44.—(1) Subject to sub-paragraph (2), the contractor must not sub-contract any of its rights or duties under the contract in relation to clinical matters to any person unless—
(a)in all cases, including those duties relating to out of hours services to which paragraph 45 applies, it has taken reasonable steps to satisfy itself that—
(i)it is reasonable in all the circumstances to do so, and
(ii)the person to whom any of those rights or duties is sub-contracted is qualified and competent to provide the service; and
(b)except in cases to which paragraph 45 applies, the contractor has given notice in writing to the Board of its intention to sub-contract as soon as reasonably practicable before the date on which the proposed sub-contract is intended to come into effect.
(2) Sub-paragraph (1)(b) does not apply to a contract for services with a health care professional for the provision by that professional personally of clinical services.
(3) A notice given under sub-paragraph (1)(b) must include—
(a)the name and address of the proposed sub-contractor;
(b)the duration of the proposed sub-contract;
(c)the services to be covered by the proposed sub-contract; and
(d)the address of any premises to be used for the provision of services under the proposed sub-contract.
(4) On receipt of a notice given under sub-paragraph (1)(b), the Board may request such further information relating to the proposed sub-contract as appears to it to be reasonable and the contractor must supply such information to the Board promptly.
(5) The contractor must not proceed with a sub-contract or, if the sub-contract has already taken effect, the contractor must take steps to terminate it, where—
(a)the Board gives notice in writing of its objection to the sub-contract on the grounds that the sub-contract would—
(i)put the safety of the contractor's patients at serious risk, or
(ii)put the Board at risk of material financial loss,
and notice is given by the Board before the end of the period of 28 days beginning with the date on which the Board received a notice from the contractor under sub-paragraph (1)(b); or
(b)the sub-contractor would be unable to meet the contractor's obligations under the contract.
(6) A notice given by the Board under sub-paragraph (5)(a) must include a statement of the reasons for the Board's objection.
(7) Sub-paragraphs (1) and (3) to (6) also apply in relation to any renewal or material variation of a sub-contract in relation to clinical matters.
(8) Where the Board does not give notice of an objection under sub-paragraph (5), the parties to the contract are deemed to have agreed a variation of the contract which has the effect of adding to the list of practice premises any premises the address of which was notified to the Board under sub-paragraph (3)(d) and, in these circumstances, paragraph 57(1) of Schedule 3 does not apply.
(9) A sub-contract entered into by a contractor must prohibit the sub-contractor from sub-contracting any of the clinical services that it has agreed with the contractor to provide under the sub-contract.
(10) The contractor must not sub-contract any of its rights or duties under the contract in relation to the provision of essential services to a company or firm that is—
(a)wholly or partly owned by the contractor, or by any former or current employee of, or partner or shareholder in, the contractor;
(b)formed by or on behalf of the contractor, or from which the contractor derives or may derive a pecuniary benefit; or
(c)formed by or on behalf of a former or current employee of, or partner or shareholder in, the contractor, or from which such a person derives or may derive a pecuniary benefit,
where sub-paragraph (11) applies to that company or firm.
(11) This sub-paragraph applies to a company or firm which is or was formed wholly or partly for the purpose of avoiding the restrictions on the sale of goodwill of a medical practice in section 259 of the Act M1 (sale of medical practices), and Schedule 21 to the Act (prohibition of sale of medical practices), or any regulations made wholly or partly under those provisions of the Act.
Marginal Citations
M1Section 259 was amended by paragraph 131 of Schedule 4 to the Health and Social Care Act 2012 (c.7).