The National Health Service (Discipline Committees) (Scotland) Regulations 2006

Regulation 3(5)

SCHEDULE 1 CONSTITUTION OF DISCIPLINE COMMITTEES

1.  A discipline committee other than a joint discipline committee shall consist of–

(a) a chairperson appointed in accordance with paragraph 4;

(b) one lay person appointed by the Health Board; and

(c) one practitioner appointed by the Health Board from a list of nominees provided by the area professional committee for the Health Board’s area.

2.—(1) A joint discipline committee shall consist of–

(a) a chairperson appointed in accordance with paragraph 4; and

(b) five other members of whom–

(i) one shall be a lay person appointed by the Health Board;

(ii) one shall be a doctor appointed in accordance with sub–paragraph (2) by the medical discipline committee;

(iii) one shall be a dentist appointed in accordance with sub–paragraph (2) by the dental discipline committee;

(iv) one shall be a pharmacist appointed in accordance with sub–paragraph (2) by the pharmaceutical discipline committee;

(v) one shall be an ophthalmic medical practitioner or optician appointed in accordance with sub–paragraph (2) by the ophthalmic discipline committee.

(2) A member of a joint discipline committee appointed by a discipline committee under sub–paragraph (1)(b)(ii) to (v) shall already be a member of the discipline committee which appoints him or her, or a deputy for such a member.

(3) A member of the joint discipline committee appointed by a discipline committee shall not take part in an investigation by the joint discipline committee unless the matter to be investigated involves a question relating to a relevant practitioner.

(4) For the purposes of sub–paragraph (3) a relevant practitioner is–

(a) in relation to a member appointed by the medical discipline committee, a doctor;

(b) in relation to a member appointed by the dental discipline committee, a dentist;

(c) in relation to a member appointed by the ophthalmic discipline committee, an ophthalmic medical practitioner or an optician;

(d) in relation to a member appointed by the pharmaceutical discipline committee, a pharmacist.

3.—(1) As respects each discipline committee not fewer than one lay person and not fewer than one practitioner shall be appointed as deputies, according to the same provisions as apply to the appointment of members of that committee other than the chairperson.

(2) Where a member of a discipline committee, other than the chairperson, is absent, a deputy appointed according to the same provisions as that member may act in his or her place.

4.—(1) The chairperson of a discipline committee shall be a solicitor or advocate appointed by the Health Board.

(2) The Health Board shall, within 14 days of making an appointment under sub–paragraph (1), give notice in writing of the appointment to the other members of the discipline committee.

(3) Where, within 14 days of notice being sent under sub–paragraph (2), a statement duly signed in accordance with sub–paragraph (4) is sent to the Health Board asserting that the chairperson appointed by the Health Board is not acceptable to the signatories of the statement, the Health Board shall within 30 days of receipt of that statement refer the matter of the appointment to the Scottish Ministers.

(4) For the purposes of sub–paragraph (3) a statement must be signed–

(a) in the case of a discipline committee other than a joint discipline committee, by all the members, other than the chairperson;

(b) in the case of a joint discipline committee, by all the members other than the chairperson.

(5) Where the matter of the appointment is referred to the Scottish Ministers under sub–paragraph (3), they may, after consultation with the Health Board and the relevant area professional committee, appoint another person to be chairperson of the discipline committee; and the chairperson appointed by the Health Board shall cease immediately to hold office as chairperson and member of that committee.

(6) A person appointed as chairperson of a discipline committee who is already a member of that discipline committee shall, on appointment as chairperson, cease to be a member otherwise than in his or her capacity as chairperson and a new member shall be appointed to take his or her place.

5.—(1) A person shall be appointed to act as deputy for the chairperson of any discipline committee and the provisions of paragraph 4 shall apply to that appointment as they apply to the appointment of the chairperson.

(2) The deputy chairperson may, in the absence of the chairperson, act in his or her place and may, if already a member of the committee when appointed, continue as a member but when acting as chairperson shall act only in that capacity.

6.—(1) Subject to the other provisions of this Schedule, a Health Board may make standing orders with respect to the term of office of any members and deputy members of any discipline committee.

(2) Subject to any re–appointment, the term of office of any member or deputy member of such a committee shall not exceed one year.

