The General Ophthalmic Services Contracts Regulations 2008

PART 7 Variation and Termination of Contracts

Variation of a contract: general

33.—(1) Save as provided in sub-paragraph (2), no amendment or variation shall have effect unless it is in writing and signed by or on behalf of the PCT and the contractor.

(2) In addition to the specific provision made in paragraphs 34(6), 35(6) and 36(3), the PCT may vary the contract without the contractor’s consent where it—

(a) is reasonably satisfied that it is necessary to vary the contract so as to comply with the Act, any regulations made under the Act, or any direction given by the Secretary of State under the Act; and

(b) notifies the contractor of the wording of the proposed variation and the date upon which that variation is to take effect,

and, where it is reasonably practicable to do so, the date that the proposed variation is to take effect shall be not less than 14 days after the date on which the notice under paragraph (b) is served on the contractor.

Variation provisions specific to a contract with an individual

34.—(1) If a contractor who is an individual proposes to practise in partnership with one or more persons during the existence of the contract, the contractor shall notify the PCT of—

(a) the name of the person or persons with whom it proposes to practise in partnership; and

(b) the date on which the contractor wishes to change its status as a contractor from that of an individual to that of a partnership, which shall be not less than 28 days after the date upon which it has served the notice on the PCT pursuant to this sub-paragraph.

(2) A notice under sub-paragraph (1) shall in respect of the person or each of the persons with whom the contractor is proposing to practise in partnership, and also in respect of itself as regards the matters specified in sub-paragraph (d)—

(a) state whether he is an ophthalmic practitioner;

(b) contain an application form completed in accordance with Schedule 3 from that person;

(c) confirm that he is a person who satisfies the conditions imposed by regulation 4; and

(d) state whether or not it is to be a limited partnership, and if so, who is to be a limited and who is to be a general partner,

and the notice shall be signed by the contractor and by the person, or each of the persons (as the case may be), with whom he is proposing to practise in partnership.

(3) The contractor shall ensure that any person who will practise in partnership with it is bound by the contract, whether by virtue of a partnership deed or otherwise.

(4) If the PCT is satisfied as to the accuracy of the matters specified in sub-paragraph (2) that are included in the notice and of the suitability of that person or persons, the PCT shall give notice to the contractor confirming that the contract shall continue with the partnership entered into by the contractor and its partners, from a date that the PCT specifies in that notice.

(5) Where it is reasonably practicable, the date specified by the PCT pursuant to sub-paragraph (4) shall be the date requested in the notice served by the contractor pursuant to sub-paragraph (1), or, where that date is not reasonably practicable, the date specified shall be a date after the requested date that is as close to the requested date as is reasonably practicable.

(6) Where a contractor has given notice to the PCT pursuant to sub-paragraph (1), the PCT—

(a) may vary the contract, but only to the extent that it is satisfied is necessary to reflect the change in status of the contractor from an individual to a partnership; and

(b) if it does propose to so vary the contract, it shall include in the notice served on the contractor pursuant to sub-paragraph (4) the wording of the proposed variation and the date upon which that variation is to take effect.

Variation provisions specific to a contract with two or more individuals practising in partnership changing to a contract with an individual

35.—(1) Subject to sub-paragraph (4), where a contractor consists of two or more individuals practising in partnership, in the event that the partnership is terminated or dissolved, the contract shall only continue with one of the former partners if that partner is nominated in accordance with sub-paragraph (3) and provided that the requirements in sub-paragraphs (2) and (3) are met.

(2) A contractor shall notify the PCT at least 28 days in advance of the date on which the contractor proposes to change its status from that of a partnership to that of an individual.

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

(a) specify the date on which the contractor proposes to change its status from that of a partnership to that of an individual;

(b) specify the name of the individual with whom the contract will continue, which must be one of the partners; and

(c) be signed by all of the persons who are practising in partnership.

(4) If a partnership is terminated or dissolved because, in a partnership consisting of two individuals practising in partnership, one of the partners has died, sub-paragraphs (1) to (3) shall not apply and—

(a) the contract shall continue with the individual who has not died; and

(b) that individual shall in any event notify the PCT as soon as is reasonably practicable of that partner’s death.

(5) When the PCT receives a notice pursuant to sub-paragraph (2) or (4)(b), it shall acknowledge in writing receipt of the notice, and in relation to a notice served pursuant to sub-paragraph (2), the PCT shall do so before the date specified pursuant to sub-paragraph (3)(a).

