The National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2018

PART 2 PROVIDERS

General conditions relating to providers

4.—(1) A Health Board may only enter into an agreement if the conditions set out in this regulation and regulation 5 are met.

(2) It is a condition in the case of an agreement to be entered into—

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

(b) with a health care professional (other than a medical practitioner), that the health care professional;

(c) with a partnership, that any member of the partnership or the partnership;

(d) with a limited liability partnership, that any member of the limited liability partnership or the limited liability partnership; and

(e) with a company, that—

(i) the company;

(ii) any member of the company,

(iii) any director or secretary of the company,

must not fall within paragraph (3).

(3) A person falls within this paragraph if—

(a) the person has been disqualified or suspended by direction of the Tribunal made pursuant to section 32A(2) (applications for interim suspension)(1) or 32B(1) (suspension pending appeal)(2) of the Act, or under any provisions in force in England, Wales or Northern Ireland corresponding thereto;

(b) subject to paragraph (4), the person is disqualified or suspended (otherwise than by an interim suspension order or direction pending an investigation) from practising by any licensing body anywhere in the world;

(c) within the period of 5 years prior to the signing of the agreement or commencement of the agreement, whichever is the earlier, the person has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body unless—

(i) the person has subsequently been employed by that health service body or another health service body and, where the person has been employed as a member of a health care profession, any subsequent employment has also been as a member of that profession; or

(ii) that dismissal was the subject of a finding of unfair dismissal by any competently established tribunal or court;

(d) within the period of 5 years prior to signing the agreement or commencement of the agreement, whichever is the earlier, the person has been disqualified from a list unless the person’s name has subsequently been included in such a list;

(e) the person has been convicted in the United Kingdom of murder;

(f) the person has been convicted in the United Kingdom of a criminal offence, other than murder, and been sentenced to a term of imprisonment of over 6 months;

(g) the person has been convicted elsewhere of an offence which would if committed in Scotland, constitute—

(i) murder; or

(ii) subject to paragraph (5), a criminal offence other than murder, and been sentenced to a term of imprisonment of over 6 months;

(h) the person has been convicted of an offence referred to in schedule 1 of the Criminal Procedure (Scotland) Act 1995(3) or schedule 1 of the Children and Young Persons Act 1933(4);

(i) the person has—

(i) had sequestration of the person’s estate awarded or been adjudged bankrupt unless (in either case) the person has been discharged or the bankruptcy order has been annulled;

(ii) been made the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under—

(aa) schedule 4A of the Insolvency Act 1986(5);

(bb) schedule 2A of the Insolvency (Northern Ireland) Order 1989(6); or

(cc) sections 56A to 56K of the Bankruptcy (Scotland) Act 1985(7),

unless that order has ceased to have effect or has been annulled; or

(iii) made a composition or arrangement with, or granted a trust deed for, the person’s creditors unless the person has been discharged in respect of it;

(j) there is—

(i) an administrator, administrative receiver or receiver appointed in respect of it; or

(ii) an administration order made in respect of it under schedule B1 of the Insolvency Act 1986(8);

(k) that person is a partnership or limited liability partnership and—

(i) a dissolution of the partnership or limited liability partnership has been ordered by any competent court, tribunal or arbitrator; or

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

(l) the person has been—

(i) removed under section 34 of the Charities and Trustee Investment (Scotland) Act 2005 (powers of Court of Session)(9), from being concerned in the management or control of any body; or

(ii) removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commission for England and Wales or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible or to which the person was privy, or which the person by that person’s conduct contributed to or facilitated;

(m) the person is subject to a –

(i) disqualification order under section 1 of the Company Directors Disqualification Act 1986(10);

(ii) a disqualification undertaking under section 1A of that Act;

(iii) a disqualification order under article 3 of the Company Directors Disqualification (Northern Ireland) Order 2002(11);

(iv) a disqualification undertaking under article 4 of that Order; or

(v) a disqualification order under section 429(2)(b) of the Insolvency Act 1986(12); or

(n) the person falls within regulation 6(2)(d) (general conditions relating to all contracts) of the National Health Service (General Medical Services Contracts) Regulations 2015(13).

