The National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2018

PART 4 PERSONS WHO PERFORM SERVICES

Qualifications of performers

18.—(1) Subject to sub-paragraph (2), no medical practitioner may perform medical services under the agreement unless the practitioner is—

(a) included in the primary medical services performers list for the Health Board which is under a duty to provide or secure the provision of the service to be performed;

(b) not suspended from that list or from the Medical Register; and

(c) not subject to interim suspension under section 41A of the Medical Act 1983 (interim orders)(1).

(2) Sub-paragraph (1)(a) will not apply in the case of—

(a) a medical practitioner employed in Scotland by a Health Board, in England and Wales by an NHS trust, or in Northern Ireland by a Health and Social Care trust who is providing services other than primary medical services at the practice premises;

(b) a person who is provisionally registered under section 15 (provisional registration), 15A (provisional registration for EEA nationals) or 21 (provisional registration) of EEA nationals with certain overseas qualifications of the Medical Act 1983(2) acting in the course of the person’s employment in a resident medical capacity in an approved medical practice within the meaning of section 44D of the Medical Act 1983 (approved practice settings)(3); or

(c) a GP Registrar who has applied to the Health Board to have the GP Registrar’s name included in the primary medical services performers list of the Health Board, until the first of the following events arises:—

(i) the Health Board notifies the GP Registrar of the Board’s decision on that application;

(ii) the end of a period of 2 months, starting with the date on which the GP Registrar’s vocational training scheme begins.

(3) In this paragraph, “vocational training scheme” has the meaning given in regulation 2 (interpretation) of the National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004(4).

Qualifications of performers

19.  No health care professional other than one to whom paragraph 18 applies may perform clinical services under the agreement unless the health care professional is appropriately registered with the health care professional’s relevant professional body and the health care professional’s registration is not currently suspended.

Qualifications of performers

20.  Where the registration of a health care professional or, in the case of a medical practitioner, the practitioner’s inclusion in a list, is subject to conditions, the provider must ensure compliance with those conditions insofar as they are relevant to the agreement.

Qualifications of performers

21.  No health care professional may perform any clinical services unless the health care professional has such clinical experience and training as are necessary to enable the health care professional properly to perform such services.

Conditions for employment and engagement

22.—(1) Subject to sub-paragraphs (2) and (3), a provider must not employ or engage a medical practitioner (other than one falling within paragraph 18(2)) unless—

(a) that practitioner has provided the provider with the name and address of the Health Boards on whose primary medical services performers lists the practitioner appears; and

(b) the provider has checked that the practitioner meets the requirements in paragraph 18.

(2) Where the employment or engagement of a medical practitioner is urgently needed and it is not possible for the provider to check the matters referred to in paragraph 18 in accordance with sub-paragraph (1)(b) before employing or engaging that practitioner, the practitioner may be employed or engaged on a temporary basis for a single period of up to 7 days whilst such checks are undertaken.

(3) Where the prospective employee is a GP Registrar, the requirements set out in sub-paragraph (1) must apply with the modifications that—

(a) the name and address provided under sub-paragraph (1) may be the name and address of the Health Boards on whose primary medical services performers lists the GP Registrar Scheme Guidance has applied for inclusion; and

(b) confirmation that the GP Registrar’s name appears on those lists will not be required until the end of the first two months of the GP Registrar’s training period.

(4) The provider may only offer employment to a general medical practitioner on terms and conditions which are no less favourable than those contained in the “Model terms and conditions of service for a salaried general practitioner employed by a GMS practice” published by the British Medical Association and the NHS Confederation as item 1.2 of the supplementary documents to the GMS contract 2003(5).

Conditions for employment and engagement

23.—(1) A provider must not employ or engage—

(a) a health care professional (other than one to whom paragraph 18 applies) unless the provider has checked that the health care professional meets the requirements in paragraph 19;

(b) a health care professional to perform clinical services unless the provider has taken reasonable steps to satisfy the provider that the health care professional meets the requirements in paragraph 21.

(2) Where the employment or engagement of a health care professional is urgently needed and it is not possible to check the matters referred to in paragraph 19 in accordance with sub-paragraph (1) before employing or engaging the health care professional, the health care professional may be employed or engaged on a temporary basis for a single period of up to 7 days whilst such checks are undertaken.

