The National Health Service (Tribunal) (Scotland) Regulations 2004

PART I GENERAL

Citation, commencement and extent

1.—(1) These Regulations may be cited as the National Health Service (Tribunal) (Scotland) Regulations 2004 and shall come into force on 4th March 2004.

(2) These Regulations extend to Scotland only.

Interpretation and forms

2.—(1) In these Regulations–

“the 1978 Act” means the National Health Service (Scotland) Act 1978;

“the 1997 Act” means the National Health Service (Primary Care) Act 1997;

“applicant” means a person who has made an application;

“application” means, unless the context otherwise requires, an application for a review;

“chairman” includes a deputy chairman acting in the chairman’s place;

“Chief Executive” means the Chief Executive or equivalent of a Health Board or primary care NHS trust or some other officer of the Health Board or primary care NHS trust duly authorised to act on behalf of the Chief Executive or equivalent;

“complainer” means a Health Board or primary care NHS trust or any other person who makes representations to the Tribunal;

“conditional disqualification” has the meaning indicated in section 29C(1) of the 1978 Act(1);

“dentist” means a fully registered dental practitioner;

“disqualification” means local or national disqualification but does not include conditional disqualification;

“doctor” means a fully registered medical practitioner;

“document” means a document in writing and includes–

(a)

any map, plan, graph or drawing;

(b)

any photograph;

(c)

any disk, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(d)

any film (including any microfilm), negative, tape or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;

“efficiency case” has the meaning indicated in section 29(11) of the 1978 Act(2);

“first condition for disqualification” has the meaning indicated in section 29(6) of the 1978 Act(3);

“fraud case” has the meaning indicated in section 29(11) of the 1978 Act;

“Health Board” means a Health Board constituted under section 2 of the 1978 Act(4);

“inquiry” means an inquiry held in accordance with the provisions of these Regulations and includes any hearing relating to suspension proceedings;

“in writing” does not include transmission by electronic means;

“list” has, unless the context otherwise requires, the meaning assigned to it in section 29(8) of the 1978 Act(5);

“local or national disqualification” has the meaning indicated in section 29B(2)(a) and (b) of the 1978 Act(6);

“ophthalmic medical practitioner” means a doctor having the qualifications prescribed by regulation 3 of the National Health Service (General Ophthalmic Services) (Scotland) Regulations 1986(7);

“optician” means a person registered in either of the registers kept under section 7 (registers of opticians) of the Opticians Act 1989(8) of ophthalmic opticians or a body corporate enrolled in the list kept under section 9 (list of bodies corporate carrying on business as opticians) of that Act of such bodies carrying on business as ophthalmic opticians;

“pharmacist” means a registered pharmacist within the meaning of the Medicines Act 1968(9);

“pharmacist contractor” means a contractor who provides pharmaceutical services or a person lawfully conducting a retail pharmacy business in accordance with section 69 (general provisions) of the Medicines Act 1968(10);

“practitioner” means, unless the context otherwise requires, the doctor, dentist, ophthalmic medical practitioner, optician, pharmacist or pharmacist contractor, who is the subject of representations by a complainer or who is the subject of an application;

“primary care NHS trust” means an NHS trust to which functions referred to in section 12AA (additional functions of NHS trusts) of the 1978 Act(11) are delegated by the Health Board;

“representations” means, except in regulation 28(2), representations made to the Tribunal that a person meets the first or second condition for disqualification or representations under paragraph 3(1) or (2) of Schedule 1 to the 1997 Act (representations against preferential treatment)(12);

“relevant professional body” means–

(a)

in relation to a practitioner who is a doctor or an ophthalmic medical practitioner, the General Medical Council;

(b)

in relation to a practitioner who is a dentist, the General Dental Council;

(c)

in relation to a practitioner who is an optician, the General Optical Council; and

(d)

in relation to a practitioner who is a pharmacist, the Royal Pharmaceutical Society of Great Britain;

“respondent” means–

(a)

in the case of representations or an application for interim suspension, any practitioner in respect of whom representations are, or an application for interim suspension is, made;

(b)

in the case of an application by a practitioner, the complainer in respect of whose representations the decision to which the application relates was made; and

(b)

in the case of an application by a person other than a practitioner, the practitioner;

“review” means a review by the Tribunal under section 30 of the 1978 Act(13) (review etc. of disqualification) or an inquiry into whether or not to give a direction under paragraph 5 (termination of directions) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act;

“second condition for disqualification” has the meaning indicated in section 29(7) of the 1978 Act(14);

“the Tribunal” means the Tribunal constituted under section 29 of the 1978 Act (the NHS tribunal).

(2) In these Regulations, any reference to a numbered regulation or a numbered Schedule is, unless otherwise expressly provided, a reference to a regulation or a Schedule bearing that number in these Regulations.

(3) The forms set out in Schedule 2, (forms for use in proceedings in connection with representations and applications) or forms substantially to the like effect, shall be used in all cases to which those forms are applicable by virtue of the provisions of these Regulations and a reference to a numbered form in these Regulations is a reference to the form bearing that number set out in Schedule 2.

