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The National Health Service (Tribunal) (Scotland) Amendment Regulations 2006

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Scottish Statutory Instruments

2006 No. 122

NATIONAL HEALTH SERVICE

The National Health Service (Tribunal) (Scotland) Amendment Regulations 2006

Made

7th March 2006

Laid before the Scottish Parliament

9th March 2006

Coming into force

1st April 2006

The Scottish Ministers, in exercise of the powers conferred by sections 29(4), 29A(5), 32, 32C(2), 105(7), 106(a) and 108(1) of the National Health Service (Scotland) Act 1978(1) and of all other powers enabling them in that behalf, and after consultation with the Council on Tribunals and its Scottish Committee in accordance with section 8(1) and (3) of the Tribunal and Inquiries Act 1992(2), hereby make the following Regulations:

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the National Health Service (Tribunal) (Scotland) Amendment Regulations 2006 and shall come into force on 1st April 2006.

(2) In these Regulations, “the principal Regulations” means the National Health Service (Tribunal) (Scotland) Regulations 2004(3).

Amendment of the principal Regulations

2.—(1) The principal Regulations are amended in accordance with the following paragraphs.

(2) In regulation 2(1) (interpretation and forms)(4)–

(a)omit the definition of “local or national disqualification”;

(b)insert each of the following definitions at the appropriate alphabetical place–

“any of the conditions for disqualification” means any of the first condition for disqualification, the second condition for disqualification or the third condition for disqualification;;

“ophthalmic body corporate” means a body corporate registered in the register of bodies corporate maintained under section 9 of the Opticians Act 1989;(5);

“third condition for disqualification” has the meaning indicated in section 29(7A) of the 1978 Act;(6);

“unsuitability case” has the meaning indicated in section 29(11) of the 1978 Act;(7);

(c)in the definition of “disqualification” for “means local or national disqualification” substitute “has the meaning indicated in section 29B(2) of the 1978 Act”(8);

(d)in the definition of “ophthalmic medical practitioner” for “regulation 3 of the National Health Service (General Ophthalmic Services) (Scotland) Regulations 1986” substitute “by regulations made under section 26(1) of the 1978 Act”(9); and

(e)in the definition of “representations” for “the first or second condition” substitute “any of the conditions”.

(3) In regulation 6(3) and (3A) (submission of representations)(10) for “the second condition” substitute “any of the conditions”.

(4) In regulation 6(3A)–

(a)after “primary medical services performers list” insert “or an ophthalmic list”;

(b)omit “in accordance with regulation 7(4) of the Primary Medical Services Performers Lists Regulations”; and

(c)omit “, pursuant to regulation 7(6) of those Regulations”.

(5) In regulation 9(3) (notices to be sent to respondent etc in case of an inquiry)(11)–

(a)omit “In relation to a fraud case”;

(b)for “the” where it first occurs substitute “The”; and

(c)omit “in a fraud case” in sub-paragraph (a).

(6) In regulation 15(3)(c) (withdrawal of representations)(12) omit from “in the case” to “in a fraud case,”.

(7) In regulation 17(1)(a) (suspension of procedures) for “both an efficiency case and a fraud case” substitute “an efficiency case and a fraud case or an unsuitability case or any other combination of more than one such category of case,”.

(8) In regulation 21(1) (statement by the Tribunal)(13)–

(a)in sub paragraph (c) for “the first or second condition” substitute “any of the conditions”; and

(b)omit sub paragraph (d).

(9) In regulation 21(3)(b) (statement by the Tribunal)(14) omit “or a declaration of unfitness under section 29B(3)”.

(10) In regulation 25(2)(b) (statement by the Tribunal following review)(15)–

(a)omit “–(i)”;

(b)omit “; or” at the end of sub sub-paragraph(i)”; and

(c)omit sub-sub-paragraph (ii).

(11) In regulation 26 (Practitioner subject to inquiry in a fraud case), in the heading omit “in a fraud case”.

(12) Omit regulation 26(2).

(13) In regulation 28 (publication of decisions of the Tribunal, etc)(16)–

(a)at the end of paragraph (b) insert “and”;

(b)omit paragraph (c); and

(c)in paragraph (e) omit “or declaration of unfitness”.

(14) In regulation 29(1)(a) (recovery of amounts from practitioners)(17) omit “(d);”.

(15) In regulation 29(1)(b) (recovery of amounts from practitioners)–

(a)at the end of sub-sub-paragraph (i) insert “or”;

(b)omit “or” at the end of sub-sub-paragraph (ii); and

(c)omit sub-sub-paragraph (iii).

(16) In regulation 31(1)(c) (service of forms, etc)–

(a)after “practitioner” where it first occurs insert “who is not an ophthalmic body corporate”; and

(b)after “concerned” insert “, or in the case of an ophthalmic body corporate its registered office”.

(17) The forms 1, 2, 3, 4, 5 and 6 set out in the Schedule to these regulations are substituted for the forms 1, 2, 3, 4, 5 and 6 set out in Schedule 2 to the principal Regulations (forms for use in proceedings in connection with representations and applications)(18).

Savings

3.  Where, before the date on which these regulations come into force–

(a)a representation has been made to the Tribunal under regulation 6 of the principal Regulations (submission of representations)(19); or

(b)an application for interim suspension has been made to the Tribunal, under regulation 22 of the principal Regulations (applications for interim suspension),

the provisions of the principal Regulations shall, notwithstanding the amendments made by these regulations, continue to apply on and after that date as respects any inquiry, hearing, determination or direction which by virtue of any provision of the principal 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.

