

in England, [F6NHS England];

(b)

in Wales, a Local Health Board;

(c)

in Northern Ireland, a Health and Social Services Board;

(ca)

[F7in relation to any time prior to 1st April 2013 and after 30th September 2002, a Primary Care Trust in England;]

(d)

in relation to any time prior to 1st October 2002, a Health Authority in England; or

(e)

in relation to any time prior to 1st April 2003, a Health Authority in Wales,

or any successor body;

“equivalent list” means a list kept by an equivalent body;

“eye examination” means a primary eye examination or a supplementary eye examination or both;

“eye examination form” means [F8an electronic form supplied by the Agency] which is to be completed for the purposes of payment in respect of an eye examination;

“fraud” means matters which it is the function of the Agency to prevent, detect or investigate by virtue of article 3(o) of the National Health Service (Functions of the Common Services Agency) (Scotland) Order 1974; M9

“general ophthalmic services” means the services which a contractor must provide pursuant to paragraph 14 of Schedule 1;

[F9“Goldmann type tonometer” includes a Perkins type tonometer;]

“licensing or regulatory body” means a body that licenses or regulates any profession of which the ophthalmic medical practitioner, or the optician (as the case may be) is, or has been a member, including a body regulating or licensing the education, training or qualifications of that profession, and includes any body which licenses or regulates any such profession, its education, training or qualifications, outside the United Kingdom;

“list” has, unless the context otherwise requires, the same meaning as in section 29(8) M10 of the Act;

“mobile practice” means a contractor who does not have practice premises in the Board's area but who has undertaken to provide general ophthalmic services [F10for a patient who is] at a day or residential centre [F11or [F12for a patient who is] at a place where the patient normally resides] in that part of the Board's area;

“ophthalmic hospital” includes an ophthalmic department of a hospital;

“Ophthalmic List” has the meaning assigned to it by regulation 6;

“ophthalmic medical practitioner” means a registered medical practitioner whose qualifications have been approved in accordance with regulation 4 or 5 as being prescribed qualifications;

“ophthalmic officer” means an ophthalmic medical practitioner, ophthalmic optician or ophthalmologist in the service of the Agency;

“Ophthalmic Qualifications Committee” means such committee appointed by organisations representative of the medical profession as may be recognised for the purposes of approving–

(a)

ophthalmic hospitals, academic degrees, academic or post graduate courses in ophthalmology and appointments affording special opportunities for acquiring the necessary skill and experience of the kind required for the provision of general ophthalmic services; and

(b)

the qualifications of doctors for the purpose of general ophthalmic services;

“optical appliance” means an appliance designed to correct, remedy or relieve a defect of sight;

“optician” means an ophthalmic optician as defined in section 108(1) of the Act M11;

“optometrist” means a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989 M12 F13... or a body corporate;

[F14“optometrist independent prescriber” means an optometrist who is a person against whose name is recorded in the register an annotation signifying that the person is qualified to order drugs, medicines and appliances];

“patient” means any person for whom a contractor has agreed to provide general ophthalmic services, or in respect of whom an ophthalmic medical practitioner or optician has agreed to assist in the provision of general ophthalmic services;

[F15“patient practice record form” means a form supplied by a Health Board which contains a declaration for the purposes of payment in respect of an eye examination by, or on behalf of, a person who applies to have such an examination;]

[F16“practice premises” means a place to which the public has unrestricted access during normal business hours and at [F17or from] which general ophthalmic services are provided;]

[F18“primary eye examination” means a general eye health check which includes a sight test, an internal and external examination of the eye as well as other tests and procedures appropriate to the needs of the patient;]

“professional conduct” includes matters relating both to professional conduct and professional performance;

“professional registration number” means the number against the ophthalmic medical practitioner or optician's name in the register;

“qualifications” includes qualifications as to experience;

F19...

[F20“records” means records kept in accordance with paragraph 8 of Schedule 1F21...;]

“register”–

(a)

in the case of an ophthalmic medical practitioner has the meaning given to it in section 2(2) of the Medical Act 1983 M13;

(b)

in the case of an optician means a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989 F22..., or, in the case of a body corporate, the register of bodies corporate carrying on business as an optometrist maintained under section 9 of that Act;

“relevant service in the armed forces” means whole time service in the armed forces of the Crown in a national emergency, as a volunteer or otherwise, or a compulsory whole-time service in those forces, including any service resulting from any reserve liability, or any equivalent service by a person liable for compulsory whole-time service in those forces;

[F23“remote facilities” means any equipment or facility which—

(a)

enables persons who are not in the same place to provide and receive general ophthalmic services, and

(b)

enables those persons to speak to and be heard by each other (whether or not it enables those persons to see and be seen by each other).]

F24...

“residential centre” means an establishment in the Board's area for patients who normally reside in that establishment and who are unable to leave the establishment unaccompanied because of physical or mental illness or disability;

[F1“scheme member” means a member of the Scheme, established by section 44 of the 2007 Act, in relation to both—

(a)

regulated work with children, as defined in section 91(2) (regulated work) of the 2007 Act; and

(b)

regulated work with adults, as defined in section 91(3) of the 2007 Act.]

“sight test” means a refraction to measure and correct the refractive error of the eyes by means of an optical appliance;

“the Statement” means the Statement prepared pursuant to the provisions of regulation 17;

“supplements” means prisms, tints, photochromic lenses, small glasses and complex appliances;

[F25“supplementary eye examination” means an eye health check which is either carried out—

(a)

after a primary eye examination for a particular reason which has arisen during the primary eye examination; or

(b)

in circumstances set out in regulation [F2622A(2)],

and includes the tests and procedures appropriate to the clinical needs of the patient;]

“suspended” means suspended as respects the provision of general ophthalmic services to patients or as respects assisting in the provision of such services by a direction of the Tribunal made pursuant to section 32A(2) (applications for interim suspension) M14 or section 32B(1) suspension pending appeal) M15 of the Act or to any provisions in force in England and Wales or Northern Ireland (corresponding whether or not exactly) to those provisions;

“terms of service” means the terms set out in Schedule 1;

“Tribunal” means the Tribunal constituted in accordance with the provisions of section 29 of, and Schedule 8 M16 to, the Act;

“working day” means a period of 7 hours 30 minutes on any day of the week, usually between the hours of 9.00am and 5.30pm with a 1 hour lunch break;

“writing” includes, except in regulation 7(1) electronic [F27communication] and “written” shall be construed accordingly.

(2) A reference to “the Agency” in these Regulations includes a reference to the Agency acting on behalf of a Board.

(3) Unless the context otherwise requires, any reference in these regulations to a numbered regulation or Schedule is to the regulation in or Schedule to these regulations which bears that number, any reference in a regulation or Schedule to a numbered paragraph is to the paragraph bearing that number in that regulation or Schedule, and any reference in a paragraph of Schedule 1 to a numbered sub paragraph is to the sub paragraph bearing that number in that paragraph.

Textual Amendments

Marginal Citations

M1Section 10 was amended by the National Health Service and Community Care Act 1990 (c. 19) (“the 1990 Act”), section 66(2) and Schedule 10; the 1999 Act section 65(1) and Schedule 4, paragraph 44(a); S.S.I. 1999/90, Art 2(a)(b) and Schedule 1, and is amended by the 2005 Act, Schedule 2, paragraph 2(a) with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M2Section 9 was amended by the 1990 Act, section 29, the 1999 Act, section 65 and Schedule 4, paragraph 43, and the Primary Medical Services (Scotland) Act 2004 (asp 7), Schedule 2.

M3Section 2(1) was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 7, paragraph 1, and the 1990 Act, section 28.

M41989 c. 44; section 9 was amended by S.S.I. 2005/848, Art 9.

