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The National Health Service (Personal Medical Services Agreements) Regulations 2015

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PART 5E+WAgreements: required terms

Health service contractE+W

12.  If, by virtue of regulation 9 or 10 the contractor is to be regarded as a health service body, the agreement must state that it is an NHS contract.

Agreements: generalE+W

13.—(1) An agreement must specify—

(a)the services to be provided under the agreement;

(b)subject to paragraph (3), the address of each of the premises to be used by the contractor or by any sub-contractor for the provision of such services;

(c)the persons to whom such services are to be provided under the agreement; and

(d)where the agreement requires the contractor to provide essential services, the area as respects which persons resident in it are, subject to any other terms of the agreement relating to patient registration, entitled to—

(i)register with the contractor, or

(ii)seek acceptance by the contractor as a temporary resident; and

(e)where the agreement requires the contractor to provide essential services, whether, at the date on which the agreement comes into effect, the contractor's list of patients is open or closed.

(2) An agreement—

(a)may also specify an area, other than the contractor's practice area, which is to be known as the outer boundary area as respects which a patient who—

(i)moves into that outer boundary area to reside, and

(ii)would like to remain on the contractor's list of patients,

may remain on that list if the contractor so agrees, notwithstanding that the patient no longer resides in the contractor's practice area; and

(b)which specifies an outer boundary must specify that, where a patient remains on the contractor's list of patients as a consequence of sub-paragraph (a), the outer boundary area is to be treated as part of the contractor's practice area for the purposes of the application of any other terms and conditions of the agreement in respect of that patient.

(3) The premises referred to in paragraph (1)(b) do not include—

(a)the homes of patients; F1...

(b)any other premises where services are provided on an emergency basis [F2; or

(c)premises where services are provided under regulation 13A (services: remote provision outside practice premises).]

[F3(4) An agreement must specify that where the contractor proposes to provide private services in addition to primary medical services, to persons other than its patients the provision must take place—

(a)outside of the hours the contractor has agreed to provide primary medical services; and

(b)on no part of any practice premises in respect of which [F4NHS England] has agreed with that contractor to make payments in relation to the costs of those premises save where the private services are those specified in regulation 18(2B).]

Textual Amendments

[F5Services: remote provision outside practice premisesE+W

13A.—(1) Without prejudice to regulation 17(7) (essential services) of the General Medical Services Contracts Regulations, where applicable, and without prejudice to paragraph 6 of Schedule 2 (attendance outside practice premises), the contractor and any sub-contractor may provide a remote service from a location which does not constitute practice premises, if the requirements in paragraph (2) are met.

(2) The requirements referred to in paragraph (1) are that—

(a)the service is provided from an appropriate location;

(b)the service is provided through an appropriate digital or telecommunications method; and

(c)the service is appropriate for provision outside of practice premises.

(3) For the purposes of paragraph (2)(a), a location is not appropriate if—

(a)the location or its environment is not conducive to ensuring the confidentiality of patient information, in connection with the service to be provided from that location;

(b)the location or its environment is not conducive to ensuring appropriate provision of the service from that location.

(4) For the purposes of paragraph (2)(b), a digital or telecommunications method is appropriate if it meets—

(a)the requirements in the GPIT Operating Model relevant to that method, including any requirements as to software, or

(b)requirements which are equivalent in their effect to the relevant requirements in the GPIT Operating Model;

(5) For the purposes of paragraph (2)(c) the service is not appropriate for provision outside of practice premises if—

(a)it would not be clinically appropriate for the patient on that occasion; or

(b)it is otherwise not appropriate to the needs or circumstances of the patient.

(6) For the purposes of paragraph (3)(a), “patient information” means information which relates to the physical or mental health or condition of a patient, to the diagnosis of their condition, to their care and treatment, or information which is to any extent derived, directly or indirectly, from such information.]

Textual Amendments

Membership of a CCGE+W

F614.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

CertificatesE+W

15.—(1) Subject to paragraphs (2) and (3), an agreement which requires a contractor to provide essential services must contain a term which has the effect of requiring the contractor to issue any medical certificate of a description prescribed in column 1 of Schedule 1 under, or for the purposes of, the enactments specified in relation to the certificate in column 2 of that Schedule if that certificate is reasonably required under or for the purposes of the enactments specified in relation to that certificate.

(2) A certificate referred to in paragraph (1) must be issued free of charge to a patient or to a patient's personal representatives.

(3) A certificate must not be issued where, for the condition to which the certificate relates, the patient is—

(a)being attended by a medical practitioner who is not—

(i)engaged or employed by the contractor,

(ii)a party to the agreement, or

(iii)a shareholder in a qualifying body which is a party to the agreement; or

(b)not being treated by or under the supervision of a health care professional.

(4) The exception in paragraph (3)(a) does not apply where the certificate is issued in accordance with regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976 M1 (evidence of incapacity for work, limited capability for work and confinement) or regulation 2(1) of the Statutory Sick Pay (Medical Evidence) Regulations 1985 M2 (medical information).

Marginal Citations

M1S.I. 1976/615; as amended by S.I. 1982/699, S.I.1987/409, S.I. 1989/1686, S.I. 1991/2284, S.I.1994/2975, S.I.1999/3109, S.I.2001/2931, S.I. 2002/881 and 2469, S.I. 2004/1771, S.I. 2008/1554, S.I. 2010/137, S.I. 2013/235 and 630.