(3) When considering a health care professional’s experience and training for the purposes of sub-paragraph (1)(b) the provider must have regard in particular to—

(a) any post-graduate or post-registration qualification held by the health care professional; and

(b) any relevant training undertaken by the health care professional and any relevant clinical experience gained by the health care professional.

Conditions for employment and engagement

24.—(1) A provider must not employ or engage a health care professional to perform medical services under the agreement unless—

(a) that person has provided two clinical references, relating to two recent posts (which may include any current post) as a health care professional which lasted for three months without a significant break, or where this is not possible, a full explanation and alternative referees; and

(b) the provider has checked and is satisfied with the references.

(2) Where the employment or engagement of a medical practitioner is urgently needed and it is not possible to obtain and check the references in accordance with sub-paragraph (1)(b) before employing or engaging the practitioner, the practitioner may be employed or engaged on a temporary basis for a single period of up to 14 days whilst the practitioner’s references are checked and considered, and for an additional single period of a further 7 days if the provider believes the person supplying those references is ill, on holiday or otherwise temporarily unavailable.

(3) Where the provider employs or engages the same person on more than one occasion within a period of three months, it may rely on the references provided on the first occasion, provided that those references are not more than twelve months old.

Conditions for employment and engagement

25.—(1) Before employing or engaging any person to assist the provider in the provision of services under the agreement, the provider must take reasonable care to satisfy itself that the person in question is both suitably qualified and competent to discharge the duties for which the person is to be employed or engaged.

(2) The duty imposed by sub-paragraph (1) is in addition to the duties imposed by paragraphs 22 to 24.

(3) When considering the competence and suitability of any person for the purpose of sub-paragraph (1), the provider must have regard, in particular, to—

(a) that person’s academic and vocational qualifications;

(b) the person’s education and training; and

(c) the person’s previous employment or work experience.

Training

26.  The provider must ensure that for any health care professional who is—

(a) performing clinical services under the agreement; or

(b) employed or engaged to assist in the performance of such services,

there are in place arrangements for the purpose of maintaining and updating the health care professional’s skills and knowledge in relation to the services which the health care professional is performing or assisting in performing.

Training

27.  The provider must afford to each employee reasonable opportunities to undertake appropriate training with a view to maintaining that employee’s competence.

Arrangements for GP registrars

28.—(1) The provider may only employ or engage a GP Registrar subject to the conditions in sub-paragraph (2).

(2) The conditions referred to in sub-paragraph (1) are that the provider must not, by reason only of having employed or engaged a GP Registrar, reduce the total number of hours for which other medical practitioners perform primary medical services under the agreement or for which other staff assist them in the performance of those services.

(3) A provider which employs or engages a GP Registrar must—

(a) offer the GP Registrar terms of employment in accordance with the rates and subject to the conditions contained in any directions given by the Scottish Ministers to NHS Education for Scotland(6) concerning the grants, fees travelling and other allowances payable to GP Registrars; and

(b) take into account any guidance issued by the Scottish Ministers in relation to the GP Registrar Scheme (7).

Independent prescribers and supplementary prescribers

29.—(1) Where—

(a) a provider employs or engages a person who is an independent prescriber or a supplementary prescriber whose functions will include prescribing;

(b) a party to the agreement is an independent prescriber or a supplementary prescriber whose functions will include prescribing;

(c) a partner or member as the case may be of a partnership or limited liability partnership that is a party to the agreement, is an independent prescriber or a supplementary prescriber whose functions will include prescribing;

(d) the member of a company that is a party to the agreement is an independent prescriber or a supplementary prescriber whose functions will include prescribing; or

(e) the functions of a person who is an independent prescriber or a supplementary prescriber whom it already employs or has already engaged are extended to include prescribing,

it must notify the Health Board in writing within the period of seven days beginning with the date on which the provider employed or engaged the person, the person became a party to the agreement, 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 agreement (unless, immediately before becoming such a party, or partner or member of that partnership, limited liability partnership or company that is such a party, the person fell under sub-paragraph (1)(a)) or the person’s functions were extended as the case may be.