Health schemes

3.  The schemes prescribed for the purposes of section 29(9) of the 1978 Act (definition of “health scheme”)(15) are–

(a) health services, including dental, medical and surgical treatment, provided by Her Majesty’s Forces;

(b) services provided by port local authorities and joint port local authorities constituted under section 172 (constitution of port local authorities) of the Public Health (Scotland) Act 1897(16);

(c) health services provided to a prisoner in accordance with section 3A (medical services in prisons) of the Prisons (Scotland) Act 1989(17); and

(d) publicly-funded health services provided by or on behalf of any organisation anywhere in the world.

PART II CONSTITUTION OF TRIBUNAL

Term of office of members of the Tribunal

4.  The chairman and deputy chairmen of the Tribunal shall hold office during the pleasure of the Lord President of the Court of Session and the other members shall hold office during the pleasure of the Scottish Ministers.

Officers of the Tribunal

5.  The chairman of the Tribunal shall appoint the following persons, who shall hold office during the pleasure of the chairman:–

(a) a person approved by the Scottish Ministers to act as clerk to the Tribunal; and

(b) such other officers as may be necessary.

PART III PROCEDURE FOR DEALING WITH REPRESENTATIONS

Submission of representations

6.—(1) Subject to paragraph (4), representations shall–

(a) be made in terms of Form 1 and shall–

(i) contain a concise statement of the alleged facts and grounds upon which the complainer intends to rely;

(ii) be signed by the complainer or on the complainer’s behalf by some person authorised by the complainer;

(b) be accompanied by 2 copies of each document which the complainer proposes to put in evidence; and

(c) be sent together with the copies of the documents relevant to it to the clerk to the Tribunal.

(2) Subject to paragraph (5), where the representations are made under paragraph 3 (representations against preferential treatment) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act they shall be sent to the Tribunal within two weeks of the date of publication by the Scottish Ministers under regulation 30 (publication of information about applications for preferential treatment) of information about the application.

(3) Subject to paragraph (5), where representations are made that the second condition of disqualification is met and relate to a practitioner who has applied to join a list but whose name is not yet on such a list, they shall be sent to the clerk to the Tribunal within 30 days of receipt of the application for the practitioner’s name to be included.

(4) If a document which the complainer proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the complainer shall not be required to submit copies of it.

(5) Where a complainer is required to make representations within a time specified in paragraph (2) or (3) and the complainer–

(a) makes an application (whether before or after the expiry of the time so specified) to the Tribunal for an extension of that time; and

(b) includes in that application a statement of the grounds for making it,

the Tribunal may, where it is satisfied that it is in all the circumstances reasonable to do so, extend that time by such further period as it shall specify.

Power of the Tribunal to require further statement

7.  The Tribunal may, if it thinks fit, require the complainer–

(a) to furnish such further particulars relating to the facts and grounds upon which the representations are made as it may think necessary;

(b) where a fact is not within the personal knowledge of the complainer, to state the source of the complainer’s information and the grounds for the complainer’s belief in its truth; and

(c) to support the allegations contained in the representations by affidavit.

Power of the Tribunal to refuse an inquiry

8.  If it appears to the Tribunal, after due consideration of representations by any complainer other than a Health Board or primary care NHS trust, that no good cause has been shown why an inquiry should be held, it may refuse to hold an inquiry and shall inform the complainer of its refusal to hold an inquiry, together with the reasons for its refusal, in writing.

Notices to be sent to respondent etc in case of an inquiry

9.—(1) The Tribunal shall, unless it refuses to hold an inquiry in terms of regulation 8 (power of the Tribunal to refuse an inquiry), send to the respondent–

(a) a notice in terms of Form 2 informing the respondent that representations have been made and that the respondent may, within 4 weeks from the date of receipt of the notice, submit to the clerk to the Tribunal a written statement-in-answer in accordance with regulation 11(1);

(b) 1 copy of the representations made by the complainer and of each document, if any, which accompanied them;

(c) information as to arrangements by which any document which the complainer proposes to put in evidence, but which the complainer is not required to submit copies of in accordance with regulation 6(4), may be examined by the respondent; and

(d) 1 copy of any further statement furnished by the complainer under regulation 7 (power of the Tribunal to require further statement).

(2) The clerk to the Tribunal shall, unless the Tribunal refuses to hold an inquiry in terms of regulation 8 (power of the Tribunal to refuse an inquiry), send to each Health Board or primary care NHS trust, not being the complainer but in whose list the name of the respondent is included, at the same time as the clerk to the Tribunal sends a notice to the respondent in terms of paragraph (1)–

(a) a notice in terms of Form 3 informing them that representations have been made in respect of the respondent and that they may, within 4 weeks from the date of receipt of the notice, submit to the clerk to the Tribunal a written statement in accordance with regulation 11(2);

(b) 1 copy of the representations made by the complainer and of each document, if any, which accompanied them;

(c) information as to arrangements by which any document which the complainer proposes to put in evidence, but which the complainer is not required to submit copies of in accordance with regulation 6(4), may be examined by the Health Board or primary care NHS trust; and

(d) 1 copy of any further statement furnished by the complainer under regulation 7 (power of Tribunal to require further statement).

