The General Medical Services Transitional and Consequential Provisions (No. 2) (Northern Ireland) Order 2004

PART 7 TRANSITIONAL ARRANGEMENTS: THE HEALTH AND PERSONAL SOCIAL SERVICES (DISCIPLINARY PROCEDURES) REGULATIONS (NORTHERN IRELAND) 1996

Interpretation

74.—(1) In this Part –

“the Disciplinary Procedures Regulations” means the Health and Personal Social Services (Disciplinary Procedures) Regulations (Northern Ireland)1996(1);

“amendments” in respect of any regulation or regulations in the Disciplinary Procedures Regulations means amendments made to that regulation by paragraph 8 of Schedule 1 to this Order;

“appropriate Board” has the same meaning as in the Disciplinary Procedures Regulations;

“contracting Board” means a Board that has entered into a default contract or a general medical services contract (as the case may be) with –

(a)

a doctor who is the subject of the allegation,

(b)

a partnership, where a doctor who is the subject of the allegation is a partner,

(c)

a limited company, where a doctor who is the subject of the allegation is a legal and beneficial shareholder of shares in that company;

“doctor” has the same meaning as in the Disciplinary Procedures Regulations;

“relevant contractor” means a party to a general medical services contract or default contract with a contracting Board, where that contractor is –

(a)

a doctor who is the subject of the allegation,

(b)

a partnership, where a doctor who is or was the subject of the allegation is a partner in that partnership,

(c)

a limited company, where a doctor who is or was the subject of the allegation is a legal and beneficial shareholder of shares in that company; and

“relevant date” means 1st April 2004.

(2) Unless the context otherwise requires, any reference in this Part to –

(a) a numbered regulation is to the regulation bearing that number in the Disciplinary Procedures Regulations; and

(b) a numbered Schedule is to the Schedule to the Disciplinary Procedures Regulations bearing that number.

Cases where no decision has been made before the relevant date as to whether disciplinary action should be taken (regulation 4 of the Disciplinary Procedures Regulations)

75.—(1) Where, before the relevant date, or on or after the relevant date in respect of a matter that occurred before the relevant date, a Board receives, or has received information that could amount to an allegation that a doctor had failed to comply with his terms of service and –

(a) that Board, or its reference committee (as the case may be), has not taken a final decision pursuant to regulation 4(1) before the relevant date as to whether it will take no action or take one or both of the courses of action set out in regulation 4(2); and

(b) any time limit specified in regulation 6 has not expired,

paragraph (2) shall apply.

(2) Where this paragraph applies, the Board shall –

(a) if it is the appropriate Board, continue to be the appropriate Board for the purposes of the Disciplinary Procedures Regulations, and consider and take such action as it sees fit pursuant to the Disciplinary Procedures Regulations, subject to Article 74, as if the amendments to regulations 2 to 8 and Schedules 2 and 4 had not taken effect; or

(b) if it is not the appropriate Board, forward the information to that Board as soon as is reasonably practicable, and that Board shall consider the information received and take such action as it sees fit pursuant to the Disciplinary Procedures Regulations, subject to the time limits specified in the Disciplinary Procedures Regulations, and Article 74, as if the amendments to regulations 2 to 8 and Schedules 2 and 4 had not taken effect.

(3) If the appropriate Board, or its reference committee, decides, pursuant to paragraph (2)(a) or (b), to refer the matter to the discipline committee of another Board (B) in accordance with regulation 4(2)(a) or (7) –

(a) that Board (B) shall investigate the matter and report to the appropriate Board as if the amendments to regulations 2 to 8 and Schedules 2 and 4 had not taken effect; and

(b) the appropriate Board shall be entitled, subject to Article 74, to take any action it could have taken pursuant to the Disciplinary Procedures Regulations as if those amendments had not taken effect.

