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Part 6E+WOphthalmic services

[F1Duty of [F2NHS England] in relation to primary ophthalmic services]E+W

Textual Amendments

115Primary ophthalmic servicesE+W

(1)[F3[F2NHS England] must exercise its powers so as to secure the provision throughout England] of the following primary ophthalmic services—

(a)the sight-testing service mentioned in subsection (2),

(b)such other primary ophthalmic services as may be prescribed, and

(c)to the extent that it considers necessary to meet all reasonable requirements, any further primary ophthalmic services.

[F4(1A)Arrangements made for the purposes of subsection (1) may include arrangements for the performance of a service outside England.]

(2)The sight-testing service mentioned in subsection (1)(a) is a service for testing the sight of all of the following persons (except any such testing which takes place in prescribed circumstances)—

(a)those aged under 16,

(b)those aged 16, 17 or 18 who are receiving qualifying full-time education,

(c)those whose resources must be treated in accordance with regulations as being less than or equal to their requirements,

(d)those aged 60 or over,

(e)those of such other description as may be prescribed.

(3)Regulations may—

(a)prescribe what “qualifying full-time education” is for the purposes of subsection (2)(b),

(b)make provision for the purposes of subsection (2)(c) about how a person's resources and requirements must be calculated.

[F5(4)[F2NHS England] may (in addition to any other power conferred on it) make such arrangements for the provision of primary ophthalmic services as it considers appropriate; and it may, in particular, make contractual arrangements with any person.

(4A)Arrangements made for the purposes of subsection (4) may include arrangements for the performance of a service outside England.]

(5)[F2NHS England] must publish information about such matters as may be prescribed in relation to the primary ophthalmic services provided under this Act.

F6(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Regulations may provide that services of a prescribed description must, or must not, be regarded as primary ophthalmic services for the purposes of this Act (but these regulations may not affect the duty in subsection (1)(a)).

(8)Regulations under subsection (7) may in particular describe services by reference to the manner or circumstances in which they are provided.

(9)Regulations may provide that a person—

(a)whose sight is tested by a person who is a party to a general ophthalmic services contract, and

(b)who is shown during the testing or within a prescribed time after it to fall within any of paragraphs (a) to [F7(e)] of subsection (2),

must be taken for the purposes of the testing to have so fallen immediately before his sight was tested.

(10)In the case mentioned in subsection (9), the testing of his sight must (unless it took place in circumstances prescribed under subsection (2)) be treated as a testing under the sight-testing service mentioned in subsection (1)(a)—

(a)for the purposes of remuneration in respect of the testing, and

(b)for any such other purpose as may be prescribed.

Textual Amendments

116Regulations under section 115: supplementaryE+W

(1)Regulations under section 115 which refer to an Act of Parliament or an instrument made under an Act of Parliament may direct that the reference must be construed as a reference to that Act or instrument—

(a)as it has effect at the time when the regulations are made, or

(b)both as it has effect at that time and as amended subsequently.

(2)Descriptions of persons may be prescribed under section 115(2)(e) by reference to any criterion, including the following—

(a)their age,

(b)the fact that a prescribed person or a prescribed body accepts them as suffering from a prescribed medical condition,

(c)the fact that a prescribed person or a prescribed body accepts that a prescribed medical condition from which they suffer arose in prescribed circumstances,

(d)their receipt of benefit in money or kind under any enactment or their entitlement to receive any such benefit,

(e)the receipt of any such benefit by other persons satisfying prescribed conditions or the entitlement of other persons satisfying prescribed conditions to receive such benefits.

(3)Regulations under section 115(3)(b) may direct that a person's resources and requirements be calculated—

(a)by a method set out in the regulations,

(b)by a method described by reference to a method of calculating or estimating income or capital specified in an enactment other than this section or in an instrument made under an Act of Parliament or by reference to such a method but subject to prescribed modifications,

(c)by reference to an amount applicable for the purposes of a payment under an Act of Parliament or an instrument made under an Act of Parliament, or

(d)by reference to the person's being or having been entitled to payment under an Act of Parliament or an instrument made under an Act of Parliament.