[F7Patients who should not be tested for, or vaccinated against, coronavirus: confirmation of exemptionE+W

15A.—(1) Subject to paragraph (6), a contract must contain a term which requires the contractor to respond to a valid exemption confirmation request [F8if it is made at a relevant time].

(2) An exemption confirmation request—

(a)is a request to confirm whether a relevant patient (“P”), for clinical reasons—

(i)should neither be tested for coronavirus nor vaccinated with an authorised vaccine, or

(ii)should not be vaccinated with an authorised vaccine, and

(b)is valid if it is made in accordance with the process approved by the Secretary of State.

[F9(2A) A valid exemption confirmation request is made at a relevant time if, at the time the request is made to the contractor—

(a)legislation in force in England requires a person or class of person to be vaccinated against coronavirus unless they can show that, for clinical reasons, they are exempt from vaccination with an authorised vaccine, or

(b)guidance issued by, or on behalf of, the Secretary of State provides that a person or class of person should be vaccinated against coronavirus unless they can show that, for clinical reasons, they are exempt from vaccination with an authorised vaccine.]

(3) An exemption confirmation request may be made by—

(a)P, or

(b)where P is a person to whom paragraph (4) applies, an appropriate person acting on behalf of P.

(4) This paragraph applies to a person if they—

(a)are a child, or

(b)lack the capacity to make a request under paragraph (1).

(5) The contractor must respond to a valid exemption confirmation request [F10made at a relevant time]—

(a)free of charge to P or the appropriate person, and

(b)by recording its response on an information hub using a method approved by the Secretary of State.

(6) A contractor is not required to respond to a valid exemption confirmation request if—

(a)for the medical condition which may mean that P should neither be tested for coronavirus nor vaccinated with an authorised vaccine, or should not be vaccinated with an authorised vaccine, P is being attended by a medical practitioner who is not—

(i)engaged or employed by the contractor,

(ii)in the case of a contract with two or more persons practising in partnership, one of those persons, or

(iii)in the case of a contract with a company limited by shares, one of the persons legally or beneficially owning shares in that company, and

(b)that medical condition is not one to which paragraph (7) applies.

(7) This paragraph applies to a medical condition if no person with that condition should be—

(a)tested for coronavirus or vaccinated with an authorised vaccine, or

(b)vaccinated with an authorised vaccine.

(8) In this regulation—

“authorised vaccine” means a medicinal product—

(a)

authorised for supply in the United Kingdom in accordance with a marketing authorisation, or

(b)

authorised by the licensing authority on a temporary basis under regulation 174 of the Human Medicines Regulations 2012 (supply in response to spread of pathogenic agents etc),

for vaccination against coronavirus;

“coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);

“licensing authority”, “marketing authorisation” and “medicinal product” have the meanings given in the Human Medicines Regulations 2012 (see regulations 6, 8 and 2, respectively, of those Regulations);

“relevant patient” means—

(a)

a registered patient, or

(b)

a temporary resident.]

Textual Amendments

FinanceE+W

16.—(1) The agreement must contain a term which has the effect of requiring payments to be made under the agreement promptly and in accordance with—

(a)the terms of the agreement;

(b)any other terms based on which the payment is made; and

(c)any other conditions relating to the payment contained in regulations made by the Secretary of State under section 94(4) (regulations about section 92 arrangements) or directions given by the Secretary of State under section 98A (exercise of functions) of the Act M3.

(2) The obligation referred to in paragraph (1) is subject to any right that [F4NHS England] may have to set off against any amount payable to the contractor under the agreement any amount that—

(a)is owed by the contractor to [F4NHS England] under the agreement; or

(b)[F4NHS England] may withhold from the contractor in accordance with the terms of the agreement or any other applicable provisions contained in regulations made by the Secretary of State under section 94(4) of the Act (regulations about section 92 arrangements) or directions given by the Secretary of State under section 98A of the Act (exercise of functions).

Textual Amendments

Marginal Citations

M3Sections 92 was amended by paragraphs 36 of Schedule 4 to the Health and Social Care Act 2012 (c.7) (“the 2012 Act”). Section 94 was amended by section 28(2) of, and paragraph 38(1) and (2) to, the 2012 Act, and by section 17(5) of, and paragraph 2(1)(b) and (2) of Schedule 9 to, the Crime and Courts Act 2013 (c.22). Section 98A was inserted by section 49(1) of the 2012 Act.

Conditions about paymentsE+W

17.  Where, as a consequence of regulations made under section 94(4) of the Act (regulations about section 92 arrangements) or in accordance with directions given by the Secretary of State under section 98A of the Act (exercise of functions), [F4NHS England] is required to make a payment to a contractor under an agreement which is subject to conditions, the agreement must contain a term which requires those conditions to be a term of the agreement.

Textual Amendments

Fees and chargesE+W

18.—(1) The agreement must contain terms relating to fees and charges which have the same effect as those set out in paragraphs (2) to (4).

(2) The contractor may not, either itself or through any other person, demand or accept from any patient of the contractor a fee or other remuneration, for its own or another's benefit, for—

(a)the provision of any treatment whether under the agreement or otherwise; or

(b)a prescription or repeatable prescription for any drug, medicine or appliance,

except in circumstances set out in regulation 19.

