The National Health Service (Clinical Negligence Scheme) Amendment Regulations 2013

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the National Health Service (Clinical Negligence Scheme) Regulations 1996 (“the principal Regulations”) which established a Scheme whereby certain NHS bodies and other bodies providing NHS services may make provision for meeting liabilities to third parties in connection with personal injury arising out of negligence in the carrying out of their functions.

Regulation 3 amends the principal Regulations to enable a number of additional bodies to be eligible to participate in the Scheme. These are NICE; the Health and Social Care Information Centre; local authorities which provide, or arrange the provision of, NHS services (other than primary care services) pursuant to arrangements made with the NHS Commissioning Board, a clinical commissioning group or a Special Health Authority; persons who immediately before 1st April 2013 would have been persons to whom regulation 4(6) of the principal Regulations as they appeared prior to these Regulations coming into force applied (and so whose liabilities would have been treated as those of the Primary Care Trust which had engaged them to provide services that the PCT had previously provided itself) and who continue to be such persons; bodies (which are not otherwise eligible to participate in the Scheme) which provide NHS services (other than primary care services) pursuant to arrangements made with the NHS Commissioning Board, a clinical commissioning group or a Special Health Authority, whether those arrangements are made directly by that body as a primary contractor, or indirectly as a sub-contractor. However, in the case of sub-contractors, they will only be eligible to participate in the Scheme if the bodies with whom they contract are not themselves members of the Scheme.

Regulation 4 amends the principal Regulations to include as liabilities to which the Scheme applies certain additional liabilities incurred by sub-contractors which provide NHS services (other than primary care services) and certain additional liabilities incurred by certain bodies whose membership of the Scheme has been terminated as a result of insolvency. In particular it is provided that, for the purposes of the Scheme:

• certain liabilities of an NHS trust, an NHS foundation trust, a local authority or another body which provides NHS services (other than primary care services) pursuant to arrangements made indirectly (as a sub-contractor) with the NHS Commissioning Board, a clinical commissioning group or a Special Health Authority are to be treated as the liabilities of the main contractor with whom those arrangements are made by the NHS Commissioning Board, a clinical commissioning group or Special Health Authority; and

• certain liabilities of certain non-NHS bodies which provide NHS services (other than primary care services) pursuant to arrangements made directly with the NHS Commissioning Board, a clinical commissioning group or a Special Health Authority, and whose membership of the Scheme is terminated as a result of insolvency, are to be treated as the liabilities of whichever of the NHS Commissioning Board, a clinical commissioning group or Special Health Authority it made those arrangements with.

Regulation 5 amends the principal Regulations to enable the Secretary of State to terminate the membership of the Scheme of a member which is a non-NHS body and provides NHS services under arrangements made with the NHS Commissioning Board, a clinical commissioning group or a Special Health Authority with immediate effect if that member becomes insolvent or the member is no longer an eligible body. It also enables a member to terminate its membership of the Scheme by means of 7 months rather than 12 months’ written notice.

Regulation 6 amends the principal Regulations to change some of the deadlines by which notifications of payments must be made, and by which payments must be made, under the Scheme.

Regulations 6 and 7 amend the principal Regulations to enable the Secretary of State to agree with a member that that member can make a payment (or make future payments in instalments) prior to terminating its membership of the Scheme determined by the Secretary of State to be sufficient to cover liabilities which have been incurred prior to its membership terminating but have not yet fallen to be met. If there is such an agreement, and payment is also made or agreed to be made, then the Secretary of State may make payments out of the Scheme to cover any liabilities of that ex-member which fall to be met after its membership has terminated providing the other relevant conditions for payment in regulation 9 of the principal Regulations are met.