Part 4 – General
Section 22 – Interpretation
112.This section clarifies the meaning of various expressions used in the Act. Of particular importance is the explanation that “social care” does not include the provision of accommodation (subsection (2)). The note on section 2 of the Act discusses how the provision of accommodation can include both board and lodging and other services. It is intended that such services can be excluded from the definition of accommodation so that they may constitute social care for the purposes of the Act. Regulations under section 2 will achieve this.
Section 25 - Minor and consequential amendments and repeals
113.Section 25 brings into effect schedule 2, which makes a number of amendments to existing legislation, which are minor and consequential to the provisions of the Act. Schedule 2 also repeals a reference to section 29(b)(3) of the 1978 Act in paragraph 52(b) of Schedule 4 to the Health Act 1999 and repeals the definition of “medical list” at paragraph 57 of Schedule 2 to the 1997 Act.
Section 26 - Guidance and directions
114.This section allows the Scottish Ministers to issue guidance and directions to local authorities and NHS bodies as to how they should undertake their functions under the Act. The section does not affect the other relevant powers to issue guidance and directions listed at paragraphs (a), (b) and (c).
Section 27 - Short title and commencement
115.This section enables the Scottish Ministers to bring sections of the Act, except section 27 itself and section 23, into force by order. Such an order may appoint different days for different provisions and for different purposes.
Schedule 1 - Social care not ordinarily charged for
116.Schedule 1 is based on the definition of personal care recommended by the Care Development Group in its September 2001 report, Fair Care for Older People. This schedule does not amend the definition of personal care which is referred to in the requirement for free care in section 1(1) of this Act and which appears in section 2(28) of the 2001 Act. The items in schedule 1 complement that definition, which is general in its terms, and therefore ensures that those items of care that the Care Development Group considered should be free will be included in the requirement for free care in section 1. In some cases the terminology has had to be changed from that used by the Care Development Group to achieve the necessary precision for legislation.
117.Also, in order to avoid duplication, help with washing and eating, which were included in the Care Development Group’s recommended list, have not been included in schedule 1. This is because such care is already mentioned as a specific example in the definition of “personal care” in the 2001 Act and is therefore already attracted by paragraph (a) of subsection (1) of section 1 of the Act.
Schedule 2 – Minor and consequential amendments and repeals
Paragraph 1 – Social Work (Scotland) Act 1968 (c.49)
118.Sub-paragraphs (2) and (3) make minor amendments to sections 12B(7) and 12C(2) of the 1968 Act. They are consequential to the direct payment provisions in section 7 of the Act.
119.Sub-paragraph (4) is to correct an error in the text of section 13A(2) of the 1968 Act.
120.Sub-paragraph (5) makes a minor amendment consequential to section 3 of the Act. It amends section 94(1) of the 1968 Act to ensure that prescription under the new section 12(3A) of that Act is by order.
Paragraph 2 – National Health Service (Scotland) Act 1978 (c.29)
121.Paragraph 2(2) of schedule 2 amends section 16A of the 1978 Act, which allows Health Boards to make payments to certain organisations for certain purposes. The amendment makes it clear that section 16A is without prejudice to section 13 of the Act, which allows Health Boards to make payments to local authorities.
122.The amendments to the 1978 Act which are set out in paragraph 2(3) to (8) of schedule 2 are to that Act as amended by the Health Act 1999 (section 58 and Schedule 4 paragraph 49). These amendments will bring GMS non-principals and GPs performing personal medical services (PMS) within the jurisdiction of the NHS Tribunal which may direct the disqualification or conditional disqualification (either local or national) of a practitioner on grounds of fraud and efficiency and may direct his or her interim suspension on similar grounds. The Tribunal may additionally declare that the practitioner is not fit to be engaged in any capacity in the provision of the relevant services. The amendments will also enable interim suspension, disqualification and conditional disqualification provisions imposed by a Health Authority in England and Wales or an equivalent body in Northern Ireland to be applied to the same non-principal or PMS practitioner in Scotland. They also provide for a Health Authority in England and Wales or an equivalent body in Northern Ireland to seek review by the Scottish Tribunal of a conditional disqualification. Referrals to the Tribunal are made by the Health Board or Boards holding the list(s) on which is included the name of the practitioner who is the subject of the referral.
123.Section 29(6) of the 1978 Act is amended to extend to a GMS non-principal or GP performing personal medical services (PMS) the first condition for disqualification by the NHS Tribunal from inclusion on a list held by a Health Board. The condition is that the continued inclusion of the person on the relevant list(s) would be prejudicial to the efficiency of the services in question.
124.Section 29(8)(a) of the 1978 Act is amended to include supplementary lists in the lists held by a Health Board from which practitioners may be disqualified by direction of the NHS Tribunal.