(3) In relation to a fraud case, the clerk to the Tribunal shall, at the same time as the clerk sends notice to the respondent in terms of paragraph (1), inform the Scottish Ministers in writing, and the Scottish Ministers shall send to the respondent and every Health Board and primary care NHS Trust, notice–

(a) that the respondent is subject to an inquiry in a fraud case; and

(b) that no Health Board or primary care NHS Trust may add the respondent to any list until the proceedings in that case are finally concluded.

(4) The Tribunal may, if it thinks fit, accept–

(a) a statement-in-answer by the respondent; or

(b) a statement by any other Health Board or primary care NHS trust concerned,

after the period within which it is required to be submitted in terms of paragraph (1)(a) or (2)(a).

Amendment of representations

10.  The Tribunal may, at any time before the conclusion of any inquiry, allow a complainer to amend the terms of the representations upon such conditions as it may think fit.

Submission of statement-in-answer or other statement and supporting documents

11.—(1) Where, pursuant to regulation 9(1), a respondent submits a statement-in-answer, the respondent shall, subject to paragraph (3), send to the clerk to the Tribunal with the statement-in-answer 2 copies of each document which the respondent proposes to put in evidence.

(2) Where, pursuant to regulation 9(2), any other Health Board or primary care NHS trust concerned submits a statement, they shall, subject to paragraph (3), send to the clerk to the Tribunal with the statement 2 copies of each document which they propose to put in evidence.

(3) If a document which the respondent, or any other Health Board or primary care NHS trust, proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the respondent, or (as the case may be) Health Board or primary care NHS trust, shall not be required to submit copies of it.

(4) As soon as may be practicable following receipt of–

(a) a statement-in-answer and copies of documents in terms of paragraph (1); and

(b) where applicable, a statement by any other Health Board or primary care NHS trust concerned and copies of documents in terms of paragraph (2),

the clerk to the Tribunal shall send to the complainer, or in the case of a statement and copies of documents referred to in sub-paragraph (a), any other Health Board or primary care NHS trust concerned, a copy of each of any such statement or document.

(5) Where, pursuant to regulation 9(2), any other Health Board or primary care NHS trust concerned has submitted a statement, the clerk to the Tribunal shall also send to the respondent and each of the other such Health Boards or primary care NHS trusts, if any, a copy of the statement submitted by that Health Board or primary care NHS trust together with a copy of each of the documents, if any, which accompanied it.

(6) Where any document which–

(a) the respondent, or (as the case may be) any other Health Board or primary care NHS trust proposes to put in evidence; and

(b) the respondent, or (as the case may be) such other Health Board or primary care NHS trust is not required to submit copies of, in accordance with paragraph (3),

has been submitted, the clerk to the Tribunal shall send to the complainer, each of the other such Health Boards or primary care NHS trusts (if any) and, in the case of a document which any other Health Board or primary care NHS trust proposes to put in evidence, the respondent, information as to arrangements by which that document may be examined.

Notice of inquiry

12.  After the expiry of the period within which a respondent may submit a statement-in-answer pursuant to regulation 9(1) or any other Health Board or primary care NHS trust concerned may submit a statement pursuant to regulation 9(2), the clerk to the Tribunal shall–

(a) fix a date and time at which an inquiry shall commence and the place where it will be held; and

(b) not less than 2 weeks before the date fixed for the inquiry to commence, send a notice in terms of Form 4 containing that information to–

(i) the complainer;

(ii) the respondent; and

(iii) any other Health Board or primary care NHS trust to whom a notice in terms of Form 3 has been sent pursuant to regulation 9(2).

Power to postpone inquiry

13.  The Tribunal may, if it thinks fit, or on the application of the complainer or respondent, postpone the date fixed for the holding of an inquiry.

Power to treat representations as withdrawn in certain cases

14.  If the complainer fails–

(a) without showing good cause, to appear in person or by a representative at any inquiry of which the complainer was sent due notice under regulation 12 (notice of inquiry); or

(b) to comply with any other requirement of these Regulations,

the Tribunal may treat the representations as having been withdrawn.

Withdrawal of representations

15.—(1) The complainer may at any time before the inquiry commences, with the consent of the Tribunal and on such terms as it thinks fit, withdraw the representations by giving notice of withdrawal to the clerk to the Tribunal.

(2) Where before the inquiry is concluded the respondent dies, the representations shall be treated by the Tribunal as having been withdrawn with immediate effect.

(3) Subject to paragraph (4), where the representations have been withdrawn, or treated by the Tribunal as having been withdrawn, the Tribunal shall forthwith inform in writing–

(a) in the case of a withdrawal in terms of regulation 14 (power to treat representation as withdrawn in certain cases) or paragraph (1), the respondent;

(b) in the case of a withdrawal in terms of paragraph (2), the personal representative of the respondent; and

(c) in the case where the clerk to the Tribunal has informed the Scottish Ministers pursuant to regulation 9(3) that the respondent is subject to an inquiry in a fraud case, the Scottish Ministers, and the Scottish Ministers shall inform in writing every Health Board and primary care NHS trust.

