General and personal medical services, general dental services, general ophthalmic services and pharmaceutical services
Section 17: Remuneration of General Medical Practitioners
85.Section 17 ends the requirement under section 29(4) of the 1977 Act that the remuneration paid to GPs must not, except in special circumstances, consist wholly or mainly of a salary which has no reference to the number of patients to whom the GP has undertaken to provide services under General Medical Services (“GMS”).
Section 18: Out of hours medical services
86.GPs undertake 24 hour responsibility for patients. GPs may discharge this in a number of ways: by providing the service personally; in a rota with other practices; by joining a GP co-operative; by employing a commercial deputising service established for the purpose of providing an out-of-hours service for GPs; or a combination of two or more of these.
87.Section 18 provides powers to regulate the provision of out-of-hours services. The body to be regulated is any person or persons providing out-of-hours cover to GPs that will have to be accredited by a Health Authority. Accreditation is intended to ensure the delivery of out-of-hours GP patient care to consistent high quality standards. This was recommended in the independent Report Raising Standards for Patients, New Partnerships in Out of Hours Care which considered how consistent high quality services could be made available across the country. Concern had also been expressed by the Health Services Commissioner (the “Ombudsman”) about the quality and responsiveness of out-of-hours services provided in some areas.
88.Regulations may specify those who are to be accredited under the regulations, the procedure for applying for accreditation, any conditions with which accredited bodies must comply and the transfer of liability from the GP to the out of hours service provider. They may also provide for the withdrawal or suspension of approval by Health Authorities as well as the criteria to be used in making decisions under the regulations.
89.Once this section has come into force, existing powers under the 1977 Act and the 1997 Act will be used to effect consequential changes to the Terms and Conditions of Service for GPs and to the Directions for the Implementation of Personal Medical Services to ensure that GPs use only accredited providers of out-of-hours services.
Section 19: Enhanced criminal record certificates
90.Health Authorities are currently required by Part 2 of the 1977 Act to maintain lists of all practitioners who undertake to provide general medical services (GMS), general dental services (GDS), general ophthalmic services (GOS) and pharmaceutical services (PhS) in their area. Sections 24 and 26 of this Act extend this list system to cover those who assist in the provision of these primary care services (e.g. deputies or locums) as well as those practitioners performing personal medical services (PMS) or personal dental services (PDS). To remain on a list, or be admitted to it, the intention is that persons will have to declare any criminal convictions, bindings-over following a criminal conviction and cautions. In requiring a practitioner to declare his criminal conviction, Health Authorities will need to take steps to verify the information that they are given. The Home Office’s new Criminal Records Bureau (CRB) set up under Part 5 of the Police Act 1977 will assist in the provision of criminal record checks.
91.The policy is that Health Authorities should have the fullest possible report from the CRB to ensure maximum protection for the public. Health Authorities can already be provided with standard criminal conviction or criminal record certificates under section 112 and 113 of the Police Act 1977. Section 19 amends the Police Act 1997 to also enable Health Authorities to have access to enhanced criminal record certificates under section 115 of that Act. These are certificates, which will involve an extra layer of checking with local police records. Such enhanced disclosures are presently required for posts involving significant contact with children and vulnerable adults.
92.Subsection (2) of this section amends the Police Act 1977 to provide that section 115 certificates may be made available for those practitioners identified in new subsections (6C), (6D) and (6E).
93.Subsection (3) of the section inserts subsections (6C), (6D) and (6E) into section 115 of the Police Act 1977. New subsection (6C) covers those practitioners included or seeking inclusion in the main GMS, GDS, GOS or PhS lists. Subsection (6D) covers directors of bodies corporate included or seeking inclusion in a main GDS or GOS list, members of limited liability partnerships included or seeking inclusion in a GOS list and a member of the body of persons controlling a body corporate included or seeking inclusion in a PhS list.
94.New subsection (6E) covers individuals included or seeking inclusion in a supplementary list (of, for example, deputies or locums) or services list (of those who may perform Personal Medical Services/Personal Dental Services). It also covers individuals seeking inclusion in service lists of people providing Local Pharmaceutical Services, should such lists be established by virtue of regulations made under section 41 of this Act.
Section 20: Medical, dental, ophthalmic and pharmaceutical lists etc.
