The Act
Overview
Part 1: Non-surgical Procedures
Section 4: Meaning of “permitted premises”
34.This section sets out the meaning of “permitted premises” in which a non-surgical procedure may be provided.
Independent health care services
35.Under section 4(1)(a) and (b), premises of certain independent clinics and independent hospitals (within the relevant meanings given by section 10F(2) of the 1978 Act) which are registered under section 10P of that Act are defined as “permitted premises”.
Independent clinics and independent hospitals: service to be registered with HIS
36.Independent hospitals and independent clinics both fall within the definition of an “independent health care service” in section 10F(1) of the 1978 Act. That means that they are regulated by HIS. HIS regulates independent healthcare by inspecting services to ensure that they comply with standards and regulations, such as the requirements set out in the Healthcare Improvement Scotland (Requirements as to Independent Health Care Services) Regulations 2011 (S.S.I. 2011/182) relating to fitness of premises, staffing and keeping records of patient care.
37.Any provider of non-surgical procedures that is an independent hospital or an independent clinic must register with HIS to avoid committing an offence under section 3 of the Act. If a provider does not register with HIS, an offence may be committed under section 3 of the Act (providing a non-surgical procedure outwith “permitted premises”) and, separately, under section 10Z9 of the 1978 Act (offences in relation to registration).
Independent clinics and independent hospitals: requirements relating to premises
38.For premises of an independent hospital to count as “permitted premises”, the address of the premises must be entered in the register of registered independent health care services. That register is maintained by HIS under regulation 6 of the Healthcare Improvement Scotland (Applications and Registration) Regulations 2011 (S.S.I. 2011/35).
39.Premises of an independent clinic can be “permitted premises” if either—
the address of the premises is entered in the register, or
the premises are a vehicle (as defined in section 4(4) of the Act), other than a vehicle that is the client’s dwelling.
Independent clinic: services to be provided or managed by certain persons
40.Only independent clinics whose services are provided or managed by certain persons who are listed in subsection (2) fall within the definition of “
41.Those persons listed in subsection (2) are—
a registered medical practitioner, as defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 as meaning a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise under that Act,
a person registered in the dentists register under the Dentists Act 1984,
a nurse independent prescriber i.e. a nurse who is registered in the register under article 5 of the Nursing and Midwifery Order 2001 (S.I. 2002/253) (see the definition of “registered” in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010) by virtue of qualifications in nursing, and who is noted in that register as being qualified to order drugs, medicines and appliances as a nurse independent prescriber,
a midwife independent prescriber, i.e. a midwife who is registered in the register under article 5 of the Nursing and Midwifery Order 2001 (see the definition of “registered” in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010) by virtue of qualifications in midwifery, and who is noted in that register as being qualified to order drugs, medicines and appliances as a nurse independent prescriber,
a pharmacist independent prescriber as defined in section 4(4) of the Act.
42.Note that this is a narrower list of persons than that given in section 1(3) of the Act, and does not affect the health care exception in section 1(1)(b)(ii) of the Act (which disapplies the Act to procedures provided by health care providers for the purpose of, or in connection with, preventing, diagnosing or treating an illness of the person receiving the procedure).
43.The following are not “
a clinic comprised in a post-16 education body,
a clinic comprised in a school,
a clinic provided by the Common Services Agency, a Health Board or a Special Health Board,
a clinic or undertaking that is provided by an employer and services are provided only to the employees of that employer,
a clinic that provides pharmaceutical services in accordance with arrangements made pursuant to section 27 of the 1978 Act,
a nurse agency registered with Social Care and Social Work Improvement Scotland by virtue of section 59 of the Public Services Reform (Scotland) Act 2010,
a clinic or undertaking that only provides first aid or therapy effected through speech (or both).
44.The list of persons specified in section 4(2) is narrower than the list of persons specified in the definition of “independent clinic” in section 10F(2) of the 1978 Act but the same approach is taken in the Act as that in the 1978 Act by referring to the persons who provide or manage the clinic’s services (noting that “provide” in this context includes “manage” by virtue of section 108(1) of the 1978 Act).
Other settings
45.Section 4(1)(c) to (f) of the Act allows non-surgical procedures to be provided in registered pharmacies and from GP practice premises and dental practice premises which also provide NHS services (excluding care homes and dwellings).
46.In accordance with section 10F(2A) of the 1978 Act, these providers do not fall within the definition of “independent clinic” and therefore do not need to register with HIS. This is because these settings are already regulated, or the health professionals working there are subject to existing professional regulation.
Power to modify the meaning of “permitted premises”
47.Subsection (3) contains a power to modify section 4 of the Act so as to modify the meaning of “permitted premises”. Section 22(4) of the Act provides that this power is subject to the affirmative procedure.
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