The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1996

PART I GENERAL

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1996 and shall come into force on 1st April 1996.

(2) In these Regulations “the principal Regulations” means the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992(1).

Amendment of regulation 1 of the principal Regulations

2.—(1) In regulation 1(2) of the principal Regulations—

(a) there shall be inserted the following definitions in the order which will maintain alphabetical order:—

• ““appropriate Health Board” has the meaning it bears in regulation 3(5);

• “complaint” means a complaint made in accordance with directions concerning the establishment and operation of procedures for dealing with complaints against practitioners providing Part II services given under section 2(5) of the Act(2) or in accordance with the provisions specified in paragraph (4);

• “dental discipline committee” means a committee referred to in regulation 2(1)(b);

• “dentists' panel” means the panel of dentists who are, or who have been, engaged in the provision of general dental services and who have been nominated to the panel for the purposes of these Regulations by a body which is, in the Secretary of State’s opinion, representative of the dental profession;

• “disciplinary matter” means a matter referred under regulation 4(1);

• “discipline committee” has the meaning it bears in regulation 2(2);

• “doctors' panel” means the panel of doctors who are, or who have been, engaged in the provision of general medical services and who have been nominated to the panel for the purposes of these Regulations by a body which is, in the Secretary of State’s opinion, representative of doctors engaged in the provision of general medical services;

• “joint discipline committee” means a committee referred to in regulation 2(1)(e);

• “medical discipline committee” means a committee referred to in regulation 2(1)(a);

• “ophthalmic discipline committee” means a committee referred to in regulation 2(1)(c);

• “Part II Services” means services provided under Part II of the Act;

• “pharmaceutical discipline committee” means a committee referred to in regulation 2(1)(d);

• “pharmacist contractor” means a contractor who provides pharmaceutical services, or a person lawfully conducting a retail pharmacy business in accordance with section 69 of the Medicines Act 1968(3);

• “Practice Board” means the Scottish Dental Practice Board constituted under section 4 of the Act(4);

• “relevant professional body” means—

  (a)

  in relation to a doctor or an ophthalmic medical practitioner, the General Medical Council(5);

  (b)

  in relation to a dentist, the General Dental Council(6);

  (c)

  in relation to an optician, the General Optical Council(7);

  (d)

  in relation to a pharmacist, the Royal Pharmaceutical Society of Great Britain;

• “statement of case” means a statement sent by the appropriate Health Board to the practitioner and the discipline committee in accordance with paragraph 1 of Schedule 1A;”; and

(b) the definition of “service committee” shall be deleted.

(2) The following paragraph shall be added after regulation 1(3) of the principal Regulations—

“(4) The provisions referred to in the definition of “complaint” in paragraph (1) are—

(a) paragraphs 31A and 31B of Schedule 1 to the National Health Service (General Dental Services) (Scotland) Regulations 1996(8);

(b) paragraphs 12A and 12B of Schedule 1 to the National Health Service (General Medical Services) (Scotland) Regulations 1995(9);

(c) paragraphs 9A and 9B of Schedule 1 to the National Health Service (Pharmaceutical Services) (Scotland) Regulations 1995(10);

(d) paragraphs 8A to 8C of Schedule 1 to the National Health Service (General Ophthalmic Services) (Scotland) Regulations 1986(11).”.

Amendment of Part II of the principal Regulations

3.  For regulations 2 to 15 of the principal Regulations there shall be substituted the following regulations:—

“Establishment of committees

2.— (1) Subject to paragraph (3), every Health Board shall have—

(a) a medical discipline committee;

(b) a dental discipline committee;

(c) an ophthalmic discipline committee;

(d) a pharmaceutical discipline committee; and

(e) a joint discipline committee; and

may, where it sees fit, have two or more of any of those committees.

(2) The committees mentioned in paragraph (1) shall be known as discipline committees.

(3) Three or more Health Boards may appoint discipline committees jointly and in these Regulations a reference to a discipline committee of a Health Board includes a reference to a discipline committee jointly appointed by three or more Health Boards.