M5Section 29 was substituted by the 1999 Act, section 58, a relevant amendment is the 2005 Act, section 26 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M6Section 29C(1) was inserted by the Health Act 1999 (c. 8), section 58, and amended by S.S.I. 2004/167 and the 2005 Act, section 26 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M7Section 32D is substituted by the 2005 Act, section 27, with effect from 1st April 2006, in terms of S.S.I. 2006/121.

M81997 c. 50. Relevant amendments are the Criminal Justice and Police Act 2001 (c. 16) Schedule 6, paragraph 7, Schedule 7, part 5, and the Criminal Justice (Scotland) Act 2003 (c. 7), section 70(3)(c).

M9S.I. 1974/467. Relevant amending instruments are S.I. 1991/900, S.S.I. 2000/224 and 2003/306.

M10Section 29(8) was amended by the Community Care and Health (Scotland) Act 2002 (asp 5) (“the 2002 Act”), sections 25 and 27(2) and Schedule 2, paragraph 2(4)(b), and the 2005 Act, section 26(2)(e), with effect from 1st April 2006, in terms of S.S.I. 2006/121.

M11The definition of “ophthalmic optician” was substituted by the Opticians Act 1989 (Amendment) Order 2005/848, Schedule 1(2), paragraph 10.

M12(c.44); section 7 was amended by S.I. 2005/848, Art 7.

M13(c.54); section 2(2) was amended by S.I. 1996/1591 Regulation 7 and Schedule 2, paragraph 1 and by the Medical Act 1983 (Amendment) Order 2002/3135, article 9(1).

M14Section 32A(2) was inserted by the National Health Service (Amendment) Act 1995 (c. 31) (“the 1995 Act”) section 1 amended by the 1999 Act, section 65 and Schedule 4, paragraph 51 and the 2005 Act, section 26(7)(b), with effect from 1st April 2006, in terms of S.S.I. 2006/ .

M15Section 32B(1) was substituted by the 1995 Act, section 8 and amended by the 1999 Act, section 65 and Schedule 4, paragraph 52, and by the 2005 Act, Schedule 3 with effect from 1st April 2006, in terms of S.S.I. 2006/ .

M16Schedule 8 was amended by the 1995 Act, section 12, S.I. 1995/3214; the National Health Service (Primary Care) Act 1997 (c. 46), section 41(10), and Schedule 2, Part II, paragraph 58; S.I. 1998/631; the 1999 Act, sections 653 and Schedule 4, paragraph 64, and by the 2005 Act, Schedule 2, paragraph 2 with effect from 1st April 2006, in terms of S.S.I. 2006/122.

PART II SQUALIFICATIONS OF OPHTHALMIC MEDICAL PRACTITIONERS

QualificationsS

3.—(1) The prescribed qualifications which a doctor is to possess for the purposes of section 26 of the Act (general ophthalmic services) are that the doctor has (at the date of consideration of the doctor's application under regulation 4) recent experience and either–

(a)has–

(i)held an appointment in the health service, otherwise than under Part II of the Act, with the status of consultant ophthalmologist, or an appointment for a period of not less than two years of equivalent status as ophthalmic surgeon or assistant ophthalmic surgeon on the staff of an approved ophthalmic hospital; and

(ii)had adequate experience; or

(b)has–

(i)held an ophthalmic appointment or an appointment in an approved ophthalmic hospital, for a period totalling not less than two years, including therein tenure for a period of not less than 6 months of a residential appointment or an appointment with duties comparable with those of a residential appointment (provided that such tenure for 6 months of a residential or comparable appointment shall not be required in the case of a doctor who has been fully registered for at least seven years and whose experience is such as to make that requirement unnecessary);

(ii)obtained the Membership of the Royal College of Ophthalmologists, or any approved higher degree or qualification; and

(iii)had adequate experience.

(2) “For the purposes of this regulation, “approved” means approved by the Ophthalmic Qualifications Committee.

Approval of qualificationsS

4.—(1) A doctor who wishes to establish his or her status as an ophthalmic medical practitioner shall apply to the Ophthalmic Qualifications Committee for approval of his or her qualifications and experience, and shall give to that Committee such particulars of his or her qualifications and experience as it shall require.

(2) The Ophthalmic Qualifications Committee shall consider such application and within one month after the date thereof shall inform the applicant of its determination.

(3) If the Ophthalmic Qualifications Committee is satisfied that the doctor possesses the qualifications prescribed by regulation 3, he or she shall be an ophthalmic medical practitioner.

(4) Notwithstanding the provisions of regulation 3 and paragraph (1), a doctor who has the prescribed qualifications for the purposes of providing general ophthalmic services in England and Wales under the National Health Service Act 1977 M17 or in Northern Ireland under the Health and Personal Social Services (Northern Ireland) Order 1972 M18, shall be an ophthalmic medical practitioner.

Marginal Citations

Appeals against determinations of Ophthalmic Qualifications CommitteeS

5.—(1) Any person aggrieved by a determination of the Ophthalmic Qualifications Committee that the person is not qualified to be an ophthalmic medical practitioner may, within one month from the date on which he or she received notice of that decision or such longer period as the Scottish Ministers may at any time allow, appeal against the determination by sending to the Scottish Ministers a notice of appeal stating the facts and contentions on which that person relies.

(2) The Scottish Ministers shall appoint to determine the appeal an appeal committee of five persons of whom at least three shall be appointed after consultation with such bodies or organisations representing doctors as appear to them to be concerned and shall refer the appeal to that appeal committee.

(3) The Scottish Ministers shall send a copy of the notice of appeal to the Ophthalmic Qualifications Committee and to such other persons as may appear to them to be interested in the appeal and shall inform the appellant, the Ophthalmic Qualifications Committee and any such other persons that the appeal has been referred and of the address to which communications to the appeal committee shall be sent.

(4) The appeal committee may, and if requested so to do by the appellant or the Ophthalmic Qualifications Committee shall, hold a hearing in connection with an appeal at such time and place as it may direct, and notice of such hearing shall, not less than 28 days before the date of the hearing be sent by the recorded delivery service to the appellant, the Ophthalmic Qualifications Committee and any other person to whom the Scottish Ministers have under paragraph (3) sent notice of appeal.

(5) Either the appellant or the Ophthalmic Qualifications Committee may within 28 days of being informed that the appeal has been referred to an appeal committee, or of being informed that a hearing of such appeal will be held, give notice that he, she or it desires to appear before the appeal committee.

(6) The Ophthalmic Qualifications Committee shall be entitled to appear by a member or by their clerk or other officer duly appointed for the purpose; the appellant shall be entitled to appear in person, by any member of the appellant's family, by any friend, or by an officer or member of any organisation of which the appellant is a member; and any party to an appeal shall be entitled to appear and be heard by counsel or solicitor.

(7) Subject to the foregoing provisions of this regulation the procedure of the appeal committee in determining the appeal shall be such as the appeal committee thinks proper.

(8) An appeal committee shall have all the powers of the Ophthalmic Qualifications Committee including in particular the power of approval and, if satisfied that the appellant possesses the qualifications prescribed by regulation 3, it shall so determine and accordingly the appellant shall be an ophthalmic medical practitioner.

(9) The appeal committee shall as soon as practicable notify its determination to the appellant, the Ophthalmic Qualifications Committee, the Scottish Ministers and any other person to whom the Scottish Ministers have under paragraph (3) sent notice of the appeal.