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

(a) a party to the agreement;

(b) in the case where the person is a partner in a partnership that is a proposed party to the agreement, a partner in that partnership;

(c) in the case where the person is a member of a limited liability partnership that is a proposed party to the agreement, a member of that limited liability partnership;

(d) in the case where the person is—

(i) a member of a company that is a proposed party to the agreement; or

(ii) a director or secretary of a company that is a proposed party to the agreement, a member of that company, or a director or secretary of that company (as the case may be).

(5) A person will not fall within paragraph (3)(g) where the Health Board is satisfied that the conviction does not make the person unsuitable to be—

(a) a party to the agreement;

(b) in the case where the person is a partner in a partnership that is a proposed party to the agreement, a partner in that partnership;

(c) in the case where the person is a member of a limited liability partnership that is a proposed party to the agreement, a member of that limited liability partnership;

(d) in the case where the person is—

(i) a member of a company that is a proposed party to the agreement; or

(ii) a director or secretary of a company that is a proposed party to the agreement,

a member of that company, or a director or secretary of that company (as the case may be).

(6) In this regulation, “health service body” does not include any person who is to be treated as health service body in accordance with regulation 10.

Further conditions relating to all agreements

5.—(1) For the purposes of section 17CA(4) of the Act (primary medical services: persons with whom agreements can be made)(14), a person regularly performs or is engaged in the day to day provision of primary medical services where, subject to paragraphs (2) and (3), that person so performs or is so engaged, or will so perform or so engage, for no less than a total of 10 hours in each week for the duration of the agreement.

(2) For the purposes of section 17CA(5)(b) of the Act, references in section 17CA(4) to a person who is performing or is engaged in the provision of services, include a person who has performed or been engaged in providing the services within 6 months prior to the agreement being made.

(3) For the purposes of section 17CA(6) of the Act, the prescribed circumstances in which a period of time in which a person is not performing or is not engaged in the provision of primary medical services is to be disregarded for the purposes of determining whether the person regularly performs or is engaged in the day to day provision of those services are where the period of time is—

(a) a period of annual leave, as determined by the period of annual leave entitlement of the said person;

(b) a local or public holiday in Scotland;

(c) a period of—

(i) maternity leave;

(ii) paternity leave;

(iii) adoption leave;

(iv) parental leave; or

(v) shared parental leave,

as determined by the period of entitlement of the said person;

(d) a period of time when a person has been incapable of work due to sickness, injury or pregnancy;

(e) a period of time up to a maximum of 12 months, when a person is undertaking approved study or training;

(f) a period of service as a medical practitioner employed under a contract of service by the Ministry of Defence, whether or not as a member of the armed forces of the Crown, provided that the medical practitioner is entered on the General Practitioner Register kept by virtue of section 34C of the Medical Act 1983(15);

(g) a period of 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; or

(h) any period during which the person has been suspended by a professional regulatory body, a Health Board or the Tribunal where that person was suspended after the agreement with the Health Board was entered into.

(4) For the purposes of this regulation, “approved study or training” means study or training which is relevant for the purposes of the provider carrying out the obligations under the agreement effectively, and which has been approved by the appropriate partner, member or person responsible for training and development.

Reasons

6.—(1) Where a Health Board is of the view that the conditions in regulations 4 or 5 for making an agreement are not met, it must notify in writing the person intending to make an agreement of the Health Board’s view and its reasons for that view and of that person’s right of appeal under regulation 7.

(2) The Health Board must also notify in writing of its view and its reasons for that view—

(a) any other persons intending to make the agreement;

(b) any partner in a partnership that is notified under paragraph (1);

(c) any member of a limited liability partnership that is notified under paragraph (1); and

(d) any member, or director or secretary of, a company that is notified under paragraph (1),

where its reasons for that view relates to that person or persons.

Appeal

7.  A person who has been served with a notice under regulation 6(1) may appeal to the Scottish Ministers against the decision of the Health Board by giving notice in writing to the Scottish Ministers within the period of 28 days beginning on the day that the Health Board served its notice.

Prescribed period under section 17D(3) of the Act

8.  The period prescribed for the purposes of section 17D(3) of the Act (persons with whom agreements may be made)(16) is 6 months.