(4) Where the representations are withdrawn or treated as withdrawn after the Tribunal has made a direction under section 32A(2) of the 1978(18) Act (which deals with directions on applications for interim suspension), that direction shall cease to have effect, and–

(a) the Tribunal shall include this information also in its notice under paragraph (3);

(b) the Tribunal shall immediately also so inform the Scottish Ministers in writing; and

(c) the Scottish Ministers shall so inform anyone to whom they sent a copy of the Tribunal’s decision pursuant to regulation 23(2).

Failure to appear at inquiry

16.—(1) Notwithstanding the provisions of regulation 14 (power to treat representations as withdrawn in certain cases), where any party to whom notice of the inquiry has been sent in accordance with regulation 12 (notice of inquiry) fails to appear at the inquiry, either in person or by a representative, the Tribunal may, if it is satisfied that such notice was received by that party, and taking into account all the circumstances, including any explanation offered for the absence, proceed with the inquiry, notwithstanding that absence.

(2) Where any party fails to appear at the inquiry because of a physical or mental condition, the Tribunal may request that party to be further medically examined, and may take into account the result of that further medical examination or any refusal of that party to be further medically examined, in determining whether or not to proceed with the inquiry under paragraph (1).

Suspension of procedures

17.—(1) In any case where–

(a) representations are made to the Tribunal in relation to both an efficiency case and a fraud case in respect of the same practitioner; and

(b) the Tribunal has not refused to hold an inquiry in terms of regulation 8 (power of the Tribunal to refuse an inquiry),

the Tribunal may direct that it will inquire into one case before inquiring into the other and, after proceedings in that inquiry are finally disposed of, may if it thinks appropriate, adjourn the inquiry into the other indefinitely.

(2) In relation to any inquiry, the Tribunal may not adjourn the inquiry solely for the reason that the alleged facts on which representations are based are being or may be investigated by the practitioner’s relevant professional body.

Representations and evidence at inquiry

18.—(1) At any inquiry–

(a) a Health Board or primary care NHS trust shall be entitled to be represented by their Chief Executive, or by counsel or solicitor; and

(b) the complainer (not being a Health Board or primary care NHS trust) and the respondent shall be entitled to attend and take part in the proceedings in question or be represented by any one of the following persons:–

(i) counsel;

(ii) a solicitor;

(iii) an officer or member of any organisation of which the complainer or the respondent is a member;

(iv) a member of the complainer or the respondent’s family;

(v) a friend.

(2) The complainer and the respondent or their representatives shall be entitled at an inquiry to produce evidence and to call witnesses to whom questions may be put by or on behalf of any party.

Procedure at and provisions as to inquiry

19.  The provisions of Schedule 1 (provisions as to inquiry) shall have effect with regard to an inquiry under these Regulations.

Power to dispense with oral inquiry

20.—(1) Subject to paragraph (2), notwithstanding anything in these Regulations, where–

(a) the grounds on which representations are based consist solely of an allegation that the respondent has been convicted of a criminal offence; and

(b) the respondent admits the truth of such allegation,

the Tribunal may, with the consent of the respondent, dispense with an oral inquiry and determine the representations upon such documentary evidence as may be submitted to it.

(2) Where the Tribunal has determined to decide the case on documentary evidence pursuant to paragraph (1), but proposes to give a direction under section 32B(1) of the 1978 Act (continuation of suspension pending appeal)(19), it shall before doing so give notice to the Health Board or primary care NHS trust and the respondent of its intention to hold an oral inquiry relating to that proposal, and shall then hold an oral inquiry.

Statement by the Tribunal

21.—(1) As soon as may be practicable after the conclusion of an inquiry in relation to representations, the Tribunal shall prepare a statement under the hand of the chairman of the Tribunal who presided over the inquiry stating–

(a) its findings of fact;

(b) the conclusions which it has reached;

(c) where it is of the opinion that the respondent meets the first or second condition for disqualification, the disqualification (including any conditional disqualification) as it makes under section 29B(2) of the 1978 Act(20);

(d) where it is of the opinion that the respondent meets the first or second condition for disqualification any declaration of unfitness it makes under section 29B(3) of the 1978 Act(21);

(e) such directions as it makes under section 32B(1) of the 1978 Act (continuation of suspension pending appeal);

(f) such directions as it may make under paragraph 4(1) (power of Tribunal to give directions) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act(22); and

(g) any order it makes as to expenses.

(2) Where the Tribunal makes a conditional disqualification, the statement referred to in paragraph (1) shall set out the conditions which are imposed on the respondent and any directions made by the Tribunal under section 29C(5) of the 1978 Act(23).