PART III SOPHTHALMIC LIST

Ophthalmic ListS

6.—(1) Each Board shall prepare and maintain in accordance with these Regulations a list called “the Ophthalmic List” of those persons–

(a)who, pursuant to the provisions of regulation 7, have undertaken to provide, or who are approved by the Board to assist in the provision of, general ophthalmic services in its area, and

(b)who are not disqualified from inclusion in the Ophthalmic List by virtue of the provisions of sections 29B(2) M19, 30(2) M20, (5) M21, 32A(3) M22 or 32B(1) M23 of the Act or by a corresponding decision or who may not be added to the Ophthalmic List by virtue of the provisions of regulation 26 (practitioner subject to an inquiry) of the National Health Service (Tribunal) (Scotland) Regulations 2004 M24.

(2) The Ophthalmic List shall be divided into two parts–

(a)the first part of which shall be of ophthalmic medical practitioners and opticians who have undertaken to provide general ophthalmic services under arrangements with the Board in terms of these Regulations, and

(b)the second part of which shall be of ophthalmic medical practitioners and opticians who are approved by the Board to assist in the provision of such services.

(3) The first part of the Ophthalmic List shall contain the following information:–

(a)the names of persons who are included therein;

(b)the addresses of any [F28practice premises] in the Board's area at [F29or from] which they have undertaken to provide general ophthalmic services, or in the case of a mobile practice, the address to which correspondence in connection with such provision may be sent and the addresses of any day centre or residential centre to be visited more than once;

(c)particulars of the days on which and hours between which general ophthalmic services will normally be available at [F30or from] such addresses, or in the case of visits to day centres or residential centres by a mobile practice, the months in which visits are intended to take place and the planned interval between such visits;

(d)the name of each ophthalmic medical practitioner or optician who is regularly engaged as a deputy, director or employee in the provision of general ophthalmic services at [F31or from] any of these addresses;

(e)whether the contractor has undertaken F32...to provide general ophthalmic services [F33at a place where the patient normally resides (in accordance with paragraph 4(2)(a) of Schedule 1),] in addition to providing general ophthalmic services at [F34or from] the addresses specified in sub paragraph (b) above;

(f)whether the contractor has undertaken F35... to provide general ophthalmic services [F36only at a place where the patient normally resides (in accordance with paragraph 4(2)(a) of Schedule 1)];

(g)whether there is wheelchair access to the premises the addresses of which are specified under sub paragraph (b) above;

(h)whether the premises the addresses of which are specified under sub paragraph (b) are accessible without the use of stairs.

(i)each such person's professional registration number;

(j)the date of that person's first registration [F37, and any subsequent registration,] as an optician by the General Optical Council, or as a medical practitioner by the General Medical Council; and

(k)the date on which that person's name was included in the first part of the Ophthalmic List.

(4) The second part of the Ophthalmic List shall contain the following information:–

(a)the names of persons who are included therein;

(b)the professional registration number of each such person;

(c)the date of that person's first registration [F38, and any subsequent registration,] as an optician by the General Optical Council, or as a medical practitioner by the General Medical Council; and

(d)the date on which that person's name was included in the second part of the Ophthalmic List.

(5) Subject to regulation 26(8)–

(a)an ophthalmic medical practitioner or optician may not provide general ophthalmic services in the area of a Board unless that person's name is included in the first part of the Ophthalmic List of that Board; and

(b)an ophthalmic medical practitioner or optician may not assist in the provision of general ophthalmic services in the area of a Board unless that person's name is included in the first or second part of the Ophthalmic List of that Board.

(6) The Board shall–

(a)send to the Scottish Ministers, the Agency, the area medical committee and the area optical committee, as appropriate, a copy of its Ophthalmic List as soon as possible after its preparation; and

(b)notify the Agency within 7 days and the Scottish Ministers, area medical committee and area optical committee within 14 days, of any alterations to its Ophthalmic List.

(7) The Board shall, if necessary, prepare an updated Ophthalmic List each year and send a copy to the Scottish Ministers.

Textual Amendments

Marginal Citations

M19Section 29B(2) was added by the 1999 Act, section 58, and amended by the 2002 Act, Schedule 2, paragraph 2, the 2004 Act, Schedule 1, paragraph 1, and the 2005 Act, section 26(4) and Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M20Section 30(2) was substituted by the 1999 Act, section 58 and amended by the 2005 Act, Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M21Section 30(5) was substituted by the 1999 Act, section 58 and amended by the 2005 Act, Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M22Section 32A(3) was inserted by the National Health Service (Amendment) Act 1995 (c. 31), section 8, amended by the 1999 Act, section 65 and Schedule 4, paragraph 51 and the 2005 Act, Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

M23Section 32B(1) was substituted by the 1999 Act, section 65 and Schedule 4, paragraph 52, and the 2005 Act, Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/ .

Application for inclusion in Ophthalmic List and notification of changesS

7.—(1) An ophthalmic medical practitioner or optician who wishes to be included in the Ophthalmic List of a Board shall submit to that Board a written application to that effect, which shall state whether the applicant is an ophthalmic medical practitioner, a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989, or a body corporate registered in the register of bodies corporate maintained under section 9 of that Act carrying on business as an optometrist, and whether the applicant wishes to be included in the first part of the Ophthalmic List, or in the second part of that list, and shall include–

(a)in the case of an application to be included in the first part of that list an undertaking to provide general ophthalmic services and to comply with the terms of service;

(b)in the case of an application to be included in the second part of that list, an undertaking to comply with paragraphs 1, 2, [F393, 3A], 4(2), 8(1) and (2), 12, [F4013(4) and (4A)], and 14 of the terms of service.

(c)the information, as respect the matters specified in regulation 6(3) or (4) (as the case may be), which it is proposed shall be contained in the Ophthalmic List;

(d)in the case of an application to be included in the first part of that list, the information, certificates, [F41applications for such certificates as the case may be] [F42, disclosure requests, disclosure records,] undertakings, consents and declarations set out in Part A of Schedule 2; or

(e)in the case of an application to be included in the second part of that list, the information, certificates, [F43applications for such certificates as the case may be] [F44, disclosure requests, disclosure records,] undertakings, consents and declarations set out in Part B of Schedule 2.

[F45(1A) An application may specify other Boards on whose Ophthalmic List the applicant wishes to be included and such an application shall include an undertaking to provide general ophthalmic services and comply with the terms of service in the areas of the Boards so specified.]

[F46(1B) An application shall, in the case of an application by an optician that is a body corporate, be signed by all the directors of that body corporate.]

[F47(2) An optician or ophthalmic medical practitioner who is included in a Board’s Ophthalmic List shall—

(a)notify the Board in writing if there is a change to any of the information which that optician or ophthalmic medical practitioner has provided in terms of regulation 7(1) together with that changed information within 7 days of the occurrence of the relevant change;

(b)supply any declarations, certificates, applications, [F48disclosure requests, disclosure records,] undertakings and consents either at the same time as it supplies the information in terms of sub-paragraph (a) or by such date as the Board may determine, if the change to the information is such that, had the information been part of an application it would have required any of the declarations, certificates, applications, [F48disclosure requests, disclosure records,] undertakings and consents required by regulation 7(1) to be supplied;

(c)[F49if the optician or ophthalmic medical practitioner is included in the Ophthalmic List of more than one Board, send the notification and information referred to in sub‑paragraph (a) to each Board on whose Ophthalmic List that optician or ophthalmic medical practitioner is included, and—

(i)to the Board in whose area the optician or ophthalmic medical practitioner derives most income from general ophthalmic services: the original declarations, certificate or application, disclosure record and disclosure request, undertakings and consents required in terms of sub-paragraph (b); and

(ii)a copy of such originals to each other Board on whose Ophthalmic List that optician or ophthalmic medical practitioner is included.]]

(3) Before determining an application submitted under paragraph (1), a Board shall–

(a)check the information provided by the applicant and any documents which the applicant is required to produce in terms of these Regulations;

(b)[F50examine references obtained from the referees, the names and addresses of whom] the applicant has provided in accordance with paragraph l(l) of Part A, or 1(g) of Part B, of Schedule 2; F51...

