The National Health Service (Existing Liabilities Scheme for General Practice) (Wales) Regulations 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations establish the Existing Liabilities Scheme for General Practice (“the Scheme”). They apply only in relation to services provided as part of the NHS in Wales and come into force on 6 April 2020.

The Scheme relates to tortious liabilities arising from incidents that occurred before 1 April 2019 which have either been reported or incurred but not yet reported in connection with the provision of primary medical services and other healthcare services by general practice as part of the NHS. In the main, the liabilities covered by the Scheme will be clinical negligence liabilities.

Regulations 2 and 4 define terms used in the Regulations. Regulation 3 establishes the Scheme and provides for it to be administered by the Welsh Ministers.

Regulation 5 specifies who is an “eligible person”, namely persons whose existing liabilities may be met under the Scheme, subject to the liabilities being liabilities to which the Scheme applies. This is a person who is or who, on the relevant date was, a member of a medical defence organisation and also either a Part 4 contractor (a person contracted under Part 4 of the National Health Service (Wales) Act 2006 to provide, or make arrangements to provide, primary medical services); a primary medical services sub-contractor (a person sub-contracted by a Part 4 contractor to provide such services); a person providing ancillary health services; or a person engaged by any of the above to provide or carry out an activity connected to the provision of primary medical services or ancillary health services. The “relevant date” is the date on which the act or omission, giving rise to an existing liability, occurred and “ancillary health services” are NHS services, other than primary medical services, provided as part of general practice by a Part 4 contractor, a primary medical services sub-contractor or a person sub-contracted by such persons to provide the ancillary health services.

Regulation 6 specifies the existing liabilities to which the Scheme applies and the date from which it will apply to those existing liabilities. These are existing liabilities owed to a third party that arise from acts or omissions connected to the provision of primary medical services or ancillary health services and which result in personal injury or harm to the third party. Existing liabilities of eligible persons are covered under the Scheme where the Welsh Ministers have entered into a contractual arrangement with a medical defence organisation and, under that contractual arrangement, the Welsh Ministers have agreed to consider providing discretionary indemnity or assistance for acts or omissions of members and former members of the medical defence organisation.

Acts or omissions of an eligible person’s employees or others engaged or permitted by an eligible person to carry out activities connected to the provision of primary medical services or other NHS services for the eligible person are also covered under the Scheme.

Regulations 7 to 10 provide for payments to be made under the Scheme, including regulation 9 which sets out circumstances in which the Welsh Ministers may decide that no payment is to be made.

Regulation 11 enables the Welsh Ministers to require an eligible person to provide information and assistance to the Welsh Ministers for the purposes of the Scheme.

Regulation 12 places the Welsh Ministers under a duty to make information available to an eligible person about directions or guidance given by the Welsh Ministers in relation to the Scheme.

The Welsh Ministers Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. A regulatory impact assessment relating to this instrument has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Primary Care and Health Science Directorate, Welsh Government, Cathays Park, Cardiff, CF10 3NQ.