The National Health Service (Clinical Negligence Scheme) Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations apply to England and make provision in connection with the Clinical Negligence Scheme for Trusts (“the Scheme”). The Scheme enables members exercising functions in connection with the National Health Service to make provision for meeting liabilities to which the Scheme applies. These Regulations consolidate with amendments the provisions of the National Health Service (Clinical Negligence Scheme) Regulations 1996 (S.I. 1996/251) which first established the Scheme and provide for the continuation of the Scheme under these Regulations.

Regulation 3 sets out the Scheme’s purpose and provides that it will continue to be administered by the Secretary of State. Regulation 4 lists the bodies eligible to become members and regulation 5 provides that existing members are to continue their membership and sets out the procedure for other eligible bodies to become a member. Membership may be cancelled under regulation 6 by any member of at least 3 years standing. The Secretary of State may also cancel a body’s membership under regulation 7 on grounds which include insolvency and non-payment of a member’s contribution to the Scheme.

Regulations 8 to 10 set out the liabilities to which the Scheme applies. Regulation 8 provides that the Scheme applies to liabilities in tort which a member owes to a third party in connection with personal injury or loss arising from negligent acts or omissions in the exercise of specified health service functions of the member. In the limited circumstances set out in regulations 9 and 10, the Scheme also applies to liabilities in negligence which a non-member owes to third parties and for which members of the Scheme are treated as liable. Regulation 9 identifies the member of the Scheme which is to be treated as liable in respect of negligence liabilities that arose whilst relevant health services were being provided by a body which has since had its Scheme membership cancelled on the grounds of insolvency. Regulation 10 makes similar provision in respect of negligence liabilities that arose whilst relevant health services were being provided by non-members under commissioning or sub-contracting arrangements.

Regulations 11 to 13 contain provision for the calculation (and in certain circumstances the revision) of amounts which members are required to contribute for the purposes the Scheme and sets out when such contributions must be made.

Regulations 14 to 19 set out the circumstances in which payments are to be made by the Secretary of State under the Scheme by or on behalf of members. Regulation 14 deals with payments in respect of the liabilities of members, regulation 15 deals with payments in respect of the liabilities of former members in respect of events occurring during membership and regulation 16 specifies circumstances in which any such liabilities are excluded. Regulation 17 applies regulations 14 to 16 with modifications to the cases where specified members of the Scheme are treated as liable in respect of the negligence liabilities of others (as set out in regulations 9 and 10). Amounts to be paid are determined in accordance with regulation 18 and provision for the making of payments on account is contained in regulation 19.

Regulation 20 sets out the requirements for members to provide information to the Secretary of State for the purposes of the Scheme. Regulation 21 requires the Secretary of State to make available to eligible bodies any directions or guidance which the Secretary of State gives to any body directed to administer the Scheme on the Secretary of State’s behalf. Regulation 22 revokes with certain savings the statutory instruments which are consolidated by these Regulations. Regulation 23 contains transitional provision.

An impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.