95.As indicated in the notes on section 19, Health Authorities are already required by Part 2 of the 1977 Act to maintain lists of all practitioners who provide GMS, GDS, GOS and PhS in their area. These are known respectively as the medical, dental, ophthalmic and pharmaceutical lists. Section 20 provides new powers for Health Authorities to refuse a practitioner admission to the appropriate list on the grounds of unsuitability, prejudice to efficiency or because of previous fraudulent behaviour.
96.Subsection (2) amends section 29A of the 1977 Act to provide for regulations requiring practitioners already included in the medical list to provide the Health Authority information of a prescribed description as well as criminal conviction or criminal record certificates under sections 112, 113 or 115 of the Police Act 1977.
97.Subsection (3)(a) amends section 29B of the 1977 Act to provide for regulations specifying when Health Authorities may, or must, refuse an application from a medical practitioner to fill a vacancy: for example, because the applicant is considered to be unsuitable to work in the provision of general medical services, because it is considered that the applicant’s inclusion in the list would be prejudicial to the efficiency of the service or because of the risk of the applicant’s fraudulent behaviour. It further allows regulations to be made specifying the information which an applicant must provide (or arrange to be provided) in support of the application, including the supply of a certificate provided under sections 112, 113 or 115 of the Police Act 1997. Regulations may provide for the disclosure by Health Authorities to prescribed persons of specified information about persons applying for inclusion in the medical list as well as refusals of such applications.
98.Subsection (3)(b) provides for the regulations to specify when a Health Authority may defer a decision to nominate or approve a medical practitioner for appointment to fill a vacancy.
99.Subsection (3)(c) provides for a right of appeal, by re-determination, to the Family Health Services Appeal Authority (FHSAA) against a decision by a Health Authority under its discretionary powers.
100.Subsections (4), (5), (6) and (7) provide for similar regulatory powers in respect of practitioners included, or applying for inclusion in, dental, ophthalmic, pharmaceutical and dispensing doctor lists.
Section 21: Conditional inclusion in medical, dental, ophthalmic and pharmaceutical lists
101.Section 21 inserts new section 43ZA into the 1977 Act. Subsection (1) of the new section provides powers to make regulations providing for a person’s inclusion in a GMS, GDS, GOS or PhS list to be subject to conditions determined by the Health Authority; for the Health Authority to vary the conditions or impose new ones and for the consequences of a practitioner failing to comply with a condition, which could include removal from a list.
102.Subsection (2) requires that the imposition of conditions must relate to preventing any prejudice to the efficiency of the service or preventing any fraudulent acts.
103.Subsection (4)(a) provides that if the regulations provide for a practitioner’s removal from a list for breach of condition, the regulations may also prevent the practitioner from withdrawing from the list whilst the Health Authority are investigating in order to see whether there are grounds for removal, or after the Health Authority have made the decision to remove the practitioner but before they have given effect to that decision. Subsection (4)(b) requires the regulations to include provision for a practitioner to be given notice of any allegations against him; for him to put his case at a hearing before a Health Authority makes a decision , and for him to be informed of a Health Authority’s decision, the reasons for it and his right of appeal.
104.Subsection (5) requires the regulations to provide for a right of appeal to the FHSAA against a Health Authority’s decision to impose conditions, to vary a condition, to vary terms of service or to remove a person from a list for a breach of a condition. The regulations may provide for a Health Authority decision not to have effect until the FHSAA has determined the appeal (and must do so in relation to a decision to remove the person from a list).
105.Subsection (7) provides that regulations may provide for a Health Authority to notify prescribed persons or persons of prescribed descriptions of any decisions they make to conditionally include practitioners in a list or remove such persons from a list for breach of condition. They may also supply any related information.
Section 22: Dental Corporations
106.Section 22 enables Health Authorities to make arrangements with dental corporate bodies to provide GDS as well as with individual dental practitioners.
107.Subsection (2) amends section 35 of the 1977 Act to make provision for Health Authorities to arrange for the provision of GDS by dental corporations as well as dental practitioners. Subsection (2)(c) introduces the definition of ‘dental corporation’ as a body corporate which carries on the business of dentistry within the meaning of section 40 of the Dentists Act 1984 (i.e. to receive payments for providing dental treatment).