(3) The clerk to the Tribunal shall–

(a) send a copy of the statement prepared pursuant to paragraph (1) to–

(i) the Scottish Ministers;

(ii) the complainer; and

(iii) the respondent;

(b) where the statement contains a disqualification (including any conditional disqualification) under section 29B(2) of the 1978 Act or a declaration of unfitness under section 29B(3) or a direction under section 32B(1) of the 1978 Act or a direction under paragraph 4(1) of Schedule 1 to the 1997 Act, inform the respondent of the respondent’s right of appeal under section 11 (appeals from certain Tribunals) of the Tribunal and Inquiries Act 1992(24) in respect of that decision.

(4) Except for a Health Board or primary care NHS trust to whom a copy of the statement has been sent pursuant to paragraph (3), the Scottish Ministers shall send a copy of the statement to such Health Boards or primary care NHS trusts or relevant professional body as appear to them concerned.

PART IV PROCEDURE FOR DEALING WITH APPLICATION FOR INTERIM SUSPENSION

Applications for interim suspension

22.—(1) An application for interim suspension under section 32A (applications for interim suspension) of the 1978 Act(25) shall–

(a) be signed by a person authorised by the Health Board or primary care NHS trust;

(b) include a statement of the alleged facts and the grounds on which the Health Board or primary care NHS trust intends to rely; and

(c) include 2 copies of any document which the Health Board or primary care NHS trust proposes to put in evidence,

and shall be sent to the clerk to the Tribunal.

(2) The statement mentioned in paragraph (1)(b) may make reference to any other document already sent to the Tribunal.

(3) Subject to paragraph (7), the clerk to the Tribunal shall send to the respondent–

(a) notice informing the respondent of the application, of the intention to hold an inquiry on a date to be fixed and that the respondent may, within 2 weeks from the date of receipt of the notice, submit a written statement-in-answer;

(b) a copy of the application made by the complainer and of each document, if any, which accompanied it; and

(c) where paragraph (2) applies, any document which is referred to in the statement.

(4) The Tribunal may, if it thinks fit, accept a statement-in-answer by the respondent after the period within which it is required to be submitted in terms of paragraph (3)(a).

(5) Where a respondent submits a statement-in-answer the respondent shall send to the clerk to the Tribunal 2 copies of the statement-in-answer and of each document which the respondent proposes to put in evidence, and the clerk to the Tribunal shall send to the complainer a copy of each of any such statement or document.

(6) Subject to paragraph (7), after the expiry of the period within which a respondent may submit a statement-in-answer the clerk to the Tribunal shall fix a date and time at which the inquiry shall commence and the place where it will be held, and not less than 2 weeks before the date fixed shall inform the complainer and respondent of the date, time and place of the inquiry.

(7) At any time before the inquiry commences, notwithstanding the provisions of paragraphs (3) or (6), the Tribunal may, on the application of the complainer, including a statement of grounds for the application, if it is satisfied that there are exceptional reasons to do so–

(a) fix a date and time at which an inquiry shall commence, and place where it will be heard, as soon as may be practicable; and

(b) give such opportunity to the respondent to submit a statement-in-answer and give such notice to the complainer and the respondent of the date, time and place of the inquiry as it considers just and proper to give the respondent an opportunity to appear before the Tribunal either–

(i) in person;

(ii) by counsel or solicitor; or

(iii) by such other representative referred to in regulation 18(1)(b)(iii) to (v), and

to be heard and to call witnesses and produce other evidence.

(8) The Tribunal may, at any time before the conclusion of any inquiry, allow the complainer to amend the terms of the application upon such conditions as it may think fit.

(9) The provisions of regulations 13 (power to postpone inquiry), 16 (failure to appear at inquiry), 18 (representations and evidence at inquiry), 19 (procedure at and provisions as to inquiry) and 20 (power to dispense with oral inquiry) shall have effect with respect to an inquiry held in relation to an application for interim suspension as they apply in relation to representations, as if–

(a) in regulation 16 “regulation 12 (notice of inquiry)” read “regulation 22(6) or (7); and

(b) in regulation 20–

(i) in paragraph (1)–

(aa) “Subject to paragraph (2),” were omitted;

(bb) “representations are” read “an application for interim suspension is”; and

(cc) “representations” in the second place where it occurs read “application for interim suspension”; and

(ii) paragraph (2) were omitted.

Statement by the Tribunal following an inquiry on interim suspension

23.—(1) At the conclusion of proceedings relating to the application for interim suspension, the Tribunal shall, as soon as practicable, issue a decision, signed by the chairman who presided over the proceedings, containing–

(a) any directions it decides to give under section 32A(2) of the 1978 Act;

(b) a statement of reasons for its decision; and

(c) any order it decides to make as to expenses.

(2) The Tribunal shall send a copy of its decision to the respondent, the complainer and the Scottish Ministers, and the Scottish Ministers shall send a copy of the decision to any other Health Board or primary care NHS trust or relevant professional body which appears to them to be concerned.

(3) Where the decision includes a direction under section 32A(2) of the 1978 Act, the Tribunal shall include with the decision a notice to the respondent of the respondent’s right to appeal under section 11 (appeals from certain tribunals) of the Tribunals and Inquiries Act 1992(26).