(c)check with the Agency whether the applicant has any record of fraud, or is currently, or at any time has been, the subject of any investigation by the Agency, which information the Agency shall supply unless it would prejudice any criminal proceedings or the prevention, detection or investigation of fraud[F52; F53...

(d)notify any other Boards on whose Ophthalmic List the applicant wishes to be included on the application][F54; F55...

(e)obtain any enhanced criminal record certificate required in respect of the application if such certificate was not included with the application][F56; and

(f)obtain any disclosure record it requires in respect of the application.]

(4) If a Board considers that further information or documents, in addition to the documents, information and undertakings provided by the applicant in accordance with paragraph (1), are necessary to determine the applicant's application, the Board shall require the applicant to provide such further information or documents as are necessary before the Board shall determine an application in accordance with this regulation.

[F57(4A) If a Board considers that it requires to meet with—

(a)the applicant; or

(b)where the applicant is an optician that is a body corporate, any of its directors,

in order to properly determine the application, it shall require the applicant or director as the case may be, to attend a meeting at a reasonable time and place to discuss the application, and the applicant or director as the case may be shall comply with such a request.

(4B) A Board may, if it considers that the proposed practice premises of an applicant should be inspected, inspect such premises.

(4C) Where the proposed practice premises of an applicant have never been inspected by a Board, it shall inspect the proposed practice premises before determining the application.

(4D) Any inspection made pursuant to paragraphs (4B) or (4C) shall be made no later than 14 days after the date of receipt of the application.

(4E) Following any inspection made pursuant to paragraphs (4B) or (4C), a Board may specify that the applicant shall carry out such work within a reasonable period of time in order to comply with the provisions of paragraph 6 of Schedule 1.]

(5) Where information about an applicant's previous conviction, including information disclosed by means of an enhanced criminal record certificate [F58or disclosure record], or any other information or documents disclosed or provided to, or the investigations carried out by, the Board in terms of this regulation lead the Board to consider that there may be grounds for referral to the Tribunal then the Board may refer the matter to the Tribunal.

(6) In the case of an application to a Board by a ophthalmic medical practitioner or optician who is included in either part of the Ophthalmic List for inclusion in the other part of that list, that person shall only be required to provide the information required by paragraphs (1), (2[F59),] (3) and (4) insofar as–

(a)that person has not already supplied such information to that Board; or

(b)the information has changed since it was provided.

(7) Any person who is not an optician, but expects to become so on successful completion of that person's training, may make an application to a Board to be included in either part of its Ophthalmic List not more than 4F60... months before that person anticipates being registered in the register of optometrists maintained under section 7 of the Opticians Act 1989.

(8) An application under paragraph (7) shall contain–

(a)all information, certificates, [F61applications for such certificates as the case may be] [F62, disclosure requests, disclosure records,] undertakings, consents and declarations mentioned in paragraph (1), except that required by sub paragraphs 1(b) and (c) and 3 of Part A, or paragraphs 1(b) and (c) and 3 of Part B of Schedule 2;

(b)the undertakings and consents required by Schedule 2; and

(c)any declaration required under Schedule 2.

(9) In the application of these Regulations to any application under paragraph (7), any reference to an optician shall be taken as being a reference to an applicant under paragraph (7).

(10) An applicant under paragraph (7) shall provide the information required by paragraphs 1(b) and (c) and 3 of Part A, or 1(b) and (c) and 3 of Part B, of Schedule 2 as soon as the applicant has been notified by the General Optical Council that the applicant has been admitted to the register, and the Board shall then, provided–

(a)the requirements of paragraphs (7) and (8) have been complied with;

(b)the Board has not sought further information, references or documentation under regulation 7(4); and

(c)the Board has not deferred the application under [F63regulation 9],

decide the application within 7 days of receiving the information required under paragraphs 1(b)(c) and 3 of Part A, or 1(b)(c) and 3 of Part B, of Schedule 2.

[F64(11) Where an applicant for inclusion in a Board’s Ophthalmic List is already included on another Board’s Ophthalmic List and has specified such inclusion in the application, notwithstanding paragraphs (1), (3) and (6), the Board to which the application has been made may add the applicant to its Ophthalmic List without further enquiry.]

[F65(12) An optician or ophthalmic medical practitioner who has made an application for inclusion in a Board’s Ophthalmic List shall notify the Board that is considering the application in writing if there is a change to any of the information which that optician or ophthalmic medical practitioner has provided in terms of this regulation as soon as such change occurs.]

Textual Amendments

Grounds for refusal of applicationS

8.—(1) The grounds on which a Board must refuse to include an ophthalmic medical practitioner or optician in its Ophthalmic List are that–

(a)the applicant is not an ophthalmic medical practitioner or an optician;

(b)the applicant has been convicted in the British Islands of murder;

(c)the applicant [F66is] disqualified;

(d)[F67the applicant is suspended from the Ophthalmic List or equivalent list];

(e)the applicant has not updated the application in accordance with regulation 9(4)(a);

(f)the applicant has been refused entry to, or removed from, an equivalent list by an equivalent body on grounds corresponding (whether or not exactly) to a condition for disqualification [F68and, at the time of the application, the decision of that equivalent body remains in force];

(g)any order has been made or any direction has been given in terms of the Medical Act 1983 (in the case of an ophthalmic medical practitioner) or the Opticians Act 1989 (in the case of an optician) that the applicant's registration in the register should be erased, removed or suspended [F69and, at the time of the application, such order or direction remains in force][F70;

(h)the Board is not satisfied, after an inspection of the premises where the applicant intends to provide general ophthalmic services, that the premises comply with the provisions of paragraph 6 of Schedule 1;

(i)the Board is not satisfied that the applicant (except where the applicant is a body corporate) has the knowledge of English which, in the interests of the applicant and of patients who may receive general ophthalmic services from the applicant, is necessary for providing, or assisting with the provision of general ophthalmic services][F71;

(j)the applicant (except where the applicant is a body corporate) is not a scheme member;

(k)the applicant (except where the applicant is a body corporate) is barred from regulated work.]

(2) Paragraph (1) is without prejudice to any duty on a Board not to add the applicant to an Ophthalmic List by virtue of regulation 26 (practitioners subject to inquiry) of the National Health Service (Tribunal) (Scotland) Regulations 2004 M25.

(3) When the Board has decided whether or not to include an applicant in its Ophthalmic List, it shall notify the applicant [F72and any other Board which the applicant has specified in the application] within 7 days of that decision of–

(a)the decision; and,

(b)if the Board has decided not to include the applicant, the grounds for the decision.

[F73(4) When the Board has decided to include an applicant in the Ophthalmic List, and has notified another Board of that decision in accordance with paragraph (3), notwithstanding regulation 7(1), (3) and (6), that other Board may include the applicant in that Board’s Ophthalmic List without further enquiry.]

Textual Amendments

Marginal Citations

M25S.S.I. 2004/38 as amended by S.S.I. 2004/122 and 271, 2005/335 and 2006/122.