(4) A Health Board may have a reference committee which shall include one member who is both an officer and a member of that Health Board and which may exercise the Health Board’s functions under these Regulations with respect to the referral of disciplinary matters.

(5) Schedule 1 shall have effect with respect to the committees mentioned in paragraph (1).

Provisions relating to the start of disciplinary proceedings

3.— (1) Where an appropriate Health Board receives information which it considers could amount to an allegation that a practitioner has failed to comply with his terms of service, it shall decide either to take no action or to take one or both of the courses of action set out in paragraph (2).

(2) The courses of action referred to in paragraph (1) are—

(a) to refer the matter to another Health Board for investigation in accordance with regulation 4(1);

(b) to refer the information to, as it considers appropriate, the Tribunal, the relevant professional body or the police.

(3) The appropriate Health Board shall not proceed under paragraph (2)(a) in any case where the allegation and information on which it is based is the subject of a complaint which is being investigated.

(4) For the purposes of these Regulations an allegation remains the subject of a complaint which is being investigated until—

(a) the procedure for investigating the complaint is completed by the delivery of a report of the investigation to a Health Board by a panel appointed in accordance with directions given under section 2(5) of the Act; or

(b) the complaint is withdrawn or abandoned by the person bringing it.

(5) In these Regulations “appropriate Health Board” in relation to a practitioner is the Health Board—

(a) in whose medical, dental, ophthalmic or pharmaceutical list the name of the practitioner was included; or

(b) where the matter relates to the act or omissions of a doctor when acting as a deputy to another doctor, in whose medical list the name of that other doctor was included,

at the relevant time or, where the practitioner referred to in sub-paragraph (a) or other doctor referred to in sub-paragraph (b) was at that time on more than one such list, the Health Board by arrangement with which the Part II services giving rise to the allegation were provided.

(6) An allegation made against either—

(a) a doctor in respect of the acts or omissions of a deputy whose name is included in a medical list at the relevant time; or

(b) a doctor whose name is included in a medical list at the relevant time, in respect of his acts or omissions whilst acting as deputy to a doctor whose name is included in the medical list,

shall be taken as an allegation made against the deputy except where there are reasonable grounds for believing that the doctor for whom the deputy was acting has failed to comply with his obligations under his terms of service in relation to ensuring the provision of services to his patients, in which case the matter shall be treated as concerning allegations made against both doctors and investigated accordingly.

(7) Where a Health Board considers that a payment has been made to a practitioner which was not due and the practitioner does not admit that overpayment, the Health Board may refer the overpayment under regulation 4(1).

(8) In this regulation “the relevant time” means the time of the event, treatment or other matter giving rise to the allegation.

Referral to discipline committee

4.— (1) Where an appropriate Health Board decides to proceed under regulation 3(2)(a) or (7) it shall, subject to paragraph (2), refer the matter to another Health Board for investigation by that Health Board’s appropriate discipline committee.

(2) The appropriate Health Board shall not refer the matter to another Health Board which has appointed any discipline committee jointly with the appropriate Health Board.

(3) Subject to paragraph (6), the appropriate discipline committee referred to in paragraph (1) is—

(a) where the matter relates to a doctor, a medical discipline committee;

(b) where the matter relates to a dentist, a dental discipline committee;

(c) where the matter relates to an ophthalmic medical practitioner or optician, an ophthalmic discipline committee;

(d) where the matter relates to a pharmacist, a pharmaceutical discipline committee.

(4) A matter which, under paragraph (1), is required to be investigated by two discipline committees, may instead be referred for investigation by a joint discipline committee.

(5) If, in the opinion of a discipline committee, a matter referred to it includes allegations which are required, by virtue of paragraph (1), to be investigated also by another discipline committee, it shall refer the matter to the joint discipline committee instead of dealing with the matter itself.

(6) Where a matter is referred for investigation by a joint discipline committee under paragraph (4) or paragraph (5), that committee shall be the appropriate discipline committee instead of any other committee.

Time limits

5.— (1) Where the disciplinary matter concerns an allegation which has been the subject of a complaint, the appropriate Health Board shall refer it under regulation 4(1) within 28 days of the allegation having ceased to be the subject of a complaint which is being investigated.

