17.—(1) A Local Health Board must remove a qualified practitioner from its ophthalmic or supplementary list (as appropriate) when—
(a)it becomes aware that the qualified practitioner has been convicted in the United Kingdom of murder;
(b)it becomes aware that the qualified practitioner is subject to a national disqualification;
(c)it becomes aware that the qualified practitioner has died;
(d)it becomes aware that the qualified practitioner has otherwise ceased to be a qualified practitioner;
(e)in the case of a qualified practitioner in the Local Health Board’s ophthalmic list, it becomes aware that the qualified practitioner has been included in the supplementary list of any Local Health Board;
(f)in the case of a qualified practitioner in the Local Health Board’s supplementary list, it becomes aware that the qualified practitioner has been included in any Local Health Board’s ophthalmic list or the supplementary list of another Local Health Board;
(g)where the qualified practitioner is an ophthalmic medical practitioner, it becomes aware that the ophthalmic medical practitioner is the subject of—
(i)a direction given by a Medical Practitioners Tribunal under section 35D(2)(a) or (b) of the Medical Act 1983(1) (functions of a Medical Practitioners Tribunal);
(ii)an order or direction made by the Medical Practitioners Tribunal under section 38(1) of the Medical Act 1983 (power to order immediate suspension etc.);
(iii)from the coming into force of article 13 of the Medical Act 1983 (Amendment) Order 2002(2), a direction by a Medical Practitioners Tribunal 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 Medical Practitioners Tribunal), or section 38(1) (power to order immediate suspension etc.) of the Medical Act 1983;
(h)in the case of an optometrist, it becomes aware that the qualified practitioner is the subject of a direction made by the Fitness to Practise Committee of the General Optical Council other than in a health case to erase the practitioner’s name from the appropriate register or suspend the practitioner’s registration under section 13F(3)(a) or (b), (7)(a) or (b) or (13)(a) or (b) of the Opticians Act 1989(3) (powers of the Fitness to Practise Committee);
(i)it is notified by the First-tier Tribunal that it has considered an appeal by that qualified practitioner against their conditional inclusion in the Local Health Board’s supplementary list and that qualified practitioner had been conditionally included pending the outcome of the appeal, and the First-tier Tribunal has decided not to include the qualified practitioner in the supplementary list;
(j)it is notified by the First-tier Tribunal that it has considered an appeal by that qualified practitioner against their contingent removal from the Local Health Board’s supplementary list, and the First-tier Tribunal has decided to remove the qualified practitioner from that supplementary list instead.
(2) Except in a case to which paragraph (1)(c) applies, where a qualified practitioner is removed from a Local Health Board’s list under paragraph (1), the Local Health Board must immediately inform the qualified practitioner that they have been removed from that list.
(3) A Local Health Board may remove a qualified practitioner from its ophthalmic or supplementary list (as appropriate) where—
(a)the qualified practitioner is included in the Local Health Board’s ophthalmic list and has failed to comply with the terms of service;
(b)the qualified practitioner has failed to comply with a condition imposed under regulation 14;
(c)the qualified practitioner has been convicted in the United Kingdom of a criminal offence (other than murder), committed on or after 30 July 2002 in the case of the ophthalmic list, or on or after 1 February 2006 in the case of the supplementary list, and the qualified practitioner has been sentenced to a term of imprisonment (whether suspended or not) of over 6 months;
(d)the qualified practitioner is included in the Local Health Board’s supplementary list and the Local Health Board considers any of the conditions set out below is met in relation to the qualified practitioner—
(i)the continued inclusion of that qualified practitioner in its supplementary list would be prejudicial to the efficiency of the services which those included in that list assist in providing (“an efficiency case”);
(ii)the qualified practitioner has (whether together with someone else or on their own) by an act or omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for themselves or someone else any financial or other benefit and knew that they, or the other person, were not entitled to that benefit (“a fraud case”);
(iii)the qualified practitioner is unsuitable to be included in that part of that list (“an unsuitability case”);
(e)in accordance with paragraphs (4) and (5), it determines that a qualified practitioner that has been included in the Local Health Board’s combined list for the preceding twelve months has not provided (or assisted in providing, as applicable) primary ophthalmic services for persons in its locality within that period.
