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The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004

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Permanent opt outs

3.—(1) In this paragraph—

  • “A day” is the day specified by the contractor in its permanent opt out notice to a Health Board for the commencement of the permanent opt;

  • “B day” is the day six months after the date of service of the permanent opt out notice; and

  • “C day” is the day nine months after the date of service of the permanent opt out notice.

(2) As soon as is reasonably practicable and in any event within the period 28 days beginning with the date of receipt of a permanent opt out notice under paragraph 1(5) (or temporary opt out notice which is treated as a permanent opt out notice under paragraph 1(7)), the Health Board shall—

(a)approve the opt out notice; or

(b)reject the opt out notice in accordance with sub-paragraph (3),

and shall notify the contractor of its decision as soon as possible, including reasons for its decision, where its decision is to reject the opt out notice.

(3) A Health Board may reject the opt out notice on the ground that the contractor is providing an additional service to patients other than its registered patients or enhanced services.

(4) A contractor may not withdraw an opt out notice once it has been approved by the Health Board in accordance with sub-paragraph (2)(a) without the Health Board’s agreement.

(5) If the Health Board approves the opt out notice under sub-paragraph (2)(a), it shall use its reasonable endeavours to make arrangements for the contractor’s registered patients to receive the additional service from an alternative provider from A day.

(6) The contractor’s duty to provide the additional service shall terminate on A day unless the Health Board serves a notice under sub-paragraph (7) (extending A day to B day or C day).

(7) If the Health Board is not successful in finding an alternative provider to take on the provision of the additional service from A day, then it shall notify the contractor in writing of this fact not later than one month before A day, and—

(a)in a case where A day is three months after service of the opt out notice, the contractor shall continue to provide the additional service until B day unless at least one month before B day the contractor receives a notice in writing from the Health Board under sub-paragraph (8) that despite using its reasonable endeavours, it has failed to find an alternative provider to take on the provision of the additional service from B day;

(b)in a case where A day is six months after the service of the opt out notice, the contractor shall continue to provide the additional service until C day unless at least one month before C day it receives a notice from the Health Board under sub-paragraph (11) that it has made an application to assessment panel under sub-paragraph (10) seeking approval of the assessment panel to a decision to refuse a permanent opt out or to delay the commencement of a permanent opt out until after C day.

(8) Where in accordance with sub-paragraph (7)(a) the permanent opt out is to commence on B day and the Health Board, despite using its reasonable endeavours, has failed to find an alternative provider to take on the provision of the additional service from that day, it shall notify the contractor in writing of this fact at least one month before B day, in which case the contractor shall continue to provide the additional service until C day unless at least one month before C day it receives a notice from the Health Board under sub-paragraph (11) that it has applied to the assessment panel under sub-paragraph (10) seeking the approval of the assessment panel to a decision to refuse a permanent opt out or to postpone the commencement of a permanent opt out until after C day.

(9) As soon as is reasonably practicable and in any event within 7 days of the Health Board serving a notice under sub-paragraph (8), the Health Board shall enter into discussions with the contractor concerning the support that the Health Board may give to the contractor or other changes which the Health Board or the contractor may make in relation to the provision of the additional service until C day.

(10) A Health Board may, if it considers that there are exceptional circumstances, make an application to the assessment panel for approval of a decision to—

(a)refuse a permanent opt out; or

(b)postpone the commencement of a permanent opt out until after C day.

(11) As soon as practicable after making an application under sub-paragraph (10) to the assessment panel, the Health Board shall notify the contractor in writing that it has made such an application.

(12) The Health Board must ensure that an assessment panel is appointed by another Health Board as soon as is practicable to consider and determine whether or not to approve the Health Board’s proposed decision to refuse a permanent opt out or to postpone the commencement of a permanent opt out until after C day.

(13) The Health Board shall provide the assessment panel with such information as the assessment panel may reasonably require to enable it to reach a determination.

(14) On receiving an application under sub-paragraph (10) for approval of a decision to refuse a permanent opt out, the assessment panel shall—

(a)approve the Health Board’s application;

(b)reject the Health Board’s application, but nonetheless recommend a different date for the commencement of the permanent opt out which may be later than C day; or

(c)reject the Health Board’s application.

(15) On receiving an application under sub-paragraph (10) for approval of a decision to postpone the commencement of a permanent opt out until after C day, the assessment panel shall—

(a)approve the Health Board’s application;

(b)reject the Health Board’s application, but nonetheless recommend—

(i)that the permanent opt out commence on an earlier date to that proposed by the Health Board in its application, or

(ii)that the permanent opt out be refused; or

(c)reject the Health Board’s application.

(16) The assessment panel shall notify the Health Board and the contractor in writing of its decision under sub-paragraph (14) or (15) as soon as is practicable, including reasons for its decision.

(17) Where the assessment panel—

(a)approves a decision to refuse an opt out under sub-paragraph (14)(a); or

(b)recommends that a permanent opt out be refused under sub-paragraph (15)(b)(ii),

the Health Board shall notify the contractor in writing that the contractor may not opt out of the additional service.

(18) Where a Health Board notifies a contractor under sub-paragraph (17), the contractor may not serve a preliminary opt out notice in respect of that additional service for a period of twelve months beginning with the date of service of the Health Board’s notice under sub-paragraph (17) unless there has been a change in the circumstances of the contractor in relation to its ability to deliver services under the contract.

(19) Where the assessment panel—

(a)recommends a different date for the commencement of the permanent opt out under sub-paragraph (14)(b);

(b)approves a Health Board’s application to postpone a permanent opt out under sub-paragraph (15)(a); or

(c)recommends an earlier date to that proposed by the Health Board in its application under sub-paragraph (15)(b)(i),

the Health Board shall in accordance with the decision of the assessment panel notify the contractor in writing of its decision and the notice shall specify the date of the commencement of the permanent opt out.

(20) Where the assessment panel rejects the Health Board’s application under sub-paragraph (14)(c) or (15)(c), the Health Board shall notify the contractor in writing that there shall be a permanent opt out, and the permanent opt out shall commence on C day or 28 days after the date of service of the Health Board’s notice, whichever is the later.

(21) If the assessment panel has not reached a decision on the Health Board’s application under sub-paragraph (10) before C day, the contractor’s obligation to provide the additional service shall continue until a notice is served on the contractor by the Health Board under sub-paragraph (19) or (20).

(22) Nothing in sub-paragraphs (1) to (21) above shall prevent the contractor and the Health Board from agreeing a different date for the termination of the contractor’s duty under the contract to provide the additional service and, accordingly, varying the contract in accordance with paragraph 94(1) of Schedule 5.

(23) The permanent opt out takes effect at 08.00 on the relevant day unless—

(a)the day is not a working day, in which case the opt out shall take effect on the next working day at 08.00; or

(b)the Health Board and the contractor agree a different day or time.

(24) Any decision or determination by the assessment panel for the purposes of this paragraph may be reached by a majority.

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