The National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004

Decisions and grounds for refusal and deferral

7.—(1) A Health Board shall refuse to include the name of an applicant in its primary medical services performers list if–

(a) the applicant is not a general medical practitioner;

(b) the applicant is –

(i) the subject of a direction given by the Professional Conduct Committee under section 36 (professional misconduct and criminal offences) of the Medical Act 1983(1);

(ii) the subject of an order made by the Professional Conduct Committee under section 38(1) (power to order immediate suspension after a finding of professional misconduct or unfitness to practice) of that Act(2);

(iii) from the coming into force of article 13 of the 2002 Order, the subject of a direction by a Fitness to Practise Panel for erasure or immediate suspension under section 35D(2)(a) or (b), (5)(a) or (b), 10(a) or (b), or (12)(a) or (b) (functions of a Fitness to Practise Panel), or section 38(1) (power to order immediate suspension etc) of that Act(3); or

(iv) from the coming into force of article 14 of the 2002 Order, the subject of a direction by a Fitness to Practise Panel suspending him pursuant to rules made under paragraph 5A(3) of Schedule 4 of that Act(4);

(c) the applicant has been convicted in the United Kingdom of murder;

(d) the applicant has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of over 6 months;

(e) having contacted referees provided by the applicant, the Health Board is not satisfied with the references (if any) provided by the referees; or

(f) the Health Board is not satisfied that the applicant has the knowledge of English which, in the interests of the applicant and of patients who may receive primary medical services from the applicant, is necessary for performing primary medical services.

(2) Paragraph (1) is without prejudice to any duty on a Health Board not to–

(a) enter an applicant in a primary medical service performers list by virtue of that applicant being disqualified under section 29B(2), 30(2) or (5) or 31(1) of the Act(5);

(b) enter an applicant in a primary medical services performers list by virtue of that applicant being suspended under section 32A, 32B or 32D of the Act (6); or

(c) add the applicant to a primary medical services performers list by virtue of regulation 26(1) (practitioners subject to inquiry in a fraud case) of the National Health Service (Tribunal) (Scotland) Regulations 2004(7).

(3) When a Health Board has decided whether or not to include an applicant in its primary medical services performers list, the Health Board shall notify the applicant within 7 days of that decision of –

(a) that decision; and

(b) if the Health Board has decided not to include the applicant, the reasons for that (including any facts upon which the Health Board has relied) and of the right of appeal under regulation 13 against that decision.

(4) Without prejudice to the Health Board’s power under section 29 of Act (the NHS Tribunal) to make representations to the Tribunal that an applicant meets the second condition for disqualification, a Health Board shall defer determination of an application for inclusion in a primary medical services performers list where–

(a) the applicant is the subject of criminal proceedings in the United Kingdom or elsewhere in the world, conviction in respect of which would be likely to lead to refusal to include in, or removal from, a primary medical services performers list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets the first condition for disqualification (if the applicant were included in the list), or the second condition for disqualification;

(b) the applicant is the subject of an investigation or proceedings relating to the applicant’s professional conduct by any licensing or regulatory body (including one by the Agency or another Health Board or equivalent body) in the United Kingdom or elsewhere in the world, the outcome of which would be likely to lead to refusal to include in, or removal from, a primary medical services performers list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets the first condition for disqualification (if the applicant were included in the list) or second condition for disqualification; or

(c) the applicant is the subject of other proceedings in the United Kingdom which would be likely to result in the applicant being disqualified, removed or suspended from an equivalent list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets the first condition for disqualification (if the applicant were included in the list), or second condition for disqualification,

and the Health Board shall notify the applicant of the deferral and the reasons for the deferral in writing.

(5) A Health Board shall defer a determination under paragraph (3) only until the outcome of the relevant event is known.

(6) Once the outcome of the relevant event is known, the Health Board shall require the applicant to confirm that the applicant wishes to proceed with the application and provide details of any changes to the application, and any information included in the application, within 28 days (or such longer period as the Health Board specifies).

(7) On the expiry of the period of 28 days (or such longer period as the Health Board has specified) referred to in paragraph (6), the Health Board shall again consider the application and notify the applicant of its determination and the reasons for it (including any facts relied on) and, where the Health Board refuses the application for inclusion, of the applicant’s right of appeal under regulation 13.

(8) In this regulation “the outcome of the relevant event” means the final determination of any proceedings (including proceedings pending the determination of which the applicant is suspended) or investigation referred to in paragraph (4)(a) to (c).

(1)

Section 36 was amended by the Medical (Professional Performance) Act 1995 (c. 51) (“the 1995 Act”), Schedule, paragraph 5 and by S.I. 2000/1803.

(2)

Section 38 (1) was amended by the 1995 Act, Schedule, paragraph 7(2)(a)-(c).

(3)

Sections 35D and 38 are inserted by article 13 of the 2002 Order, with effect from such date as the Secretary of State may specify.

(4)

Schedule 4 is substituted by article 14 of the 2002 Order, with effect from such date as the Secretary of State may specify.

(5)

Section 29B(2) was inserted by the Health Act 1999 (c. 8) (“the 1999 Act”) and amended by the Community Care and Health (Scotland) Act 2002 (asp 5) (“the 2002 Act”), schedule 2, paragraph 2(6) and the Primary Medical Services (Scotland) Act 2004 (asp 1), schedule, paragraph 1(13); section 30 was substituted by the 1999 Act, section 58(2), and amended by the 2002 Act, schedule 2, paragraph 2(7); section 31 was renumbered section 31(1) by the 1999 Act, Schedule 4, paragraph 49 and amended by the 2002 Act, schedule 2, paragraph 2(8).

(6)

Section 32A was amended by the Health Act 1999 (c. 8) (“the 1999 Act”), Schedule 4, paragraph 51 and the Community Care and Health (Scotland) Act 2002 (asp 5) (“the 2002 Act”), schedule 2, paragraph 2(9); section 32B was amended by the 1999 Act, Schedule 4, paragraph 52 and the 2002 Act, schedule 2, paragraph 2(10); section 32D was amended by the 1999 Act, Schedule 4, paragraph 53 and the 2002 Act, schedule 2, paragraph 2(11).

(7)

S.S.I. 2004/38.