(3) A chairperson of a discipline committee may attend and take part in any proceedings of the appropriate Health Board at which a report of that committee is being considered, but may not vote.

7.  A person who is a member of a discipline committee constituted under this Schedule shall cease to hold office–

(a) where he or she is the chairperson or a lay member, on ceasing to be the chairperson or a lay person, as the case may be;

(b) where he or she is a member not mentioned in sub–paragraph (a), on ceasing to be a practitioner.

8.  In this Schedule–

(a) “lay member” in relation to a discipline committee or joint discipline committee, means any member (other than the chairperson) who is a lay person;

(b) “lay person” means a person who is not and never has been–

(i) a practitioner, a pharmacist or an optician;

(ii) a registered dispensing optician within the meaning of the Opticians Act 1989;

(iii) a registered nurse, a registered midwife or a registered health visitor; or

(iv) an officer of, or otherwise employed by, any Health Board;

(c) “practitioner” means–

(i) in the case of the medical discipline committee, a doctor;

(ii) in the case of the dental discipline committee, a dentist;

(iii) in the case of the pharmaceutical discipline committee, a pharmacist;

(iv) in the case of the ophthalmic discipline committee, an ophthalmic medical practitioner or optician;

(v) in the case of the joint discipline committee, a member appointed by a discipline committee;

(d) references to a “Health Board” include references to a Health Board which has jointly appointed a discipline committee in accordance with regulation 3(3);

Regulation 7(2)

SCHEDULE 2 PROCEDURE FOR INVESTIGATION BY DISCIPLINE COMMITTEES

Health Board’s statement of case

1.—(1) Where a disciplinary matter is referred to the appropriate discipline committee in accordance with regulation 5(1), the appropriate Health Board shall–

(a) within 2 working days of the date the matter is referred to the appropriate discipline committee send a notice to the practitioner who is the subject of the referral advising that practitioner that the matter has been so referred;

(b) subject to sub–paragraph (4), send a statement of its case to the discipline committee and the practitioner within 28 working days of the date the matter is referred to the appropriate discipline committee.

(2) The statement of case shall include–

(a) details of each provision of the practitioner’s terms of service with which it is alleged he or she has failed to comply, specifying for each of those provisions the details of the alleged failure to comply;

(b) subject to sub–paragraph (3), copies of all relevant documentary evidence;

(c) the name and address of any witness the appropriate Health Board intends shall give evidence at a hearing before the discipline committee and a copy of any statement made by any such witness.

(3) Where the appropriate Health Board requests an extension of the 28 day period mentioned in sub–paragraph (1)(b) before it expires, the chairperson of the discipline committee may grant an extension of that period for a further 28 days from the day on which the period would otherwise expire.

Disciplinary matters in relation to deputies

2.—(1) Where a disciplinary matter which is investigated in relation to–

(a) a dentist concerns the conduct of a deputy whose name is not included in a dental list, or an assistant;

(b) a pharmacist contractor concerns the conduct of a pharmacist employed by him or her,

the appropriate Health Board shall send a notice in writing in accordance with sub–paragraph (2) to the deputy, assistant or employed pharmacist.

(2) A notice given under sub–paragraph (1) shall–

(a) invite the recipient of the notice to send to the appropriate Health Board, within 28 days of that notice being sent, if the recipient wishes to be treated as a party to the investigation notwithstanding that no action may be taken in relation to him or her under regulation 8–

(i) notification in writing of his or her wish;

(ii) his or her comments in writing on the disciplinary matter;

(b) include details of each provision of the terms of service identified pursuant to paragraph 1(2)(a) and–

(i) a copy of the appropriate Health Board’s statement of case; or

(ii) notification of the date by which the statement of case is due under paragraph 1(1)(b) or, where an extension has been granted, under paragraph 1(3);

(c) inform the recipient of the notice that copies of any comments or other documents he or she may submit in connection with the investigation will be sent to the practitioner and may be produced at any hearing.

(3) Where the recipient of a notice given under sub–paragraph (1) gives notification to the appropriate Health Board as mentioned in sub–paragraph (2)(a)(i), and submits comments as mentioned in sub–paragraph (2)(a)(ii), that person shall be treated for the purposes of this Schedule as if he or she were a practitioner in relation to whom the allegation, the subject of the disciplinary matter, is made, although no action may be taken in relation to him or her under regulation 8, and the following paragraphs of this Schedule (except paragraph (3)(1)) shall apply to that person accordingly.