108.Subsection (3) amends section 36 of the 1977 Act which enables regulations to be made about the delivery of GDS. Subsection (3)(a) provides for such regulations to empower Health Authorities to include dental corporations in their list of those undertaking to provide GDS. Subsection (3)(b) confers a right on dental corporations to be included in that list subject to certain conditions. Subsection (3)(d) provides for the removal of dental corporations from the Health Authority list in the event that the body never provides, or ceases to provide, GDS in that area.
Section 23: Declaration of financial interests, gifts, etc.
109.Section 23 introduces new arrangements requiring practitioners providing family health services to declare their financial interests and any gifts or benefits they receive. The aim is to be broadly consistent with other NHS workers. Doctors, and other NHS employees, in the hospital sector are required to agree to local standards of business conduct that normally oblige them to refuse all gifts from patients except those gifts which are of low intrinsic value such as diaries or chocolates.
110.Subsection (2) amends section 29 of the 1977 Act to provide that regulations may require practitioners providing general medical services to declare any financial interests, gifts above a prescribed value or other benefits that they may receive in connection with the provision of NHS services. Such regulations will be subject to consultation.
111.Subsections (3), (4) and (5) provide for similar regulatory powers requiring persons and organisations providing general dental services, general ophthalmic services and pharmaceutical services to declare any gifts or other benefits that they may receive in connection with the provision of NHS services. Such regulations will also be subject to consultation.
Section 24: Supplementary lists
112.Section 24 amends the 1977 Act to extend the existing Health Authority list systems to embrace all people who assist in the provision of family health services (i.e. otherwise than as principals in their own right).
113.This section inserts new section 43D into the 1977 Act. Subsection (1) of that section provides powers to make regulations providing for the preparation and publication by each Health Authority of lists covering practitioners (locums, deputies, or employees) assisting in the provision of GMS, GDS, GOS and PhS. Subsection (2) of the new section provides that such a list is to be referred to as a “supplementary list”.
114.New section 43D(3) sets out provisions which (among others) may be included in the regulations about supplementary lists.
115.Paragraph (a) provides powers to prescribe the Health Authority to which an application for inclusion in a supplementary list should be made.
116.Under paragraph (b), the regulations may make provision about the procedure for applying for inclusion in a list. This may include details of the information to be supplied to the Health Authority, either directly by or by arrangement with an applicant, in order for that Authority to assess the applicant’s suitability.
117.Paragraph (c) enables provision to be made about the grounds on which a Health Authority may or must refuse an application for inclusion in a list. This includes reasons of unsuitability or other grounds. For example, regulations might require a Health Authority to refuse entry to a list where the applicant has a conviction for murder. Regulations might also require a Health Authority to have regard to, but not be bound by previous decisions by other Health Authorities concerning the applicant’s inclusion or otherwise in their lists. The Health Authority would, however, be bound by national disqualification decisions issued by the FHSAA (see section 25). Provision may be made under paragraph (e) as to the grounds on which a Health Authority may, or must suspend or remove a person from a supplementary list and the procedure for doing so.
118.Provisions may be made under paragraph (f) about payments to be made to or in respect of suspended practitioners. Applicants for inclusion in a list and practitioners already included may, under paragraph (g), be required to supply the Health Authority with criminal conviction or criminal record certificates. Paragraph (h) provides that regulations may make provision to prevent a person withdrawing from a Health Authority supplementary list (for example, during any period a practitioner is under investigation which might result in removal or during any period awaiting removal from a list). Under paragraph (k), regulations may provide for the disclosure by Health Authorities to prescribed persons or persons of prescribed descriptions of specified information about applicants applying for inclusion in a supplementary list as well as refusals of such applications and suspensions and removals from lists.
119.Section 43D(4) provides for regulations to make provision for a person’s inclusion in a list to be subject to conditions determined by the Health Authority. The Health Authority may vary these conditions or impose different ones. The regulations will also set out the consequences of a person failing to comply with a condition, which could include removal from the list. They may also provide for the Health Authority to review their decisions to conditionally include a person in the list. Section 43D(5) requires that the imposition of conditions must relate to preventing any prejudice to the efficiency of the service or preventing any fraudulent act.
120.Section 43D(6) allows provision to be made about supplementary lists which corresponds to provision which may be made about principal lists under sections 49F to 49N (which are inserted by section 25).
