The National Health Service (Service Committees and Tribunal) Regulations 1992

Procedure on appeal E+W

11.—(1) Subject to paragraph (5), if the Secretary of State, after considering a notice of appeal and any further particulars furnished by the appellant, is of the opinion that the notice and particulars disclose no reasonable grounds of appeal or that the appeal is otherwise vexatious or frivolous, he may determine the appeal by dismissing it forthwith.

(2) The Secretary of State shall, unless he dismisses the appeal under paragraph (1), send a copy of the notice of appeal and of any further particulars furnished by the appellant—

(a) in the case of an appeal under—

(i) regulation 10(1)(a),

(ii) regulation 10(1)(b) against a determination of the FHSA that action should be taken under regulation 9(5)(a) or (7)(b), or

(iii) regulation 10(1)(d),

to any person who was a party to the proceedings before the service committee;

[F1 (aa) in the case of an appeal under regulation 10(1)(aa), to the practitioner, together with a copy of the complainant’s statement and any further statement provided pursuant to paragraph 1 of Schedule 4;]

(b) in the case of an appeal under regulation 10(1)(c) brought—

(i) by the practitioner, to the FHSA referred to in regulation 8(1)(b);

(ii) by that FHSA, to the practitioner;

(c) in the case of any appeal, to the FHSA,

and shall invite them to submit their observations on the appeal within 30 days of their being sent the copy of the notice of appeal.

(3) Where observations are made under paragraph (2), the Secretary of State shall send a copy of those observations to the appellant and shall invite him to submit his comments on the observations within 21 days of his being sent that copy.

(4) Subject to [F2 paragraphs (5) and (5A)], the Secretary of State may—

(a) after the period allowed—

(i) for the making of observations under paragraph (2), or

(ii) where such observations are made, for the making of comments under paragraph (3),

has expired; and

(b) where he is of the opinion that the appeal is of such a nature that it can properly be determined without an oral hearing,

dispense with an oral hearing and determine the appeal.

(5) An appeal by a practitioner under regulation 10(1)(a) against a decision in which the FHSA have determined to take action under paragraph (3), (5)(a), (b), (c) or (d) or (7)(b) of regulation 9 shall not be dismissed without an oral hearing unless the practitioner has stated in writing that he does not want such a hearing.

[F3 (5A) The Secretary of State shall determine an appeal under regulation 10(1)(aa) without an oral hearing.]

(6) Where there is to be an oral hearing the Secretary of State shall appoint three persons to hold an inquiry, of whom—

(a) one shall be a barrister or a solicitor, and shall act as chairman; and

(b) two shall be selected in accordance with paragraphs (7) and (8).

(7) The persons appointed under paragraph (6)(b) shall be—

(a) where the practitioner is a doctor, two doctors;

(b) where the practitioner is a dentist, two dentists;

(c) where the practitioner is an ophthalmic medical practitioner, two ophthalmic medical practitioners;

(d) where the practitioner is an optician, two opticians;

(e) where the practitioner is a chemist, two registered pharmacists.

(8) In a case to which—

(a) paragraph (7)(a) applies, one of the doctors shall be selected from the doctors' panel;

(b) paragraph (7)(b) applies, one of the dentists shall be selected from the dentists' panel.

(9) The Secretary of State shall appoint a day for the hearing and shall give, to the appellant and to any other person or body to whom a copy of the notice of appeal was sent under paragraph (2), not less than 21 days' notice in writing of the date, time and place of the hearing.

(10) Subject to the provisions of regulation 33 (attendance by representative of Council on Tribunals), no person shall, without the consent of the appellant, the respondent and the persons appointed under paragraph (6), be admitted to a hearing before those persons unless he is—

(a) the appellant, the respondent or a member or an officer of the FHSA which made the determination against which the appeal has been brought;

(b) a person (who may be counsel, a solicitor or any other person) engaged by a person or body mentioned in sub-paragraph (a) of this paragraph to represent them before the persons appointed under paragraph (6); or

(c) a person whose attendance is required for the purpose of giving evidence to the persons so appointed.

(11) A party to an appeal shall not rely at an oral hearing on any facts or contentions which do not appear to the Secretary of State or the persons holding the inquiry to have been raised in the course of the proceedings before the appropriate committee unless—

(a) he has, not less than seven days before the hearing, given notice in writing to the Secretary of State of such facts or contentions; or

(b) the Secretary of State or persons holding the inquiry give their consent.

(12) The persons holding the inquiry shall draw up a report and present it to the Secretary of State, who shall take it into consideration and determine the appeal.

(13) Where an FHSA has made representations to the Tribunal following its consideration of a report of an appropriate committee, the Secretary of State may, for the purpose of any appeal under regulation 10(1)(a) against a decision of that FHSA following its consideration of that report, treat as conclusive any relevant finding of fact of the Tribunal.

(14) The Secretary of State shall give notice in writing to the parties to the appeal of his determination under paragraph (1), (4) [F4 , (5A)] or (12) and shall include with the notice a statement of his reasons for the determination.

[F5 (14A) Where, in the case of an appeal under regulation 10(1)(aa), the Secretary of State determines that there are reasonable grounds for believing that the practitioner has failed to comply with the terms of service specified in the determination, he shall refer the matter back to the FHSA, which shall continue the investigation as if it had been notified of those terms of service under paragraph 1(7) of Schedule 4 by the chairman of the appropriate committee, F6 ... and there must be a hearing of the complaint.

(14B) Accordingly, paragraph 3(1) and (2) and paragraphs 4 to 10 of Schedule 4 shall apply in such a case with appropriate modifications.]

(15) The FHSA may, with the consent of the Secretary of State, make such contribution as it thinks fit, and if directed by the Secretary of State shall make such contribution as he may determine, towards the cost of the appeal incurred by any other party to the appeal.

(16) The provisions of subsections (2), (3) and (5) of section 250 of the Local Government Act 1972(1) (which relate to the summoning of witnesses, the awarding of costs and other matters) shall apply to an inquiry held under this regulation as if in that subsection (5) for the words “The Minister causing an inquiry to be held under this section” there were substituted the words “The Secretary of State”.

Textual Amendments

F1 Reg. 11(2)(aa) inserted (1.1.1994) by The National Health Service (Service Committees and Tribunal) Amendment Regulations 1993 (S.I. 1993/2972), regs. 1(1), 4(2)

F2 Words in reg. 11(4) substituted (1.1.1994) by The National Health Service (Service Committees and Tribunal) Amendment Regulations 1993 (S.I. 1993/2972), regs. 1(1), 4(3)

F3 Reg. 11(5A) inserted (1.1.1994) by The National Health Service (Service Committees and Tribunal) Amendment Regulations 1993 (S.I. 1993/2972), regs. 1(1), 4(4)

F4 Word in reg. 11(14) inserted (1.1.1994) by The National Health Service (Service Committees and Tribunal) Amendment Regulations 1993 (S.I. 1993/2972), regs. 1(1), 4(5)

F5 Reg. 11(14A)(14B) inserted (1.1.1994) by The National Health Service (Service Committees and Tribunal) Amendment Regulations 1993 (S.I. 1993/2972), regs. 1(1), 4(6)

F6 Words in reg. 11(14A) omitted (1.4.1994) by virtue of The National Health Service (Service Committees and Tribunal) Amendment Regulations 1994 (S.I. 1994/634), regs. 1(1), 5

Commencement Information

I1 Reg. 11 in force at 1.4.1992, see reg. 1

(1)

1972 c. 70, as amended by Part IV of Schedule 1 to the Statute Law (Repeals) Act 1989 (c. 43).