(2) Where—

(a) the provider ceases to employ or engage a person who is an independent prescriber or a supplementary prescriber, whose functions included prescribing in the provider’s practice;

(b) the party to the agreement, who is an independent prescriber or a supplementary prescriber, whose functions include prescribing, ceases to be a party to the agreement;

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

(d) the member of a company that is a party to the agreement, who is an independent prescriber or a supplementary prescriber whose functions include prescribing, ceases to be a member of the company;

(e) the functions of a person who is an independent prescriber or a supplementary prescriber whom the provider employs or engages in its practice are changed so that they no longer include prescribing in its practice; or

(f) the provider becomes aware that a person who is an independent prescriber or a supplementary prescriber whom the provider employs or engages has been removed or suspended from the relevant register,

it must notify the Health Board in writing by the end of the second day after the day when the event occurred.

(3) The provider must provide the following information when it notifies the Health Board in accordance with sub-paragraph (1).

(a) the person’s full name;

(b) the person’s professional qualifications;

(c) the person’s identifying number which appears in the relevant register;

(d) the date on which the person’s entry in the relevant register was annotated to the effect that the person was qualified to order drugs, medicines and appliances for patients;

(e) the date on which—

(i) the person was employed or engaged, if applicable;

(ii) the person became a party to the agreement, if applicable;

(iii) the person became a partner or member, as the case may be in the partnership or limited liability partnership that is a party to the agreement, if applicable;

(iv) the person became a member of a company that is a party to the agreement, if applicable; or

(v) one of the person’s functions became to prescribe in its practice.

(4) The provider must provide the following information when it notifies the Health Board in accordance with sub-paragraph (2):—

(a) the person’s full name;

(b) the person’s professional qualifications;

(c) the person’s identifying number which appears in the relevant register;

(d) the date on which—

(i) the person ceased to be employed or engaged in its practice;

(ii) the person ceased to be a party to the agreement;

(iii) the person ceased to be a partner or member, as the case may be, in a partnership or limited liability partnership that is a party to the agreement;

(iv) the person ceased to be a member of a company that is a party to the agreement,

(v) the person’s functions changed so as no longer to include prescribing; or

(vi) on which the person was removed or suspended from the relevant register.

Signing of documents

30.—(1) In addition to any other requirements relating to such documents whether in these regulations or otherwise, the provider must ensure that the documents specified in sub-paragraph (2) include—

(a) the clinical profession of the health care professional who signed the document; and

(b) the name of the provider on whose behalf it is signed.

(2) The documents referred to in sub-paragraph (1) are—

(a) certificates issued in accordance with regulation 20, unless regulations relating to particular certificates provide otherwise;

(b) prescription forms; and

(c) any other clinical documents.

Level of skill

31.  The provider must carry out its obligations under the agreement with reasonable skill and care.

Appraisal and assessment

32.—(1) The provider must ensure that any medical practitioner performing services under the agreement—

(a) participates in the appraisal system provided by the Health Board unless the practitioner participates in an appropriate appraisal system provided by another health service body or is an armed forces GP; and

(b) co-operates with any assessment process which the Health Board operates in relation to poorly performing doctors, as set out in NHS circular PCA(M) (2001)17(8).

(2) The Health Board must provide an appraisal system for the purposes of sub-paragraph (1)(a) after consultation with the area medical committee and such other persons as appear to it to be appropriate.

(3) In sub-paragraph (1)—

“armed forces GP” means a medical practitioner who is employed on a contract of service by the Ministry of Defence, whether or not as a member of the United Kingdom Armed Forces of Her Majesty; and

“health service body” does not include any provider who is to be treated as a health service body in accordance with regulation 10.

Sub-contracting of clinical matters

33.—(1) Subject to sub-paragraph (2) the provider must not sub-contract any of its rights or duties under the agreement in relation to clinical matters unless—

(a) in all cases, it has taken reasonable steps to satisfy itself that—

(i) it is reasonable in all the circumstances; and

(ii) that person is qualified and competent to provide the service; and

(b) it has notified the Health Board of its intention to sub-contract as soon as reasonably practicable before the date on which the proposed sub-contract is intended to come into force.

(2) Sub-paragraph (1)(b) must not apply to an agreement for services with a health care professional for the provision by that person of clinical services.

(3) The notification referred to in sub-paragraph (1)(b) must include—

(a) the name and address of the proposed sub-contractor;

(b) the duration of the proposed sub-contract;

(c) the services to be covered;

(d) the address of any premises to be used for the provision of services; and

(e) in the case of an agreement entered into on or after 22nd December 2010, whether the sub-contractor, if that sub-contractor were a provider, would have sufficient involvement in patient care in terms of section 17CA(3) and (4) of the Act(9).