LEWIS MACDONALD

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

7th March 2006

Regulation 2(17)

SCHEDULE

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the National Health Service (Tribunal) (Scotland) Regulations 2004 (“the principal Regulations”) which make provision relating to the NHS Tribunal and representation to and procedures before it.

These Regulations are consequential upon the coming into force of certain amendments made to the National Health Service (Scotland) Act 1978 (“the 1978 Act”) by the Smoking, Health and Social Care (Scotland) Act 2005 (“the 2005 Act”). Section 26 of the 2005 Act amends section 29 of the 1978 Act by adding a third condition for disqualification by the Tribunal, namely that the person concerned is unsuitable (by virtue of professional or personal conduct) to be included, or continue to be included in a list specified in section 29(8) of the 1978 Act.

Regulation 2(2)(a) deletes from regulation 2(1) of the principal Regulations the definition of “local or national disqualification” which is removed from section 29B(2) of the 1978 Act by section 26(4)(b) of the 2005 Act.

Regulation 2(2)(b) inserts new definitions of “any of the conditions for disqualification”, “ophthalmic body corporate”, “third condition for disqualification” and “unsuitability case” into regulation 2(1) of the principal Regulations. The definition of “ophthalmic body corporate” is by reference to section 9 of the Opticians Act 1989, as amended by the Opticians Act 1989 (Amendment) Order 2005.

Regulation 2(2)(c) amends the definition of “disqualification” in the principal Regulations to reflect the amendment to the 1978 Act.

Regulation 2(2)(d) amends the definition of “ophthalmic medical practitioner” to refer to the relevant provisions in the National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006.

The Regulations amend the principal Regulations to substitute “any of the conditions” for disqualification for “the first or second condition” for disqualification to reflect the fact that there are now three conditions for disqualification rather than two (regulations 2(2)(e), 3, 8(a)).

Regulation 2(4) amends regulation 6(3A) of the principal Regulations to include practitioners who have applied to join an ophthalmic list, but whose application has been deferred.

Regulations 2(5), (6) and (7) amend regulations 9(3), 15(3)(c) and 17(1)(a) of the principal Regulations to reflect the fact that the provisions will now apply to all cases.

The Regulations delete all reference to the principal Regulations to a “declaration of unfitness”, since the references to “declaration of unfitness” in section 30 of the 1978 Act are repealed by the 2005 Act.

Regulation 2(17) substitutes the forms 1, 2, 3, 4, 5 and 6 in the Schedule to the Regulations for forms 1, 2, 3, 4, 5 and 6 in Schedule 2 to the principal Regulations.

Regulation 3 is a savings provision which provides that any submission of representations or applications for interim suspensions which were made before 1st April 2006 shall be dealt with in terms of the principal Regulations as unamended by these Regulations.

(1)

1978 c. 29; section 29(4) was inserted by the Health Act 1999 (c. 8) (“the 1999 Act”) section 58 and amended by section 26(1) and (2) of the Smoking, Health and Social Care (Scotland) Act 2005 (2005 asp 13) (“the 2005 Act”); section 29A was inserted by the 1999 Act, section 58 and amended by the 2005 Act, section 26(3); section 32 was amended by the National Health Service (Amendment) Act 1995 (c. 31), (“the 1995 Act”), section 11 and Schedule, by the 1999 Act, Schedule 4, paragraph 50 and by the 2005 Act, section 26(6); section 32C was inserted by the 1995 Act, section 8, and amended by the 2005 Act, section 26(7); section 105(7) was amended by the Health Services Act 1980 (c. 53), Schedule 6, paragraph 5 and Schedule 7, the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 9, paragraph 24 and the 1999 Act, Schedule 4, paragraph 60; section 108(1) defines “prescribed” and “regulations”. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).

(2)

1992 c. 53; section 8(3) was amended by S.I. 2001/3649, article 335(3).

(4)

Regulation 2 was amended by S.S.I. 2004/122 and 2005/335.

(5)

1989 c. 44; section 9 was amended by S.I. 2005/848, article 10.

(6)

Section 29(7A) was inserted by the 2005 Act, section 26(2)(d).

(7)

Section 29(11) was substituted by the 1999 Act, section 58, and amended by the 2005 Act, section 26(2)(f).

(8)

Section 29B(2) was inserted by the 1999 Act, section 58, and amended by the Community Care and Health (Scotland) Act 2000 (2000 asp 2), Schedule 2, paragraph 2, and by the 2005 Act, section 26(4)(b).

(9)

Section 26(1) was amended by the Health and Social Security Act 1984 (c. 48), section 1(5), Schedule 1, Part II, paragraphs 1-4, and Schedule 8, by the Health and Medicines Act 1988 (c. 49), section 13(4), and by the 2005 Act, section 13.

(10)

Regulation 6(3A) was inserted by S.S.I. 2004/122 and amended by S.S.I. 2004/271.

(11)

Regulation 9(3) was amended by S.S.I. 2004/122.

(12)

Regulation 15(3)(c) was amended by S.S.I. 2004/122.

(13)

Regulation 21(1) was amended by S.S.I. 2004/122.

(14)

Regulation 21(3)(b) was amended by S.S.I. 2004/122.

(15)

Regulation 25(2)(b) was amended by S.S.I. 2004/122.

(16)

Regulation 28 was amended by S.S.I. 2004/122.

(17)

Regulation 29(1) was amended by S.S.I. 2004/122 and 2004/271.

(18)

Schedule 2 was amended by S.S.I. 2004/122.

(19)

Regulation 6 was amended by S.S.I. 2004/122 and 2004/271.

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