(4) In calculating the period of twelve months referred to in paragraph (3)(e), the Local Health Board must disregard—
(a)any period during which the qualified practitioner was suspended from the Local Health Board’s list;
(b)any period during which the qualified practitioner was performing whole-time service in the armed forces in a national emergency (as a volunteer or otherwise), compulsory whole-time service in the armed forces (including service resulting from reserve liability), or any equivalent service, if liable for compulsory whole-time service in the armed forces;
(c)any period which the Local Health Board reasonably determines.
(5) A Local Health Board which is considering removing a qualified practitioner from its ophthalmic or supplementary list (as appropriate) under paragraph (3) must, before making that decision, follow the procedure in paragraph 12 of Schedule 3.
(6) Where a Local Health Board is considering a removal under section 107 of the Act (disqualification of practitioners) or under paragraph (3)(d) of this regulation, it must consider the factors set out in paragraphs 14 to 17 of Schedule 3 that are applicable to the grounds for removal being considered.
(7) A Local Health Board must notify the qualified practitioner of its decision under this regulation or under section 107 of the Act within 7 days beginning with the day it makes that decision.
(8) The notification in paragraph (7) must contain—
(a)the Local Health Board’s decision;
(b)the reasons for that decision (including any facts relied upon);
(c)details of how to exercise a right of appeal under regulation 28;
(d)where paragraph (10) applies, notification of the information in that paragraph;
(e)when making a decision under paragraph (3)(d) of this regulation or under section 107 of the Act, the condition (or conditions) in regulation 17(3)(d) or section 107 on which it relies.
(9) A Local Health Board which decides to remove a qualified practitioner from its ophthalmic or supplementary list (as the case may be) under paragraph (3) must not remove that qualified practitioner until the later of—
(a)the end of a period of 28 days beginning with the day on which the Local Health Board makes that decision, or
(b)the date any appeal is determined by the First-tier Tribunal.
(10) Paragraph 13 of Schedule 3 makes provision in relation to the procedure for removals from an ophthalmic list under section 107 of the Act (disqualification of practitioners).
(11) Nothing in this regulation will prejudice the right of a qualified practitioner to have their name included again in an ophthalmic or supplementary list.
(12) In this regulation—
“health case” (“achos iechyd”) has the meaning given to it in section 13G(6) of the Opticians Act 1989(4) (provisions supplementary to section 13F);
“health scheme” (“cynllun iechyd”) means the services covered by the definition in section 107 of the Act (disqualification of practitioners) and those prescribed by regulation 18.
18. The following are prescribed as health schemes for the purposes of section 107(7) of the Act (disqualification of practitioners)—
(a)health services, including medical treatment, provided by His Majesty’s Forces;
(b)services provided by Port Health Authorities constituted under the Public Health (Control of Disease) Act 1984(5);
(c)health services provided to a prisoner in the care of the medical officer or any other such officer of a prison appointed for the purposes of the Prison Act 1952(6);
(d)publicly-funded health services provided by or on behalf of any organisation anywhere in the world.
19.—(1) In an efficiency or a fraud case relating to a qualified practitioner in a Local Health Board’s supplementary list, the Local Health Board may, instead of deciding to remove a qualified practitioner from that list, decide to remove the qualified practitioner contingently and regulation 17(7) and (8) will apply to that decision.
(2) Where a Local Health Board is considering contingently removing a qualified practitioner under paragraph (1), it must, before making that decision, follow the procedure in paragraph 12(1) to (3) of Schedule 3.
(3) If it so decides, the Local Health Board must impose such conditions as it may decide on the qualified practitioner’s inclusion in its supplementary list with a view to—
(a)removing any prejudice to the efficiency of the services in question (in an efficiency case), or
(b)preventing further acts or omissions (in a fraud case).