[F11(2A) The contractor must not, either itself or through any other person, demand or accept from any of its patients a fee or other remuneration for its own benefit or for the benefit of another person, for the completion, in relation to the patient’s mental health, of—

(a)a mental health evidence form; or

(b)any examination of the patient or of the patient’s medical record in order to complete the form,

the purpose of which is to assist creditors in deciding what action to take where the debtor has a mental health problem.

(2B) The contractor must not, either itself or through any other person, demand or accept from anyone who is not a patient of the contractor, a fee or other remuneration for its own benefit or for the benefit of another person, for either of the following services provided on practice premises to which regulation 13(4)(b) applies, unless those services are provided outside of core hours—

(a)for treatment consisting of an immunisation for which the contractor receives no remuneration from [F4NHS England] when provided to its patients and which is requested in connection with travel abroad; or

(b)for prescribing or providing drugs or medicines for malaria chemoprophylaxis.]

(3) Subject to paragraph (4), where—

(a)a person applies to a contractor for the provision of services;

(b)claims to be entitled to be treated by the contractor without paying a fee or other remuneration; and

(c)the contractor has reasonable doubts about that person's claim,

the contractor must give any necessary treatment to that person and may demand and accept from that person a reasonable fee accordingly in accordance with regulation 19(e).

(4) Where—

(a)a person from whom a contractor received a fee under regulation 19(e) applies to [F4NHS England] for a refund within 14 days from the date of payment of the fee (or within such longer period not exceeding one month as [F4NHS England] may allow if it is satisfied that the failure to apply within 14 days was reasonable); and

(b)[F4NHS England] is satisfied that the person was entitled to be treated by the contractor without paying a fee or other remuneration when the treatment was given,

[F4NHS England] may recover the amount of the fee from the contractor, by deduction from the contractor's remuneration or otherwise, and must pay the amount recovered to the person who paid the fee.

Textual Amendments

Circumstances in which fees and charges may be madeE+W

19.  The contractor may demand or accept, directly or indirectly, a fee or other remuneration—

(a)from a statutory body for services rendered for the purposes of that body's statutory functions;

(b)from a body, employer or school for—

(i)a routine medical examination of persons for whose welfare the body, employer or school is responsible, or

(ii)an examination of such persons for the purpose of advising the body, employer or school of any administrative action that they might take;

(c)for treatment which is not primary medical services or is otherwise required to be provided under the agreement and which is given—

(i)at accommodation made available in accordance with the provisions of paragraph 11 of Schedule 6 to the Act (accommodation and services for private patients), or

(ii)in a registered nursing home which is not providing services under the Act,

if, in either case, the person administering the treatment is serving on the staff of a hospital providing services under the Act as a specialist providing treatment of the kind the patient requires and if, within seven days of giving the treatment, the contractor or the person giving the treatment supplies [F4NHS England], on a form provided by it for that purpose, with such information about the treatment as [F4NHS England] may require;

(d)under section 158 of the Road Traffic Act M4 (payment for emergency treatment of traffic casualties);

(e)when the contractor treats a patient under regulation 18(3), in which case the contractor is entitled to demand and accept a reasonable fee (recoverable in certain circumstances under regulation 18(4)) for any treatment given, if it gives the patient a receipt;

(f)for attending and examining (but not otherwise treating) a patient—

(i)at a police station, at the patient's request, in connection with possible criminal proceedings against the patient,

(ii)for the purpose of creating a medical report or certificate, at the request of a commercial, educational or not for profit organisation, or

(iii)for the purpose of creating a medical report required in connection with an actual or potential claim for compensation by the patient;

(g)for treatment consisting of an immunisation for which no remuneration is payable by [F4NHS England] and which is requested in connection with travel abroad;

(h)for prescribing or providing drugs, medicines or appliances (including a collection of drugs, medicines or appliances in the form of a travel kit) which are required to be in the possession of a patient solely in anticipation of the onset of an ailment or occurrence of an injury while the patient is outside the United Kingdom but for which the patient is not requiring treatment when the medicine is prescribed;

(i)for a medical examination—

(i)to enable a decision to be made whether or not it is inadvisable on medical grounds for a person to wear a seat belt, or

(ii)for the purpose of creating a report—

(aa)relating to a road traffic accident or criminal assault, or

(bb)that offers an opinion as to whether a patient is fit to travel;

(j)for testing the sight of a person to whom none of paragraphs (a) to (e) of section 115(2) of the Act (primary ophthalmic services) applies (including by virtue of regulations made under section 115(7) of the Act M5);

(k)where the contractor is authorised or required in accordance with arrangements made with [F4NHS England] under section 126 of the Act M6 (arrangements for pharmaceutical services) and in accordance with regulations made under section 129 of the Act M7 (regulations as to pharmaceutical services) to provide drugs, medicines or appliances to a patient and provides for that patient, otherwise than by way of dispensing services, any Scheduled drug; F12...

(l)for prescribing or providing drugs or medicines for malaria chemoprophylaxis;

[F13(m)for responding to an exemption confirmation request as defined in regulation 15A(2)(a), if that request is not one which the contractor is required to respond to in accordance with regulation 15A.]

Textual Amendments

Marginal Citations

M41988 c.52. Section 158 was amended by section 20(2) of the Community Care and Health (Scotland) Act 2002 (asp 5) and by S.I. 1995/889.