Deferment of decision on applicationS

9.—(1) Without prejudice to the Board's power under section 29 of the Act (the NHS Tribunal) to make representations to the Tribunal that an applicant meets a condition for disqualification, a Board may defer a decision on any application to be included in its Ophthalmic List, where–

(a)there are, in respect of the applicant–

(i)criminal proceedings in the British Islands conviction in respect of which would be likely to lead to refusal to include the applicant in, or the removal of the applicant from, an Ophthalmic List, or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification, or

(ii)proceedings elsewhere in the world relating to conduct, which, if it had occurred in the British Islands, would constitute a criminal offence,

the outcome of which would be likely to lead to refusal to include the applicant in, or the removal of the applicant from, an Ophthalmic List, or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification;

(b)in respect of a body corporate of which the applicant is, has in the preceding 6 months been, or was at the time of the originating events, a director or one of the body of persons with control of that body corporate, there are–

(i)criminal proceedings in the British Islands conviction in respect of which would be likely to lead to refusal to include the applicant in, or the removal of the applicant from, an Ophthalmic List, or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification, or

(ii)proceedings elsewhere in the world relating to conduct which, if it had occurred in the British Islands, would constitute a criminal offence,

the outcome of which would be likely to lead to refusal to include the applicant in, or the removal of the applicant from, an Ophthalmic List, or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification;

(c)the applicant or a body corporate of which the applicant is, or has in the preceding 6 months been, or was at the time of the originating events, a director or one of the body of persons with control of that body corporate, is the subject of an investigation or proceedings relating to the professional conduct of the applicant or the body corporate by any licensing or regulatory body (including one by the Agency or another Health Board or equivalent body) in the United Kingdom or elsewhere in the world, the outcome of which would be likely to lead to refusal to include in, or removal from, an Ophthalmic List or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification;

(d)where the applicant is a body corporate, the applicant is the subject of an investigation or proceedings relating to the professional conduct of the applicant by any licensing or regulatory body (including one by the Agency or another Health Board or equivalent body) in the United Kingdom or elsewhere in the world, the outcome of which would be likely to lead to refusal to include in, or removal from, an Ophthalmic List or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets a condition for disqualification;

(e)a body corporate of which the applicant is, has in the preceding 6 months been, or was at the time of the originating events, a director, or one of the body of persons with control of that body corporate, is suspended from any list or equivalent list;

(f)the applicant is being investigated by the Agency in relation to any fraud, where the result, if adverse, would be likely to lead to the applicant's removal from the Board's Ophthalmic List if the applicant were to be included in it;

(g)a body corporate, of which the applicant is, has in the preceding 6 months been, or was at the time of the originating events a director, or one of the body of persons with control of that body corporate, is being investigated by the Agency in relation to any fraud, where the result, if adverse, would be likely to lead to the applicant's removal from the Board's Ophthalmic List if the applicant were to be included in it;

(h)the Tribunal is considering an application from a Board for disqualification of the applicant or of a body corporate of which the applicant is, has in the preceding 6 months been, or was at the time of the originating events, a director or one of the body of persons with control of that body corporate; F74...

(i)the applicant has been suspended from a list by a Health Board, or from an equivalent list by an equivalent body [F75; F76...

(j)after an inspection of the premises for the purposes of regulation 7(4B)-(4E), the Board provided the applicant with a reasonable period of time to carry out such work as the Board has specified in order to ensure that the premises meet the required standard to comply with the provisions of paragraph 6 of Schedule 1][F77; or

(k)the applicant is being considered for listing and the Board is satisfied that it is necessary for the protection of members of the public for the application to be deferred.]

(2) A Board may only defer a decision under paragraph (1) until the outcome of the relevant event mentioned in any of sub paragraphs (a) to [F78(k)] of that paragraph is known.

(3) The Board must notify the applicant that it has deferred a decision on the application and the grounds for the deferral.

(4) Once the outcome of the relevant event mentioned in paragraph (1) is known, the Board shall notify the applicant in writing that the applicant must within 28 days of the date of the notification (or such longer period as the Board may agree)–

(a)update the applicant's application; and

(b)confirm in writing that the applicant wishes to proceed with the application,

and the provisions of regulations 7, 8 and 9 shall apply to the application.

(5) Provided any additional information required by paragraph (4) has been received by it within the period of 28 days specified in paragraph (4) or any longer period agreed, the Board shall notify the applicant as soon as possible–

(a)that the application has been successful; or

(b)that the Board has decided to refuse the application and the grounds for that decision.

(6) In this regulation, “the outcome of the relevant event” means the final determination of any proceedings (including proceedings pending the determination of which the applicant is suspended) or investigation referred to in [F79regulation] 9(1)(a) to (i).

Textual Amendments

Withdrawal from Ophthalmic ListS

10.—(1) Where a person whose name appears on a Board's Ophthalmic List gives notice in writing to the Board that that person desires to withdraw from the Board's Ophthalmic List, that person's name shall, with the agreement of the Board, be removed therefrom at the expiration of 90 days from the date of such notice or of such shorter period as the Board may agree, except that–

(a)if representations are made to the Tribunal in terms of section 29 of the Act (the NHS Tribunal), or a request for review has been made to the Tribunal or a review is to be made by the Tribunal under section 30 of the Act (review etc. of disqualification) M26, that person shall not, except with the consent of the Scottish Ministers and subject to such conditions, if any, as the Scottish Ministers may impose, be entitled to have that person's name removed from the Ophthalmic List pending the determination of the proceedings on those representations, request for review or review;

(b)the Board shall not agree to a contractor's withdrawal from the Board's Ophthalmic List unless and until the Board is satisfied that satisfactory arrangements have been made for the completion of any general ophthalmic services which such contractor has undertaken to provide.

(2) The Board shall, on receiving notice from any person pursuant to paragraph (1), as soon as practicable so amend the Board's Ophthalmic List–

(a)on the date which falls 90 days after the date the notice was received, or, if later, the date on which that person has indicated in the notice that that person intends to withdraw; or

(b)on the date from which the Board has agreed with that person that the withdrawal shall take effect,

whichever is the earlier.

(3) Any notice given pursuant to paragraph (1) may not be withdrawn by the person giving that notice except with the consent of the Board.

(4) A contractor shall give notice in writing to the Board that he or she intends to withdraw from the first part of its Ophthalmic List if the contractor is accepted on to the second part of its Ophthalmic List.

(5) An ophthalmic medical practitioner or optician who assists in the provision of general ophthalmic services shall give notice in writing to the Board that he or she intends to withdraw from the second part of its Ophthalmic List if he or she is accepted on to the first part of its Ophthalmic List.

Marginal Citations

M26Section 30 was substituted by the 1999 Act, section 58 and amended by the 2002 Act, Schedule 2, paragraph 2, and by the 2005 Act, Schedule 2, paragraph 2, and Schedule 3 with effect from 1st April 2006 in terms of S.S.I. 2006/121.

SuspensionS

11.—(1) If a Board is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest, it may suspend an ophthalmic medical practitioner or an optician from its Ophthalmic List in accordance with this regulation–

(a)while it considers whether to remove that person from its Ophthalmic List under regulation 12;

(b)while it waits for a decision affecting that person of a court anywhere in the world, or of a licensing or regulatory body;

(c)while it considers whether to refer that person to the Tribunal;

(d)while it awaits a finding by the Tribunal [F80or equivalent body];

(e)where it has decided to remove that person from its Ophthalmic List but before that decision takes effect [F81;

(f)while that person is being considered for listing.]

(2) In a case falling within paragraph (1)(a) or (c), the Board must specify a period, not exceeding six months, as the period of suspension.

(3) In a case falling within paragraph (1)(b), the Board may specify that the ophthalmic medical practitioner or optician (as the case may be) remains suspended after the decision referred to in that paragraph has been made for an additional period, not exceeding six months.

(4) In a case falling within paragraph [F82(1)(b), (d) or (f)], the term of suspension may exceed six months.

(5) If the Board suspends an ophthalmic medical practitioner or an optician in a case falling within paragraph (1)(e) the suspension has effect from the date the Board informed that person of the suspension.

(6) The Board may extend the period of suspension under paragraph (2) or impose a further period of suspension under paragraph (3), so long as the aggregate period of suspension does not exceed 6 months.

(7) The effect of a suspension is that, while an ophthalmic medical practitioner or optician is suspended under these Regulations, that person is to be treated as not being included in the Ophthalmic List even though that person's name appears in it.