(6) Where a contractor gives notice to the PCT pursuant to sub-paragraph (2) or (4)(b), the PCT may vary the contract, but only to the extent that it is satisfied is necessary to reflect the change in status of the contractor from a partnership to an individual.

(7) If the PCT varies the contract pursuant to sub-paragraph (6), it shall notify the contractor of the wording of the proposed variation and the date upon which that variation is to take effect.

Variation provisions specific to a contract with two or more individuals practising in partnership increasing the number of partners

36.—(1) Where a contractor has given notice under paragraph 18(1) that a new partner or partners has joined or proposes to join the partnership, if the PCT is satisfied as to the accuracy of the matters specified in paragraph 18(2) that are included in the notice and of the suitability of that person or persons, the PCT shall give notice to the contractor confirming that the contract shall continue with the partnership entered into by the contractor and its partners, from a date that the PCT specifies in that notice.

(2) Where it is reasonably practicable, the date specified by the PCT pursuant to sub-paragraph (1) shall be the date requested in the notice served by the contractor pursuant to paragraph 18 or, where that date is not reasonably practicable, the date specified shall be a date after the requested date that is as close to the requested date as is reasonably practicable.

(3) Where a contractor has given notice to the PCT pursuant to sub-paragraph (1), the PCT—

(a) may vary the contract, but only to the extent that it is satisfied is necessary to reflect the change in the partners; and

(b) if it does propose to so vary the contract, it shall include in the notice served on the contractor pursuant to sub-paragraph (1) the wording of the proposed variation and the date upon which that variation is to take effect.

Termination by agreement

37.  The PCT and the contractor may agree in writing to terminate the contract, and if the parties so agree, they shall agree the date upon which that termination should take effect and any further terms upon which the contract should be terminated.

Termination on the death of an individual contractor

38.—(1) Where the contract is with an individual who dies, the contract shall terminate at the end of the period of 7 days after the date of death unless, before the end of that period—

(a) subject to sub-paragraph (2), the PCT has agreed in writing with the contractor’s personal representatives that the contract should continue for a further period, not exceeding 3 months, after the end of the period of 7 days; and

(b) the contractor’s personal representatives have notified the PCT that they are employing one or more ophthalmic practitioners to perform ophthalmic services under the contract throughout the period for which it continues.

(2) Where the PCT is of the opinion that another contractor may wish to enter into a contract in respect of the services which were provided by the deceased, the 3 month period referred to in sub-paragraph (1)(a) may be extended by a period not exceeding 6 months as may be agreed.

(3) Sub-paragraph (1) does not affect any other rights to terminate the agreement which the PCT may have under this Part of this Schedule.

Termination by the contractor

39.—(1) A contractor may terminate the contract by serving notice on the PCT at any time.

(2) Where a contractor serves notice pursuant to sub-paragraph (1), the contract shall terminate on a date 3 months after the date on which the notice is served (“the termination date”), save that if the termination date is not the last calendar day of a month, the contract shall instead terminate on the last calendar day of the month in which the termination date falls.

(3) This paragraph and paragraph 40 are without prejudice to any other rights to terminate the contract that the contractor may have.

Late payment notices

40.—(1) The contractor may notify (a “late payment notice”) the PCT if the PCT has failed to make any payments due to the contractor in accordance with a term of the contract that has the effect specified in regulation 15 (finance), and the contractor shall specify in the late payment notice the payments that the PCT has failed to make in accordance with that regulation.

(2) Subject to sub-paragraph (3), the contractor may, at least 28 days after having served a late payment notice, terminate the contract by a further notice if the PCT has still failed to make the payments that were due to the contractor and that were specified in the late payment notice served on the PCT pursuant to sub-paragraph (1).

(3) If, following receipt of a late payment notice, the PCT refers the matter to the NHS dispute resolution procedure within 28 days of the date upon which it is served with the late payment notice, and it notifies the contractor in writing that it has done so within that period of time, the contractor may not terminate the contract pursuant to sub-paragraph (2) until—

(a) there has been a determination of the dispute pursuant to paragraph 30 and that determination permits the contractor to terminate the contract; or

(b) the PCT ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

Termination by the PCT: general

41.  The PCT may only terminate the contract in accordance with the provisions in paragraphs 17(3) or 18(3) or this Part of this Schedule.