General ophthalmic services contractsE+W

117General ophthalmic services contracts: introductoryE+W

(1)[F2NHS England] may enter into a contract under which primary ophthalmic services are provided in accordance with the following provisions of this Part.

(2)A contract under this section is called in this Act a “general ophthalmic services contract”.

(3)A general ophthalmic services contract may make such provision as may be agreed between [F2NHS England] and the contractor or contractors in relation to—

(a)the services to be provided under the contract,

(b)remuneration under the contract, and

(c)any other matters.

(4)The services to be provided under a general ophthalmic services contract may include—

(a)services which are not primary ophthalmic services,

[F8(b)services which are to be performed outside England.]

(5)In this Part, “contractor”, in relation to a general ophthalmic services contract, means any person entering into the contract with [F2NHS England].

Textual Amendments

118Persons eligible to enter into GOS contractsE+W

(1)[F2NHS England] may, subject to such conditions and exceptions as may be prescribed, enter into a general ophthalmic services contract with any person.

(2)But it may not enter into such a contract with a person who has been disqualified from doing so by an order of disqualification made by virtue of regulations under section 119.

Textual Amendments

119Exclusion of contractorsE+W

(1)The Secretary of State may make regulations conferring on [F2NHS England], or another prescribed person, a right to apply to the [F9First-tier Tribunal] in prescribed circumstances for an order that a person (“P”) be disqualified from entering into a general ophthalmic services contract.

(2)The regulations may in particular provide for—

(a)the review by the [F10First-tier Tribunal] of an order of disqualification made by virtue of regulations under this section,

(b)what will happen in relation to general ophthalmic services contracts to which P is a party when the order is made.

Textual Amendments

120GOS contracts: paymentsE+W

(1)The Secretary of State may give directions as to payments to be made under general ophthalmic services contracts.

(2)A general ophthalmic services contract must require payments to be made under the contract in accordance with directions under this section.

(3)A direction under subsection (1) may in particular—

(a)provide for payments to be made by reference to compliance with standards or the achievement of levels of performance,

(b)provide for payments to be made by reference to—

(i)any scheme or scale specified in the direction, or

(ii)a determination made by any person in accordance with factors specified in the direction,

(c)provide for the making of payments in respect of individual practitioners,

(d)provide that the whole or any part of a payment is subject to conditions (and may provide that payments are payable by [F2NHS England] only if it is satisfied as to certain conditions),

(e)make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

(4)Before giving a direction under subsection (1), the Secretary of State—

(a)must consult any body appearing to him to be representative of persons to whose remuneration the direction would relate, and

(b)may consult such other persons as he considers appropriate.

(5)“Payments” includes fees, allowances, reimbursements, loans and repayments.

Textual Amendments

121GOS contracts: other required termsE+W

(1)A general ophthalmic services contract must contain such provision as may be prescribed (in addition to the provision required by the preceding provisions of this Part).

(2)Regulations under subsection (1) may in particular make provision as to—

(a)the manner in which, and standards to which, services must be provided,

(b)the persons who perform services,

(c)the persons to whom services will be provided,

(d)the variation of contract terms (other than terms required by or under this Part),

(e)rights of entry and inspection (including inspection of clinical records and other documents),

(f)the circumstances in which, and the manner in which, the contract may be terminated,

(g)enforcement,

(h)the adjudication of disputes.

(3)Regulations under subsection (2)(d) may—

(a)make provision as to the circumstances in which [F2NHS England] may impose a variation of contract terms,

(b)make provision as to the suspension or termination of any duty under the contract to provide services of a prescribed description.

(4)Regulations making provision of the kind described in subsection (3)(b) may prescribe services by reference to the manner or circumstances in which they are provided.

(5)Regulations under subsection (1) must make provision as to the right of persons to whom services are provided to choose the persons from whom they receive them.

Textual Amendments

122GOS contracts: disputes and enforcementE+W

(1)Regulations may make provision for the resolution of disputes as to the terms of a proposed general ophthalmic services contract.