(2) Where the disciplinary matter does not concern an allegation which has been the subject of a complaint, the appropriate Health Board shall refer it under regulation 4(1) within the time limits specified in paragraph (3).

(3) The time limits referred to in paragraph (2) are—

(a) in the case of a doctor, ophthalmic medical practitioner, optician or pharmacist contractor, thirteen weeks after the event or matter which is the subject of the allegation;

(b) in the case of a dentist—

(i) subject to paragraph (4), where the matter concerns the treatment of a patient, six months after the completion of the course of treatment during which that treatment was given;

(ii) subject to paragraph (4), where the matter does not concern the treatment of a patient and is reported to the appropriate Health Board by the Practice Board, thirteen weeks after the date on which the matter came to the notice of the Practice Board;

(iii) where the matter does not concern the treatment of a patient and comes to the notice of the appropriate Health Board other than by a report from the Practice Board, thirteen weeks after the date on which the matter came to the notice of the Health Board.

(4) Where the Board reports a matter to the appropriate Health Board in circumstances in which the time limits mentioned in paragraph (3)(b)(i) or (ii) would otherwise expire within 28 days of the date on which the Health Board received the report, the relevant time limit shall be extended so that it expires on the 28th day after the date on which the Health Board received the report.

(5) For the purposes of paragraph (3), “treatment” has the same meaning as in regulation 2(1) of the National Health Service (General Dental Services) (Scotland) Regulations 1996.

Investigations by discipline committees

6.— (1) A discipline committee shall investigate any matter which is referred to it.

(2) Schedule 1A shall have effect with respect to the procedure for investigating disciplinary matters under this Part.

(3) Where the disciplinary matter concerns an alleged overpayment made to a practitioner pursuant to regulation 3(7), the appropriate Health Board may refer it under regulation 4(1) at any time.

Determination of appropriate Health Board

7.— (1) The appropriate Health Board, after due consideration of a report presented to it by the discipline committee pursuant to paragraph 7(1) of Schedule 1A, shall—

(a) accept as conclusive the findings of fact made by that committee;

(b) accept as conclusive the inferences from those findings of fact which that committee considered could properly be drawn from those findings as to whether the practitioner has failed to comply with any of the terms of service detailed in the appropriate Health Board’s statement of case; and

(c) determine, having regard to any recommendation made by the discipline committee pursuant to paragraph 7(1)(e) of Schedule 1A, either—

(i) that no further action should be taken in relation to the report, or

(ii) that action should be taken in relation to the practitioner, in accordance with any one or more of the provisions of paragraphs (3) and (5).

(2) If the appropriate Health Board decides either not to adopt the recommendation of the discipline committee or to take any action not recommended by that committee, it shall record in writing its reasons for that decision.

(3) Where, in the case of any doctor to whom a report of a discipline committee relates, the appropriate Health Board is satisfied, after consultation with the Area Medical Committee, that, because of the number of persons included in his list, the doctor is unable to give adequate treatment to all those persons, it may impose a special limit on the number of persons for whom the doctor may undertake to provide treatment.

(4) Where, pursuant to paragraph (3), the appropriate Health Board imposes a special limit on the number of persons for whom a doctor may undertake to provide treatment, paragraphs (7), (8) and (12) of regulation 21 of the National Health Service (General Medical Services) (Scotland) Regulations 1995 (limitation of number of persons in doctors' lists) shall have effect in his case with suitable modifications and, in particular, as if references in those paragraphs—

(a) to a maximum number were references to the special limit imposed under paragraph (3) of this regulation; and

(b) to an excess were references to the extent to which the number of patients on the doctor’s list exceeds that special limit.

(5) Where it has been determined that a practitioner to whom the report of the discipline committee relates has failed to comply with any of his terms of service, the appropriate Health Board may—

(a) determine that an amount shall be recovered from the practitioner, whether by way of deduction from his remuneration or otherwise;

(b) where the practitioner is a dentist, determine that that dentist should be required to submit estimates for the prior approval of the Board—

(i) in respect of any treatment of such description, and

(ii) during such a period,

as shall be specified in the determination;

(c) determine that the practitioner should be warned to comply more closely with his terms of service in future.