Termination by the PCT: contractor’s inability to perform services

42.—(1) Where a contractor is an individual who is an ophthalmic practitioner and ceases to be able to perform as an ophthalmic practitioner by virtue of a suspension specified in sub-paragraph (2), the PCT shall serve notice on the contractor terminating the contract forthwith unless—

(a) the contractor is able to satisfy the PCT that it has in place adequate arrangements for the provision of ophthalmic services under the contract for so long as the suspension continues; and

(b) the PCT is satisfied that the circumstances of the suspension are such that if the contract is not terminated forthwith—

(i) the safety of the contractor’s patients is not at serious risk; and

(ii) the PCT is not at risk of material financial loss.

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

(a) suspension of the ophthalmic practitioner by his licensing body; or

(b) suspension of the ophthalmic practitioner from an ophthalmic performers list.

Termination by the PCT for the provision of untrue etc. information

43.  The PCT may serve notice on the contractor terminating the contract forthwith, or from such date as may be specified in the notice if, after the contract has been entered into, it comes to the attention of the PCT that written information—

(a) provided to the PCT by the contractor before the contract was entered into;

(b) provided to the PCT by the contractor pursuant to paragraph 17(2), 18(2) or 19(2); or

(c) which should have been notified under paragraphs 16 to 18,

in relation to the conditions set out in regulation 4, the information as to suitability in Schedule 3 and compliance with those conditions or that information was, when given, untrue or inaccurate in a material respect or, in a case to which sub-paragraph (c) applies, the information that was not notified was material.

Termination by the PCT on grounds of suitability etc.

44.—(1) The PCT shall serve notice on the contractor terminating the contract forthwith, or from such date as may be specified in the notice, if, in the case of a contract with—

(a) an individual, that individual;

(b) two or more individuals practising in partnership, any individual or the partnership; or

(c) a corporate body—

(i) that body; or

(ii) any director, chief executive or secretary of that body,

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

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

(a) it is the subject of a national disqualification or a contract disqualification order;

(b) subject to sub-paragraph (3), it is disqualified or suspended (other than by an interim suspension order or direction pending an investigation or a suspension on the grounds of ill-health) from practising by any licensing body anywhere in the world;

(c) subject to sub-paragraph (4), he has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body unless, before the PCT has served a notice terminating the contract pursuant to this paragraph, he is employed by the health service body that dismissed him or by another health service body;

(d) it is removed from, or refused admission to, a primary care list by reason of inefficiency, fraud or unsuitability (within the meaning of section 151(2), (3) and (4) respectively) unless its name has subsequently been included in such a list;

(e) he has been convicted in the United Kingdom of—

(i) murder; or

(ii) a criminal offence other than murder and has been sentenced to a term of imprisonment of over 6 months;

(f) subject to sub-paragraph (5), he has been convicted outside the United Kingdom of an offence, which would if committed in England and Wales constitute—

(i) murder; or

(ii) a criminal offence other than murder, and been sentenced to a term of imprisonment of over 6 months;

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

(h) it has—

(i) been adjudged bankrupt or had sequestration of his estate awarded unless (in either case) he 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, 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, its creditors unless it has been discharged in respect of it; or

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

(i) 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;

(j) that person is a partnership and—

(i) a dissolution of the 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 to continue, or for members of the partnership to carry on in partnership;

(k) he has been—

(i) removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which he was responsible or to which he was privy, or which he by his conduct contributed to or facilitated; or

(ii) removed under section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (powers of the Court of Session to deal with management of charities), from being concerned in the management or control of any body;

(l) he 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); or

(m) he has refused to comply with a request by the PCT for him to be medically examined on the grounds that it is concerned that he is incapable of adequately providing services under the contract and, in a case where the contract is with two or more individuals practising in partnership or with a corporate body, the PCT is not satisfied that the contractor is taking adequate steps to deal with the matter.

(3) A PCT shall not terminate the contract pursuant to sub-paragraph (2)(b) where the PCT is satisfied that the disqualification or suspension imposed by a licensing body outside the United Kingdom does not make the person unsuitable to be, as the case may be—

(a) a contractor;

(b) in the case of a contract with two or more individuals practising in partnership, a partner; or

(c) in the case of a contract with a corporate body, a director, chief executive or secretary of that body.