125.A new paragraph (aa) is inserted into section 29(8) to include a services list of performers in pilot and permanent PMS schemes in the lists held by a Health Board from which practitioners may be disqualified by direction of the NHS Tribunal. Under section 29(8), as prospectively amended, the lists from which a GP may be disqualified now include those prepared under or by virtue of Part I of the 1978 Act.
126.Section 29A(3) of the 1978 Act is amended to extend liability to PMS performers where a lack of diligence by the performer has resulted in a fraud being perpetrated by another member of staff.
127.A new subsection (3A) is inserted into section 29A to extend liability as described in section 29A(3), as amended, to GMS non-principals also.
128.Section 29B is amended to enable the NHS Tribunal to continue to direct local disqualification and national disqualification. Two new sub-paragraphs are inserted into sections 29B(2)(a) and 29B(2)(b).
129.Sub-paragraph (i) of section 29B(2)(a) provides for the Tribunal to direct the local disqualification of a medical practitioner, other than an ophthalmic medical practitioner, from the medical, supplementary and services list of the referring Health Board even where the case against the practitioner relates to medical activity within the Board’s area associated with just one of those lists. Sub-paragraph (ii) of section 29B(2)(a) retains the existing power of the Tribunal to direct the local disqualification of a practitioner who is not a medical practitioner from the list to which the case referred to the Tribunal relates.
130.Sub-paragraph (i) of section 29B(2)(b) provides for the Tribunal to direct the national disqualification of a medical practitioner, other than an ophthalmic medical practitioner, from all medical, supplementary and services lists. Sub-paragraph (ii) of section 29B(2)(b) provides for the Tribunal to continue to direct the national disqualification of dental practitioners from dental lists, pharmacy contractors from pharmaceutical lists and optometrists and ophthalmic medical practitioners from ophthalmic lists.
131.Additionally, section 29B(3), as amended, provides for PMS performers to be included in the categories of person about whom the NHS Tribunal may make a declaration of unfitness when making a national disqualification. As amended, the NHS Tribunal may now declare that the person subject to national disqualification is unfit to be engaged in any capacity in the provision or performance of the services associated with the lists from which he or she has been disqualified.
132.Section 30(4) of the 1978 Act is amended to include performers of PMS in the categories of persons whose conditional disqualification a Health Authority in England and Wales or an equivalent body in Northern Ireland may request the NHS Tribunal in Scotland to review. The amended wording removes ambiguity as to the meaning of the reference to “provisions in force in England and Wales corresponding to this Part”.
133.Section 31 of the 1978 Act relates to equivalent disqualification provisions in England and Wales or Northern Ireland. It provides that a person disqualified in England and Wales or Northern Ireland is disqualified for inclusion in lists in Scotland.
134.Subsection (1)(a) of section 31 is amended to extend to lists of GMS non-principals and PMS performers those lists in Scotland to which a disqualification from equivalent lists in England and Wales or Northern Ireland may relate.
135.Subsection (2) of section 31 is amended to enable Scottish Ministers to impose conditions on provision or performance of services by non-principals and PMS performers equivalent to those already imposed on practitioners who are conditionally disqualified under provisions in England and Wales or Northern Ireland.
136.Section 32A(6)(a) is amended to extend to lists of PMS performers and GMS non-principals those lists from which a person shall be deemed to be disqualified where a Health Board has applied for interim suspension of that person.
137.Section 32B is amended to correct two inaccurate cross references to other sections of the 1978 Act. The first cross reference – section 29(3)(b) - appeared in amendments to the 1978 Act by paragraph 52(b) of Schedule 4 to the Health Act 1999. The reference should have been to section 29(2)(b) and the amended wording reflects this fact. The second cross reference is to section 32(A)(3) which does not exist. This has been substituted by the correct cross reference which is to section 32A(3).
138.Section 32D of the 1978 Act is amended to extend to GMS non-principals and performers of PMS the provisions that suspend and disqualify a person who, under corresponding provisions in England and Wales or Northern Ireland, has been suspended and disqualified for inclusion in a list in England and Wales or Northern Ireland.
139.Section 108(1) of the 1978 Act is amended to insert appropriate definitions required as a result of the amendments made by this Act.
Paragraph 3 – National Health Service (Primary Care) Act 1997 (c.46)
140.The definition of “medical list” provided for in Schedule 2 to the 1997 Act, which was not commenced in relation to this term, is repealed as a result of the inclusion of the term in the amendment of section 108(1) referred to at paragraph 139 above.
Paragraph 4 –Health Act 1999 (c.8)
141.Uncommenced paragraph 52(b) of Schedule 4 to the Health Act 1999 is repealed because the wording of this was defective. It cross referred to section 29(3)(b) of the 1978 Act, rather than to section 29(2)(b).