(8) The Board may at any time revoke the suspension and notify the ophthalmic medical practitioner or optician (as the case may be) of its decision.

(9) Where a Board is considering suspending an ophthalmic medical practitioner or an optician or varying the period of suspension under this regulation, it shall give the ophthalmic medical practitioner or optician (as the case may be)–

(a)notice of any allegation against that person;

(b)notice of what action it is considering and on what grounds; and

(c)the opportunity to put that person's case at an oral hearing before the Board, on a specified day, provided that at least 24 hours' notice of the hearing is given.

(10) If the ophthalmic medical practitioner or optician (as the case may be) does not wish to have an oral hearing or does not attend the oral hearing, the Board may suspend that person with immediate effect.

(11) If an oral hearing does take place, the Board shall take into account any representations made at the hearing before it reaches its decision.

(12) The Board may suspend the ophthalmic medical practitioner or optician (as the case may be) with immediate effect following the hearing.

(13) The Board shall notify the ophthalmic medical practitioner or optician (as the case may be) of its decision and the reasons for it (including any facts relied upon) within 7 days of making that decision.

(14) During a period of suspension, payments shall be made to or in respect of the ophthalmic medical practitioner or optician (as the case may be) in accordance with regulation 21.

(15) If an ophthalmic medical practitioner or optician (as the case may be) is dissatisfied with a decision of a Board (“the original decision”)–

(a)not to authorise the Agency to make a payment to or in respect of that person pursuant to a determination under regulation 21;

(b)to authorise the Agency to make a payment to or in respect of that person pursuant to a determination under regulation 21, but at a lower level than the level to which the suspended ophthalmic medical practitioner or optician (as the case may be) considers to be correct; or

(c)in respect of recovery of what the Board considers to be an overpayment,

that person may ask the Board to review the original decision and, if that person does so, the Board shall reconsider the original decision, and once it has done so, it must notify that person in writing of the outcome of that reconsideration (“the reconsidered decision”) and give that person notice of the reasons for the reconsidered decision.

Textual Amendments

Removal from Ophthalmic ListS

12.—(1) Where a Board has determined that a person whose name has been included in its Ophthalmic List–

(a)has died;

(b)has ceased to be an ophthalmic medical practitioner or optician;

(c)has been convicted in the British Islands of murder;

(d)[F83is] disqualified;

(e)has been refused entry to, or removed from, an equivalent list by an equivalent body on grounds corresponding (whether or not exactly) to a condition for disqualification [F84(and that refusal or removal is still in force)]; F85...

(f)any order has been made or any direction has been given in terms of the Medical Act 1983 (in the case of an ophthalmic medical practitioner) or the Opticians Act 1989 (in the case of an optician) that the applicant's registration in the register should be erased, removed or suspended [F86(and that erasure, removal or suspension is still in force)][F87;

(g)is barred from regulated work; or

(h)is no longer a scheme member,]

it shall remove that person's name from the Ophthalmic List with effect from the date of its determination or, in the case of (d) above, the date on which the disqualification takes effect if that date is later than the date of the Board's determination, and shall notify that person as soon as practicable of the removal and the grounds for the removal.

(2) Where a Board determines after consultation with any appropriate area medical committee in the case of an ophthalmic medical practitioner, or with any appropriate area optical committee in the case of an optician, that a person whose name has been included for the preceding 6 months in the first part of the Ophthalmic List of the Board has not during that period provided general ophthalmic services for persons in the Board's area, the Board shall remove the name of that person from its Ophthalmic List.

(3) Where a Board determines after consultation with any appropriate area medical committee in the case of an ophthalmic medical practitioner, or with any appropriate area optical committee in the case of an optician that a person whose name has been included for the preceding 12 months in the second part of the Ophthalmic List of the Board has not during that period assisted with the provision of general ophthalmic services for persons in the Board's area, the Board may remove the name of that person from its Ophthalmic List.

(4) In calculating the periods of 6 and 12 months referred to in paragraphs (2) and (3) the Board shall disregard any period during which the ophthalmic medical practitioner or optician (or the case may be)–

(a)was not included in its Ophthalmic List;

(b)was suspended;

(c)was performing a period of relevant service in the armed forces;

(d)was suspended from the Ophthalmic List by the Health Board;

(e)was suspended from the register.

(5) Before making any determination under paragraphs (2) or (3) the Health Board shall give the contractor or the ophthalmic medical practitioner or optician assisting with the provision of general ophthalmic services 28 days' notice of its intention so to do and shall afford that person an opportunity of making representations to the Board orally or in writing, if he or she so wishes.

(6) No determination under this regulation shall be made in respect of any ophthalmic medical practitioner or optician who has completed a period of relevant service in the armed forces until 12 months after the date when that person completed that period of relevant service in the armed forces.

(7) Nothing in this regulation shall prejudice the right of a person to have that person's name included again in a Board's Ophthalmic List.

(8) Any document which is required or authorised to be given to any person under [F88these Regulations] may be given by delivering it to that person or by sending it by recorded delivery service to that person's usual or last known [F89practice premises] as recorded in the Ophthalmic List or in the case of an ophthalmic medical practitioner or optician who assists in the provision of general ophthalmic services to his or her home address.

(9) Paragraph (1) is without prejudice to any duty on a Board to remove an ophthalmic medical practitioner or an optician from an Ophthalmic List by virtue of that person being suspended under section 32A or 32B of the Act.

(10) Where information about the conviction(s) of any person on an Ophthalmic List or any other information relating to such a person is disclosed to a Board, including by means of an enhanced criminal record certificate, and the Board considers that the disclosure may be grounds for removal of that person from the Board's Ophthalmic List (other than under paragraph (1), (2) or (3)) then the Board may refer the matter to the Tribunal.

Textual Amendments

Re inclusion in Ophthalmic ListS

13.—(1) Where an ophthalmic medical practitioner or optician has been removed from a Board's Ophthalmic List under regulation 12, and the occurrence that led to that removal is overturned either on appeal, or for any other reason, the Board may include that person in its Ophthalmic List without an application being made in accordance with regulation 7 if the Board is satisfied that there is no further information which it should consider, and provided that the Board receives undertakings from that person to comply with these Regulations.

(2) Where the Board considers that further information is required, a person who wishes to be re-included in the Ophthalmic List will be required to complete a full application in accordance with regulation 7.

Disclosure of informationS

14.—(1) Where a Board decides to–

(a)refuse to admit a person to the Board's Ophthalmic List on the grounds specified in [F90regulation 8(1)];

(b)remove an ophthalmic medical practitioner or optician from that list on the grounds specified in [F91regulation 12(1)]; or

(c)suspend a person from that list, or end a suspension under regulation 11,

the Board shall notify the persons or bodies specified in paragraph (2), and shall additionally notify those specified in paragraph (3), if requested to do so by those persons or bodies in writing, of the matters set out in paragraph (4).

(2) Where paragraph (1) applies, a Board shall notify within 7 days of that decision–

(a)the Scottish Ministers;

(b)the Agency;

(c)any other Board or equivalent body that, to the knowledge of the notifying Board–

(i)has that person on any list or equivalent list,

(ii)is considering an application by that person for inclusion in any list or equivalent list; or

(iii)is investigating an allegation against that person;

(d)the Secretary of State;

(e)the National Assembly for Wales;

(f)the Northern Ireland Executive;

(g)the General Medical Council in respect of an ophthalmic medical practitioner, or the General Optical Council in respect of an optician, or any other appropriate regulatory body[F92;

(h)NHS Education for Scotland.]

(3) The persons or bodies to be additionally notified in accordance with paragraph (1) are–

(a)persons or bodies that can establish that they are employing that person or using that person's services [F93to provide or assist in the provision of general ophthalmic services];

(b)a body corporate which provides general ophthalmic services and which can establish that the person is one of the body of persons which governs or controls the body corporate.

