The National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004

Decisions and grounds for refusal and deferral S

7.—(1) A Health Board shall refuse to include the name of an applicant in its primary medical services performers list if–

(a) the applicant is not a general medical practitioner;

(b) the applicant is –

(i) the subject of a direction given by the Professional Conduct Committee under section 36 (professional misconduct and criminal offences) of the Medical Act 1983 M1 ;

(ii) the subject of an order made by the Professional Conduct Committee under section 38(1) (power to order immediate suspension after a finding of professional misconduct or unfitness to practice) of that Act M2 ;

(iii) from the coming into force of article 13 of the 2002 Order, the subject of a direction by a Fitness to Practise Panel for erasure or immediate suspension under section 35D(2)(a) or (b), (5)(a) or (b), 10(a) or (b), or (12)(a) or (b) (functions of a Fitness to Practise Panel), or section 38(1) (power to order immediate suspension etc) of that Act M3 ; or

(iv) from the coming into force of article 14 of the 2002 Order, the subject of a direction by a Fitness to Practise Panel suspending him pursuant to rules made under paragraph 5A(3) of Schedule 4 of that Act M4 ;

(c) the applicant has been convicted in the United Kingdom of murder;

(d) the applicant has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of over 6 months;

(e) having contacted referees provided by the applicant, the Health Board is not satisfied with the references (if any) provided by the referees; F1 ...

(f) the Health Board is not satisfied that the applicant has the knowledge of English which, in the interests of the applicant and of patients who may receive primary medical services from the applicant, is necessary for performing primary medical services[F2 ; or

(g) the applicant is not a scheme member.]

(2) Paragraph (1) is without prejudice to any duty on a Health Board not to–

(a) enter an applicant in a primary medical service performers list by virtue of that applicant being disqualified under section 29B(2), 30(2) or (5) F3 ... of the Act M5 ;

(b) enter an applicant in a primary medical services performers list by virtue of that applicant being suspended under section 32A, [F4 or] 32B F5 ... of the Act M6 ; or

(c) add the applicant to a primary medical services performers list by virtue of [F6 regulation 26 (practitioners subject to inquiry)] of the National Health Service (Tribunal) (Scotland) Regulations 2004 M7 .

(3) When a Health Board has decided whether or not to include an applicant in its primary medical services performers list, the Health Board shall notify the applicant [F7 and any relevant Health Board] within 7 days of that decision of –

(a) that decision; and

(b) if the Health Board has decided not to include the applicant, the reasons for that (including any facts upon which the Health Board has relied) and of the right of appeal under regulation 13 against that decision.

[F8 (3A) When a Health Board includes an applicant in its primary medical services performers list, any other Health Board which that applicant has specified by virtue of regulation 6(2) may include the applicant in its primary medical services performers list without further enquiry.]

(4) Without prejudice to the Health Board’s power under section 29 of [F9 the] Act (the NHS Tribunal) to make representations to the Tribunal that an applicant meets [F10 a] condition for disqualification, a Health Board shall defer determination of an application for inclusion in a primary medical services performers list where–

(a) the applicant is the subject of criminal proceedings in the United Kingdom or elsewhere in the world, conviction in respect of which would be likely to lead to refusal to include in, or removal from, a primary medical services performers list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets [F11 a] condition for disqualification;

(b) the applicant is the subject of an investigation or proceedings relating to the applicant’s professional conduct by any licensing or regulatory body (including one by the Agency or another Health Board or equivalent body) in the United Kingdom or elsewhere in the world, the outcome of which would be likely to lead to refusal to include in, or removal from, a primary medical services performers list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets [F11 a] condition for disqualification; F12 ...

(c) the applicant is the subject of other proceedings in the United Kingdom which would be likely to result in the applicant being disqualified, removed or suspended from an equivalent list or would be likely to lead the Tribunal (if representations were made to it) to be of the opinion that the applicant meets [F11 a] condition for disqualification[F13 ;

(d) the applicant is suspended by a Health Board, or is suspended from an equivalent list by an equivalent body; or

(e) the applicant is being considered for listing and the Health Board is satisfied that it is necessary for the protection of members of the public that the application is deferred,]

and the Health Board shall notify the applicant [F14 and any relevant Health Board] of the deferral and the reasons for the deferral in writing.

(5) A Health Board shall defer a determination under [F15 paragraph (4)] only until the outcome of the relevant event is known.

[F16 (5A) On the expiry of section 4 of the Coronavirus Act 2020, paragraphs (6A) and (7A) shall apply to any application the determination of which was deferred under regulation 7B(4) (grounds for refusal and deferral under the Coronavirus Act 2020).]

(6) Once the outcome of the relevant event is known, the Health Board shall require the applicant to confirm that the applicant wishes to proceed with the application and provide details of any changes to the application, and any information included in the application, within 28 days (or such longer period as the Health Board specifies).

