2A

In subsection (1), references to personal medical services and personal dental services are to be construed as references to services of those respective kinds under section 28C of the 1977 Act, section 17C of the 1978 Act or the corresponding provisions of the law in force in Northern Ireland or the Isle of Man.

ba

the provision or performance of a service in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the M1National Health Service (Scotland) Act 1978 and an activity involved in or connected with the provision or performance of such a service;

8

In relation to a Part II medical practitioner—

a

whose name is included in the list of only one Health Board, and

b

who practises on his own or in partnership with others all of whom are Part II medical practitioners whose names are included only in that Board’s list,

any reference in this Act to the relevant Health Board is to be construed as a reference to that Board.

9

In relation to a medical practitioner who is not within subsection (8), any reference in this Act to the relevant Health Board is to be construed as a reference to the Board in whose area most of the practice patients live.

10

In this section—

• “Part II medical practitioner” means a medical practitioner who provides general medical services under Part II and does not perform personal medical services under section 17C arrangements; and

• “practice patient” means—

  1. a

     in relation to a medical practitioner who practises otherwise than in partnership, an individual who is on that practitioner’s list of patients (or, if that practitioner and one or more other medical practitioners together have a single list of patients in connection with section 17C arrangements, an individual who is on that single list);

  2. b

     in relation to a medical practitioner who is one of two or more practitioners who practise in partnership with each other, an individual who is on the list of patients of any of those practitioners (or, if any of those practitioners together have a single list of patients in connection with section 17C arrangements, an individual who is on that single list).

g

the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) is also—

i

on the medical list of a Health Authority established under section 8 of the M3National Health Service Act 1977; or

ii

providing personal medical services in accordance with arrangements made under section 28C of that Act;

7

In this section “practice patient”, in relation to a recognised fund-holding practice, means an individual who is on the list of patients of any of the members of the practice (or, if any of those members together have a single list of patients in connection with section 17C arrangements, an individual who is on that single list).

2A

In sub-paragraph (1)(c) above as it has effect in relation to functions of the Tribunal conferred by or under any enactment relating to the preferential treatment of medical practitioners on transferring to medical lists, the reference to the person concerned is a reference to the medical practitioner to whom the matter before the Tribunal relates.

2

Any person proposing to be a party to a transaction or series of transactions which he thinks might amount to a sale of the goodwill of a medical practice in contravention of section 35(1) may ask the Medical Practices Committee for a certificate under this paragraph.

1

For the purposes of section 35(1) and paragraph 1, a disposal of premises previously used for the purposes of a medical practice shall be deemed to be a sale of the goodwill of a medical practice if—

a

the person disposing of the premises did so knowing that another person (“A”) intended to use them for the purposes of A’s medical practice; and

b

the consideration for the disposal substantially exceeded the consideration that might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice.

1A

If a person disposes of any premises together with any other property, the court shall, for the purposes of sub-paragraph (1), make such apportionment of the consideration as it thinks just.

1B

For the purposes of sub-paragraphs (1) and (1A)—

a

“disposal” means any sale, letting or other form of disposal (whether by a single transaction or a series of transactions) and “disposes” and “disposing” are to be read accordingly; and

b

a person who procures the disposal of any premises is to be treated as having disposed of them.

3

Sub-paragraph (3A) applies if a person (“the assistant”)—

a

performs services on behalf of a person who carries on a medical practice (or as an employee of a person employing a practitioner who carries on a medical practice);

b

receives substantially less remuneration for performing those services than might reasonably have been expected, having regard to the circumstances at the time when the remuneration was fixed; and

c

subsequently succeeds, whether as a result of a partnership agreement or otherwise, to that practice.

3A

For the purposes of section 35 and paragraph 1, a sale of the goodwill of the practice is to be deemed to have taken place (at the time when the remuneration was fixed), unless it is proved that the remuneration was not fixed in contemplation of the assistant’s succeeding to the practice.

4

For the purposes of section 35(1) and paragraph 1, the goodwill of a medical practice shall be deemed to have been sold if—

a

a person carrying on the practice (or employing a practitioner who carries on a medical practice) agrees, for valuable consideration—

i

to do or refrain from doing any act, for the purpose of facilitating the succession of another person to the practice; or

ii

to allow any act to be done, for that purpose; or

b

a person—

i

gives valuable consideration to a person carrying on the practice (or employing a practitioner who carries on a medical practice); and

ii

succeeds, or has previously succeeded, to the practice.

5

Sub-paragraph (4) does not apply—

a

if it is proved that no part of the consideration was given in respect of the goodwill; or

b

to anything done—

i

in relation to the acquisition of premises for the purposes of a medical practice;

ii

in pursuance of a partnership agreement; or

iii

in the performance of medical services by one person as an assistant to another.

7

For the purposes of section 35 and this Schedule—

a

consideration is deemed to be given to a person (“B”) if—

i

it is given to another person but with B’s knowledge and consent; and

ii

it appears to the court that B has derived, or will derive, a substantial benefit from the giving of the consideration; and

b

unless the context otherwise requires, references to a person include, in the case of an individual who has died, references to his personal representative.

Carried-over goodwill

3

The fact that a person’s medical practice was previously carried on by another person who at any time provided general medical services or personal medical services does not, by itself, make it unlawful under section 35(1) for the goodwill of his practice to be sold.

provision of—

i

general medical services under Part II of the National Health Service Act 1977 or Part II of the National Health Service (Scotland) Act 1978; or

ii

personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act

3A

This section applies also in relation to additional pharmaceutical services provided under arrangements made in accordance with directions under section 41A of the National Health Service Act 1977 or section 27A of the National Health Service (Scotland) Act 1978.

a

in the case of a record made by a general practitioner (other than an employed practitioner), or by a health professional employed by such a general practitioner—

i

the general practitioner on whose list the patient is included (or, where the patient is included on the list of a medical practice consisting of two or more partners who are general practitioners, any such partner); or

ii

where the patient is not on any such list, the Health Authority or Health Board by arrangement with whom a general practitioner last treated him;

—

a

providing general medical services in accordance with arrangements made under section 29 of the M6National Health Service Act 1977 or section 19 of the M7National Health Service (Scotland) Act 1978; or

b

performing personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act

if they are—

a

individuals undertaking to provide in England general medical services or general dental services under Part II of the National Health Service Act 1977;

b

persons (whether individuals or bodies) undertaking to provide in England general ophthalmic services or pharmaceutical services under Part II of that Act; or

c

individuals performing in England personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)

if they are—

a

individuals undertaking to provide in Wales general medical services or general dental services under Part II of the National Health Service Act 1977;

b

persons (whether individuals or bodies) undertaking to provide in Wales general ophthalmic services or pharmaceutical services under Part II of that Act; or

c

individuals performing in Wales personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)

if they are—

a

individuals undertaking to provide in Scotland general medical services or general dental services under Part II of the M8National Health Service (Scotland) Act 1978;

b

persons (whether individuals or bodies) undertaking to provide in Scotland general ophthalmic services or pharmaceutical services under Part II of that Act; or

c

individuals performing in Scotland personal medical services or personal dental services in accordance with arrangements made under section 17C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)

1ZA

Any failure or maladministration mentioned in subsection (1) may arise from action of—

a

the health service body,

b

a person employed by that body,

c

a person acting on behalf of that body, or

d

a person to whom that body has delegated any functions.