(4) A PCT shall not terminate the contract pursuant to sub-paragraph (2)(c)—

(a) until a period of at least 3 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 his dismissal, until proceedings before that tribunal or court are concluded,

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

(5) A PCT shall not terminate the contract pursuant to sub-paragraph (2)(f) where the PCT is satisfied that the conviction does not make the person unsuitable to be, as the case may be—

(a) a contractor;

(b) in the case of a contract with two or more individuals practising in partnership, a partner; or

(c) in the case of a contract with a corporate body, a director, chief executive or secretary of that body.

Immediate Termination by the PCT

45.  The PCT may serve notice on the contractor terminating the contract forthwith, or with effect from such date as may be specified in the notice, if—

(a) the contractor has breached the contract and, as a result of that breach, the safety of the contractor’s patients is at risk if the contract is not terminated;

(b) the contractor’s financial situation is such that the PCT considers that the PCT is at risk of material financial loss; or

(c) the contractor has breached the contract and, in the judgment of the PCT, that breach is so significant that it is inappropriate that the contract should continue.

Termination by the PCT: remedial notices and breach notices

46.—(1) Where a contractor has breached the contract other than as specified in paragraphs 42 to 45 and the breach is capable of remedy, the PCT shall, before taking any action it is otherwise entitled to take by virtue of the contract, serve a notice on the contractor requiring it to remedy the breach (“remedial notice”).

(2) A remedial notice shall specify—

(a) details of the breach;

(b) the steps the contractor must take in order to remedy the breach to the satisfaction of the PCT; and

(c) the period during which the steps must be taken (“the notice period”).

(3) The notice period shall, unless the PCT is satisfied that a shorter period is necessary to—

(a) protect the safety of the contractor’s patients; or

(b) protect itself from material financial loss,

be no less than 28 days from the date that notice is given.

(4) Where a PCT is satisfied that the contractor has not taken the required steps to remedy the breach by the end of the notice period, the PCT may terminate the contract with effect from such date as the PCT may specify in a further notice to the contractor.

(5) Where a contractor has breached the contract other than as specified in paragraphs 42 to 45 and the breach is not capable of remedy, the PCT may serve notice on the contractor requiring the contractor not to repeat the breach (“breach notice”).

(6) If, following a breach notice or a remedial notice, the contractor—

(a) repeats the breach that was the subject of the breach notice or the remedial notice; or

(b) otherwise breaches the contract resulting in either a remedial notice or a breach notice,

the PCT may serve notice on the contractor terminating the contract with effect from such date as may be specified in that notice.

(7) The PCT shall not exercise its right to terminate the contract under sub-paragraph (6) unless it is satisfied that the cumulative effect of the breaches is such that the PCT considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract.

(8) If the contractor is in breach of any obligation and a breach notice or a remedial notice in respect of that breach has been given to the contractor, the PCT may withhold or deduct monies which would otherwise be payable under the contract in respect of that obligation which is subject of the breach.

Termination by the PCT: additional provisions

47.—(1) If the PCT becomes aware that the contractor is carrying on any business which the PCT considers to be detrimental to the contractor’s performance of its obligations under the contract—

(a) the PCT shall be entitled to give notice to the contractor requiring that it ceases carrying on that business before the end of a period of not less than 28 days beginning on the day on which the notice is given (“the notice period”); and

(b) if the contractor has not satisfied the PCT that it has ceased carrying on that business by the end of the notice period, the PCT may, by a further notice, terminate the contract forthwith or from such date as may be specified in the notice.

(2) Where the contractor is—

(a) an individual, who is a registered optometrist;

(b) a partnership and one of the partners is a registered optometrist; or

(c) a corporate body and it or a director, chief executive or the secretary of that body is a registered optometrist,

who is the subject of a direction pursuant to section 13F of the Opticians Act (powers of the fitness to practice committee)(1), or an order pursuant to section 13H (financial penalty order) of that Act, the PCT may, by notice, terminate the contract if it considers that as a consequence the contractortheis no longer suitable to be a contractor.

(3) Where the contractor is two or more persons practising in partnership, the PCT shall be entitled to terminate the contract by notice on such date as may be specified in that notice where one or more partners have left the practice during the existence of the contract if, in its reasonable opinion, the PCT considers that the change in membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the PCT to perform its obligations under the contract.