M5Section 115 was amended by paragraph 54 of Schedule 4 to the Health and Social Care Act 2012 (c.7) (“the 2012 Act”).

M6Section 126 was amended by sections 213(7)(k) and 220(7) of, and paragraph 63 of Schedule 4 to, the 2012 Act.

M7Section 129 was amended by section 26, 27 and 38 of, and Schedule 6 to, the Health Act 2009 (c.7); section 207(1) to (9) of, and paragraph 66 of Schedule 4 to, the 2012 Act; paragraph 121 of Schedule 9 to the Protection of Freedoms Act 2012 (c. 9); and by S.I. 2007/289 and S.I. 2010/231.

Patient participationE+W

20.—(1) A contractor which provides essential services must establish and maintain a group known as a “Patient Participation Group” comprising some of its registered patients for the purposes of—

(a)obtaining the views of patients who have attended the contractor's practice about the services delivered by the contractor; and

(b)enabling the contractor to obtain feedback from its registered patients about those services.

(2) The contractor is not required to establish a Patient Participation Group if such a group has already been established by the contractor in accordance with the provisions of any directions about enhanced services which were given by the Secretary of State under section 98A of the Act M8 (exercise of functions) before 1st April 2015.

(3) The contractor must make reasonable efforts during each financial year to review the membership of its Patient Participation Group in order to ensure that the group is representative of its registered patients.

(4) The contractor must—

(a)engage with its Patient Participation Group, at such frequent intervals throughout each financial year as the contractor must agree with that group, with a view to obtaining feedback from the contractor's registered patients, in an appropriate and accessible manner, about the services delivered by the contractor; and

(b)review any feedback received about the services delivered by the contractor, whether in accordance with sub-paragraph (a) or otherwise, with its Patient Participation Group with a view to agreeing with that group the improvements (if any) which are to be made to those services.

(5) The contractor must make reasonable efforts to implement such improvements to the services delivered by the contractor as are agreed between the contractor and its Patient Participation Group.

Marginal Citations

M8Section 98A was inserted by section 49(1) of the Health and Social Care Act 2012 (c.7).

Publication of earnings informationE+W

21.—(1) The contractor must publish each year on its practice website [F14or online practice profile] the information specified in paragraph (2).

(2) The information specified in this paragraph is—

(a)the mean net earnings in respect of the previous financial year of—

(i)every general medical practitioner who was a party to the agreement for a period of at least six months during that financial year, and

(ii)every general medical practitioner who was employed or engaged by the contractor to provide services under the agreement in the contractor's practice, whether on a full-time or a part-time basis, for a period of at least six months during that financial year; and

(b)the—

(i)total number of any general medical practitioners to whom the earnings information referred to in sub-paragraph (a) relates, and

(ii)(where applicable) the number of those practitioners who have been employed or engaged by the contractor to provide services under the agreement in the contractor's practice on a full-time or a part-time basis and for a period of at least six months during the financial year in respect of which that information relates.

(3) The information specified in sub-paragraph (2) must be—

(a)published by the contractor before the end of the financial year following the financial year to which that information relates; and

(b)made available by the contractor in hard copy form on request.

(4) For the purposes of this regulation, “mean net earnings” are to be calculated by reference to the earnings of a general medical practitioner that, in the opinion of [F4NHS England], are attributable to the performance or provision by the practitioner under the agreement of medical services to which Part 4 of the Act applies, after having disregarded any expenses properly incurred in the course of performing or providing those services.

Textual Amendments

[F15Disclosure of information about NHS earnings: contractors and sub-contractorsE+W

21A.—(1) An agreement which is with a person falling within section 93(1)(b) to (e) of the Act must include the term specified in paragraph (2).

(2) The term is a term which requires the contractor to comply with the disclosure obligation for each relevant financial year in which—

(a)they are a contractor, and

(b)their NHS earnings exceed the relevant threshold.

(3) For the purposes of this regulation—

(a)the disclosure obligation, in relation to a relevant financial year, is the requirement for an individual (“I”) to submit the following information for publication to [F16NHS England] by the disclosure date—

(i)I’s name,

(ii)I’s job title,

(iii)the details of each organisation from which I has derived NHS earnings in that financial year, and

(iv)the amount of I’s NHS earnings for that financial year;

(b)F17... “relevant financial year” means a financial year ending—

(i)on or after 31st March [F182022], but

(ii)on or before 31st March 2024;

F19(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)“relevant threshold” means—

F20(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)for the financial year ending on 31st March 2022, £156,000;

(iv)for the financial year ending on 31st March 2023, £159,000;

(v)for the financial year ending on 31st March 2024, £163,000.

[F22(4) For the purposes of paragraph (3)(a) “the disclosure date”, in relation to a relevant financial year, is 30th April in the financial year which begins immediately after the end of the next financial year.]

(5) For the purposes of paragraph (4) “the next financial year”, in relation to a financial year (“FY1”), is the financial year which begins immediately after the end of FY1 F23....

