PART 5 E+WSub-contracting
Sub-contracting of clinical mattersE+W
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).
Sub-contracting out of hours servicesE+W
45.—(1) A contractor must not sub-contract all or part of its duty to provide out of hours services under the contract to a person other than those specified in sub-paragraph (2) without the prior written approval of the Board.
(2) The persons specified in this sub-paragraph are—
(a)a person who holds a general medical services contract with the Board which includes out of hours services;
(b)a section 92 provider who is required to provide the equivalent of essential services to its patients during all or part of the out of hours period;
(c)a health care professional, not falling within paragraph (a) or (b), who is to provide the out of hours services personally under a contract for services; or
(d)a group of medical practitioners, whether in partnership or not, who provide out of hours services for each other under informal rota agreements.
(3) The requirement in sub-paragraph (1) to obtain prior written approval does not apply in any case where a contractor sub-contracts all or part of its duty to provide out of hours services under the contract on a short term or occasional basis.
(4) An application for approval under sub-paragraph (1) may be made by the contractor in writing to the Board and must state—
(a)the name and address of the proposed sub-contractor;
(b)the address of any premises to be used for the provision of services under the sub-contract;
(c)the duration of the proposed sub-contract;
(d)the services to be covered by the sub-contract; and
(e)the manner in which the sub-contractor proposes to meet the contractor's obligations under the contract in respect of the services to be covered by the sub-contract.
(5) The Board may request such further information relating to arrangements under the proposed sub-contract as appears to it to be reasonable before the end of the period of seven days beginning with the date on which the Board received the application under sub-paragraph (4).
(6) Where the Board receives an application which meets the requirements specified in sub-paragraph (4), or receives any further information requested under sub-paragraph (5) in relation to an application, the Board must, before the end of the period of 28 days beginning with the date on which it received the application or that information (whichever is the latest)—
(a)approve the application;
(b)approve the application subject to conditions; or
(c)refuse the application.
(7) The Board must not refuse the application if it is satisfied that the arrangements covered by the proposed sub-contract would, in respect of the services to be provided, enable the contractor to satisfactorily meet its obligations under the contract and would not—
(a)put the safety of the contractor's patients at serious risk; or
(b)put the Board at risk of material financial loss.
(8) The Board must give notice in writing to the contractor of its decision on the application and, where it refuses an application, it must include in the notice a statement of the reasons for its refusal.
(9) Where the Board approves an application under this paragraph, 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, for the purposes of the provision of services in accordance with that application, any premises the address of which was notified to the Board under sub-paragraph (4)(b) and, in these circumstances, paragraph 57(1) of Schedule 3 does not apply.
(10) Sub-paragraphs (1) to (9) also apply in relation to any renewal or material variation of a sub-contract in relation to out of hours services.
(11) A sub-contract entered into by a contractor must prohibit the sub-contractor from sub-contracting the out of hours services that it has agreed with the contractor to provide under the sub-contract.
Withdrawal and variation of approval under paragraph 45E+W
46.—(1) Subject to paragraph 47, where the Board approves an application made under paragraph 45, the Board may subsequently give notice in writing to the contractor withdrawing or varying that approval from a date specified in the notice if it is no longer satisfied that the arrangements covered by the sub-contract would enable the contractor to satisfactorily meet its obligations under the contract.
(2) The date specified in the notice given under sub-paragraph (1) may be such date as appears to the Board to be reasonable in all the circumstances.
(3) A notice given under sub-paragraph (1) takes effect on whichever is the later of—
(a)the date specified in the notice; or
(b)in a case where a dispute arising in relation to the notice given by the Board under sub-paragraph (1) is referred to the NHS dispute resolution procedure, the date of the final determination of the dispute under that procedure (or any court proceedings) in favour of the Board.
(4) This paragraph does not affect any other remedies which the Board may have under the contract.
Withdrawal or variation of approval with immediate effectE+W
47.—(1) Where the Board approves an application made under paragraph 45, the Board may subsequently give notice in writing to the contractor withdrawing or varying that approval with immediate effect if the Board is—
(a)no longer satisfied that the arrangements covered by the sub-contract would enable the contractor to satisfactorily meet its obligations under the contract; and
(b)satisfied that the immediate withdrawal or variation of the approval is necessary to protect the safety of the contractor's patients.
(2) A notice given under sub-paragraph (1) takes effect on the date on which it is received by the contractor.
(3) This paragraph does not affect any other remedies which the Board may have under the contract.