(2)Regulations under subsection (1) may make provision—

(a)for the referral of the terms of the proposed contract to the Secretary of State, and

(b)for the Secretary of State, or a person appointed by him, to determine the terms on which the contract may be entered into.

(3)Regulations may make provision for a person or persons entering into a general ophthalmic services contract to be regarded, in circumstances where he or they so elect, as a health service body for the purposes of section 9, but only so far as concerns the general ophthalmic services contract (and not for any other purpose).

(4)Regulations under subsection (3) may include provision as to the application of section 9 in cases where—

(a)persons practising in partnership elect to become a health service body, and

(b)there is a change in the membership of the partnership.

(5)Where—

(a)by virtue of regulations under subsection (3), subsection section 9(11) applies in relation to a general ophthalmic services contract, and

(b)a direction as to payments is made under that provision in relation to the contract,

the direction is enforceable in [F11the county court] (if the court so orders) as if it were a judgment or order of that court.

Textual Amendments

F11Words in s. 122(5) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Performance of primary ophthalmic servicesE+W

123Persons performing primary ophthalmic servicesE+W

(1)Regulations may provide that a health care professional of a prescribed description may not perform any primary ophthalmic service for which [F2NHS England] is responsible unless he is included in a list maintained under the regulations by [F2NHS England].

(2)For the purposes of this section—

(a)“health care professional” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17),

[F12(b)[F2NHS England] is responsible for an ophthalmic service if it secures its provision by or under any enactment.]

(3)Regulations under this section may make provision in relation to lists under this section and in particular as to—

(a)the preparation, maintenance and publication of a list,

(b)eligibility for inclusion in a list,

(c)applications for inclusion (including provision F13... for the procedure for applications and the documents to be supplied on application),

(d)the grounds on which an application for inclusion may or must be granted or refused,

(e)requirements with which a person included in a list must comply (including the declaration of financial interests and gifts and other benefits),

(f)suspension or removal from a list (including provision for the grounds for, and consequences of, suspension or removal),

(g)circumstances in which a person included in a list may not withdraw from it,

(h)payments to be made in respect of a person suspended from a list (including provision for the amount of the payment, or the method of calculating the payment, to be determined by the Secretary of State or a person appointed by him),

(i)the criteria to be applied in making decisions under the regulations,

(j)appeals against decisions made by [F2NHS England] under the regulations, and

(k)disclosure of information about applicants for inclusion, grants or refusals of applications or suspensions or removals,

and may make any provision corresponding to anything in sections 151 to 159.

(4)Regulations under this section may, in particular, also provide for—

(a)a person's inclusion in a list to be subject to conditions determined by [F2NHS England],

(b)[F2NHS England] to vary the conditions or impose different ones,

(c)the consequences of failing to comply with a condition (including removal from a list),

(d)the review by [F2NHS England] of decisions made by it by virtue of the regulations.

(5)The imposition of such conditions must be with a view to—

(a)preventing any prejudice to the efficiency of the services to which a list relates, or

(b)preventing fraud.

(6)Regulations under this section may, in particular, also prescribe the qualifications and experience which a medical practitioner who applies for inclusion in a list under this section must have, and may—

(a)provide for the practitioner to show to the satisfaction of a committee recognised by the Secretary of State for the purpose that he possesses such qualifications and experience,

(b)confer on a person who is dissatisfied with the determination of such a committee a right of appeal to a committee appointed by the Secretary of State, and

(c)provide for anything which appears to the Secretary of State to be appropriate in connection with that right of appeal.

(7)Regulations making provision as to the matters referred to in subsection (3)(k) may in particular authorise the disclosure of information—

(a)by [F2NHS England] to the Secretary of State, and

(b)by the Secretary of State to [F2NHS England].

Textual Amendments

Assistance and supportE+W

124Assistance and support: primary ophthalmic servicesE+W

(1)[F2NHS England] may provide assistance or support to any person providing or proposing to provide primary ophthalmic services under a general ophthalmic services contract [F14or primary ophthalmic services that fall within section 115(4)].