(6) An agreement must also include a term which prevents the contractor from sub-contracting any of its obligations to provide clinical services under the agreement unless—

(a)where the sub-contractor is an individual, the sub-contract entered into by the contractor requires the individual to comply with the disclosure obligation for each relevant financial year in which the individual’s NHS earnings exceed the relevant threshold;

(b)where the sub-contractor is a partnership, the sub-contract entered into by the contractor requires each sub-contractor partnership member of that partnership to comply with the disclosure obligation for each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant financial threshold;

(c)in all cases, the sub-contract prohibits the sub-contractor (“S”) from sub-contracting, where permitted by paragraph 43(4A) of Schedule 2, any of the clinical services S has agreed with the contractor to provide under the sub-contract unless—

(i)where the sub-contractor is an individual (“I”), the sub-contract entered into by S requires I to comply with the disclosure obligation in relation to each financial year in which I’s NHS earnings exceed the relevant threshold;

(ii)where the sub-contractor is a partnership, the sub-contract entered into by S requires each sub-contractor partnership member in that partnership to comply with the disclosure obligation in relation to each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant threshold.

(7) An agreement must also include a term requiring the contractor to use reasonable endeavours to ensure that any relevant sub-contract is amended to contain the terms specified in paragraph (9).

(8) For the purposes of paragraph (7) “relevant sub-contract” means a sub-contract—

(a)for the provision of any of the clinical services which the contractor is required to provide under the agreement by any other person, and

(b)which is in force at the time when [F24the term in paragraph (7) is incorporated into the contract].

(9) The terms are—

(a)a term which requires—

(i)the subcontractor (“S”), where S is an individual, or

(ii)each sub-contractor partnership member, where S is a partnership,

to comply with the disclosure obligation for each relevant financial year in which the individual’s, or as the case may be, sub-contractor partnership member’s NHS earnings exceed the relevant threshold, F25...

(b)a term which prevents S from sub-contracting obligations to provide clinical services under the contract, where permitted by paragraph 43(4A) of Schedule 2, unless—

(i)where the sub-contractor is an individual (“I”), the sub-contract entered into by S requires I to comply with the disclosure obligation in relation to each financial year in which I’s [F26NHS] earnings exceed the relevant threshold;

(ii)where the sub-contractor is a partnership, the sub-contract entered into by S requires each sub-contractor partnership member to comply with the disclosure obligation in relation to each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant threshold [F27, and

(c)a term which requires S to use reasonable endeavours to ensure that any sub-contract entered into before the term in sub-paragraph (b) was incorporated into that sub-contract is amended to—

(i)include the term in paragraph (i) of sub-paragraph (b) in a sub-contract between S and I, and

(ii)include the term in paragraph (ii) of sub-paragraph (b) in a sub-contract between S and a partnership.]

(10) Nothing in paragraph (6), (7) or (9) requires any individual to comply with the disclosure obligation for any relevant financial year which—

(a)ends before the individual or partnership (as the case may be) enters into a sub-contract with the contractor or a sub-contractor;

(b)begins after the individual’s or, as the case may be, partnership’s sub-contract with the contractor or sub-contractor has terminated.

(11) In this regulation—

“locum practitioner” has the meaning given in Schedule 15 to the National Health Service Pension Scheme Regulations 2015;

“NHS earnings” has the meaning given in regulation 27B;

“sub-contractor” means a person to whom any rights or duties under the contract in relation to clinical matters are, or have been, sub-contracted under paragraph 44(1) of Schedule 3, and includes an individual who is a locum practitioner;

“sub-contractor partnership member”, in relation to a sub-contractor who is a partnership, means an individual who is a partner in that partnership.

Textual Amendments

[F28Disclosure of information about NHS earnings: jobholdersE+W

21AA.—(1) In this regulation—

(a)“disclosure obligation”, “relevant financial year”, “relevant threshold”, “the disclosure date” and “sub-contractor” have the meanings given in regulation 21A;

(b)“NHS earnings” has the meaning given in regulation 21B.

(2) In this regulation and, where applicable, in regulation 21B—

“contract of engagement” means a contract of employment or other agreement under which a jobholder is engaged;

“jobholder” means—

(a)

an individual employed by a relevant person;

(b)

an individual engaged by a relevant person under a contract for services to provide services which enable the relevant person to fulfil its obligations under the agreement or sub-contract, as the case may be;

(c)

an individual engaged by a third party to provide clinical services;

(d)

where the relevant person is a company, a director or company secretary of that company;

“relevant person” means—

(a)

the contractor;

(b)

a sub-contractor;

(c)

a person to whom the sub-contractor has sub-contracted obligations as permitted by paragraph 43(4A) of Schedule 2 (“P”);

“third party contract” means a contract or other agreement under which a relevant person is provided with a jobholder to provide clinical services under the agreement or sub-contract, as the case may be, and which is between—

(a)

a contractor and a person other than a jobholder or sub-contractor,

(b)

a sub-contractor and a person other than a jobholder, the contractor, or a person (“P”) to whom the sub-contractor has sub-contracted obligations as permitted by paragraph 43(4A) of Schedule 2, or

(c)

P and a person other than a jobholder or sub-contractor;

“third party” is to be construed in accordance with the definition of “third party contract”.

(3) An agreement must contain a term which prevents the contractor from entering into a contract of engagement unless it requires the jobholder to comply with the disclosure obligation for each relevant financial year in which the jobholder’s NHS earnings exceed the relevant threshold.