121.Section 43D(7) requires that, if regulations make provision for a Health Authority to suspend or remove a practitioner from a supplementary list, the regulations must also include provision for a practitioner to be given notice of any allegation against him; for him to put his case at a hearing before the Health Authority makes a decision; and for him to be informed of the Health Authority’s decision, the reasons for it and any right of appeal.
122.Section 43D(8) provides that if regulations provide for the removal of a person from a supplementary list, or for refusal to include him in one (other than a compulsory removal or refusal) they must also provide for an appeal, by re-determination, to the FHSAA against the Health Authority’s decision to do so.
123.If the regulations make provision under section 43D(4), they must also provide for an appeal, by re-determination, to the FHSAA against any Health Authority decision to impose conditions on a person’s inclusion in a supplementary list; to vary a condition, to remove a person from a list for failing to comply with a condition or any review of an earlier decision.
124.Section 43D(10) provides for regulations requiring that practitioners on one of the main lists may not employ or engage a person to assist them in the provision of the respective family health service, unless that person is included in one of the main lists, a supplementary list, or a services list established under section 26 or a similar list in respect of local pharmaceutical services. However, by virtue of section 43D(11), regulations need not require the two people concerned to be on lists held by the same Health Authority, but they may require that someone must be on a relevant list held by an English Health Authority if they are to be engaged to assist in providing services in England, and on a Welsh Health Authority’s list to be engaged in Wales. The intention is to help those, such as locum doctors, who work across Health Authority boundaries by normally requiring them to join just one, rather than several, supplementary lists.
Section 25: Suspension and disqualification of practitioners
125.Section 25 makes provision for Health Authorities to suspend and remove (including contingent removal) practitioners from the relevant principal family health services list . This will enable Health Authorities to take fast and effective action where concerns arise about a practitioner involved in the provision of these services.
126.New section 49F of the 1977 Act provides powers for a Health Authority to remove practitioners from the relevant principal medical, ophthalmic, dental, pharmaceutical or dispensing doctor list on the grounds of inefficiency, fraud or unsuitability.
127.Section 49G provides powers for a Health Authority in an efficiency or fraud case to contingently remove, rather than remove, a practitioner from a principal list. If a Health Authority makes a contingent removal it must impose conditions on the practitioner with a view to ensuring that the identified risks of “prejudice to the efficiency of the NHS” or preventing further fraud are eliminated. Where a practitioner fails to meet any such conditions, a Health Authority can vary them, impose new ones, or remove the practitioner from the list. For example, a practitioner might be required to submit more detailed information than normal in order to justify claims for fees and allowances. In consequence of its decision to impose conditions, the Authority may vary the individual practitioner’s terms of service.
128.Section 49H(1) provides that in a fraud or unsuitability case a Health Authority may take action against a body corporate if the individuals in control of the body corporate themselves meet the criteria for fraud or unsuitability (whether or not they were running the body corporate at the time they first met the criteria) . Section 49H(2) means that a Health Authority may take action against a practitioner in a fraud case, if the fraud was committed by someone providing services on the practitioner’s behalf and the practitioner had not taken all reasonable steps to prevent the fraud.
129.Section 49I provides powers for a Health Authority to suspend a practitioner from their list whilst considering whether that person should be removed or contingently removed or while it waits for a decision affecting the practitioner of a Court or a professional regulatory body anywhere in the world. In deciding whether to suspend a practitioner, a Health Authority must be satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest. If a Health Authority suspends a practitioner, it must specify the period of suspension. This may not exceed a maximum period of six months, except in certain cases. One is a case falling within prescribed circumstances. Regulations could, for example, prescribe that such circumstances would include where there is an ongoing criminal investigation, fraud investigation, or an investigation by the professional regulatory body. The Health Authority may also refer the matter to the FHSAA to determine whether the suspension should continue exceptionally for longer than six months. Subsections (9) and (10) provide that the Secretary of State may make regulations about payments to suspended practitioners. These regulations may include provision about the amount of the payments or the method of calculating the amount, to be determined by the Secretary of State or someone appointed by the Secretary of State.
130.Section 49J provides that, if a Health Authority decides to remove a practitioner from a list, they may also suspend that person pending any appeal to the FHSAA, if they are satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest.
