The National Health Service (Discipline Committees) (Scotland) Regulations 2006

Explanatory Note

This note is not part of the Regulations

These Regulations consolidate, with amendments, those provisions of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992 (S.I. 1992/434) (“the 1992 Regulations”) relating to the NHS discipline committees.

They make provision for the investigation of matters relating to services provided by dentists, pharmacists, ophthalmic medical practitioners and opticians under arrangements with Health Boards in terms of sections 25, 26 and 27 of the National Health Service (Scotland) Act 1978 (c. 29) (“the Act”), and by doctors on the Health Board Lists of performers of primary medical services maintained under section 17P of the Act.

Regulation 3 provides that each Health Board must have separate medical, dental, ophthalmic and pharmaceutical discipline committees. Provision is also made for a joint discipline committee. Schedule 1 contains the provisions regarding the constitution of discipline committees.

Regulations 4 and 5 provide for the action which a Health Board has to take if it receives information which it considers could amount to allegation that a practitioner has failed to complied with his or her terms of service. In terms of regulation 4(2)(a) one such course of action is to refer the matter to another Health Board for investigation.

Regulation 5 provides for the referral of such a matter to another Health Board for investigation by Health Board’s appropriate discipline committee.

Regulation 6 prescribes the time limits which apply to any such referral.

Regulation 7 and Schedule 2 prescribe the procedure for investigation by the discipline committee.

Regulation 8 prescribes the action which is to be taken by the referring Health Board once the discipline committee has presented its report.

Regulation 9 provides the circumstances in which a practitioner may appeal to the Scottish Ministers against a determination by Health Board in terms of regulation 8.

Regulation 10 and Schedule 3 prescribe the procedure applying to any such appeal.

Regulation 11 makes provision for the recovery of amounts from practitioners following such an appeal.

Regulation 12 provides that where a practitioner dies after a disciplinary matter has been referred under regulation 5(1) but before the appropriate Health Board has made a determination under regulation 8, no further action shall be taken under these regulations in relation to that practitioner.

Regulation 13 provides for the preparation by an ophthalmic officer of reports into alleged excessive undertaking of eye examinations, issuing of optical vouchers or prescribing of supplements by ophthalmic medical practitioners or ophthalmic opticians.

Regulation 14 contains provisions regarding the services of notices.

Regulation 15 provides that the Scottish Ministers may dispense with the requirements of the Regulations applicable to notices, applications, documents and otherwise in any case where it appears to them, just and proper to do so.

Regulation 16 makes provision for the attendance of a member of the Council of Tribunals or its Scottish Committee at proceedings under the Regulations.

Regulation 17(1) made transitional provisions to the effect that any matter which had been referred by a Health Board for investigation by another Health Board’s Discipline Committee under regulation 4 of the 1992 Regulations shall, notwithstanding the provisions of regulation 18 (revocations) continue to be dealt with under the 1992 Regulations.

Regulation 17(2) contains transitional provisions regarding investigations by ophthalmic officers under regulation 20 of the 1992 Regulations.

Regulation 18 and Schedule 5 revoke the previous regulations.

The material amendments which are made by these regulations are as follows:–

In regulation 2(1) an additional sub–paragraph (e) is inserted into the definition of “terms of service” to include in the definition the terms on which additional pharmaceutical services are provided under arrangements made in accordance with directions under section 27A of the Act.

Regulation 4(5)(c) introduces an additional criterion for determining whether an allegation which is the subject of a complaint is being investigated.

Regulation 6(2), (3) and (4) contain new provisions regarding the time limits which apply where there are other investigations or proceedings relating to the disciplinary matter.

Regulation 6(7) contains new provisions regarding the time limits which apply where there are a series of events or matters which are the subject of the allegation against the practitioner.

Regulation 8(3)(a) makes a new provision allowing the Health Board to make a determination for recovery from the practitioner of the cost of any remedial treatment which is required, and that any sums so recovered are to be paid to the person who received the treatment.

Regulation 8(4) enables a discipline committee to take into consideration any other determination made in the six years prior to the referral under regulation 5(1) that the practitioner had failed to comply with terms of service.

Regulation 8(5) includes a new requirement that the Health Board must give written notice of its determination no later than 13 weeks after receipt of the discipline committee’s report.

Regulation 11(3)(b) raises the figure above which the Scottish Ministers must consult the appropriate advisory committee before considering the question of recovery of any amount from the practitioner following an appeal from £500 to £1,000.

Regulation 13 replaces the provisions in the 1992 Regulations relating to investigation of excessive testing of sight and/or excessive issuing of vouchers, with provisions relating to the investigation of excessive undertaking of eye examinations, excessive issuing of optical vouchers or excessive prescribing of supplements under general ophthalmic services in accordance with the General Ophthalmic Services Regulations, after 1st April 2006.

Schedule 1, paragraphs 1 and 2, amends the provisions regarding the constitution of discipline committees. Paragraph 1 reduces the membership of a discipline committee, other than a joint discipline committee, to 3, namely the chairperson, one lay person and one practitioner. Paragraph 2 amends the constitution of a joint discipline committee to 6, namely the chairperson and 5 other members, one of whom shall be a lay person, one a doctor, one a dentist, one a pharmacist and one ophthalmic medical practitioner or optician.

In Schedule 2, paragraphs 1 and 6, the provisions in the 1992 Regulations which precluded the Health Board relying on evidence which was prepared for the purpose of the complaint (unless it concerned evidence brought into issue by the practitioner) have been removed.