Response of practitioner

3.—(1) Where the practitioner wishes to respond to the statement of case, he or she shall send the response to the appropriate Health Board and the discipline committee within 28 days of the date on which the statement of case was sent to the practitioner.

(2) Where the practitioner requests an extension of the 28 day period mentioned in sub–paragraph (1) before it expires, the chairperson of the appropriate discipline committee may grant an extension of that period for a further 28 days from the day on which the period would otherwise expire.

Preparation for the hearing

4.—(1) The Health Board which has appointed the discipline committee shall–

(a) inform the parties in writing–

(i) that there will be a hearing;

(ii) of the names of the members and deputy members of the discipline committee;

(b) send to the parties copies of any further correspondence relevant to the disciplinary matter; and

(c) request in writing each party to forward to the discipline committee, within 14 days from the date of the request, a copy of any documentary evidence, and the names of any witnesses, which that party proposes to produce or call at the hearing.

(2) The Health Board which has appointed the discipline committee shall give to the parties and the Secretary of the relevant area professional committee of the appropriate Health Board not less than 21 days' notice in writing of the date, time and place of the hearing and shall include with the notice to each party–

(a) a copy of any documents supplied by the other party in response to the request under sub–paragraph (1)(c);

(b) a request to that party to notify the discipline committee in writing whether or not he or she intends to attend the hearing.

(3) The chairperson of the discipline committee may, on the application of any party, postpone the hearing if satisfied that the attendance of the party or any witness on the date fixed for the hearing is not reasonably practicable, or for any other reason he or she thinks fit, in which case the provisions of sub–paragraph (2) shall apply as respects the postponed hearing.

(4) The Health Board which has appointed the discipline committee shall, not less than 7 days before the date fixed for the hearing, supply to each member of the discipline committee and to the area professional committee of the appropriate Health Board copies of–

(a) the appropriate Health Board’s statement of case;

(b) any response of the practitioner;

(c) any further observations or correspondence between the parties;

(d) any documentary evidence submitted under paragraph (1)(c); and

(e) any comments made under paragraph 2(2)(a)(ii).

Attendance at hearing

5.—(1) Subject to the provisions of regulation 16 (attendance by member of Council on Tribunals), the hearing before the discipline committee shall be in private, and no person shall be admitted to it unless he or she is a person specified in sub–paragraph (2).

(2) The persons specified for the purposes of sub–paragraph (1) are–

(a) subject to sub–paragraph (3), no more than one member or officer of the appropriate Health Board and the practitioner;

(b) any person permitted under sub–paragraph (3) to accompany a party;

(c) subject to sub–paragraph (5), any person whose attendance is required for the purpose of giving evidence to the discipline committee;

(d) not more than 2 officers of the Health Board which has appointed the discipline committee, who have been authorised by that Health Board to attend for the purpose of assisting the discipline committee in the discharge of its functions;

(e) not more than one person who is a member or officer of the relevant area professional committee of the appropriate Health Board and who is authorised by that committee to attend the hearing on its behalf as an observer only;

(f) where the parties all consent, and the discipline committee considers it appropriate, any other person.

(3) Subject to sub–paragraph (4), a party may be accompanied at the hearing by one other person who may assist in the presentation of his or her case.

(4) No officer or member of any Health Board or of any of its discipline committees referred to in regulation 3(1) shall be permitted to accompany the practitioner.

(5) Any person permitted to attend the hearing under sub–paragraph (2)(c) for the purpose of giving evidence shall, unless the discipline committee otherwise directs, be excluded from the hearing except while giving evidence.

Procedure at the hearing

6.—(1) At the hearing, any person mentioned in paragraph 5(2)(a) or (b) may–

(a) address the discipline committee; and

(b) put questions to witnesses, either directly or through the chairperson of the discipline committee, where he or she so directs.

(2) Without prejudice to sub–paragraph (3), if a party fails to appear at the hearing and the discipline committee is satisfied that his or her absence is due to illness or other reasonable cause, or for any other reason the committee thinks fit, it may, after considering the observations of any party who is present, adjourn the hearing, in which case the provisions of paragraph 4(2) shall apply as respects the resumed hearing.