(4) An agreement must also contain a term which prevents the contractor from sub-contracting any of its obligations to provide clinical services under the agreement unless—

(a)the sub-contract entered into by the contractor requires the sub-contractor (“S”) to—

(i)include the term specified in paragraph (6) in any contract of engagement S enters into with a jobholder on or after entering into the sub-contract, and

(ii)use reasonable endeavours to include it in any contract of engagement which S has entered into prior to entering into the sub-contract; and

(b)the sub-contract prevents S from sub-contracting to P any of the clinical services S has agreed with the contractor to provide under the sub-contract unless the sub-contract S enters into with P includes the term specified in paragraph (5);

(5) The term requires P to—

(a)include the term specified in paragraph (6) in any contract of engagement which P enters into with a jobholder on or after entering into the sub-contract with S, and

(b)to use reasonable endeavours to include it in any contract of engagement which P has entered into prior to entering into that sub-contract.

(6) The term requires the jobholder to comply with the disclosure obligation for each relevant financial year in which the jobholder’s NHS earnings exceed the relevant threshold.

(7) An agreement must also contain a term requiring the contractor to use reasonable endeavours to ensure that any contract of engagement, which the contractor entered into before the term in paragraph (3) is incorporated into the agreement, is amended to include the term specified in paragraph (6).

(8) An agreement must also contain a term requiring the contractor to use reasonable endeavours to ensure that any sub-contract which the contractor entered into before the term in paragraph (4) is incorporated into the agreement is amended to include the terms specified in paragraph (9).

(9) The terms are—

(a)a term which requires S to—

(i)include the term specified in paragraph (6) in any contract of engagement S enters into with a jobholder on or after the amendment of the sub-contract,

(ii)to use reasonable endeavours to include the term specified in paragraph (6) in any contract of engagement to which S is a party entered into before the amendment of the sub-contract, and

(iii)use reasonable endeavours to include the term specified in paragraph (5) in any sub-contract which S has entered into with P before the amendment of the sub-contract pursuant to paragraph (8);

(b)a term which prevents S from sub-contracting to P obligations to provide clinical services under the agreement unless the sub-contract entered into by S includes the term specified in paragraph (5).

(10) An agreement must also contain a term requiring the contractor to use reasonable endeavours to include in a third party contract (whenever entered into) a term requiring the third party (“T”) [F29—

(a) to include the term specified in paragraph (6) in any contract of engagement which T enters into with a jobholder on or after entering into the contract with the contractor;

(b)to use reasonable endeavours to include that term in any contract of engagement which T has entered into prior to entering into the contract with the contractor.]

(11) An agreement must also contain a term which prevents the contractor from sub-contracting any of its obligations to provide clinical services under the agreement, unless the sub-contract requires S to use reasonable endeavours to—

(a)include in a third party contract (whenever entered into) a term requiring T [F30—

(i)to include the term specified in paragraph (6) in any contract of engagement which T enters into with a jobholder on or after entering into the contract with S;

(ii)to use reasonable endeavours to include that term in any contract of engagement which T has entered into prior to entering into the contract with S;]

(b)include in any sub-contract between S and P a term requiring P to [F31use reasonable endeavours to] include in any third party contract (whenever entered into) the term specified in paragraph (12).

[F32(12) The term is one which requires T—

(a)to include the term specified in paragraph (6) in any contract of engagement which T enters into with a jobholder on or after entering into the contract with P;

(b)to use reasonable endeavours to include that term in any contract of engagement which T has entered into prior to entering into the contract with P.]

(13) Nothing in this regulation requires a jobholder to comply with the disclosure obligation for any relevant financial year which—

(a)ends before the jobholder enters into a contract of engagement;

(b)begins after the jobholder’s contract of engagement has terminated.]

Textual Amendments

Calculation of NHS earnings for the purposes of [F33regulations 21A and 21AA] E+W

21B.—(1) This regulation sets out how an individual’s NHS earnings are to be calculated for the purposes of [F34regulations 21A and 21AA].

(2) An individual’s NHS earnings for a relevant financial year are those earnings which constitute relevant income in respect of that financial year.

(3) In this regulation “relevant income”—

(a)in relation to an individual who is an active member of the Scheme and is a medical practitioner (other than a locum practitioner) or a non-GP provider, means income (including any form of remuneration and any salary, wages, fees, director’s remuneration or dividends) which is practitioner income as determined under Schedule 10 to the NHS Pension Scheme Regulations, as modified in accordance with paragraph (4), in respect of the financial year in question;

(b)in relation to a person (“P”) who is an active member of the Scheme and a locum practitioner, means—

(i)any income which is locum practitioner income as determined under paragraph 7 of Schedule 10 to the NHS Pension Scheme Regulations in respect of the financial year in question, and

(ii)any [F35other] income (including any form of remuneration and salary, wages, fees, director’s remuneration or dividends) received by P in the financial year in question from any organisation which would have been treated as practitioner income under Schedule 10 to the NHS Pension Scheme Regulations, as modified in accordance with paragraph (4), if P had been a medical practitioner but not a locum practitioner;

[F36(ba)in relation to a jobholder who does not fall within sub-paragraph (a) or (b), means—

(i)any remuneration, salary, wages, fees, director’s remuneration or dividends received in respect of the financial year in question under the contract of engagement and any other contract of engagement under which the jobholder provides services in respect of a contract or an agreement for primary medical services made under section 92 or 83(2) of the Act, and

(ii)any other income which would be treated as practitioner income under Schedule 10 to the NHS Pension Scheme Regulations as modified in accordance with paragraph 4 in respect of the financial year in question if the jobholder—

(aa)were an active member of the scheme, and

(bb)a medical practitioner or non-GP provider;]

(c)in relation to any other person (“P”), means income (including any form of remuneration and any salary, wages, fees, director’s remuneration or dividends) received by P in the financial year in question from any organisation which would have been treated as practitioner income under Schedule 10 to the NHS Pension Scheme Regulations, as modified in accordance with paragraph (4), if P had been—

(i)an active member of the Scheme, and

(ii)a medical practitioner or non-GP provider.

