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The National Health Service (General Medical Services Contracts) (Scotland) Amendment Regulations 2010

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Amendment of the 2004 Regulations

This section has no associated Executive Note

12.—(1) Schedule 5 (other contractual terms) is amended as follows.

(2) In paragraph 20(5) (removal from the list at the request of the contractor)—

(a)for paragraph (c), substitute—

(c)in the case of a contract with a limited liability partnership, a member of that limited liability partnership;; and

(b)after paragraph (c), insert—

(ca)in the case of a contract with a company, a member of that company;.

(3) In paragraph 21(2) (removal from the list of patients who are violent)—

(a)for paragraph (c) substitute—

(c)in the case of a contract with a limited liability partnership, a member of that limited liability partnership;; and

(b)after paragraph (c), insert—

(ca)in the case of a contract with a company, a member of that company;.

(4) In paragraph 58 (independent nurse prescribers and supplementary prescribers)—

(a)in sub-paragraph (1)(b)—

(i)for “a contractor is a partnership and one of the partners”, substitute, “a contractor is a partnership or limited liability partnership and one of the partners or members as the case may be”; and

(ii)omit ‘or’ in the second place it occurs;

(b)after sub-paragraph (1)(b), insert—

(ba)a contractor is a company and one of the members is an independent nurse prescriber, a supplementary prescriber or a pharmacist independent prescriber whose functions will include prescribing; or;

(c)in the tailpiece, from the words “the party became” to “as the case may be”, substitute—

the person became a partner or member as the case may be of the partnership, limited liability partnership or company that is a party to the contract (unless, immediately before becoming such a partner or member of that partnership, limited liability partnership or company that is such a party, the person fell under paragraph (1)(a)) or the person’s functions were extended as the case may be.;

(d)in sub-paragraph (2)—

(i)for paragraph (b), substitute—

the partner or member, as the case may be, in a partnership or limited liability partnership who is an independent nurse prescriber, a supplementary prescriber or a pharmacist independent prescriber whose functions include prescribing, ceases to be a partner or member of the partnership or limited liability partnership;;

(ii)after paragraph (b), insert—

(ba)the member of a company who is an independent nurse prescriber, a supplementary prescriber or a pharmacist independent prescriber whose functions include prescribing, ceases to be a member of the company;;

(e)in sub-paragraph (3)(e)(ii)—

(i)for “a partner in the partnership” substitute “a partner or member, as the case may be in the partnership or limited liability partnership”; and

(ii)omit “or”;

(f)after sub-paragraph (3)(e)(ii), insert—

(iia)the person became a member of the company, if applicable; or;

(g)in sub-paragraph (4)(d)(ii) for the words “partner in the partnership” substitute “a partner or member, as the case may be in the partnership or limited liability partnership”;

(h)after sub-paragraph (4)(d)(ii), insert—

(iia)the person ceased to be a member of the company,.

(5) In paragraph 62 (sub-contracting of clinical matters)—

(a)in sub-paragraph (3),

(i)in paragraph (c) omit “and”;

(ii)after paragraph (d) insert—

; and

(e)in the case of a contract entered into on or after 22nd December 2010, whether the sub-contractor, if that sub-contractor were a contractor, would have sufficient involvement in patient care in terms of section 17L(3) and (4) of the Act.;

(b)in sub-paragraph (5),

(i)in paragraph (a)(ii) omit “or”;

(ii)after paragraph (b) insert—

; or

(c)in the case of a contract entered into on or after 22nd December 2010, if the sub-contractor were a contractor, that sub-contractor would not have sufficient involvement in patient care in terms of section 17L(3) and (4) of the Act.;

(c)in sub-paragraph (10)—

(i)for “company or firm” in both cases where that term occurs, substitute “company, partnership or limited liability partnership”;

(ii)in paragraphs (a) and (c), for “shareholder in”, substitute “member of”.