(4) The matters referred to in paragraph (1) are–

(a)the person's name;

(b)the person's professional registration number;

(c)the date and a copy of the Board's decision; and

(d)a contact name of a person in the Board for further enquiries.

(5) The Board shall send to the person concerned a copy of any information about that person provided to the persons or bodies listed in paragraphs (2) or (3), and any correspondence with that person or body relating to that information.

(6) Where the Board has notified any of the persons or bodies specified in paragraphs (2) or (3) of the matters set out in paragraph (4), it may, in addition, if requested by that person or body, notify that person or body of any information that was considered by the Board, including any representations from the ophthalmic medical practitioner or optician (as the case may be).

(7) A Board may disclose information about an ophthalmic medical practitioner or optician supplied to it or acquired by the Board pursuant to these Regulations, or about references by the Board to the Tribunal, to any of the following–

(a)the Scottish Ministers;

(b)the Agency;

(c)any other Board or equivalent body, which–

(i)has the person to whom the information relates on any list or equivalent list;

(ii)is considering an application from such a person for inclusion in any list or equivalent list;

(iii)is investigating an allegation against that person;

(d)the Secretary of State;

(e)the National Assembly for Wales;

(f)the Northern Ireland Executive;

(g)the General Medical Council in respect of an ophthalmic medical practitioner or any other licensing or regulatory body;

(h)the General Optical Council in respect of an optician or any other licensing or regulatory body;

(i)persons or bodies that can establish that they are employing that person or using that person's services;

(j)a body corporate which provides general ophthalmic services, and can establish that the person is one of the body of persons which governs or controls the body corporate[F94;

(k)NHS Education for Scotland.]

Textual Amendments

Requirements with which an ophthalmic medical practitioner or optician included in an Ophthalmic List must complyS

15.—(1) An ophthalmic medical practitioner or an optician included in an Ophthalmic List shall–

(a)exercise a reasonable standard of professional and clinical judgement, behaviour, skill, knowledge and care towards patients who receive general ophthalmic services from that person;

(b)comply with the terms of service appropriate to the part of the Ophthalmic List on which his or her name appears; and

(c)comply with the undertakings specified in Schedule 2 appropriate to the part of the Ophthalmic List on which his or her name appears and any other requirement of these Regulations [F95whether or not those undertakings were included in an application by that person under regulation 7].

F96(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) An ophthalmic medical practitioner or an optician shall not give, promise or offer, or cause to be given, promised or offered, to any person any incentive, gift or reward as an inducement to, or in consideration of, the provision of any general ophthalmic services.

Textual Amendments

Effect to be given to corresponding decisions in England, Wales and Northern IrelandS

16.—(1) Where any corresponding decision is made in England, Wales or Northern Ireland by an equivalent body that–

(a)a person is to be included in an equivalent list subject to conditions;

(b)a person is to be removed from an equivalent list contingent on conditions;

(c)a person is to be disqualified from an equivalent list subject to conditions; or

(d)any conditions so imposed are varied,

a Health Board shall impose those conditions in relation to the provision, or the assistance in the provision, by that person of general ophthalmic services in the area of the Health Board.

(2) The Health Board may make such modifications of the conditions referred to in paragraph (1) as it considers necessary for them to have the like effect [F97in] relation to Scotland as they do in relation to England, Wales or (as the case may be) Northern Ireland, but only if the Health Board has previously given the person concerned written notice of the proposed modifications and an opportunity to make representations about them.

Textual Amendments

PART IVSGENERAL ARRANGEMENTS

The StatementS

17.—(1) The Scottish Ministers shall, after consultation with such organisations as appear to them to be representative of contractors providing general ophthalmic services, make provision in a determination (in these Regulations referred to as “the Statement”) as to–

(a)the fees to be paid by a Board to ophthalmic medical practitioners and opticians for providing general ophthalmic services;

(b)the allowances to be paid by the Board for continuing [F98professional development] undertaken by ophthalmic medical practitioners and opticians other than a body corporate registered in the register of bodies corporate maintained under section 9 of the Opticians Act 1989 carrying on business as an optometrist; and

(c)the allowances, or reimbursement of expenses, to be paid by the Board for the provision of services by ophthalmic medical practitioners and opticians.

(2) Any such determination–

(a)shall be published;

(b)may be amended, in whole or in part, after consultation with those organisations referred to in paragraph (1).

(3) A determination or an amendment to a determination shall be in respect of a period beginning on or after a date specified in the determination or the amendment to a determination, which may be the date of the determination or an amendment to the determination or an earlier or later date, but may be an earlier date only if it, taking the determination as a whole, it is not detrimental to the person to whose remuneration it relate.

Textual Amendments

Terms of serviceS

18.  The arrangements for the provision of general ophthalmic services made by a Board shall incorporate the terms of service and the Statement.

Arrangements for particular districtsS

19.  Where it appears to a Board that provision is required to meet the needs of the residents of any particular district in the Board area, the Board may, after consultation with the area optical committee and with the approval of the Scottish Ministers, make arrangements with an optician or an ophthalmic medical practitioner whereby the optician or the ophthalmic medical practitioner undertakes to provide general ophthalmic services at suitable centres in that district on such terms as may be specified in the arrangements.

PaymentS

20.—(1) Each Board shall make or cause to be made by the Agency to contractors within its area payments in accordance with the Statement, and any payments which may become due to contractors by virtue of arrangements made under regulation 19.

(2) Where the Agency considers that it has made a payment to a contractor owing to an error or in circumstances where it was not due, it shall, except to the extent that the Scottish Ministers on the application of the Board direct otherwise, draw the overpayment to the attention of the contractor and the amount overpaid shall be recoverable as a debt by any lawful means.

(3) Recovery of an overpayment under the provisions of this regulation shall be without prejudice to the investigation of an alleged breach of the terms of service.

(4) A contractor who is unable to complete for a patient the general ophthalmic services which he [F99or she] has undertaken to provide shall inform the Agency accordingly in writing, and if the Agency is satisfied that the inability is due to a reasonable cause it shall make payment in accordance with the Statement to the contractor for such part of those services as he [F99or she] shall have provided.

Textual Amendments

Payments to ophthalmic medical practitioners and opticians suspendedS

21.—(1) A Board shall authorise the Agency to make payments to any ophthalmic medical practitioner or optician who is suspended by direction of the Tribunal or by the Board in accordance with regulation 11 in accordance with the Scottish Ministers' determination for the time being in force in relation to such payments.

(2) The Scottish Ministers shall make the determination in accordance with paragraphs (3) and (4) after consultation with the organisations referred to in regulation 17(1), and it shall be published with the Statement there referred to.

(3) Any determination under paragraph (1)–

(a)shall determine any sum payable by reference to remuneration which the ophthalmic medical practitioner or optician might have received during the period that person was suspended [F100and may provide that the assessment of such remuneration shall take into account such factors and evidence as may be specified]; and

(b)may also determine any sum payable by reference to any other payment received or which might have been received by the ophthalmic medical practitioner or optician had that person not been suspended [F100and may provide that the assessment of such remuneration shall take into account such factors and evidence as may be specified].

(4) The Scottish Ministers' determination may include provision that payments in accordance with the determination are not to exceed a specified amount in any specified period.

(5) Regulation 17(2) shall apply to determinations under this regulation as it applies to determinations under that regulation.

[F101(6) Where the Agency considers that it has made a payment to an ophthalmic medical practitioner or optician owing to an error or in circumstances where it was not due, it shall, except to the extent that the Scottish Ministers on the application of the Board direct otherwise, draw the overpayment to the attention of the ophthalmic medical practitioner or optician and the amount overpaid shall be recoverable as a debt by any lawful means.]