[F17 (6A) As soon as is reasonably practicable after the expiry of section 4 of the Coronavirus Act 2020, the Health Board shall require an applicant whose application was deferred under regulation 7B(4) to confirm that the applicant wishes to proceed with the application and to provide details of any changes to the application, and any information included in the application, within 28 days (or such longer period as the Health Board specifies).]

(7) On the expiry of the period of 28 days (or such longer period as the Health Board has specified) referred to in paragraph (6), the Health Board shall again consider the application and notify the applicant [F18 and any relevant Health Board] of its determination and the reasons for it (including any facts relied on) and, where the Health Board refuses the application for inclusion, of the applicant’s right of appeal under regulation 13.

[F19 (7A) On the expiry of the period referred to in paragraph (6A), the Health Board shall again consider the application and notify the applicant and any relevant Health Board of its determination and the reasons for it (including any facts relied on), and where the Health Board refuses the application for inclusion, of the applicant’s right to appeal under regulation 13 (appeal to the Scottish Ministers).]

(8) In this regulation “the outcome of the relevant event” means the final determination of any proceedings (including proceedings pending the determination of which the applicant is suspended) or investigation referred to in paragraph (4)(a) to [F20 (e)].

Textual Amendments

F1 Word in reg. 7(1) omitted (21.12.2011) by virtue of The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(a)(i) (with reg. 3)

F2 Reg. 7(1)(g) and word inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(a)(ii) (with reg. 3)

F3 Words in reg. 7(2)(a) omitted (1.4.2006) by virtue of The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(3)

F4 Word in reg. 7(2)(b) inserted (1.4.2006) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(4)(a)

F5 Words in reg. 7(2)(b) omitted (1.4.2006) by virtue of The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(4)(b)

F6 Words in reg. 7(2)(c) substituted (1.4.2006) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(5)

F7 Words in reg. 7(3) inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(b) (with reg. 3)

F8 Reg. 7(3A) inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(c) (with reg. 3)

F9 Word in reg. 7(4) inserted (1.4.2007) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2007 (S.S.I. 2007/207), regs. 1, 2(4)

F10 Word in reg. 7(4) substituted (1.4.2006) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(6)

F11 Word in reg. 7(4)(a)(b)(c) substituted (1.4.2006) by virtue of The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/136), regs. 1, 2(7)

F12 Word in reg. 7(4) omitted (21.12.2011) by virtue of The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(d)(i) (with reg. 3)

F13 Reg. 7(4)(d)(e) and semicolon inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(d)(ii) (with reg. 3)

F14 Words in reg. 7(4) inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(d)(iii) (with reg. 3)

F15 Words in reg. 7(5) substituted (7.6.2004) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2004 (S.S.I. 2004/216), regs. 1, 2(2)

F16 Reg. 7(5A) inserted (24.3.2022) by The Coronavirus Act 2020 (Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/82), regs. 1, 2(a)

F17 Reg. 7(6A) inserted (24.3.2022) by The Coronavirus Act 2020 (Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/82), regs. 1, 2(b)

F18 Words in reg. 7(7) inserted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(e) (with reg. 3)

F19 Reg. 7(7A) inserted (24.3.2022) by The Coronavirus Act 2020 (Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/82), regs. 1, 2(c)

F20 Word in reg. 7(8) substituted (21.12.2011) by The National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2011 (S.S.I. 2011/392), regs. 1, 2(4)(f) (with reg. 3)

Marginal Citations

M1 Section 36 was amended by the Medical (Professional Performance) Act 1995 (c. 51) (“the 1995 Act”), Schedule, paragraph 5 and by S.I. 2000/1803.

M2 Section 38 (1) was amended by the 1995 Act, Schedule, paragraph 7(2)(a)-(c).

M3 Sections 35D and 38 are inserted by article 13 of the 2002 Order, with effect from such date as the Secretary of State may specify.

M4 Schedule 4 is substituted by article 14 of the 2002 Order, with effect from such date as the Secretary of State may specify.

M5 Section 29B(2) was inserted by the Health Act 1999 (c. 8) (“the 1999 Act”) and amended by the Community Care and Health (Scotland) Act 2002 (asp 5) (“the 2002 Act”), schedule 2, paragraph 2(6) and the Primary Medical Services (Scotland) Act 2004 (asp 1), schedule, paragraph 1(13); section 30 was substituted by the 1999 Act, section 58(2), and amended by the 2002 Act, schedule 2, paragraph 2(7); section 31 was renumbered section 31(1) by the 1999 Act, Schedule 4, paragraph 49 and amended by the 2002 Act, schedule 2, paragraph 2(8).

M6 Section 32A was amended by the Health Act 1999 (c. 8) (“the 1999 Act”), Schedule 4, paragraph 51 and the Community Care and Health (Scotland) Act 2002 (asp 5) (“the 2002 Act”), schedule 2, paragraph 2(9); section 32B was amended by the 1999 Act, Schedule 4, paragraph 52 and the 2002 Act, schedule 2, paragraph 2(10); section 32D was amended by the 1999 Act, Schedule 4, paragraph 53 and the 2002 Act, schedule 2, paragraph 2(11).

M7 S.S.I. 2004/38.