(2)Assistance or support provided by [F2NHS England] under subsection (1) is provided on such terms, including terms as to payment, as [F2NHS England] considers appropriate.

(3)“Assistance” includes financial assistance.

Textual Amendments

Local Optical CommitteesE+W

125Local Optical CommitteesE+W

(1)[F15[F2NHS England] may recognise a committee formed for an area], which it is satisfied is representative of—

(a)the persons to whom subsection (2) applies, and

(b)the persons to whom subsection (3) applies.

(2)This subsection applies to each person who, under a general ophthalmic services contract entered into by him, is providing primary ophthalmic services in the area for which the committee is formed.

(3)This subsection applies to each optometrist not falling within subsection (2)—

(a)who is performing primary ophthalmic services in the area for which the committee is formed F16... under a general ophthalmic services contract, and

(b)who has notified [F2NHS England] that he wishes to be represented by the committee (and has not notified it that he wishes to cease to be so represented).

(4)A committee recognised under this section is called the Local Optical Committee for the area for which it is formed.

(5)Any such committee may delegate any of its functions, with or without restrictions or conditions, to sub-committees composed of members of that committee.

(6)Any such committee may co-opt persons not falling within subsection (2) or (3) on such terms as it considers appropriate.

(7)Regulations may require [F2NHS England], in the exercise of its functions relating to primary ophthalmic services, to consult any committee recognised by it under this section on such occasions and to such extent as may be prescribed.

(8)A committee recognised under this section has such other functions as may be prescribed.

(9)A committee recognised under this section must in respect of each year determine the amount of its administrative expenses for that year.

(10)[F2NHS England] may—

(a)on the request of a committee recognised by it, allot to that committee such sums as [F2NHS England] may determine for defraying the committee's administrative expenses, and

(b)deduct the amount of such sums from the remuneration of persons of whom the committee is representative under subsection (1)(a) under the general ophthalmic services contracts entered into by those persons with [F2NHS England].

(11)The administrative expenses of a committee include the travelling and subsistence allowances payable to its members.

Textual Amendments

F16Words in s. 125(3)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 62(3)(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

[F17DirectionsE+W

Textual Amendments

F17S. 125A and cross-heading inserted (27.3.2012 for specified purposes, 1.4.2013 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 49(3), 306(1)(d)(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

125AExercise of functionsE+W

(1)The Secretary of State may direct [F2NHS England] to exercise any of the Secretary of State's functions relating to the provision of primary ophthalmic services.

(2)Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations.

(3)The Secretary of State may give directions to [F2NHS England] about its exercise of any functions relating to the provision of primary ophthalmic services (including functions which [F2NHS England] has been directed to exercise under subsection (1)).

(4)[F2NHS England] may direct a clinical commissioning group, a Special Health Authority or such other body as may be prescribed to exercise any of [F2NHS England’s] functions relating to the provision of primary ophthalmic services.

(5)[F2NHS England] may give directions to a clinical commissioning group, a Special Health Authority or such other body as may be prescribed about the exercise by the body of any functions relating to the provision of primary ophthalmic services (including functions which it has been directed to exercise under subsection (4)).

(6)Subsection (4) does not apply to such functions, or functions of such descriptions, as may be prescribed.

(7)Where [F2NHS England] gives a direction to a body under subsection (4) or (5), it may disclose to the body the information it has about the provision of the primary ophthalmic services in question, if [F2NHS England] considers it necessary or appropriate to do so in order to enable or assist the body to exercise the function specified in the direction.

(8)A body which is given a direction under subsection (4) or (5) must report to [F2NHS England] on matters arising out of the exercise of the function to which the direction relates.

(9)A report under subsection (8) must be made in such form and manner as [F2NHS England] may specify.

(10)[F2NHS England] may, in exercising its functions relating to the provision of the primary ophthalmic services in question, have regard to a report under subsection (8).]

Textual Amendments

Modifications etc. (not altering text)