(6) In paragraph 73 (annual return and review), after sub-paragraph (1B), insert—

(1C) Without prejudice to the generality of sub-paragraph (1), in the case of contracts entered into on or after 22nd December 2010, the contractor shall include in the annual return a statement confirming that the contractor meets the conditions of section 17L(3) and (4) of the Act, and, in connection with that statement, shall include such details as the Health Board considers appropriate..

(7) In paragraph 74(1)(b) (notifications to the Health Board), for “99, 100 or 101(1)”, substitute “99, 99A, 100, 101(1) or 101A”.

(8) In paragraph 77 (notice provisions specific to a contract with a company limited by shares), before sub-paragraph (1), insert—

(A1) This paragraph applies to contracts entered into prior to 22nd December 2010.

(9) After paragraph 77, insert—

Notice provisions specific to a contract with a company

77A.(1) This paragraph applies to contracts entered into on or after 22nd December 2010.

(2) A contractor which is a company shall give notice in writing to the Health Board forthwith when—

(a)a member, director or secretary of the company ceases to be a member, director or secretary of the company or informs the other members of the company that that person intends to cease to be a member, director or secretary of the company, and the date upon which he or she ceased, or will cease, to be a member, director or secretary of the company;

(b)a new member, director or secretary becomes a member, director or secretary of the company;

(c)the company passes a resolution or a court of competent jurisdiction makes an order that the contractor be wound up;

(d)circumstances arise which might entitle a creditor or a court to appoint a receiver, administrator or administrative receiver for the contractor;

(e)circumstances arise which would enable the court to make a winding up order in respect of the contractor; or

(f)the contractor is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.

(3) A notice under sub-paragraph (2)(b) shall—

(a)state the date the new member, director or secretary became a member, director or secretary of the company;

(b)confirm that the new member is an individual who satisfies the conditions imposed on members by virtue of section 17L(3) and (4) of the Act and the conditions imposed by regulations 4, 5 and 5A; and

(c)confirm that the new director or, as the case may be, secretary meets the conditions imposed on directors and secretaries by virtue of regulation 5..

(10) In paragraph 78 (notice provisions specific to a contract with persons practising in partnership), for sub-paragraph (2) substitute—

(2) A notice under sub-paragraph (1)(b) shall—

(a)state the date that the new partner joined the partnership;

(b)in the case of a contract entered into prior to 22nd December 2010—

(i)confirm that the new partner is a medical practitioner, or that the partner satisfies the conditions specified in section 17L(2)(c)(i) to (viii) of the Act as in force at 21st December 2010; and

(ii)confirm that the new partner meets the conditions imposed by regulation as in force at 21st December 2010 and regulation 5;

(c)in the case of a contract entered on or after 22nd December 2010—

(i)confirm that the new partner is an individual who satisfies the conditions imposed on members by virtue of section 17L(3) and (4) of the Act, and

(ii)meets the further conditions imposed by regulations 4, 5 and 5A; and

(d)state whether the new partner is a general or a limited partner..

(11) After paragraph 78, insert—

Notice provisions specific to a contract with persons practising in a limited liability partnership.

78A.(1) A contractor which is a limited liability partnership shall give notice in writing to the Health Board forthwith when—

(a)a member ceases to be a member, or informs the other members of the partnership that the member intends to cease to be a member of the partnership, and the date upon which the member ceased, or will cease, to be a member of the partnership;

(b)a new member joins the partnership.

(2) A notice under sub-paragraph (1)(b) shall—

(a)state the date that the new member joined the limited liability partnership;

(b)confirm that the new member is an individual who satisfies the conditions imposed on members by virtue of section 17L(3) and (4) of the Act and meets the conditions imposed by regulations 4, 5 and 5A..

(12) In paragraph 99 (termination by the Health Board for breach of conditions in regulation 4), before sub-paragraph (1), insert—

(A1) This paragraph applies to contracts entered into prior to 22nd December 2010 and all references to regulation 4 are to regulation 4 as in force at 21st December 2010..