Referrals to investigating discipline committees before the relevant date (regulation 5 of the Disciplinary Procedures Regulations)

76.  Where a Board (A) has, before the relevant date, referred a matter in respect of a doctor to another Board (B) in accordance with regulation 4(2)(a) or (7) and –

(a) that matter has not been finally determined by the discipline committee of that Board (B) before the relevant date –

(i) the discipline committee of that Board (B) shall investigate the matter and report to the Board (A) as if the amendments to regulations 2 to 8 and Schedules 2 and 4 had not taken effect, and

(ii) the Board (A) shall be entitled to take any action it could have taken pursuant to the Disciplinary Procedures Regulations as if those amendments had not taken effect, subject to Article 74; or

(b) that Board (A) has received the report of the discipline committee of the Board (B) but has not yet determined what (if any) action to take as a result of the report, the Board (A) shall be entitled to take any action it could have taken pursuant to the Disciplinary Procedures Regulations as if the amendments to regulations 2 to 8 had not taken effect, subject to Article 74.

Determination of a Board or the Department made before the relevant date (regulations 8, 9, 10 and 11 of the Disciplinary Procedures Regulations)

77.—(1) Where, before the relevant date, a Board (or where relevant, the Department) has determined pursuant to regulation 8(5)(a) and 9(3) or regulation 11 (as the case may be) that an amount should be recovered from the doctor, insofar as any of that amount has not been recovered before the relevant date, it shall continue to be recoverable by the Board that was the appropriate Board for the purposes of the Disciplinary Procedures Regulations in respect of that matter, and it shall be treated as a debt owed by that doctor to that Board.

(2) Where a contracting Board has record of, or receives notification of, an adverse determination made before the relevant date pursuant to regulation 8, 9, 10 or 11 in respect of a doctor (where, in the case of a determination under regulation 8, such a determination was not overturned on appeal), paragraph (3) shall apply without prejudice to any other rights the contracting Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

(3) Where this paragraph applies, the contracting Board –

(a) may take into account that adverse determination in relation to a relevant contractor if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 107(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract; but

(b) shall not, pursuant to sub-paragraph (a), take into account any adverse determination that was made that occurred more than 6 years prior to the date upon which the contracting Board is considering terminating the general medical services contract or the default contract (as the case may be).

Determination of a Board made on or after the relevant date (regulation 8 of the Disciplinary Procedures Regulations)

78.—(1) Where, on or after the relevant date, an appropriate Board is determining what (if any) action to take pursuant to regulation 8 in accordance with provision made in this Part, it shall make such a determination in accordance with such limitations and modifications to that regulation as are specified in this Article.

(2) The appropriate Board may –

(a) pursuant to regulation 8(1)(c)(i), determine that no further action should be taken;

(b) pursuant to regulation 8(3), determine after consultation with the Local Medical Committee that it would have considered it appropriate to impose a special limit on the number of persons for whom a doctor may undertake to provide treatment;

(c) pursuant to regulation 8(5)(a), determine that an amount shall be recovered from the doctor; or

(d) pursuant to regulation 8(5)(c), determine that it would have warned the doctor to comply more closely with his terms of service in future, if those terms of service were still applicable,

and if it makes any one or more of the decisions specified in sub-paragraphs (b) to (d), it shall, after the period specified in regulation 8(11)(a) or (b) (as applicable) has expired, notify in writing the contracting Board of its decision and the reasons for it, if the Board is a different Board to the appropriate Board.

(3) Where, pursuant to paragraph (2)(c), the appropriate Board determines that an amount should be recovered from the doctor, regulation 8(8) shall not apply and that amount shall be recoverable by the appropriate Board and it shall be treated as a debt owed by that doctor to that appropriate Board.

(4) Where the appropriate Board has notified the contracting Board that it has made any of the determinations specified in paragraph (2)(b) to (d), or where the appropriate Board is the contracting Board, paragraph (5) shall apply without prejudice to any other rights the contracting Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

(5) Where this paragraph applies, the contracting Board –

(a) may, in relation to a relevant contractor, take into account the determination of the appropriate Board if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 107(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract; but

(b) shall not, pursuant to sub-paragraph (a), take into account any determination of an appropriate Board that was made more than 6 years prior to the date upon which the contracting Board is considering terminating the general medical services contract or the default contract (as the case may be).

Appeals to the Department against determinations of Boards (regulations 9, 10 and 11 of the Disciplinary Procedures Regulations)

79.—(1) Where –

(a) a doctor has appealed against a determination of a Board in accordance with regulation 9 before the relevant date, but that appeal has not been finally determined before that date; or

(b) in respect of a determination made by a Board in accordance with regulation 8 before the relevant date, the time limit specified in regulation 9(2) for appealing that determination has not expired before the relevant date, and the doctor serves a notice of appeal on or after the relevant date but within the time limit specified in regulation 9(2),

that appeal shall be determined pursuant to regulations 9, 10 and 11, as if the amendments to those regulations had not taken effect.