PART V PROCEDURE FOR DEALING WITH REVIEW

Procedure in regard to application to the Tribunal for a review

24.—(1) An application to the Tribunal shall–

(a) be made in terms of Form 5 and shall–

(i) contain a concise statement of the alleged facts and grounds upon which the applicant intends to rely; and

(ii) be signed by the applicant or on the applicant’s behalf by some person authorised by the applicant;

(b) subject to paragraph (2), be accompanied by 2 copies of each document which the applicant proposes to put in evidence; and

(c) be sent together with the copies of each document relevant to it to the clerk to the Tribunal.

(2) If a document which the applicant proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the applicant shall not be required to submit copies of it.

(3) If it appears to the Tribunal, after due consideration of an application, that no good cause has been shown why an inquiry should be held for the purposes of any review, it may refuse to hold an inquiry and shall inform the applicant of its refusal to hold an inquiry, and its reasons for that refusal in writing.

(4) Where the Tribunal considers that an inquiry should be held, the clerk to the Tribunal shall send to the respondent and to any Health Board or primary care NHS trust (not being the applicant or the respondent) which was represented at the inquiry following which the decision, in respect of which the application relates, was made–

(a) a notice in terms of Form 6 informing the respondent or the Health Board or primary care NHS trust that an application has been made by the applicant and that the Tribunal considers that an inquiry should be held;

(b) 1 copy of the application and of each document, if any, which accompanied it; and

(c) information as to arrangements by which any document which the applicant proposes to put in evidence, but which the applicant is not required to submit copies of in accordance with paragraph (2), may be examined by the respondent and any such Health Board or primary care NHS trust.

(5) As soon as may be practicable after sending a copy of the application in terms of paragraph (4), the clerk to the Tribunal shall–

(a) fix a date and time at which an inquiry shall commence and the place where it will be held; and

(b) not less than 2 weeks before the date fixed for the inquiry to commence, send to–

(i) the applicant;

(ii) the respondent; and

(iii) any Health Board or primary care NHS trust to whom a notice in terms of Form 6 has been sent pursuant to paragraph (4),

a notice in terms of Form 7 containing the information referred to in sub-paragraph (a).

(6) Except where the application is made by a Health Board or primary care NHS trust under section 30(3)(b) or (c) of the 1978 Act(27), an applicant may at any time before the inquiry commences, with the consent of the Tribunal and on such terms as it thinks fit, withdraw the application by giving notice of withdrawal to the clerk to the Tribunal and the clerk to the Tribunal shall so inform the rest of the parties in writing.

(7) Where the application is made by a Health Board or primary care NHS trust under section 30(3)(b) or (c) of the 1978 Act the provisions of regulations 7 (power of the Tribunal to require further statement), 14 (power to treat representations as withdrawn in certain cases), 15 (withdrawal of representations), 20 (power to dispense with oral inquiry), 22 (applications for interim suspension) and 23 (statement by the Tribunal following an inquiry on interim suspension) shall have effect with respect to an application as they apply to representations as if–

(a) in regulation 7–

(i) “complainer” read “applicant” in both places where it appears;

(ii) in paragraph (a) “representations are” read “application is”;

(iii) in paragraph (b) “complainer's” read “applicant's” in both places where it appears; and

(iv) in paragraph (c) “representations” read “application”;

(b) in regulation 14–

(i) “complainer” read “applicant” in both places where it appears;

(ii) in paragraph (a) “regulation 12 (notice of inquiry)” read “regulation 24(5)”; and

(iii) “representation” read “application”;

(c) in regulation 15–

(i) in paragraph (1) “complainer” read “applicant”;

(ii) in paragraphs (1) and (2) “representations” read “application”;

(iii) in paragraph (3)–

(aa) “representations have” read “application has”;

(bb) sub-paragraph (c) were omitted; and

(iv) paragraph (4) were omitted;

(d) in regulation 20–

(i) in paragraph (1)–

(aa) “Subject to paragraph (2),” were omitted;

(bb) “representations are” read “an application is”; and

(cc) “representations” in the second place where it occurs read “application”; and

(ii) paragraph (2) were omitted;

(e) in regulation 22–

(i) “complainer” read “applicant” at every place where it appears; and

(ii) the provisions referred to in paragraph (9) shall have effect as indicated but, additionally, as if “complainer” read “applicant”; and

(f) in regulation 23(2) “complainer” read “applicant”.

(8) The provisions of regulations 13 (power to postpone inquiry), 16 (failure to appear at inquiry), 18 (representation and evidence at inquiry) and 19 (procedure at and provisions as to inquiry) shall have effect with respect to an inquiry held in relation to an application as they apply to an inquiry held in relation to a representation as if–

(a) in regulation 13 “complainer” read “applicant”;

(b) in regulation 16(1) “regulation 12 (notice of inquiry)” read “regulation 24(5)”; and

(c) in regulation 18–

(i) in paragraph (1)(b), “complainer (not being a Health Board or primary care NHS trust) and the respondent” read “applicant and the respondent (other than an applicant or respondent which is a Health Board or primary care NHS trust)”; and

(ii) in paragraphs (1)(b)(iii),(iv) and (2) “complainer” read “applicant”.