(13) After paragraph 99 of Schedule 5, insert—

Termination by the Health Board for breach of conditions for contracts entered into on or after 22nd December 2010.

99A.(1) This paragraph applies to contracts entered into on or after 22nd December 2010.

(2) The Health Board shall serve notice in writing on the contractor terminating the contract forthwith if the contractor is an individual medical practitioner and the medical practitioner no longer satisfies the conditions specified in regulation 4(1).

(3) Where the contractor is—

(a)a partnership and the conditions specified in regulation 4(2) are no longer satisfied;

(b)a limited liability partnership and the conditions specified in regulation 4(3) are no longer satisfied; or

(c)a company and the conditions specified in regulation 4(4) are no longer satisfied,

sub-paragraph (4) shall apply.

(4) Where this sub-paragraph applies, the Health Board shall—

(a)serve notice in writing on the contractor terminating the contract forthwith; or

(b)serve notice in writing on the contractor confirming that the Health Board will allow the contract to continue, for a period specified by the Health Board of up to six months (the “interim period”), during which time the Health Board shall, with the consent of the contractor, employ or supply one or more general medical practitioners to the contractor for the interim period to assist the contractor in the provision of clinical services under the contract.

(5) Before deciding which of the options in sub-paragraph (4) to pursue, the Health Board shall, whenever it is reasonably practicable to do so, consult the area medical committee (if any) for its area.

(6) If the contractor does not, pursuant to sub-paragraph (4)(b), consent to the Health Board employing or supplying a general medical practitioner during the interim period, the Health Board shall serve notice in writing on the contractor terminating the contract forthwith.

(7) If, at the end of the interim period, the contractor still falls within sub-paragraph (3)(a), (b) or (c), the Health Board shall serve notice in writing on the contractor terminating the contract forthwith..

(14) For paragraph 100 (termination by the Health Board for the provision of untrue etc. information), substitute—

100.  The Health Board may serve notice in writing on the contractor terminating the contract forthwith, or from such date as may be specified in the notice if—

(a)in the case of a contract entered into prior to 22nd December 2010, after the contract has been entered into, it comes to the attention of the Health Board that written information provided to the Health Board by the contractor—

(i)before the contract was entered into; or

(ii)pursuant to paragraphs 77(2) or (3) or 78(2),

in relation to the conditions set out in regulations 4 and 5 as in force at 21st December 2010 (and compliance with those conditions) was, when given, untrue or inaccurate in a material respect; or

(b)in the case of a contract entered into on or after 22nd December 2010, after the contract has been entered into, it comes to the attention of the Health Board that written information provided to the Health Board by the contractor

(i)before the contract was entered into; or

(ii)pursuant to paragraphs 77A(2), 78(2) or 78A(2),

in relation to the conditions set out in regulations 4, 5 and 5A (and compliance with those conditions), was, when given, untrue or inaccurate in a material  respect..

(15) In paragraph 101 (other grounds for termination by the Health Board)—

(a)in sub-paragraph (1) for “The Health Board”, substitute “In the case of contracts entered into prior to 22nd December 2010, the Health Board”;

(b)in sub-paragraph (2)(a) after “or (3)(b)” insert “as in force at 21st December 2010”;

(c)for sub-paragraph (2)(b), substitute—

(b)the person has been disqualified or suspended by direction of the Tribunal made pursuant to section 32A(2) (applications for interim suspension) or 32B(1) (suspension pending appeal) of the Act, or under any provisions in force in England, Wales or Northern Ireland corresponding thereto;;

(d)in sub-paragraph (2)(c), omit “or a suspension on the grounds of ill-health”;

(e)in sub-paragraph (2)(j)(ii), following “Insolvency Act 1986”, insert “or sections 56A to 56K of the Bankruptcy (Scotland) Act 1985”;

(f)in sub-paragraph (m)(ii), for “Charity Commissioners”, substitute “Charity Commission for England and Wales”;

(g)in sub-paragraph (o)—

(i)for “that” in the first place that term occurs, substitute “the”;

(ii)for “it” in the first place that term occurs, substitute “the Health Board”.