(2) Where an appropriate Board has made a determination in respect of a doctor on or after the relevant date pursuant to this Part –

(a) the doctor shall be entitled to appeal against that determination in accordance with regulation 9; and

(b) that appeal shall be determined pursuant to regulations 9, 10 and 11,

as if the amendments to those regulations and had not taken effect.

(3) Where, on or after the relevant date, the Department is determining pursuant to regulation 9, 10 or 11 (as the case may be) what (if any) action to take in respect of a doctor, it shall make a determination pursuant to those regulations as if the amendments to those regulations had not taken effect and that determination shall have effect in accordance with this Article.

(4) If, in accordance with paragraph (3), the Department determines pursuant to –

(a) regulation 8(3), that it would have considered it appropriate to impose a special limit on the number of persons for whom a doctor may undertake to provide treatment;

(b) regulation 9(3)(d), that there has been an overpayment and, if so, what amount;

(c) to regulation 8(5)(a) and 9(3) or 11, that an amount shall be recovered from the doctor; or

(d) to regulation 8(5)(c), that it would have warned the practitioner to comply more closely with his terms of service in future, if those terms of service were still applicable,

it shall, in addition to the persons specified in regulation 10(14), notify the Board specified in paragraph (5).

(5) The Department shall, pursuant to paragraph (4)(a) to (d), notify the contracting Board of its determination if that Board is different from the Board referred to in regulation 10(14).

(6) Where, pursuant to regulation 8(5)(a) and 9(3) or 11, the Department has determined that an amount shall be recovered from a doctor it shall direct the appropriate Board, to recover that amount from the doctor and that amount shall be a debt owed to that appropriate Board.

(7) Where, pursuant to paragraph (5), the Department has notified the contracting Board that it has taken any of the decisions specified in paragraph (4)(a) to (d), whether or not the contracting Board is also the appropriate Board, paragraph (8) shall apply without prejudice to any other right the contracting Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

(8) Where this paragraph applies, the contracting Board may, in relation to a relevant contractor, take into account the determination of the Department if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 107(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

(9) The contracting Board shall not, pursuant to paragraph (8), take into account any notification received that relates to a determination that was made by the Department that occurred more than 6 years prior to the date upon which the contracting Board is considering the matter pursuant to paragraph (8).

Excessive prescribing (regulation 14 of the Disciplinary Procedures Regulations)

80.—(1) Where, on 31st March 2004, a Board had –

(a) referred a question of excessive prescribing for investigation and determination by a professional committee under regulation 14; and

(b) that committee had not yet made its determination,

the investigation by the committee shall continue and its determination be made as if that regulation were still in force.

(2) Where, on 31st March 2004, a professional committee had given notice of its determination to a medical practitioner under paragraph (18) of regulation 14 but –

(a) the medical practitioner had not given notice of appeal in accordance with paragraph (20) of that regulation; and

(b) the time for appealing in paragraph (19) of that regulation had not yet expired,

the time for appealing shall continue as if regulation 14 were still in operation.

(3) Where –

(a) on 31st March 2004, a medical practitioner had given notice of appeal against the determination of a professional committee in accordance with paragraph (20) of regulation 14 but that appeal had not been determined or withdrawn; or

(b) a medical practitioner has given notice of such an appeal after 31st March 2004, pursuant to paragraph (2),

that appeal shall continue to be dealt with as if regulation 14 were still in operation.

(4) In this Article, “professional committee” has the same meaning as in regulation 14.

Investigation of certification (regulation 15 of the Disciplinary Procedures Regulations)

81.—(1) Where the Department has –

(a) before the relevant date, or on or after the relevant date in respect of an investigation that took place before the relevant date, received information in relation to an investigation of medical certificates issued under and for the purposes of the Social Security (Medical Evidence) Regulations (Northern Ireland) 1976(2) by a doctor, but he has not yet determined whether to refer the matter for consideration pursuant to regulation 15(1); or

(b) before the relevant date, pursuant to regulation 15(1), referred a matter to a Local Medical Committee, or to a joint committee of two or more Local Medical Committees and the Local Medical Committee has not yet finally determined the matter pursuant to regulation 15(6),

the Department may, in a case falling within sub-paragraph (a), refer the matter as if the amendments to regulation 15 had not taken effect and, in relation to both sub-paragraphs, the Local Medical Committee or joint committee of Local Medical Committees shall consider or continue to consider (as the case may be) and determine the matter in accordance with regulation 15, subject to the provisions in this Article.