(6) In acting under paragraph (5), the appropriate Health Board may take into consideration—

(a) any determination made by any Health Board before 1st April 1996 under these Regulations as they were in force prior to that date; or

(b) any determination, finding or inference under paragraph (1) since 1st April 1996,

that the practitioner had, on some other occasion, failed to comply with his terms of service, so long as such a determination, finding or inference has not been overturned on appeal and was not made more than six years prior to the date of the referral under regulation 4(1).

(7) The appropriate Health Board shall give notice in writing of its determination under paragraph (1) and any determination under paragraph (5) to the practitioner, any person who is treated as a party pursuant to paragraph 2(3) of Schedule 1A, the discipline committee, and the Secretary of State, and shall include with the notice—

(a) a copy of the report of the discipline committee;

(b) a statement of any reasons recorded by the Health Board under paragraph (2); and

(c) a statement as to the rights of appeal to the Secretary of State under regulation 8.

(8) Where an appropriate Health Board determines under this regulation that action should be taken in accordance with any of the provisions of paragraphs (3) or (5)(a), (b) or (c), that action shall be taken by the appropriate Health Board except that where, at the time when such action falls to be taken, the practitioner’s name is no longer included in that Health Board’s list but is included in the list of some other Health Board, that action shall be taken by that other Health Board.

(9) Any amount determined under paragraph (5)(a) as being recoverable shall, to the extent that it is not recovered from the practitioner’s remuneration, be a debt owed by the practitioner to the Health Board by which it is recoverable.

(10) Where the appropriate Health Board makes a determination under the provisions of paragraph (5)(a), (b) or (c), no action shall be taken in consequence of that determination—

(a) if no appeal is brought, before the end of the period specified in regulation 8(2) for bringing an appeal; or

(b) if an appeal is brought, before it has received notice—

(i) that the appeal has been withdrawn, or

(ii) of the Secretary of State’s determination of the appeal.

Appeal to the Secretary of State

8.— (1) An appeal may be made to the Secretary of State by a practitioner—

(a) against a finding of fact, or an inference drawn from a finding of fact, which (in either case) is adverse to him pursuant to regulation 7(1)(a) or (b);

(b) against any determination by a Health Board under regulation 7(1)(c)(ii);

(c) in respect of a determination by a Health Board that an overpayment has or has not been made in respect of his remuneration;

by giving notice of appeal in accordance with paragraph (2).

(2) A notice of an appeal under this regulation shall be in writing and sent to the Secretary of State within 30 days beginning on the date on which notice of the appropriate Health Board’s decision was given to the practitioner under regulation 7(7), and shall contain a concise statement of the grounds of appeal upon which the practitioner intends to rely in respect of each ground of appeal.

(3) Subject to paragraph (6), on an appeal to which paragraph (1)(a) or (c) applies, the Secretary of State shall consider the appeal on the basis of such evidence as was available to the discipline committee and of such further evidence as shall have been adduced on the appeal, and shall—

(a) make such findings of fact as he sees fit;

(b) draw such inferences from those findings as he sees fit;

(c) in the case of an appeal to which paragraph (1)(a) applies—

(i) determine whether or not the practitioner has failed to comply with any one or more of the terms of service detailed in the appropriate Health Board’s statement of case, and

(ii) determine in accordance with any one or more of the following provisions, that is paragraphs (3) or (5)(a), (b) and (c) (as modified in accordance with paragraph (5) of this regulation) of regulation 7 or regulation 10, whether any, and if so what, action should be taken in relation to that practitioner; and

(d) in the case of an appeal to which paragraph (1)(c) applies, determine whether there has been an overpayment and, if so, of what amount.