(4) For the purposes of determining a person’s relevant income under paragraph (3)(a), (b)(ii) or (c), Schedule 10 to the NHS Pension Scheme Regulations applies as if the following provisions of that Schedule were omitted—

(a)paragraph 2(1)(b) and the “and” immediately preceding it, [F37and]

(b)paragraph 3, F38...

F39(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F40(4A) For the purposes of this regulation, where a contractor has sub-contracted any obligations under the agreement, any payments made—

(a)under the sub-contract, or

(b)under any sub-contract which the sub-contractor has entered into with another person, as permitted by paragraph 43(4A) of Schedule 2,

are to be treated as income derived from the agreement.]

(5) In this regulation—

“the NHS Pension Scheme Regulations” means the National Health Service Pension Scheme Regulations 2015 and “active member”, “locum practitioner”, “medical practitioner”, “member” and “non-GP provider” have the meanings given for the purposes of those Regulations;

“relevant financial year” has the meaning given in regulation [F4121A];

“the Scheme” means the National Health Service Pension Scheme established by the NHS Pension Scheme Regulations.]

Textual Amendments

Out of hours servicesE+W

22.—(1) Subject to paragraphs (2) and (3), an agreement under which essential services are to be provided must provide for the provision of out of hours services throughout the out of hours period unless—

(a)[F4NHS England] has accepted in writing, prior to the signing of the agreement, a written request from the contractor that the agreement should not require the contractor to make such provision;

(b)the contractor has opted out of providing such services in the out of hours period in accordance with Part 6; or

(c)the agreement has been otherwise varied to exclude a requirement to make such provision.

(2) Except to the extent that the agreement otherwise provides, a contractor whose agreement includes the provision of out of hours services is only required to provide such services if, in the contractor's reasonable opinion having regard to the patient's medical condition, it would not be reasonable in all the circumstances for the patient to wait to obtain such services.

(3) Paragraph (4) applies to a contractor which—

(a)provides out of hours services to registered patients of another contractor or provider of essential services (or their equivalent); or

(b)has contracted to provide out of hours services to patients to whom it provides essential services.

(4) The contractor must, in the provision of those services—

(a)meet the quality requirements set out in [F42the Integrated Urgent Care Key Performance Indicators published on 25th June 2018]; and

(b)comply with any requests for information which it receives from, or on behalf of, [F4NHS England] about the provision by the contractor of out of hours services to its registered patients in such manner, and before the end of such period, as is specified in the request.

(5) Where a contractor is a provider of essential services but is not required to provide out of hours services under the agreement or, under Part 6, has opted out of the provision of such services under the agreement, the contractor must—

(a)monitor the quality of the out of hours services which are offered or provided to its registered patients having regard to the [F43Integrated Urgent Care Key Performance Indicators] referred to in sub-paragraph (4) and record, and act appropriately in relation to, any concerns arising;

(b)record any patient feedback received, including complaints; and

(c)report to [F4NHS England], either at the request of [F4NHS England] or otherwise, any concerns arising about the quality of the out of hours services which are offered or provided to patients to its registered patients having regard to—

(i)any patient feedback received, including any complaints; and

(ii)the quality requirements set out in the [F44Integrated Urgent Care Key Performance Indicators] referred to in paragraph (4).

Textual Amendments

Sub-contractingE+W

23.  An agreement must contain terms which prevent a contractor from sub-contracting any of its obligations to provide clinical services under the agreement except in the circumstances provided for in Part 5 of Schedule 2.

Variation of agreementsE+W

24.—(1) Subject to paragraph (2), a variation of, or amendment to, the agreement may only be made in the circumstances provided for in Part 8 of Schedule 2.

(2) Paragraph (1) does not prevent a variation of, or amendment to, an agreement in the circumstances provided for in—

(a)regulation 25;

(b)Part 6; and

(c)paragraphs 43(3) and 52 of Schedule 2.

[F45Variation of agreements: integrated care provider contractsE+W

24A.  Schedule 2A has effect in relation to the variation of an agreement in circumstances where the contractor wishes to perform or provide primary medical services under an integrated care provider contract as described in paragraph 3 of that Schedule.]

Textual Amendments

Variation of agreements: registered patients from outside practice areaE+W

25.—(1) A contractor may accept onto its list of patients a person who resides outside of the contractor's practice area.

(2) Subject to paragraphs (4) and (5), the terms of the contractor's agreement specified in paragraph (3) must be varied so as to require the contractor to provide to the person any services which the contractor is required to provide to its registered patients under the agreement as if the person resided within the contractor's practice area.

(3) The terms of the agreement specified in this paragraph are—

(a)the terms under which the contractor is to provide essential services and any other service;

(b)the terms under which the contactor is required to provide out of hours services to patients to whom it provides essential services; and

(c)the terms which give effect to the following provisions of Schedule 2 (other contractual terms)—

(i)paragraph 1 (services to registered patients),

(ii)paragraph 5(1) (attendance at practice premises),

(iii)paragraph 6(2)(a) (attendance outside practice premises) , and

(iv)paragraph 20(2) (refusal of applications for inclusion list of patients).