(2) Where, pursuant to paragraph (1), the Local Medical Committee makes a determination pursuant to regulation 15(6), it shall forward its report to the contracting Board, in addition to the persons specified in regulation 15(6), unless the doctor exercises his right of appeal pursuant to regulation 15.

(3) Where –

(a) a doctor –

(i) has appealed against a finding of a Local Medical Committee made before the relevant date pursuant to regulation 15(7), and within the time limit specified in that paragraph, and that appeal has not been determined before the relevant date, or

(ii) appeals against a finding of a Local Medical Committee on or after the relevant date in respect of a finding of a Local Medical Committee made pursuant to paragraph (1) within the time limit specified in regulation 15(7); or

(b) the Department –

(i) has referred a finding of a Local Medical Committee made before the relevant date pursuant to regulation 15(10), and that referral has not been determined before the relevant date, or

(ii) referred a finding of a Local Medical Committee on or after the relevant date in respect of a finding of a Local Medical Committee made pursuant to paragraph (1),

that appeal or referral shall be determined in accordance with regulation 15 as if the amendments to that regulation had not taken effect, save that written notification of the determination made by the referee shall be given to the contracting Board.

(4) The Department may, on or after the relevant date, determine that, pursuant to regulation 16(12), an amount should be recovered from a doctor, and shall, in determining whether an amount should be recovered, act as if the amendments to regulations 11(3), (4) and (5) and 15 had not taken effect.

(5) Where pursuant to regulation 15(12), the Department has determined that an amount should be recovered from a doctor –

(a) before the relevant date, where that amount has not been fully recovered before the relevant date; or

(b) on or after the relevant date pursuant to this Article,

that amount shall be recoverable by the appropriate Board, insofar as it has not already been recovered before the relevant date in respect of an amount falling within sub-paragraph (a), and that amount shall be a debt owed to that Board.

(6) Where the contracting Board has received notification pursuant to this Article of an adverse determination in respect of the doctor pursuant to regulation 15, paragraph (7) shall apply without prejudice to any other right the contracting Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

(7) Where this paragraph applies, the contracting Board may, in relation to a relevant contractor, take into account the adverse determination of the Department if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 107(7) of Schedule 5 to the Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

(8) The contracting Board shall not, pursuant to paragraph (7), take into account any notification that relates to a determination that was made more than 6 years prior to the date upon which the contracting Board is considering the matter pursuant to paragraph (7).

Investigation of record keeping (regulation 16 of the Disciplinary Procedures Regulations)

82.—(1) Where the Board has –

(a) before the relevant date, or on or after the relevant date in respect of an examination of record cards by a medical officer that took place before the relevant date, received information in relation to an examination of record cards held by a doctor, but it has not yet determined whether to refer the matter for consideration pursuant to regulation 16(1); or

(b) before the relevant date, pursuant to regulation 16(1), referred a matter to a Local Medical Committee and the Local Medical Committee has not yet finally determined the matter pursuant to regulation 16(8),

the Board may, in a case falling within sub-paragraph (a), refer the matter as if the amendments to regulation 16 had not taken effect and, in relation to both sub-paragraphs, the Local Medical Committee shall consider or continue to consider (as the case may be) and determine the matter in accordance with regulation 16, subject to the provisions in this Article.

(2) Where, pursuant to paragraph (1), the Local Medical Committee makes a determination pursuant to regulation 16(8), it shall forward its report to the contracting Board, in addition to the persons specified in regulation 16(9), unless the doctor exercises his right of appeal pursuant to regulation 16(10).