(3) Where any person to whom notice of the hearing has been given under paragraph 4(2) fails to attend the hearing, either in person or by a representative, the discipline committee may, having regard to the circumstances of which it is aware, proceed with the hearing notwithstanding that person’s absence.

(4) Prior to the commencement of a hearing, the chairperson shall ask the other members of the discipline committee whether any of them is interested, either directly or through association with a party, in a question referred to them and if, in the opinion of the chairperson, any member is so interested, that member shall take no part in the hearing, but a deputy may act in his or her place.

(5) Where, in the course of a hearing, any issue arises in relation to an event or matter which, in the opinion of the chairperson–

(a) is pertinent to the disciplinary matter but was not sufficiently disclosed to the practitioner prior to the hearing, the chairperson may direct that the issue is to be excluded from the investigation of the complaint;

(b) is not pertinent to the disciplinary matter, the issue shall be excluded from the investigation of the complaint.

(6) Subject to sub–paragraph (7), where the chairperson makes no direction under sub–paragraph (5)(a) the hearing shall be adjourned unless the practitioner and the chairperson agree that the hearing may proceed.

(7) Any issue to which sub–paragraph (5) applies which concerns an allegation of failure to comply with any of the terms of service other than the terms of service detailed in the appropriate Health Board’s statement of case shall be excluded from the investigation to the extent that it concerns such an allegation.

(8) Before being invited to give his agreement for the purposes of sub–paragraph (6), a practitioner who is not accompanied by a person mentioned in sub–paragraph (2)(b) of paragraph 5 shall be afforded an opportunity to consult any person who may be present at the hearing pursuant to sub–paragraph (2)(e) of that paragraph.

(9) Any evidence relating to an alleged breach of the practitioner’s terms of service which was not specified in the appropriate Health Board’s statement of case in accordance with paragraph 1(2)(a) shall not be produced at the hearing.

(10) Subject to the other provisions of this Schedule, the procedure at the hearing shall be determined by the discipline committee.

Discipline committee’s report

7.—(1) The discipline committee shall present to the appropriate Health Board a report in writing which shall contain–

(a) details of the material evidence given to the discipline committee;

(b) the discipline committee’s finding on all relevant questions of fact;

(c) the inferences which, in the discipline committee’s view, may properly be drawn from such findings of fact as to whether or not the practitioner has failed to comply with his or her terms of service;

(d) the discipline committee’s reasons for drawing such inferences; and

(e) the discipline committee’s recommendations as to the action which should be taken by the appropriate Health Board.

(2) In making recommendations in accordance with sub–paragraph (1)(e) the discipline committee shall not take into account any findings of any discipline committee that the practitioner has failed to comply with his or her terms of service on other occasions.

(3) For the purposes of sub–paragraph (2) “any discipline committee” includes any discipline committee which investigated a complaint under the provisions of Part II of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992 as they were in force before 1st July 2006

Provisions as to quorum, composition and voting

8.—(1) All hearings of a discipline committee shall require all members of the committee to be present.

(2) At any hearing of a joint discipline committee, the quorum shall consist of the chairperson, 1 lay member and 2 other members who are relevant practitioners.

(3) The proceedings at any hearing of a discipline committee or joint discipline committee shall be suspended if, and for so long as the number of members present falls below the quorum specified in sub–paragraph (1) or (2).

(4) Where, after the commencement of a hearing before a discipline committee, the hearing is adjourned for the purposes of hearing further evidence or of preparing or considering the report, only members of the committee who were present at the earlier sitting of the hearing shall be present at the resumed hearing.

(5) Where there is an equality of votes among members of a discipline committee, the chairperson shall have a casting vote, but shall not otherwise be entitled to vote.

Interpretation

9.  In this Schedule–

(a) “lay member” and “practitioner” have the meanings given to them in paragraph 8 of Schedule 1;

(b) “relevant practitioner” means–

(i) a doctor, where the practitioner is a doctor;

(ii) a dentist, where the practitioner is a dentist;

(iii) an optician or ophthalmic medical practitioner, where the practitioner is an optician or an ophthalmic medical practitioner;

(iv) a pharmacist, where the practitioner is a pharmacist;

(c) “party” means the practitioner, the appropriate Health Board, and any person who is to be treated as a party to the investigation pursuant to paragraph 2(3).

