PART 6Opt outs: additional and out of hours services
F5Minor surgery: temporary opt outs and permanent opt outs following temporary opt outs36
1
Where F7NHS England has given a temporary opt out notice or a temporary opt out notice which, by virtue of regulation 35(7), is treated as a permanent opt out notice, F7NHS England must, as soon as is reasonably practicable and, in any event, before the end of the period of seven days beginning with the date on which F7NHS England receives a notice given under regulation 35(5)—
a
approve the opt out notice and specify, in accordance with paragraphs (4) and (5), the date on which the temporary opt out is to commence, and the date on which it is to come to an end (“the end date”); or
b
reject the opt out notice in accordance with paragraph (3).
2
F7NHS England must give notice to the contractor of its decision under paragraph (1) as soon as practicable, including the reasons for its decision.
3
F7NHS England may reject the opt out notice on the ground that the contractor—
a
is providing F6minor surgery to patients other than its own registered patients, or enhanced services; or
b
has no reasonable need to opt out temporarily having regard to its ability to deliver F3minor surgery.
4
The date specified by F7NHS England for the commencement of the temporary opt out must, where reasonably practicable, be the date requested by the contractor in the contractor's opt out notice.
5
Before determining the end date, F7NHS England must make reasonable efforts to reach agreement with the contractor.
6
Where F7NHS England approves an opt out notice, the contractor's obligation to provide F2minor surgery is to be suspended from the date specified by F7NHS England in its decision under paragraph (1) and is to remain suspended until the end date unless—
a
the contractor and F7NHS England agree in writing an earlier date, in which case the suspension comes to an end on the earlier date agreed;
b
F7NHS England specifies a later date under paragraph (7) in which case the suspension comes to an end on the later date specified;
c
paragraph (9) applies and the contractor refers the matter to the NHS dispute resolution procedure or the court, in which case the suspension comes to an end—
i
where the outcome of the dispute is to uphold the decision of F7NHS England, on the day after the date of the decision of the Secretary of State or the court,
ii
where the outcome is to overturn the decision of F7NHS England, 28 days after the date of the decision of the Secretary of State or the court, or
iii
where the contractor ceases to pursue the NHS dispute resolution procedure or court proceedings, on the day after the date on which the contractor withdraws its claim or the proceedings are otherwise terminated by the Secretary of State or the court;
d
paragraph (11) applies and—
i
F7NHS England refuses the contractor's request for a permanent opt out before the end of the period of 28 days ending with the end date, in which case the suspension comes to an end 28 days after the end date, or
ii
F7NHS England refuses the contractor's request for a permanent opt out after the end date, in which case the suspension comes to an end 28 days after the date of service of the notice.
7
Before the end date, F7NHS England may, in exceptional circumstances and with the agreement of the contractor, give notice in writing to the contractor of a later date on which the temporary opt out is to come to an end, being a date which is no more than six months later than the end date.
8
Where F7NHS England considers that—
a
the contractor will be unable to satisfactorily provide F1minor surgery at the end of the temporary opt out; and
b
it would not be appropriate to exercise its discretion under paragraph (7) to specify a later date on which the temporary opt out is to come to an end or the contractor does not agree to a later date,
F7NHS England may give notice in writing to the contractor at least 28 days before the end date that a permanent opt out is to follow a temporary opt out.
9
Where F7NHS England gives notice to the contractor under paragraph (8) that a permanent opt out is to follow a temporary opt out, the permanent opt out is to take effect immediately after the end of the temporary opt out.
10
11
Where the contractor has given notice to F7NHS England under paragraph (10) that it wants to permanently opt out, the temporary opt out is to be followed by a permanent opt out beginning on the day after the end date of the temporary opt out notice unless F7NHS England refuses the contractor's request to permanently opt out by giving notice in writing to the contractor to this effect.
12
A temporary opt out or a permanent opt out commences, and a temporary opt out ends, at 8.00am on the relevant day unless—
a
the day is Saturday, Sunday, Good Friday, Christmas Day or a bank holiday in which case the opt out is to take effect on the next working day at 8.00am; or
b
F7NHS England and the contractor agree a different day or time.