131.Section 49K provides that while a practitioner is suspended, he shall be treated as though he were not on the list, even though his name was still on it.
132.Section 49L provides for a Health Authority to review any decision to contingently remove or suspend a practitioner. A Health Authority will be obliged to review a decision if requested in writing to do so by the practitioner. Following a review a Health Authority may confirm the suspension or contingent removal, end a suspension it has made, or in the case of contingent removal vary the conditions, impose different conditions, remove all conditions or remove the practitioner from a list.
133.Section 49M provides practitioners with a right of appeal, by re-determination, to the FHSAA against any decision the Health Authority may make to remove or contingently remove them from a list, or any decision on a review of a contingent removal by the Health Authority. In addition, a practitioner can appeal to the FHSAA against any further decision to vary or change the conditions imposed on the practitioner pursuant to a contingent removal. An appeal must be lodged in writing to the FHSAA within 28 days of notice of the decision. The FHSAA may make any decision which could have been made by the Health Authority. If the FHSAA decides to remove the practitioner contingently, the Health Authority and the practitioner may each apply to the FHSAA for the conditions imposed on the practitioner to be varied, for different conditions to be imposed or for the contingent removal to be revoked. The Health Authority may remove the practitioner from their list if they determine that he has failed to comply with a condition. A Health Authority decision to remove or contingently remove a practitioner from a list may not take effect until the specified time to lodge an appeal with the FHSAA has passed and no appeal has been lodged, or if an appeal is lodged, until the FHSAA has disposed of the appeal.
134.Section 49N provides for a “national disqualification”. A decision by a Health Authority would be ‘local’ and would remove a practitioner from the list covering its area. Subsection (1) provides for the FHSAA to make a decision to nationally disqualify a practitioner from the principal, supplementary and services lists of all Health Authorities or any of these as specified by the FHSAA. Subsection (3) provides that the FHSAA may also impose a national disqualification on a practitioner if it dismisses an appeal against a Health Authority’s refusal to include that practitioner in a list (or in the case of a medical list, a refusal to nominate or approve that practitioner for inclusion). Subsection (4) provides that a Health Authority may apply to the FHSAA for national disqualification to be imposed on a person after removal from, or a refusal to admit to any of its lists (i.e. principal lists, supplementary lists, and services lists). The Health Authority would be required to apply for such disqualification within three months from the date of removal or their refusal. Subsection (6) provides that no Health Authority may subsequently include a person upon whom a national disqualification has been imposed in such a list, or if already included in a list, requires the Health Authority to remove the person from it. Subsection (7) provides for the FHSAA to review a national disqualification at any time. Following a review the FHSAA may confirm or revoke the disqualification. Subject to subsection (9) a person may not request such a review until at least two years from the date of the original national disqualification, or in the case of repeat applications, at least one year from the date of the last decision. Subsection (9) provides that, in prescribed circumstances, a person may request a review either before or after these time limits.
135.New section 49O provides for regulations requiring a Health Authority to notify prescribed persons or persons of prescribed descriptions of any decision they make under this group of sections: for example, to suspend, remove or contingently remove a practitioner from a list. They may also supply any related information.
136.In addition, section 49P provides for regulations stating the circumstances in which a practitioner whom a Health Authority are investigating in order to see whether there are grounds for removal, contingent removal or suspension, or in relation to whom a decision to remove or contingently remove has not yet taken effect, or who has been suspended pending an appeal to the FHSAA, may not withdraw from a list.
137.Section 49Q provides for regulations prescribing the procedure to be followed by Health Authorities in making a decision to suspend, remove or contingently remove a practitioner. Subsection (2) requires the regulations to include provision for a practitioner to be given notice of any allegation against him; for him to put his case at a hearing before a Health Authority makes a decision, and for him to be informed of a Health Authority’s decision, the reasons for it and his right of appeal.
138.Section 49R is intended to provide a mechanism for preventing a practitioner who has been disqualified from a health board list by a NHS tribunal in Scotland or similarly from an equivalent list in Northern Ireland from being included on any list in England and Wales. Specifically, it enables the Secretary of State to make provisions in regulations to recognise the decisions of Scottish and Northern Irish tribunals in England and Wales.