(16) After paragraph 101 insert—

Other grounds for termination by the Health Board for contracts entered into on or after 22nd December 2010.

101A.(1) In the case of contracts entered into on or after 22nd December 2010, the Health Board may serve notice in writing on the contractor terminating the contract forthwith, or from such date as may be specified in the notice if—

(a)in the case of a contract with a medical practitioner, that medical practitioner;

(b)in the case of a contract with a partnership, any partner or the partnership;

(c)in the case of a contract with a limited liability partnership, any member or the limited liability partnership; and

(d)in the case of a contract with a company—

(i)the company,

(ii)any member of the company, or

(iii)any director or secretary of the company,

falls within sub-paragraph (2) during the existence of the contract.

(2) A person falls within this sub-paragraph if—

(a)subject to sub-paragraph (3), the person does not satisfy the requirements of section 17L(1), (2) or (3) of the Act;

(b)the person has been disqualified or suspended by direction of the Tribunal made pursuant to section 32A(2) (applications for interim suspension) or 32B(1) (suspension pending appeal) of the Act, or under any provisions in force in England, Wales or Northern Ireland corresponding thereto;

(c)subject to sub-paragraph (5), the person is disqualified or suspended (otherwise than by an interim suspension order or direction pending an investigation) from practising by any licensing body anywhere in the world;

(d)subject to sub-paragraph (6), the person has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body unless before the Health Board has served a notice terminating the contract pursuant to this paragraph, the person is employed by the health service body that dismissed the person or by another health service body;

(e)the person is disqualified from a list unless the person’s name has subsequently been included in such a list;

(f)the person has been convicted in the United Kingdom of murder;

(g)the person has been convicted in the United Kingdom of a criminal offence, other than of murder, and has been sentenced to a term of imprisonment of over six months;

(h)subject to sub-paragraph (7), the person has been convicted elsewhere of an offence—

(i)which would, if committed in Scotland, constitute murder; or

(ii)constitute a criminal offence other than murder, and been sentenced to a term of imprisonment of over six months;

(i)the person has been convicted of an offence referred to in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children under the age of 17 to which special provisions apply) or Schedule 1 to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions apply);

(j)the person has—

(i)had sequestration of the person’s estate awarded or been adjudged bankrupt unless (in either case) the person has been discharged or the bankruptcy order has been annulled,

(ii)been made the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986 or sections 56A to 56K of the Bankruptcy (Scotland) Act 1985, unless that order has ceased to have effect or has been annulled,

(iii)made a composition or arrangement with, or granted a trust deed for, the person’s creditors unless the person has been discharged in respect of it, or

(iv)been wound up under Part IV of the Insolvency Act 1986;

(k)there is—

(i)an administrator, administrative receiver or receiver appointed in respect of it, or

(ii)an administration order made in respect of it under Schedule B1 to the Insolvency Act 1986;

(l)that person is a partnership or limited liability partnership and—

(i)a dissolution of the partnership or limited liability partnership is ordered by any competent court, tribunal or arbitrator, or

(ii)an event happens that makes it unlawful for the business of the partnership or limited liability partnership to continue, or for members of the partnership or limited liability partnership to carry on in partnership or limited liability partnership;

(m)the person has been—

(i)removed under section 34 of the Charities and Trustee Investment (Scotland) Act 2005 (powers of the Court of Session), from being concerned in the management or control of any body; or

(ii)removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commission for England and Wales or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible or to which the person was privy, or which the person by the person’s conduct contributed to or facilitated;