Statement by the Tribunal following review

25.—(1) As soon as may be practicable after the conclusion of an inquiry in relation to an application, the Tribunal shall prepare a statement under the hand of the chairman of the Tribunal who presided over the inquiry stating–

(a) its findings of fact;

(b) the conclusions it has reached;

(c) any determination it makes in accordance with section 30(2) or (5), and where applicable, subsection (6), of the 1978 Act, or where it is of the opinion that the disqualification of the applicant for inclusion in any list to which a direction under paragraph 4(1) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act related should be removed, a direction under paragraph 5 (termination of directions) of the said Schedule to that effect; and

(d) any order it makes as to expenses.

(2) The clerk to the Tribunal shall–

(a) send a copy of the statement prepared pursuant to paragraph (1) to–

(i) the Scottish Ministers;

(ii) the applicant; and

(iii) the respondent;

(b) where the Tribunal, following a review –

(i) in the case of a practitioner subject to a disqualification, or a conditional disqualification, does not remove the disqualification or conditional disqualification, under section 30(2) or (5) of the 1978 Act;

(ii) in the case of a practitioner subject to a declaration of unfitness, does not provide that a declaration of unfitness is to cease to have effect under section 30(2) of the 1978 Act; or

(iii) in the case of a practitioner subject to a direction under paragraph 4(1) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act, does not make a direction under paragraph 5 (termination of directions) of Schedule 1 to the 1997 Act(28),

inform the practitioner of the practitioner’s right of appeal under section 11 of the Tribunal and Inquiries Act 1992 in respect of the Tribunal’s decision.

(3) Except for a Health Board or primary care NHS trust to whom a copy of the statement has been sent pursuant to paragraph (2)(a), the Scottish Ministers shall send a copy of the statement to such Health Boards or primary care NHS trusts or relevant professional body as appear to them concerned.

PART VI MISCELLANEOUS PROVISIONS

Practitioner subject to inquiry in a fraud case

26.—(1) A Health Board or primary care NHS trust that receives notice pursuant to regulation 9(3) may not add the practitioner subject to the inquiry to any list until proceedings in that case are finally concluded.

(1) In relation to a practitioner subject to an inquiry in a fraud case, the provisions of–

(a) section 20 (applications to provide general medical services) of the 1978 Act are modified to the extent that such a practitioner shall not be entitled to the inclusion of the practitioner’s name in a medical list;

(b) section 25(2)(b) of the 1978 Act are modified to the extent that regulations need not confer a right for such a practitioner who wishes to be included in a list of dental practitioners who undertake to provide general dental services to be so included;

(c) section 26(2)(b) of the 1978 Act are modified to the extent that regulations need not confer a right for such a practitioner who wishes to be included in the appropriate list to be so included; and

(d) section 27 of the 1978 Act are modified to the extent that nothing in section 27(3) and (5) shall require regulations to provide for a Health Board or primary care NHS trust to include such a practitioner in a list or to confer on such a practitioner rights of appeal against a Health Board or primary care NHS trust from a refusal to add such a practitioner to a list,

until proceedings in that case are finally concluded.

Discharge of suspension functions by chairman

27.  The functions of the Tribunal under sections 32A or 32B(1)(29) of the 1978 Act (which deal with applications for interim suspension and continuation of suspension pending appeal respectively) may be carried out by the chairman of the Tribunal; and where the chairman does carry them out, any reference to the Tribunal in these Regulations shall be construed as a reference to the chairman.

Publication of decisions of the Tribunal, etc

28.  The Scottish Ministers shall publish in such manner as they think fit notice of–

(a) any decision of the Tribunal in relation to an inquiry under these Regulations; and

(b) the imposition of any disqualification, or conditional disqualification, pursuant to section 29B(2) or section 30(2) or (5) of the 1978 Act and any conditions imposed or of the removal or variation of such disqualification or conditions;

(c) any declaration of unfitness made by the Tribunal under section 29B(3) or section 30(6) of the 1978 Act;

(d) any direction of the Tribunal under paragraph 4(1) or 5 of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act;

(e) any imposition or removal of any disqualification or declaration of unfitness referred to in section 31 of the 1978 Act (disqualification provisions in England or Wales or Northern Ireland)(30) and any conditions or variation of such conditions imposed in consequence of a notice given by the Scottish Ministers in accordance with section 31(2);

(f) any imposition or removal of a disqualification made in accordance with the provisions of paragraph 6 (direction in Northern Ireland) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act.