Pre-agreement dispute resolution

9.—(1) Except where the proposed provider is a health service body (in which case section 17A(5) of the Act(17) applies), if, in the course of negotiations intending to lead to any agreement, the proposed parties to that agreement are unable to agree on a particular term of the agreement, either the Health Board or the proposed provider may refer the terms of the proposed agreement to the Scottish Ministers to consider and determine the matter.

(2) Disputes as to the terms of any proposed agreement referred to the Scottish Ministers in accordance with paragraph (1) must be determined in accordance with—

(a) the NHS dispute resolution procedure, as if—

(i) in paragraph 58(3)(b) of schedule 1, “agreement” read “terms of the proposed agreement”; and

(ii) paragraphs 59(2) and (3) of schedule 1 were omitted; and

(b) paragraph (3) of this regulation.

(3) In a dispute referred to the Scottish Ministers under paragraph (1), the determination of the adjudicator—

(a) may specify terms to be included in the proposed agreement;

(b) may require the Health Board to proceed with the proposed agreement, but may not require the proposed provider to proceed with the proposed agreement; and

(c) is binding on the proposed parties to the agreement.

(4) In this regulation “health service body” does not include any provider who is to be treated as a health service body in accordance with regulation 10.

(1)

Section 32A was inserted into the Act by section 8 of the National Health Service (Amendment) Act 1995 (c.31) (“the 1995 Act”), and amended by paragraph 51 of schedule 4 of the Health Act 1999 (c.8) (“the 1999 Act”), and section 26(7) of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) (“the 2005 Act”).

(2)

Section 32B was inserted into the Act by section 8 of the 1995 Act, and substituted by paragraph 52 of schedule 4 of the 1999 Act, and amended by paragraph 1 of schedule 3 of the 2005 Act.

(3)

1995 c.46.

(4)

1933 c.12. Schedule 1 was amended by paragraph 52 of schedule 4 of the Sexual Offences Act 1956 (c.69), paragraph 170(2) of schedule 16 of the Criminal Justice Act 1988 (c.33), paragraph 7 of schedule 6 of the Sexual Offences Act 2003 (c.42) and paragraph 1 of schedule 5 of the Modern Slavery Act 2015 (c.3).

(5)

1986 c.45. Schedule 4A was inserted by section 257 and paragraph 1 of schedule 20 of the Enterprise Act 2002 (c.40) (“the 2002 Act”) and was amended by paragraph 63 of the Enterprise and Regulatory Reform Act 2013 (c.24).

(6)

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

(7)

1985 c.66. Sections 56A to 56 K were inserted by section 2(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), amended by the Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11) and repealed by Part 1 of schedule 9 of the Bankruptcy (Scotland) Act 2016 (asp 21).

(8)

Schedule B1 was inserted by paragraph 1 of schedule 16 of the 2002 Act.

(9)

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

(10)

1986 c.46, as relevantly amended by section 5 and paragraph 2 of schedule 4 of the Insolvency Act 2000 (c.39), section 204 of the Enterprise Act 2002 (“the 2002 Act”) and paragraph 2 of schedule 7 of the Small Business, Enterprise and Employment Act 2015 (c.26) (“the 2015 Act”).

(11)

S.I. 2002/3150 (N.I. 4), as relevantly amended by paragraph 9 of schedule 8 of the 2015 Act.

(12)

Section 429(2) was amended by paragraph 15 of schedule 23 of the 2002 Act.

(13)

S.I. 2015/1862.

(14)

Section 17CA was inserted into the Act by section 38 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3).

(15)

1983 c.54. Section 34C was inserted by S.I. 2010/234.

(16)

Section 17D was inserted by section 21(2) of the National Health Service (Primary Care) Act 1997 (c.46) and amended by section 2(3) of the Primary Medical Services (Scotland) Act 2004 (asp 1).

(17)

Section 17A was inserted into the Act by section 30 of the National Health Service and Community Care Act 1990 (c.19). Section 17A was moved under a new heading entitled “NHS Contracts” by section 31 of the National Health Service (Primary Care) Act 1997 (c.46).