(n)the person is subject to a disqualification order under the company Directors Disqualification Act 1986, the Companies (Northern Ireland) Order 1986 or to an order made under section 429(2)(b) of the Insolvency Act 1986 (failure to pay under county court administration order);

(o)the person has refused to comply with a request by the Health Board for that person to be medically examined on the grounds that the Health Board is concerned that the person is incapable of adequately providing services under the contract and, in a case where the contract is with a partnership, limited liability partnership, or a company, the Health Board is not satisfied that the contractor is taking adequate steps to deal with the matter; or

(p)the person would otherwise fall within paragraph 113(2)(e) of Schedule 6 to the National Health Service (General Medical Services Contracts) Regulations 2004.

(3) Subject to sub-paragraph (4), a Health Board shall not terminate the contract pursuant to sub-paragraph (2)(a) where—

(a)a contractor who is an individual;

(b)in the case of a party to a contract which is a partnership, a partner in that partnership;

(c)in the case of a party to a contract which is a limited liability partnership, a member of that limited liability partnership; or

(d)in the case of a party to a contract which is a company, a member of that company,

after having entered into a contract (“the relevant contract”), retires and is therefore not performing or is not engaged in the provision of primary medical services, in accordance with regulation 5A.

(4) Sub-paragraph (3) only applies for the period of time following the date of retirement, which is the equivalent to the length of time that the relevant person referred to in sub-paragraph (3)(a), (b), (c) or (d) has performed or been engaged in the provision of primary medical services for the purposes of the relevant contract, up to a maximum period of 2 years following the date of retirement.

(5) A Health Board shall not terminate the contract pursuant to sub-paragraph (2)(c) where the Health Board is satisfied that the disqualification or suspension imposed by a licensing body outside the United Kingdom does not make the person unsuitable to be—

(a)a contractor;

(b)in the case of a contract with a partnership, a partner;

(c)in the case of a contract with a limited liability partnership, a member; or

(d)in the case of a contract with a company—

(i)a member of the company, or

(ii)a director or secretary of the company,

as the case may be.

(6) A Health Board shall not terminate the contract pursuant to sub-paragraph (2)(d)—

(a)until a period of at least three months has elapsed since the date of the dismissal of the person concerned; or

(b)if, during the period of time specified in paragraph (a), the person concerned brings proceedings in any competent tribunal or court in respect of the person’s dismissal, until proceedings before that tribunal or court are concluded,

and the Health Board may only terminate the contract at the end of the period specified in paragraph (b) if there is no finding of unfair dismissal at the end of those proceedings.

(7) A Health Board shall not terminate the contract pursuant to sub-paragraph (2)(h) where the Health Board is satisfied that the conviction does not make the person unsuitable to be—

(a)a contractor;

(b)in the case of a contract with a partnership, a partner in that partnership;

(c)in the case of a contract with a limited liability partnership, a member of that limited liability partnership; or

(d)in the case of a contract with a company—

(i)a member of the company; or

(ii)a director or secretary of the company,

as the case may be.

(8) In this paragraph, “health service body” does not include any person who is to be regarded as a health service body in accordance with regulation 10..

(17) In paragraph 104(1) (termination by the Health Board: additional provision specific to contracts with a partnership and companies limited by shares), for “limited by shares”, substitute “, partnership or limited liability partnership”.

(18) In paragraph 105 (contract sanctions) in sub-paragraph (2), after “101,” insert “101A,”.

(19) In paragraph 107 (termination and the NHS dispute resolution procedure), in sub-paragraphs (1) and (5), after “101” insert “101A,”.

(20) In paragraph 108 (consultation with the area medical committee), in sub-paragraph (1)(a), after “101” insert “101A,”.

(21) In paragraph 114 (gifts),

(a)after sub-paragraph (2)(b), insert—

(ba)where the contract is with a limited liability partnership, any member of the limited liability partnership;;

(b)in sub-paragraph (2)(c)(i) for “person legally and beneficially holding a share in”, substitute “member of”.

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