(4) On an appeal to which paragraph (1)(b) applies, the Secretary of State shall—

(a) accept as conclusive—

(i) those findings of fact made by the discipline committee which were necessary for the purpose of the Health Board’s determination under regulation 7(1)(c)(ii); and

(ii) the inferences specified in the discipline committee’s report pursuant to paragraph 7(1)(c) of Schedule 1A; and

(b) determine in accordance with any one or more of the following provisions, that is paragraphs (3) or (5)(a), (b) and (c) (as modified in accordance with paragraph (5) of this regulation) of regulation 7 or regulation 10, whether any, and if so, what action should be taken in relation to the practitioner.

(5) For the purposes of paragraphs (3)(c)(ii) and (4)(b) of this regulation, paragraphs (3), (5) and (6) of regulation 7 shall have effect as if for any reference to “the appropriate Health Board” there were substituted a reference to “the Secretary of State”.

(6) The practitioner may withdraw his appeal at any time before it is determined—

(a) by giving written notice to the Secretary of State of his intention to do so; and

(b) with the consent of the Secretary of State.

Procedure on appeal

9.— (1) Without prejudice to paragraph (5), if the Secretary of State, after considering a notice of appeal and any further particulars furnished by the practitioner, is of the opinion that the notice and particulars disclose no reasonable grounds of appeal or that the appeal is otherwise vexatious or frivolous, he may determine the appeal by dismissing it forthwith.

(2) The Secretary of State shall, unless he dismisses the appeal under paragraph (1), send a copy of the notice of appeal and of any further particulars furnished by the practitioner to the appropriate Health Board, and shall invite that Board to submit its observations on the appeal within 28 days of being sent the copy of the notice of appeal.

(3) Where observations are made under paragraph (2), the Secretary of State shall send a copy of those observations to the practitioner and shall invite him to submit his comments on the observations within 21 days of his being sent that copy.

(4) The Secretary of State shall hold an oral hearing to determine the appeal except in the circumstances described in paragraph (5).

(5) Where a practitioner who is not appealing under regulation 8(1)(a) appeals under regulation 8(1)(b), his appeal may be dismissed without an oral hearing if the practitioner has stated in writing that he does not want such a hearing.

(6) Where there is to be an oral hearing the Secretary of State shall appoint three persons to hear the appeal, of whom—

(a) one shall be an advocate or a solicitor, and shall act as chairman; and

(b) two shall be selected in accordance with paragraphs (7) and (8).

(7) The persons appointed under paragraph (6)(b) shall be—

(a) where the practitioner is a doctor, two doctors;

(b) where the practitioner is a dentist, two dentists;

(c) where the practitioner is an ophthalmic medical practitioner, two ophthalmic medical practitioners;

(d) where the practitioner is an optician, two opticians;

(e) where the practitioner is a pharmacist contractor, two pharmacists.

(8) In a case to which—

(a) paragraph (7)(a) applies, one of the doctors shall be selected from the doctors' panel;

(b) paragraph (7)(b) applies, one of the dentists shall be selected from the dentists' panel.

(9) The Secretary of State shall appoint a day for the hearing and shall give the practitioner and the appropriate Health Board not less than 21 days' notice in writing of the day, time and place of the hearing.

(10) Subject to the provisions of regulation 46 (attendance by member of Council on Tribunals) no person shall, without the consent of the practitioner and the persons appointed under paragraph (6), be admitted to a hearing before those persons unless he is—

(a) the practitioner;

(b) a representative of the appropriate Health Board who is an officer or a member of it;

(c) a person (who may be counsel, a solicitor or any other person) engaged by a person or body mentioned in sub-paragraph (a) or (b) of this paragraph to represent them before the persons appointed under paragraph (6); or

(d) a person whose attendance is required for the purpose of giving evidence to the persons so appointed.

(11) The practitioner and appropriate Health Board shall not rely on any facts or contentions which do not appear to the Secretary of State or the persons hearing the appeal to have been raised in the course of the proceedings before the discipline committee unless—

(a) not less than seven days before the hearing, notice in writing was given to the Secretary of State of such facts or contentions; and

(b) the Secretary of State or the persons hearing the appeal give their consent.

(12) The persons hearing the appeal shall draw up a report and present it to the Secretary of State who shall take it into consideration and determine the appeal.