(4) Where the Local Health Board decides to contingently remove a practitioner under paragraph (1), that decision must not take effect until the later of—
(a)the end of a period of 28 days starting with the date the Local Health Board made its decision, or
(b)the date any appeal is determined by the First-tier Tribunal.
(5) If the Local Health Board decides that the qualified practitioner has failed to comply with a condition, it may decide to—
(a)vary the conditions imposed,
(b)impose new conditions, or
(c)remove the qualified practitioner from its supplementary list.
(6) In this regulation, “efficiency case” and “fraud case” have the meaning given in regulation 17.
(7) A Local Health Board may, and if requested in writing by the qualified practitioner to do so must, review its decision to contingently remove the qualified practitioner under this regulation.
(8) A qualified practitioner may not request a review under paragraph (7) until after a three month period beginning with the date of the Local Health Board includes the qualified practitioner in its combined list.
(9) After a review has taken place, the qualified practitioner may not request a further review before the end of a six month period beginning with the date of the decision on the previous review.
(10) Where a Local Health Board reviews its decision under this regulation, it may—
(a)vary the conditions imposed on the qualified practitioner,
(b)impose different conditions on the qualified practitioner, or
(c)remove the qualified practitioner from its supplementary list.
20.—(1) Subject to regulation 21, a qualified practitioner must give notice to a Local Health Board that they wish to withdraw from that Local Health Board’s ophthalmic list.
(2) A qualified practitioner must give notice to the Local Health Board that they intend to withdraw from the Local Health Board’s ophthalmic list if that qualified practitioner is included in the supplementary list of any Local Health Board.
(3) Where a Local Health Board receives a notice from a qualified practitioner—
(a)pursuant to paragraph (1), it must remove the qualified practitioner from its ophthalmic list on the earlier of the following—
(i)the date that is three months after the date of the notice, or
(ii)the date from which the Local Health Board has agreed that the withdrawal will take effect;
(b)pursuant to paragraph (2), it must remove the qualified practitioner from its ophthalmic list as soon as the Local Health Board confirms that the qualified practitioner is included in a supplementary list.
(4) A qualified practitioner may withdraw a notice given pursuant to paragraph (1) at any time before the Local Health Board removes their name from its ophthalmic list.
(5) A qualified practitioner may not withdraw a notice given pursuant to paragraph (2) once the qualified practitioner has been included in a supplementary list.
21.—(1) Unless the Welsh Ministers have given their consent to a qualified practitioner’s withdrawal from an ophthalmic list, a qualified practitioner may not withdraw from an ophthalmic list where a Local Health Board is investigating the qualified practitioner—
(a)for the purpose of deciding whether or not to exercise its powers under section 107 (disqualification of practitioners), 108 (contingent removal) or 110 (suspension) of the Act,
(b)for failure to comply with a condition imposed on the qualified practitioner under regulation 14 so as to justify removal of the qualified practitioner from its ophthalmic list, or
(c)who has been suspended under section 110(1)(a) of the Act,
until the matter has been finally determined by the Local Health Board.
(2) Unless the Welsh Ministers have given their consent to the qualified practitioner’s withdrawal from an ophthalmic list, a qualified practitioner may not withdraw from an ophthalmic list where a Local Health Board has decided to—
(a)remove the qualified practitioner from its ophthalmic list under section 107 or 108 of the Act,
(b)contingently remove the qualified practitioner under section 108 of the Act, or
(c)remove the qualified practitioner for breach of a condition imposed on inclusion under these Regulations,
but has not yet given effect to that decision.
(3) Where a Local Health Board has suspended a qualified practitioner under section 110(1)(b), the qualified practitioner may not withdraw from an ophthalmic list until the decision of the relevant court or body is known and the matter has been considered and finally determined by the Local Health Board.
(4) The Local Health Board must not agree to a qualified practitioner withdrawing from its ophthalmic list unless it is satisfied that satisfactory arrangements have been made for the completion of any primary ophthalmic services which the qualified practitioner has undertaken to provide.