(4) Where, under paragraph (1), a contractor accepts onto its list of patients a person who resides outside of the contractor's practice area and the contractor subsequently considers that it is not clinically appropriate or practical to continue to provide that patient with services in accordance with the terms specified in paragraph (3), or to comply with those terms, the agreement must be varied so as to include a term which has the effect of modifying the application of paragraph 23 of Schedule 2 (which relates to the removal of a patient from the list at the contractor's request) in relation to that patient so that—

(a)in sub-paragraph (1), the reference to the patient's disability or medical condition is removed; and

(b)sub-paragraph (4) applies as if, after paragraph (a), there were inserted the following paragraph—

“(aa)the reason for the removal is that the contractor considers that it is not clinically appropriate or practical to continue to provide services under the agreement to the patient which do not include the provision of such services at the patient's home address,”.

(5) Where the contractor is required to provide services to a patient in accordance with arrangements made under paragraph (1), the agreement must also be varied so as to include terms which have the effect of releasing the contractor and [F4NHS England] from all obligations, rights and liabilities relating to the terms specified in paragraph (3) (including any right to enforce those terms) where, in the opinion of the contractor, it is not clinically appropriate or practical under those arrangements to—

(a)provide services in accordance with those terms; or

(b)comply with those terms.

(6) The agreement must also include a term which has the effect of requiring the contractor to notify a person in writing, where the contractor is minded to accept that person on its list of patients in accordance with arrangements made under paragraph (1), that the contractor is under no obligation to provide—

(a)essential services, and any other service in core hours, if, at the time the treatment is required, it is not clinically appropriate of practical to provide primary medical services given the particular circumstances of the patient; or

(b)out of hours services if, at the time treatment is required, it is not clinically appropriate or practical to provide such services given the particular circumstances of the patient.

Textual Amendments

Termination of agreementsE+W

26.—(1) An agreement may only be terminated in the circumstances provided for by Part 8 of Schedule 2.

(2) An agreement must make suitable provision for arrangements which are to have effect on termination of the agreement, including the consequences (whether financial or otherwise) of the agreement ending.

Other required termsE+W

27.—(1) Subject to paragraph (2), an agreement must also contain provisions which are equivalent in their effect to the provisions set out in Parts 6 to 14 of, and Schedules 1 and 2 to, these Regulations, unless the agreement is of a type or nature to which a particular provision does not apply.

(2) The requirement in paragraph (1) does not apply to the provisions specified in—

(a)regulation 76(5) to (14);

(b)regulation 77; and

(c)paragraph 40(5) to (9) and 41(5) to (17) of Schedule 2,

which are to have effect in relation to the matters set out in those provisions.

[F46Suspension of agreement terms or of enforcement of agreement terms while a disease is or in anticipation of a disease being imminently pandemic etc.E+W

27A.—(1) Any term that is part of an agreement as a consequence of action taken under this Part, by agreement between the parties or by virtue of regulation 47(2) of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (terms of service of dispensing doctors: general) is temporarily not part of that agreement, in the particular circumstances mentioned in sub-paragraph (c)(ii) and during the period mentioned in sub-paragraph (c)(iii), in the following circumstances—

(a)as a consequence of a disease being, or in anticipation of a disease being imminently—

(i)pandemic, and

(ii)a serious risk or potentially a serious risk to human health,

[F4NHS England] with the agreement of the Secretary of State has made an announcement in respect of the prioritisation of services to be provided in, or in any part of, England as part of the health service;

(b)the prioritisation is in order to assist in the management of the serious risk or potentially serious risk to human health;

(c)as part of the announcement, [F4NHS England] with the agreement of the Secretary of State has issued advice to the effect that contractors are not to comply with a specified type of term of personal medical services agreements—

(i)in the area to which the announcement relates,

(ii)in the circumstances specified in the announcement, and

(iii)during the period specified in the announcement; and

(d)the contractor is situated in the area to which the announcement relates and compliance with the term (it being of the specified type) would, but for the effect of this paragraph, be a requirement of the contractor’s agreement.

(2) [F4NHS England] must not take enforcement action, as provided for in an agreement, in respect of a breach of a term of the agreement in the following circumstances—

(a)as a consequence of a disease being, or in anticipation of a disease being imminently—

(i)pandemic, and

(ii)a serious risk or potentially a serious risk to human health,

[F4NHS England] with the agreement of the Secretary of State has made an announcement in respect of the prioritisation of services to be provided in, or in any part of, England as part of the health service;

(b)the prioritisation is in order to assist in the management of the serious risk or potentially serious risk to human health;

(c)as part of the announcement, [F4NHS England] with the agreement of the Secretary of State has issued advice to the effect that contractors need not comply with a specified type of term of personal medical services agreements—

(i)in the area to which the announcement relates

(ii)in the circumstances specified in the announcement, and

(iii)during the period specified in the announcement; and

(d)the contractor—

(i)is situated in the area to which the announcement relates, and

(ii)has not complied with the term (it being of the specified type) in the particular circumstances mentioned in sub-paragraph (c)(ii) and during the period mentioned in sub-paragraph (c)(iii).]

Textual Amendments

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