Recovery of amounts from practitioners

29.—(1) Where the Scottish Ministers receive a copy of the decision of the Tribunal pursuant to regulation 21(3) or regulation 25(2)(a) and–

(a) the statement of the Tribunal pursuant to regulation 21(3) contains a statement in accordance with regulation 21(1)(c),(d), (e) or (f); or

(b) the statement of the Tribunal pursuant to regulation 25(2)(a) contains a statement that–

(i) in the case of a conditional disqualification, the conditions are to be varied or the disqualification is to be unconditional pursuant to section 30(2)(c) or 30(5) of the 1978 Act;

(ii) there is to be any further disqualification, or conditional disqualification which the Tribunal considers appropriate pursuant to section 30(2) or 30(5) of the 1978 Act; or

(iii) the Tribunal is making a declaration of unfitness pursuant to section 30(6) of the 1978 Act,

and the Scottish Ministers are satisfied that the decision of the Tribunal was in consequence of the acts or omissions of a practitioner while that practitioner was included on a list, then the Scottish Ministers shall determine (in relation to every appropriate Health Board or primary care NHS trust, if more than one) whether any, and if so, what amount shall be recovered from the practitioner by an appropriate Health Board or primary care NHS trust, whether by way of deduction from the practitioner’s remuneration or otherwise.

(2) Before making a determination under paragraph (1) the Scottish Ministers shall notify the practitioner concerned that–

(a) the Scottish Ministers are considering making a determination under paragraph (1); and

(b) the practitioner concerned may make written representations on the matter by submitting them to the Scottish Ministers within 4 weeks from the date of receipt of the notification.

(3) The Scottish Ministers shall give notice of their determination under paragraph (1) to the practitioner and every appropriate Health Board or primary care NHS trust, and shall include with the notice a statement of reasons for their determination.

(4) Any amount which the Scottish Ministers determine under paragraph (1) shall be recovered from a practitioner by a Health Board or primary care NHS trust shall be a debt owed by the practitioner to that Health Board or primary care NHS trust.

(5) Where the Scottish Ministers have determined under paragraph (1) that, in respect of an appropriate Health Board or primary care NHS trust, an amount shall be recovered from a practitioner, they shall direct that Health Board or primary care NHS trust to recover that amount either by deduction from the practitioners remuneration or otherwise and the Health Board or primary care NHS trust shall comply with that direction.

(6) In this regulation, “appropriate Health Board or primary care NHS trust” is a Health Board or primary care NHS trust in whose list the practitioner was included at the time of the acts or omissions in consequence of which the Tribunal decision was made.

Publication of information about applications for preferential treatment

30.  The Scottish Ministers shall publish in such a manner as they think fit information about–

(a) applications made to Health Boards or primary care NHS trusts for inclusion in their medical list of the names of medical practitioners ceasing to perform personal medical services in respect of whom Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act applies; and

(b) the right of persons to make representations against applications referred to in paragraph (a).

Service of forms, etc.

31.—(1) Any form, notice, application, statement, statement-in-answer, decision or document which is required or authorised by these Regulations to be sent to or served on any person shall be in writing and shall be sent or served as follows:–

(a) in the case of the Scottish Ministers, by delivering it to them or sending it by registered post or the first class recorded delivery service addressed to them at St Andrew’s House, Edinburgh;

(b) in the case of the Tribunal or a Health Board or primary care NHS trust, by delivering it to their clerk or Chief Executive, or by sending it by registered post or the first class recorded delivery service addressed to such person at their principal office or the usual or last known address of such person;

(c) in the case of a practitioner, by delivering it to the practitioner or by sending it by registered post or the first class recorded delivery service addressed to the practitioner at the practitioner’s usual or last-known address or any address set opposite the practitioner’s name in the list of the Health Board or primary care NHS trust concerned;

(d) in the case of any other person, by delivering it to that person or by sending it by registered post or the first class recorded delivery service addressed to that person at that person’s usual or last known address.

(2) Where a party to any inquiry is represented by a solicitor it shall be a sufficient compliance with this regulation if the notice or document is sent by registered post or the first class recorded delivery service addressed to the solicitor at the solicitor’s professional address.

Power to dispense with requirements as to notices

32.  The Tribunal may dispense with any requirements of these Regulations applicable to notices, applications, documents or otherwise in any case where it appears to the Tribunal just and proper to do so.

Attendance by member of Council on Tribunals

33.  Nothing in these Regulations shall prevent a member of the Council on Tribunals or of the Scottish Committee thereof in that capacity from attending any inquiry before the Tribunal.

Transitional provisions

34.  Where, before the date on which these Regulations come into force–

(a) a representation has been made to the Tribunal under regulation 24 (submission of a representation) of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992(31); or

(b) an application for interim suspension has been made to the Tribunal under regulation 25A (application for interim suspension) of those regulations(32),

the provisions of those Regulations shall, notwithstanding regulation 35 (revocations), continue to apply on and after that date, as respects any inquiry, hearing, determination or direction which by virtue of any provision of those Regulations falls to be undertaken, held or made in relation to any such representation or application or in relation to an appeal from any such determination or direction.

Revocations

35.  The Regulations specified in column (1) of Schedule 3 are hereby revoked to the extent specified in column (3) of that Schedule.

MALCOLM CHISHOLM

Authorised to sign by the Scottish Ministers

St Andrew’s House, Edinburgh

2nd February 2004