(3) Where –

(a) a doctor –

(i) has appealed against a finding of a Local Medical Committee made before the relevant date pursuant to regulation 16(10), and within the time limit specified in that paragraph, and that appeal has not been determined before the relevant date, or

(ii) appeals against a finding of a Local Medical Committee on or after the relevant date in respect of a finding of a Local Medical Committee made pursuant to paragraph (1) within the time limit specified in regulation 16(10); or

(b) the Department –

(i) has referred a finding of a Local Medical Committee made before the relevant date pursuant to regulation 16(12), and that referral has not been determined before the relevant date, or

(ii) referred a finding of a Local Medical Committee on or after the relevant date in respect of a finding of a Local Medical Committee made pursuant to paragraph (1),

that appeal or referral shall be determined in accordance with regulation 16 as if the amendments to that regulation (and regulation 16(8) and (9) where applicable) had not taken effect, save that written notification of the determination made by the referee shall be given to the contracting Board.

(4) The Department may, on or after the relevant date, determine that, pursuant to regulation 16(14), an amount should be recovered from a doctor and shall, in determining whether an amount should be recovered, act as if the amendments to regulations 11(3), (4) and (5) and 16 had not taken effect.

(5) Where pursuant to regulation 16(14), the Department has determined that an amount should be recovered from a doctor –

(a) before the relevant date, where that amount has not been fully recovered before the relevant date; or

(b) on or after the relevant date pursuant to this Article,

that amount shall be recoverable by the appropriate Board, insofar as it has not already been recovered before the relevant date in respect of an amount falling within sub-paragraph (a), and that amount shall be a debt owed to that Board.

(6) Where the contracting Board has received notification pursuant to this Article of an adverse determination in respect of the doctor pursuant to regulation 16, paragraph (7) shall apply without prejudice to any other right the contracting Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

(7) Where this paragraph applies, the contracting Board may, in relation to a relevant contractor, take into account the adverse determination of the Department if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 107(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

(8) The contracting Board shall not, pursuant to paragraph (7), take into account any notification that relates to a determination that was made more than 6 years prior to the date upon which the contracting Board is considering the matter pursuant to paragraph (7).

Decision as to treatment for which fees may be charged by doctors (regulation 17 of the Disciplinary Procedures Regulations)

83.—(1) Where a question has arisen as to whether any treatment given by a doctor to a patient is treatment for which he may demand or accept a fee from a patient within the meaning of regulation 17(1), and that question has arisen before the relevant date, or on or after the relevant date in respect of any fee charged by a doctor before the relevant date, and that question –

(a) has not been referred for consideration by the Local Medical Committee; or

(b) has been referred to the Local Medical Committee and the Local Medical Committee has not yet finally determined the matter pursuant to regulation 17,

the question may, in a case falling within sub-paragraph (a), be referred as if the amendments to that regulation and Schedule 4 had not taken effect and, in relation to both sub-paragraphs, the Local Medical Committee shall consider or continue to consider (as the case may be) and determine the matter in accordance with regulation 17 and Schedule 4, subject to the provisions in this Article.

(2) Where a Local Medical Committee makes a determination pursuant to paragraph (1), regulation 17(6) shall apply to the Board.

(3) Where a Board –

(a) has referred a finding of a Local Medical Committee made before the relevant date to the Department pursuant to regulation 17(2), and that referral has not been determined before the relevant date, or

(b) refers a finding of a Local Medical Committee on or after the relevant date,

that referral shall be determined in accordance with regulation 17 and Schedule 4 as if the amendments to that regulation and Schedule had not taken effect.

(4) Where the Department –

(a) has referred a finding of a Local Medical Committee made before the relevant date pursuant to regulation 17(6), and that referral has not been determined before the relevant date; or

(b) refers a finding of a Local Medical Committee on or after the relevant date,

that referral shall be determined in accordance with regulation 17 and Schedule 4 as if the amendments to that regulation and Schedule had not taken effect.

Functions of Local Medical Committees

84.  Where –

(a) a Local Medical Committee has, before the relevant date had any matter referred to it for its consideration that it had not finally determined before the relevant date; and

(b) pursuant to this Part, that matter is to be determined by the Local Medical Committee on or after the relevant date,

the Local Medical Committee that had the matter referred to it shall be deemed to be a Local Medical Committee that is recognised by a Board pursuant to Article 55B of the 1972 Order for the purpose of exercising the continuing functions conferred on it in relation to the matter by this Part.

(1)

S.R. 1996 No. 137 as amended by S.R. 1999 No. 15

(2)

S.R.1976 No. 175