(4) A notice given to the contractor pursuant to sub-paragraph (3) shall specify—

(a) the date upon which the contract is to be terminated; and

(b) the PCT’s reasons for considering that the change in the membership of the partnership is likely to have the serious adverse impact specified in sub-paragraph (3).

Contract sanctions

48.—(1) In this paragraph and paragraph 49, “contract sanction” means—

(a) termination of specified reciprocal obligations under the contract;

(b) suspension of specified reciprocal obligations under the contract for a period of up to 6 months; or

(c) withholding or deducting monies otherwise payable under the contract.

(2) Where the PCT is entitled to terminate the contract pursuant to this Part of this Schedule, it may instead impose any of the contract sanctions if it is reasonably satisfied that the contract sanction to be imposed is appropriate and proportionate to the circumstances giving rise to its entitlement to terminate the contract.

(3) If the PCT decides to impose a contract sanction, it must notify the contractor of the contract sanction that it proposes to impose, the date upon which that sanction will be imposed and provide in that notice an explanation of the effect of the imposition of that sanction.

(4) Subject to paragraph 49, the PCT shall not impose the contract sanction until at least 28 days after it has served notice on the contractor pursuant to sub-paragraph (3), unless the PCT is satisfied that it is necessary to do so in order to—

(a) protect the safety of the contractor’s patients; or

(b) protect itself from material financial loss.

(5) Where the PCT imposes a contract sanction, the PCT shall be entitled to charge the contractor the reasonable costs of additional administration that the PCT has incurred in order to impose, or as a result of imposing, the contract sanction.

Contract sanctions and the NHS dispute resolution procedure

49.—(1) If there is a dispute between the PCT and the contractor in relation to a contract sanction that the PCT is proposing to impose, subject to sub-paragraph (4), the PCT shall not impose the proposed contract sanction, except in the circumstances specified in sub-paragraph (2) or (3).

(2) If the contractor refers the dispute relating to the contract sanction to the NHS dispute resolution procedure within 28 days beginning on the date on which the PCT served notice on the contractor in accordance with paragraph 30(3) (or such longer period as may be agreed in writing with the PCT), and notifies the PCT that it has done so, the PCT shall not impose the contract sanction unless—

(a) there has been a determination of the dispute pursuant to paragraph 33 and that determination permits the PCT to impose the contract sanction; or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(3) If the contractor does not invoke the NHS dispute resolution procedure within the time specified in sub-paragraph (2), the PCT shall be entitled to impose the contract sanction forthwith.

(4) If the PCT is satisfied that it is necessary to impose the contract sanction before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor’s patients; or

(b) protect itself from material financial loss,

the PCT shall be entitled to impose the contract sanction forthwith, pending the outcome of that procedure.

Termination and the NHS dispute resolution procedure

50.—(1) Where the PCT is entitled to serve notice on the contractor terminating the contract pursuant to any provision of this Schedule, the PCT shall, in the notice served on the contractor pursuant to those provisions, specify a date on which the contract terminates, that is not less than 28 days after the date on which the PCT has served that notice on the contractor, unless sub-paragraph (2) applies.

(2) This sub-paragraph applies if the PCT is satisfied that a period less than 28 days is necessary in order to—

(a) protect the safety of the contractor’s patients;

(b) protect itself from material financial loss; or

(c) otherwise protect the interest of the public.

(3) In a case falling with sub-paragraph (1), where the exceptions in sub-paragraph (2) do not apply, where the contractor invokes the NHS dispute resolution procedure before the end of the period of notice referred to in sub-paragraph (1), and it notifies the PCT that it has done so, the contract shall not terminate at the end of the notice period, but instead shall only terminate in the circumstances specified in sub-paragraph (4).

(4) The contract shall only terminate if and when—

(a) there has been a determination of the dispute pursuant to paragraph 31 and that determination permits the PCT to terminate the contact; or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(5) If the PCT is satisfied that it is necessary to terminate the contract before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor’s patients; or

(b) protect itself from material financial loss,

sub-paragraphs (3) and (4) shall not apply and the PCT shall be entitled to confirm, by notice to be served on the contractor, that the contract will nevertheless terminate at the end of the period of the notice the PCT served pursuant to the provisions of this Part of this Schedule.

(1)

Sections 13F and 13H were inserted by S.I. 2005/848.