Textual Amendments

[F102Inspection of Practice PremisesS

21A.  Each Board must inspect at intervals not exceeding three years, all practice premises of every contractor who is included on the Ophthalmic List for its area (where such practices are located within its area).]

Textual Amendments

PART VSPROCEDURE FOR CHOOSING CONTRACTOR

[F103Emergency eye examinationS

21B.—(1) Where a person presents to an ophthalmic medical practitioner or optician included in an Ophthalmic List in circumstances where that ophthalmic medical practitioner or optician considers it to be an emergency, that ophthalmic medical practitioner or optician—

(a)must carry out an emergency eye examination; or

(b)if unable to carry out an emergency eye examination, must, with the person’s agreement, take all reasonable steps to make an arrangement with—

(i)another ophthalmic medical practitioner or optician on the Ophthalmic List to carry out an emergency eye examination; or

(ii)a hospital or GP practice to examine the person,

and when making the arrangement, must indicate the degree of urgency.

(2) Before an ophthalmic medical practitioner or optician carries out an emergency eye examination under paragraph (1)(a) or (b)(i), the person must make an application for an eye examination under regulation 22(1).]

Textual Amendments

Application for an eye examinationS

22.—(1) A person who wishes to have an eye examination under general ophthalmic services [F104must] make an application to any ophthalmic medical practitioner or optician on the Ophthalmic List for an eye examination.

[F105(2) The application must be made on an eye examination form and [F106, where the eye examination is to be carried out at any of a practice premises, day centre, residential centre or place where the applicant normally resides,] must be accompanied by a patient practice record form completed and signed by the applicant.]

F107(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F108(2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) An ophthalmic medical practitioner or optician to whom an application for an eye examination is made shall, before carrying out an eye examination–

(a)ensure that particulars of the patient and the approximate date of the patient's last eye examination, if any, are inserted in an eye examination form by the patient or on his or her behalf; and

[F109(b)unless the eye examination is an emergency eye examination, be satisfied that it is necessary.]

F110(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F110(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F110(3C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where the ophthalmic medical practitioner or optician has provided the eye examination at a place where the patient resides, the ophthalmic medical practitioner or optician shall record on the eye examination form the physical or mental illness or disability given by or on behalf of the patient as the reason for the patient not being able to leave home unaccompanied.

Textual Amendments

[F111Frequency of eye examinationsS

22A.—(1) Where an eye examination is a primary eye examination, that examination must not be carried out more frequently than permitted as a condition of remuneration by the Statement.

(2) Where an eye examination is carried out more frequently than permitted as a condition of remuneration by the Statement, it must be undertaken as a supplementary eye examination.]

Textual Amendments

Application on behalf of children or incapable personsS

23.—(1) Subject to paragraph (2), an application for an eye examination under [F112regulation 22(1) must be made, and [F113, where the eye examination is to be carried out at any of a practice premises, day centre, residential centre or place where the applicant normally resides,] the accompanying patient practice record form signed]–

(a)on behalf of any person under 16 years of age by either parent, or in the absence of both parents, the guardian or other adult person who has the care of the child;

(b)on behalf of any other person who is incapable of making such an application or giving such a signature by–

(i)an adult relative,

(ii)any other adult who has the care of that person, or

(iii)any other adult competent to make such an application or give such a signature in accordance with any rule of law;

(c)on behalf of any person under the age of 18–

(i)who is looked after by a local authority within the meaning of section 17(6) of the Children (Scotland) Act 1995 M27, by a person duly authorised by that authority;

(ii)in the care of a voluntary organisation, by that organisation or by a person authorised by it.

(2) A signature on [F114a patient practice record form] may not be given by a contractor or any person employed by a contractor, or who assists a contractor in providing general ophthalmic services.

F115(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

PART VI SMISCELLANEOUS

Publication of particularsS

24.  Copies of the Ophthalmic List, these Regulations, the terms of service and the Statement shall be made available for inspection at the offices of the Board and at such other places in the Board's area as appear to be convenient for informing any person interested, and shall be kept revised and up to date

Service of documentsS

25.  Subject to regulation 12(8), any document which is required or authorised under these regulations or under the terms of service to be given to an ophthalmic medical practitioner or optician may be given by delivering it to such a person or by sending it addressed to that person at any address notified by him or her to the Board for inclusion in the Ophthalmic List as a [F116practice premises], or in the case of a mobile practice, the address notified to the Board as the address to which correspondence may be sent or in the case of an ophthalmic medical practitioner or optician who assists in the provision of general ophthalmic services to his or her home address.

Textual Amendments

Revocation, savings and transitional provisionsS

26.—(1) Subject to paragraphs (2) and (3), the regulations specified in Schedule 6 (“the revoked Regulations”) are hereby revoked.

(2) In respect of any general ophthalmic services provided under the revoked Regulations for which arrangements were made before 1st April 2006, payments shall be made as though the revoked Regulations and determinations made under them and in force on 31st March 2006 continue to be in force.

(3) The first part of a Board's Ophthalmic List on 1st April 2006 shall be deemed to include the name of any person whose name was included in the Ophthalmic List of that Board kept under regulation 6 (Ophthalmic List) of the National Health Service (General Ophthalmic Services) (Scotland) Regulations 1986 M28 (“the previous Ophthalmic List”) on 31st March 2006, together with all the information relating to that person which is contained in the previous Ophthalmic List.

(4) Any action taken by or on behalf of a Board prior to 1st April 2006 in relation to its previous Ophthalmic List, (or in relation to the persons or entries thereon), shall have effect on and after 1st April 2006 as if such action had been taken by that Board in relation to the first part of the Ophthalmic List maintained by that Board on 1st April 2006 or in relation to the persons or entries thereon.

(5) Any action taken by or on behalf of any other person prior to 1st April 2006 in relation to the previous Ophthalmic List of a Board (or in relation to the persons or entries thereon) shall have effect on and after 1st April 2006 as if such action had been taken in relation to the first part of the Ophthalmic List maintained by that Board on 1st April 2006 or in relation to the persons or entries thereon.

(6) Any person whose name is deemed to be included in the Ophthalmic List of a Board in terms of paragraph (3) shall no later than 30th June 2006–

(a)submit to the Board an enhanced criminal certificate in relation to himself or herself or, where the optician is a body corporate carrying on business as an optometrist, in relation to each director of or person controlling that body corporate, dated not earlier than 28 days before the date of submission to the Board; and

(b)provide the Board with the declarations specified in Part C of Schedule 2; and

(c)consent in writing to a request being made by the Health Board to the Agency, any employer or former employer, licensing, regulatory or other body in the United Kingdom or elsewhere for information relating to a current investigation, or an investigation where the outcome was adverse, into that person or a body corporate referred to in Part C of Schedule 2, and for the purposes of this paragraph “employer” includes any partnership of which that person is, or was, a member.

(7) The Health Board may extend the period prescribed in [F117paragraph] (6) for such time as it considers appropriate in the circumstances of the case if it thinks it is not reasonably practicable for that ophthalmic medical practitioner or optician to provide it with such certificates, declarations and consent within the prescribed period.

(8) Any person who wishes to be included in the second part of a Board's Ophthalmic List shall be entitled to assist in the provision of general ophthalmic services in the Board's area without that person's name being included in that list until 30th June 2006, provided that that person is an ophthalmic medical practitioner or optician.

Textual Amendments

Marginal Citations

M28S.I. 1986/965; regulation 6 was substituted by S.I. 1988/543, 1991/534, 1996/843, 1999/725, S.S.I. 1999/55, 2001/62, 2004/36, and 2004/169.

RHONA BRANKIN

Authorised to sign by the Scottish Ministers

St Andrew's House,

Edinburgh

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