22.—(1) A qualified practitioner must, so far as is practicable, give the Local Health Board at least three months’ notice in advance of the day that the qualified practitioner intends to withdraw from its supplementary list.
(2) A qualified practitioner must give notice to the Local Health Board that they intend to withdraw from the Local Health Board’s supplementary list if that qualified practitioner is included in—
(a)that Local Health Board’s ophthalmic list,
(b)any other Local Health Board’s ophthalmic list, or
(c)any other Local Health Board’s supplementary list.
(3) When a Local Health Board receives a notice from a qualified practitioner—
(a)pursuant to paragraph (1), it must remove the qualified practitioner from its supplementary list on the earlier of the following—
(i)the date that is three months after the date of the notice, or
(ii)the date from which the Local Health Board has agreed that the withdrawal will take effect;
(b)pursuant to paragraph (2), it must remove the qualified practitioner from its supplementary list as soon as the Local Health Board confirms that the qualified practitioner has been included in another list referred to in paragraph (2).
(4) A qualified practitioner may withdraw a notice given pursuant to paragraph (1) at any time before the Local Health Board removes their name from its supplementary list.
(5) A qualified practitioner may not withdraw a notice given pursuant to paragraph (2) once the qualified practitioner has been included in that other list.
23.—(1) If the Local Health Board is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest, it may suspend a qualified practitioner from its supplementary list—
(a)while it decides whether or not to remove the qualified practitioner from its supplementary list under regulation 17 or contingently remove the qualified practitioner from its supplementary list under regulation 19;
(b)while it waits for a decision of a licensing or regulatory body or court anywhere in the world which affects the qualified practitioner;
(c)where it has decided to remove the practitioner, but before that decision takes effect;
(d)pending an appeal under these Regulations.
(2) In a case falling within paragraph (1)(a), the Local Health Board must specify a period, not exceeding six months, as the period of suspension.
(3) In a case falling within paragraph (1)(b), the Local Health Board may specify that the qualified practitioner remains suspended, after the decision referred to in that sub-paragraph has been made, for an additional period not exceeding six months.
(4) Subject to paragraph (5), the Local Health Board may extend the period of suspension under paragraph (2) or impose a further period of suspension under paragraph (3), so long as the aggregate does not exceed six months.
(5) The period of suspension under paragraph (2) or (3) may be extended beyond six months if—
(a)on the application of the Local Health Board, the First-tier Tribunal so orders, or
(b)the Local Health Board applied under sub-paragraph (a) before the expiry of the period of suspension, but the First-tier Tribunal has not made an order by the time it expires, in which case it continues until the First-tier Tribunal makes an order.
(6) If the First-tier Tribunal does so order, it must specify—
(a)the date on which the period of suspension is to end,
(b)an event beyond which it is not to continue, or
(c)both of the above, in which case the suspension will end on the earlier of the date or event specified, as the case may be.
(7) The First-tier Tribunal may, on the application of the Local Health Board, make a further order, which must also comply with paragraph (6), at any time while the period of suspension pursuant to the earlier order is still continuing.
(8) If the Local Health Board suspends a qualified practitioner in a case falling within paragraph (1)(c) or (d), the suspension has effect from the date the Local Health Board informed the qualified practitioner of the suspension and will continue until—
(a)in a case falling within paragraph (1)(c), the decision takes effect, or
(b)in a case falling within paragraph (1)(d), the First-tier Tribunal has determined the appeal.
(9) While a qualified practitioner is suspended under these Regulations, that qualified practitioner must be treated as not being included in that Local Health Board’s supplementary list, even though their name appears in it.
(10) A Local Health Board may, and if requested in writing by the qualified practitioner to do so must, review its decision to suspend the qualified practitioner under paragraph (1)(a) or (b) of this regulation.
(11) A qualified practitioner may not request a review under paragraph (10) until after a three month period beginning with the date of the Local Health Board includes the qualified practitioner in its combined list.
