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The National Health Service (Clinical Negligence Scheme) Regulations 2015

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The Scheme

Clinical Negligence Scheme for Trusts

3.—(1) The Scheme is to continue to have effect as if it had been established under these Regulations(1).

(2) The purpose of the Scheme is to enable eligible bodies to make provision to meet liabilities to which the Scheme applies.

(3) An eligible body may participate in the Scheme only if it is a member of the Scheme.

(4) The Secretary of State will continue to administer the Scheme.

Eligible bodies

4.—(1) The bodies which are eligible to be members of the Scheme are—

(a)the Board;

(b)a CCG;

(c)a Special Health Authority;

(d)the Care Quality Commission;

(e)Health Education England;

(f)the Health Research Authority;

(g)the Health and Social Care Information Centre;

(h)NICE;

(i)an NHS trust;

(j)an NHS foundation trust;

(k)a local authority which provides, or arranges the provision of, relevant health services under an arrangement made between the local authority and either—

(i)the Secretary of State; or

(ii)a body specified in sub-paragraph (a) to (c), (i) or (j);

(l)any body (“B”) not specified in sub-paragraphs (a) to (k) which provides relevant health services in the circumstances specified in paragraph (2), (3) or (4).

(2) The circumstances specified in this paragraph are where the relevant health services are provided under an arrangement made between B and the Board, a CCG or a Special Health Authority.

(3) The circumstances specified in this paragraph are where the relevant health services—

(a)are provided under an arrangement made between B and another body which is not a member of the Scheme; and

(b)are also the subject of an arrangement made between that other body and the Board, a CCG or a Special Health Authority.

(4) The circumstances specified in this paragraph are where the relevant health services—

(a)are provided under an arrangement made between B and another body which is not a member of the Scheme; and

(b)are also the subject of—

(i)an arrangement made between that other body and a further body which is not a member of the Scheme;

(ii)any further arrangement or arrangements which may have been entered into between bodies which are not members of the Scheme; and

(iii)an arrangement made between the Board, a CCG or a Special Health Authority and a body falling within paragraph (i) or (ii).

Membership of the Scheme

5.—(1) Any eligible body which is a member of the Scheme immediately before the appointed day is to continue to be a member of the Scheme (subject to any cancellation of the membership under regulation 6 (cancellation by a member) or 7 (cancellation by the Secretary of State)(2)).

(2) Any eligible body which is not a member of the Scheme may apply to the Secretary of State to become a member of the Scheme.

(3) An application under paragraph (2) must—

(a)be in writing;

(b)be made in such form and submitted in such manner as the Secretary of State may require;

(c)specify a date on which the eligible body proposes that its membership should start; and

(d)contain, or be accompanied by, such information as the Secretary of State may require.

(4) At any time after receiving an application and before determining it, the Secretary of State may in writing require the applicant to provide such further information as the Secretary of State considers necessary for the purposes of determining the application.

(5) Information that may be required under paragraphs (3) and (4) includes—

(a)the nature of the applicant’s relevant functions;

(b)the number of employees of the applicant who are engaged in the performance by the applicant of any relevant function, or any part of such function, which is specified by the Secretary of State;

(c)the qualifications and experience of such employees;

(d)the details of any claim made against the applicant in respect of personal injuries sustained by third parties as a result of the exercise by the applicant of any relevant function; and

(e)such other information as the Secretary of State may request for the purposes of determining the application.

(6) The Secretary of State must—

(a)within 6 weeks of receiving an application made in accordance with requirements under paragraphs (3) and (4), determine whether or not to grant it; and

(b)as soon as reasonably practicable, inform the applicant of the determination by a notice in writing which, if the application is granted, must specify the date on which the applicant’s membership is to start.

(7) In determining whether to grant an application, the Secretary of State must have regard to—

(a)the information provided by the applicant; and

(b)such other factors as the Secretary of State considers relevant.

(8) Where an eligible body’s application is granted, the body’s membership of the Scheme starts on the date specified in the notice under paragraph (6)(b).

Cancellation of membership by a member

6.—(1) This regulation applies only in relation to any member which has been a member of the Scheme for at least 3 consecutive membership years.

(2) The member may cancel its membership of the Scheme by giving the Secretary of State notice in writing of the cancellation.

(3) Where a notice under paragraph (2)—

(a)is given before 1st September in a membership year, the notice takes effect at the end of that membership year;

(b)is given on or after 1st September in a membership year, the notice takes effect at the end of the following membership year.

Cancellation of membership by the Secretary of State

7.—(1) The Secretary of State may cancel a member’s membership of the Scheme in any of the circumstances specified in paragraphs (2) to (5).

(2) The circumstances specified in this paragraph are where the member is liable to make a payment to the Secretary of State under regulation 12 (duty of members to make contributions to the Scheme) and that payment remains unpaid for a period of 28 days or more which starts with the date on which the payment becomes due.

(3) The circumstances specified in this paragraph are where the member has failed to provide any information required under regulation 20 (duty of members to provide information)—

(a)before the end of the period of 28 days which starts with the date on which the Secretary of State requests the information; or

(b)if the Secretary of State in writing allows a further period for providing such information, before the end of that further period.

(4) The circumstances specified in this paragraph are where the Secretary of State considers that it would be detrimental to the efficient administration of the Scheme or the interests of other members for the member to remain a member of the Scheme.

(5) The circumstances specified in this paragraph are where a member providing relevant health services in circumstances specified in regulation 4(2), (3) or (4) (arrangements by means of which a body may be eligible to be a member of the Scheme) either—

(a)enters into insolvency; or

(b)ceases to be an eligible body.

(6) The Secretary of State must inform the member by notice in writing that its membership of the Scheme is to cease with effect from a date specified in the notice and—

(a)where the cancellation is in circumstances specified in paragraph (2), (3) or (4)—

(i)the date to be specified must not be less than 28 days after the date on which the notice is given; but

(ii)the Secretary of State may determine not to cancel the membership by giving the member a further notice in writing to that effect;

(b)where the cancellation is in circumstances specified in paragraph (5), the date to be specified is the date on which the notice is given.

(1)

The Regulations establishing the Scheme (S.I. 1996/251) were made in exercise of powers conferred by section 126(4) of the National Health Service Act 1977 (c. 49) and powers conferred by section 21 of the National Health Service and Community Care Act 1990 (c. 19) (“the 1990 Act”). Section 21 of the 1990 Act was consolidated as section 71 of the National Health Service 2006. By virtue of paragraph 1(2) of Schedule 2 to the National Health Service (Consequential Provisions) Act 2006, anything done under a consolidated provision has effect as if it had been done under the corresponding provision of the consolidating Act. These Regulations are made in exercise of the powers conferred by sections 71 and 272(7) and (8) of the National Health Service Act 2006.

(2)

By virtue of regulation 23 of these Regulations, a notice given under the regulation 7 of the National Health Service (Clinical Negligence Scheme) Regulations 1996 (termination of membership) has effect as if given under the corresponding provisions of these Regulations in any case where membership of the Scheme has not ceased by the date on which these Regulations come into force.

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