Regulation 10(15)

SCHEDULE 3 PROVISIONS AS TO APPEAL HEARINGS

1.  Subject to the provisions of these Regulations the procedure at an appeal hearing shall be within the discretion of the persons hearing the appeal.

2.  The chairperson may by notice require any person–

(a) to attend at the time and place specified in the notice, to give evidence or to produce any books or documents in that person’s custody or under that person’s control which relate to any matter in question at the hearing; or

(b) to provide within such reasonable period as is specified in the notice such information relating to any matter in question at the hearing as the chairperson who presides over the hearing may think fit, and as the person so required is able to provide; but–

(i) no person shall be required to attend at any place which is more than 10 miles from the place where that person resides unless the necessary expenses are paid or tendered to that person; and

(ii) nothing in this paragraph shall empower the chairperson to require any person to produce any book or document or to answer any question which that person would be entitled, on the ground of privilege or confidentiality, to refuse the produce or to answer if the hearing were a court of law.

3.  The chairperson may administer oaths and examine witnesses on oath, and may accept in lieu of evidence on oath by a person, a statement in writing by that person.

4.  Any person who refuses or wilfully neglects to attend a hearing in response to a notice under paragraph 2(a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a period not exceeding 3 months.

5.  Subject to the provisions of these Regulations, the hearing may adjourn from time to time as the chairperson thinks fit and hold adjourned sittings at such time and place as may appear the chairperson to be suitable.

6.  The Scottish Ministers may make orders as to the expenses incurred by the parties appearing at any such hearing and as to the parties by whom such expenses shall be paid.

7.  Any order by the Scottish Ministers under paragraph 6 may be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

Regulation 11(2) and (4)

SCHEDULE 4 ADVISORY COMMITTEES

PART I SPECIFIED FAILURES TO COMPLY WITH TERMS OF SERVICE

1.  A failure to exercise a reasonable standard of professional or clinical judgement, behaviour, skill, knowledge or care towards patients who receive primary medical services from the doctor, or in the prescribing or dispensing of any drugs, medicines or appliances to patients, is specified for the purposes of regulation 11(2) in relation to a doctor.

2.  A failure to exercise a proper degree of skill and attention in the treatment of a patient is specified for the purposes of regulation 11(2) in relation to a dentist.

PART II THE MEDICAL ADVISORY COMMITTEE

3.  The committee (in these Regulations referred to as the Medical Advisory Committee) which is to advise the Scottish Ministers on questions referred to it under regulation 11(2) or (3) in relation to doctors shall be constituted in accordance with paragraph 4.

4.  The Medical Advisory Committee shall consist of 2 medical practitioners of whom–

(a) one shall be in the service of the Scottish Ministers and who shall act as chairperson; and

(b) one shall be selected by the Scottish Ministers from a panel of doctors nominated by a body which is in their opinion representative of doctors.

PART III THE DENTAL ADVISORY COMMITTEE

5.  The committee (in these Regulations referred to as the Dental Advisory Committee) which is to advise the Scottish Ministers on questions referred to it under regulation 11(2) or (3) in relation to dentists shall be constituted in accordance with paragraph 6.

6.  The Dental Advisory Committee shall consist of 2 dental practitioners of whom–

(a) one shall be in the service of the Scottish Ministers and who shall act as chairperson; and

(b) one shall be selected by the Scottish Ministers from a panel of dentists nominated by a body which is in their opinion representative of dentists.

Regulation 18

SCHEDULE 5 REVOCATIONS

Column (1)	Column (2)	Column (3)
Regulations revoked	References	Extent of revocation
The National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992	S.I. 1992/434; partially revoked by S.S.I. 2004/38	Remaining provisions insofar as not already revoked
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1994	S.I. 1994/3038	The whole Regulations
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1996	S.I. 1996/938	The whole Regulations
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment (No. 2) Regulations 1998	S.I. 1998/1424	The whole Regulations
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 1999	S.S.I. 1999/53	The whole Regulations
The Medical Act 1983 (Amendment) Order 2002	S.I. 2002/3135	SCHEDULE 1, para 29
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 2005	S.S.I. 2005/118	The whole Regulations
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment (No. 2) Regulations 2005	S.S.I. 2005/334	The whole Regulations
The National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 2006	S.S.I. 2006/139	The whole Regulations