(13) Where a Health Board has made representations to the Tribunal following its consideration of a report of a discipline committee, the Secretary of State may, for the purpose of any appeal under regulation 8(1)(a), treat as conclusive any relevant findings of fact of the Tribunal.

(14) The Secretary of State shall give notice in writing to the practitioner and the Health Board of his determination under paragraphs (1) or (12) of the matters mentioned in paragraphs (3)(c), (3)(d) or (4)(b) of regulation 8 and shall include with the notice a statement of his reasons for the determination.

(15) The provisions of Schedule 2 shall have effect with regard to the hearing of an appeal.

Recovery of amounts from practitioners following appeal

10.— (1) Where—

(a) in the case of an appeal under regulation 8(1)(a), the Secretary of State determines that a practitioner has failed to comply with one or more of his terms of service; or

(b) an appeal is made under regulation 8(1)(b) or (c),

the Secretary of State shall, subject to the following provisions of this regulation, determine whether any, and if so, what amount shall be recovered from the practitioner, whether by way of deduction from his remuneration or otherwise.

(2) The Secretary of State shall not consider the question of the recovery of an amount from a doctor or dentist whose failure to comply with his terms of service (as determined under these Regulations) is a failure specified in relation to him in Part I of Schedule 1B unless he has referred the question of recovery to the appropriate advisory committee and has received the advice of that committee.

(3) Where the case is not one to which paragraph (2) applies, the Secretary of State, before considering the question of recovery of—

(a) any amount from a doctor or dentist, may consult the appropriate advisory committee;

(b) any amount in excess of £500, shall consult the appropriate advisory committee.

(4) For the purposes of this regulation “the appropriate advisory committee” means—

(a) where the practitioner is a doctor, the Medical Advisory Committee constituted in accordance with Part II of Schedule 1B; and

(b) where the practitioner is a dentist, the Dental Advisory Committee constituted in accordance with Part III of that Schedule.

(5) The Secretary of State shall give notice in writing of his determination under paragraph (1) to the practitioner and the appropriate Health Board, and shall include with the notice a statement of the reasons for his determination.

(6) Where the Secretary of State has determined under paragraph (1) that an amount shall be recovered from a practitioner, he shall direct the appropriate Health Board to recover that amount either by deduction from the practitioner’s remuneration or otherwise and, subject to regulation 7(8) (as modified by paragraph (7) of this regulation), that Health Board shall comply with that direction.

(7) For the purposes of paragraph (6), regulation 7(8) shall have effect as if for the words “an appropriate Health Board determines under this regulation that action should be taken in accordance with any of the provisions of paragraphs (3) or (5)(a), (b) or (c), that action shall be taken” there were substituted the words “the Secretary of State determines under regulation 10(1) that an amount should be recovered, that amount shall be recovered”.

(8) Any sum which falls by virtue of paragraph (6) to be recovered by a Health Board shall, to the extent that it is not recovered by deduction from the practitioner’s remuneration, be a debt owed by the practitioner to that Health Board.

Death of practitioner

11.   Where, at any time after a disciplinary matter has been referred under regulation 4(1) but before the appropriate Health Board makes a determination under regulation 7 in relation to that matter, the practitioner to whom the matter relates dies, no further action shall be taken under these Regulations in relation to that practitioner.”.

Amendment of regulation 46 of the principal Regulations

4.  In regulation 46(d) of the principal Regulations for the words “regulation 13(9)” there shall be substituted the words “regulation 9(6)”.

New Schedules for the principal Regulations

5.  For Schedule 1 to the principal Regulations, there shall be substituted the Schedules set out in the Schedule to these Regulations.

Transitional provision

6.  The amendments made to the principal Regulations by these Regulations shall not have effect in relation to—

(a) any complaint made under regulation 3 of the principal Regulations before 1st April 1996; or

(b) any other matter referred under regulation 8 of those Regulations before that date.

Revocations

7.  Regulation 20 of the principal Regulations and the National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1994(12) are hereby revoked.

James Douglas-Hamilton

Minister of State, Scottish Office

St Andrew’s House,

Edinburgh

25th March 1996