(4) Following receipt of a notice in accordance with sub-paragraph (1)(b), the Health Board may request such further information relating to the proposed sub-contract as appears to it to be reasonable and the provider must supply such information promptly.

(5) The provider must not proceed with the sub-contract or, if it has already taken effect, must take appropriate steps to terminate it, where, within 28 days of receipt of the notice referred to in sub-paragraph (1)(b), the Health Board has served notice of objection to the sub-contract on the grounds that—

(a) the sub-contract would—

(i) put at serious risk the safety of the provider’s patients; or

(ii) put the Board at risk of material financial loss;

(b) the sub-contractor would be unable to meet the provider’s obligations under the agreement; or

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

(6) Where the Health Board objects to a proposed sub-contract in accordance with sub-paragraph (5), it must include with the notice of objection a statement in writing of the reasons for its objection.

(7) Sub-paragraphs (1) and (3) to (6) must also apply in relation to any renewal or material variation of a sub-contract in relation to clinical matters.

(8) Where a Health Board does not object to a proposed sub-contract under sub-paragraph (5), the parties to the agreement will be deemed to have consented to a variation of the agreement which has the effect of adding to the list of practice premises any premises whose address was notified to it under sub-paragraph (3)(d) and paragraph 61 must not apply.

(9) A contract with a sub-contractor must prohibit the sub-contractor from sub-contracting the clinical services it has agreed with the provider to provide.

(10) The provider, if it has a provider’s list of patients, must not sub-contract any of its rights or duties under the agreement in relation to the provision of essential services to a company, partnership or limited liability partnership—

(a) owned wholly or partly by the provider or a party to the agreement, or by any former or current employee of the provider, or any partner or member of a party to the agreement;

(b) formed by or on behalf of the provider or a party to the agreement, or from which the provider or a party to the agreement derives or may derive a pecuniary benefit; or

(c) formed by or on behalf of a former or current employee of the provider, or a partner or member of a party to the agreement, or from which such a person derives or may derive a pecuniary benefit,

where that company, partnership or limited liability partnership is or was formed wholly or partly for the purpose of avoiding the restrictions on the sale of goodwill of a medical practice in section 35 of the Act(10) or any regulations made wholly or partly under that section.

(1)

1983 c.54. Section 41A was inserted by S.I. 2000/1803 and amended by S.I. 2002/3135, 2006/1914 and 2015/794.

(2)

Section 15 was substituted by S.I. 2006/1914; section 15A was inserted by S.I. 2000/3041 and amended by S.I. 2006/1914, 2067/3101 and 2011/1043; section 21 was amended by S.I. 2002/3135, 2006/1914 and 2007/3103.

(3)

Section 44D was inserted by S.I. 2006/1914.

(4)

S.S.I. 2004/114 as relevantly amended by S.I. 2010/234.

(5)

This document is published jointly by the General Practitioners committee of the British Medical Association and the NHS Confederation. This document is available at: http://bma.org.uk/sessionalgps. Hard copies may be requested from The British Medical Association, BMA House, Tavistock Square, London WC1H 9JP.

(6)

NHS Education for Scotland was constituted by S.S.I. 2002/103, as relevantly amended by S.S.I. 2006/79, which applies section 2(5) of the National Health Service (Scotland) Act 1978 to NHS Education for Scotland as it applies to Health Boards.

(7)

The current guidance is PCS(GPR) 2009/1 which is available at http://www.sehd.scot.nhs.uk/pcs/PCS2009(GPR)01.pdf as amended by PCS(GPR) 2011/1, which is available at http://www.sehd.scot.nhs.uk/pcs/PCS2011(GPR)01.pdf as amended by PCS (GPR) 2015/1 which is available at http://www.sehd.scot.nhs.yk/pcs/PCS2015(GPR)01.pdf.

(8)

Published by the then Scottish Executive as NHS Circular PCA(M)(2001)(17), copies available at http://www.sehd.scot.nhs.uk/pca/pca2001(m)17.htm.

(9)

Section 17CA was inserted by section 38 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3).

(10)

Section 35 was substituted by section 34(2) of the National Health Service (Primary Care) Act 1997 (c.46) and amended by paragraph 1 of schedule 1 of the 2004 Act.