(12) After a review has taken place, the qualified practitioner may not request a further review before the end of a six month period beginning with the date of the decision on the previous review.
(13) Where a Local Health Board decides to review its decision to suspend a practitioner under paragraph (1)(c) or (d) of this regulation, it may decide to impose conditions or remove the practitioner from its supplementary list.
24.—(1) Where a Local Health Board is considering suspending a qualified practitioner under regulation 23 of these Regulations, or section 110 (suspension) or 111(7) (suspension pending appeal) of the Act, or varying the period of suspension under regulation 23 of these Regulations, or section 110 of the Act, the Local Health Board must give the qualified practitioner —
(a)notice of any allegation against the qualified practitioner;
(b)notice of what action the Local Health Board is considering and on what grounds;
(c)the opportunity to make written representations to the Local Health Board within 28 days of the date of the notification under sub-paragraph (b) (“the specified period”);
(d)the opportunity to make representations at an oral hearing before the Local Health Board within the specified period if the qualified practitioner requests one.
(2) The Local Health Board may suspend the qualified practitioner with immediate effect if—
(a)they make no written representations within the specified period and do not request an oral hearing, or
(b)they do not attend any oral hearing that is arranged.
(3) If the qualified practitioner requests an oral hearing, the hearing must take place within the specified period and before the Local Health Board reaches its decision.
(4) If the qualified practitioner makes written representations or an oral hearing takes place, the Local Health Board must take into account any representations made before it reaches its decision.
(5) The Local Health Board may suspend the qualified practitioner with immediate effect following any hearing.
(6) The Local Health Board must notify the qualified practitioner of its decision and the reasons for it (including any facts relied upon) within 7 days beginning with the day that its decision is made.
(7) When the Local Health Board notifies the qualified practitioner under paragraph (6) it must also inform the qualified practitioner of any right to a review of that decision under the Act (in the case of suspension from the ophthalmic list) or under regulation 23 of these Regulations (in the case of suspension from the supplementary list).
25.—(1) Paragraph (2) applies where—
(a)a qualified practitioner has been removed from a combined list by a Local Health Board on the grounds that the qualified practitioner had been convicted of a criminal offence, and
(b)that conviction is overturned on appeal.
(2) The Local Health Board may agree to include the qualified practitioner in its combined list without that qualified practitioner making an application under regulation 12 if it—
(a)is satisfied that there are no other matters that need to be considered, and
(b)has received an undertaking to comply with the requirements of these Regulations from the qualified practitioner.
(3) Where the conviction mentioned in paragraph (1) is reinstated on a further appeal—
(a)the previous decision of the Local Health Board to remove the qualified practitioner from its combined list will once again have effect, and
(b)the Local Health Board must remove the qualified practitioner from its combined list.
26.—(1) A qualified practitioner that is included in the combined list of a Local Health Board must notify that Local Health Board within 14 days of any occurrence requiring a change in the information which that list is required to contain in relation to them.
(2) A qualified practitioner that is included in a supplementary list of a Local Health Board must notify that Local Health Board within 14 days of any change in their private address.
(3) Where a Local Health Board receives a notice from a qualified practitioner pursuant paragraph (1) or (2), it must amend its combined list as soon as possible.
27.—(1) A Local Health Board must notify the persons or bodies specified in paragraph (2) and must additionally notify those included in paragraph (3), if requested to do so by those person or bodies in writing, of the matters set out in paragraph (4), where that Local Health Board decides to—
(a)refuse to include a qualified practitioner in its combined list under regulation 13;
(b)impose conditions on the qualified practitioner’s inclusion in a combined list under regulation 14;
(c)remove the qualified practitioner from its ophthalmic list under section 107 of the Act (disqualification of practitioners) or from its ophthalmic or supplementary list under regulation 17;
(d)contingently remove the qualified practitioner from its ophthalmic list under section 108 of the Act or from its supplementary list under regulation 19;
(e)suspend the qualified practitioner from its ophthalmic list under section 110 or 111 of the Act or from its supplementary list under regulation 23.
(2) Where paragraph (1) applies, a Local Health Board must, within 7 days beginning with the date of that decision, notify—
(a)the Welsh Ministers;
(b)any Local Health Board or equivalent body that, to the knowledge of the Local Health Board—
(i)has included the qualified practitioner in a primary care list or equivalent list;
(ii)is considering an application from the qualified practitioner for inclusion in a primary care list or equivalent list;
(iii)has in its area any place where the qualified practitioner provides or assists in the provision of primary ophthalmic services;
(c)the Secretary of State;
(d)the Scottish Ministers;
(e)the Northern Ireland Executive;
(f)the General Medical Council, General Optical Council or any other appropriate regulatory body;
(g)NHS Resolution;
(h)any other organisation that, to the knowledge of the Local Health Board, employs or uses any of the services of the qualified practitioner in a professional capacity;
(i)where it is a fraud case within the meaning of section 107(3) of the Act, the NHS Counter Fraud Authority.
(3) The persons or bodies to be additionally notified in accordance with paragraph (1) are—
(a)persons or bodies that can establish that they—
(i)are or were employing the qualified practitioner, are using or have used any of the qualified practitioner’s services in a professional capacity, or
(ii)are considering employing or using any of the qualified practitioner’s services in a professional capacity;
(b)a partnership, any of whose members provide or assist in the provision of primary ophthalmic services, and can establish that the qualified practitioner is or was a member of the partnership or that it is considering inviting the qualified practitioner to become such a member.
(4) The matters referred to in paragraph (1) are—
(a)the name, address and, where applicable, the date of birth of the qualified practitioner and, in the case of a corporate optician, the names, addresses and dates of birth of its directors, with the case of a director who is a member of a profession regulated by a body for the time being mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002(8) (the Professional Standards Authority for Health and Social Care), that fact and the individual’s registration number with that body,
(b)the qualified practitioner’s professional registration number,
(c)the date and a copy of the decision of the Local Health Board, and
(d)a contact name of a person in the Local Health Board for further enquiries.
(5) The Local Health Board must send to the qualified practitioner concerned a copy of any information about that practitioner that it has provided to the persons or bodies listed in paragraph (2) or (3), and any correspondence with that person or body relating to that information.
(6) Where the Local Health Board has notified any of the persons or bodies specified in paragraph (2) or (3) of the matters set out in paragraph (4), it may, in addition, if requested by that person or body, notify that person or body of any evidence that was considered, including any representations from the practitioner.
(7) Where a Local Health Board is notified by the First-tier Tribunal that it has imposed a national disqualification on a qualified practitioner whom the Local Health Board had removed from its combined list, or who was applying, or had applied to be, included in its combined list, the Local Health Board must notify the persons or bodies listed in paragraph (2)(b), (g), (h) and (i) and paragraph (3).
(8) Where a decision is changed on review or appeal, or a suspension lapses, the Local Health Board must notify the persons or bodies that were notified of the original decision of the later decision or of the fact that the suspension has lapsed.
Section 35D was inserted by article 13 of S.I. 2002/3135, and the title of the section was further amended by article 5 of S.I. 2015/794. Section 35D(2) was amended by S.I. 2014/1101, article 7 and S.I. 2015/794, article 5. There are other amendments to this section which are not relevant to these Regulations.
S.I. 2002/3135, to which there are amendments not relevant to these Regulations.
Section 13F was added by S.I. 2005/848, article 16.
Section 13G was added by S.I. 2005/848, article 16.
Section 111 was amended by S.I. 2010/22, Schedule 2, paragraph 136.
2002 c. 17; section 25(3) was amended by paragraph 17(2) and (3) of Schedule 10 to the Health and Social Care Act 2008 (c. 14), paragraph 10(2) of Schedule 4 to S.I. 2010/231, paragraph 56(b) of Schedule 15 to the Health and Social Care Act 2012 (c. 7) and paragraph 2(2) of Schedule 4 to the Children and Social Work Act 2017 (c. 16).