Statutory Instruments of the Scottish Parliament

"the 1978 Act" means the National Health Service (Scotland) Act 1978;

"the 1997 Act" means the National Health Service (Primary Care) Act 1997;

"applicant" means a person who has made an application;

"application" means, unless the context otherwise requires, an application for a review;

"chairman" includes a deputy chairman acting in the chairman's place;

"Chief Executive" means the Chief Executive or equivalent of a Health Board or primary care NHS trust or some other officer of the Health Board or primary care NHS trust duly authorised to act on behalf of the Chief Executive or equivalent;

"complainer" means a Health Board or primary care NHS trust or any other person who makes representations to the Tribunal;

(a) a person approved by the Scottish Ministers to act as clerk to the Tribunal; and

(b) such other officers as may be necessary.

(a) be made in terms of Form 1 and shall-


(i) contain a concise statement of the alleged facts and grounds upon which the complainer intends to rely;

(ii) be signed by the complainer or on the complainer's behalf by some person authorised by the complainer;



(b) be accompanied by 2 copies of each document which the complainer proposes to put in evidence; and

(c) be sent together with the copies of the documents relevant to it to the clerk to the Tribunal.

    (2) Subject to paragraph (5), where the representations are made under paragraph 3 (representations against preferential treatment) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act they shall be sent to the Tribunal within two weeks of the date of publication by the Scottish Ministers under regulation 30 (publication of information about applications for preferential treatment) of information about the application.

    (3) Subject to paragraph (5), where representations are made that the second condition of disqualification is met and relate to a practitioner who has applied to join a list but whose name is not yet on such a list, they shall be sent to the clerk to the Tribunal within 30 days of receipt of the application for the practitioner's name to be included.

    (4) If a document which the complainer proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the complainer shall not be required to submit copies of it.

    (5) Where a complainer is required to make representations within a time specified in paragraph (2) or (3) and the complainer-

(a) makes an application (whether before or after the expiry of the time so specified) to the Tribunal for an extension of that time; and

(b) includes in that application a statement of the grounds for making it,

(a) be made in terms of Form 5 and shall-


(i) contain a concise statement of the alleged facts and grounds upon which the applicant intends to rely; and

(ii) be signed by the applicant or on the applicant's behalf by some person authorised by the applicant;



(b) subject to paragraph (2), be accompanied by 2 copies of each document which the applicant proposes to put in evidence; and

(c) be sent together with the copies of each document relevant to it to the clerk to the Tribunal.

    (2) If a document which the applicant proposes to put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the applicant shall not be required to submit copies of it.

    (3) If it appears to the Tribunal, after due consideration of an application, that no good cause has been shown why an inquiry should be held for the purposes of any review, it may refuse to hold an inquiry and shall inform the applicant of its refusal to hold an inquiry, and its reasons for that refusal in writing.

    (4) Where the Tribunal considers that an inquiry should be held, the clerk to the Tribunal shall send to the respondent and to any Health Board or primary care NHS trust (not being the applicant or the respondent) which was represented at the inquiry following which the decision, in respect of which the application relates, was made-

(a) a notice in terms of Form 6 informing the respondent or the Health Board or primary care NHS trust that an application has been made by the applicant and that the Tribunal considers that an inquiry should be held;

(b) 1 copy of the application and of each document, if any, which accompanied it; and

(c) information as to arrangements by which any document which the applicant proposes to put in evidence, but which the applicant is not required to submit copies of in accordance with paragraph (2), may be examined by the respondent and any such Health Board or primary care NHS trust.

    (5) As soon as may be practicable after sending a copy of the application in terms of paragraph (4), the clerk to the Tribunal shall-

(a) fix a date and time at which an inquiry shall commence and the place where it will be held; and

(b) not less than 2 weeks before the date fixed for the inquiry to commence, send to-


(i) the applicant;

(ii) the respondent; and

(iii) any Health Board or primary care NHS trust to whom a notice in terms of Form 6 has been sent pursuant to paragraph (4),



a notice in terms of Form 7 containing the information referred to in sub-paragraph (a).

(a) section 20 (applications to provide general medical services) of the 1978 Act are modified to the extent that such a practitioner shall not be entitled to the inclusion of the practitioner's name in a medical list;

(b) section 25(2)(b) of the 1978 Act are modified to the extent that regulations need not confer a right for such a practitioner who wishes to be included in a list of dental practitioners who undertake to provide general dental services to be so included;

(c) section 26(2)(b) of the 1978 Act are modified to the extent that regulations need not confer a right for such a practitioner who wishes to be included in the appropriate list to be so included; and

(d) section 27 of the 1978 Act are modified to the extent that nothing in section 27(3) and (5) shall require regulations to provide for a Health Board or primary care NHS trust to include such a practitioner in a list or to confer on such a practitioner rights of appeal against a Health Board or primary care NHS trust from a refusal to add such a practitioner to a list,

(a) to attend at the time and place set forth in the notice, to give evidence or to produce any books or documents in that person's custody or under that person's control which relate to any matter in question at the inquiry; or

(b) to furnish within such reasonable period as is specified in the notice such information relating to any matter in question at the inquiry as the chairman of the Tribunal who presides over the inquiry may think fit, and as the person so required is able to furnish; but-


(i) no person shall be required in obedience to such a notice to attend at any place which is more than 10 miles from the place where that person resides unless the necessary expenses are paid or tendered to that person; and

(ii) nothing in this paragraph shall empower the chairman to require any person to produce any book or document or to answer any question which that person would be entitled, on the ground of privilege or confidentiality, to refuse to produce or to answer if the hearing were a proceeding in a court of law.

     5. The chairman of the Tribunal who presides over the inquiry may administer oaths and examine witnesses on oath, and may accept in lieu of evidence on oath by any person, a statement in writing by that person.

     6. Any person who refuses or wilfully neglects to attend in obedience to a notice under paragraph 4, or to give evidence, or who wilfully alters, suppresses, conceals, destroys or refuses to produce any book or document which that person may be required to furnish under paragraph 4(b), shall be liable on summary conviction to a fine not exceeding level five on the standard scale or to imprisonment for a period not exceeding 3 months.

     7. Subject to the provisions of these Regulations, the Tribunal may adjourn from time to time as it thinks fit and hold adjourned sittings at such time and place as may appear to it to be suitable.

     8. A Health Board or primary care NHS trust to whom notices in terms of Forms 3 and 4 are sent pursuant to regulations 9(2) and 12 (notice of inquiry), or to whom notice is sent pursuant to regulation 24(4) shall be entitled to take such part in the proceedings of the inquiry as the Tribunal shall think proper.

     9. The Tribunal may make orders as to the expenses incurred by the parties appearing at any such inquiry and as to the parties by whom such expenses shall be paid.

     10. Any order by the Tribunal under paragraph 9 may be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(a) the [continued (5)] inclusion of the respondent in the list referred to would be prejudicial to the efficiency of services which those included in the list undertake to provide or are approved to assist in providing.

(b) the respondent has (whether on the respondent's own or together with another) by an act or omission caused, or risked causing, detriment to a health scheme by securing or trying to secure for the respondent or another a financial or other benefit, and knew that the respondent or (as the case may be) the other was not entitled to the benefit.

     2. The facts and grounds upon which the representations are based are as follows:-

. . . . . . . . . . . . . . . . . . (6)

     3. The documents of which 2 copies of each accompany this representation shall be produced in evidence in support of the representation (7).

Signed . . . . . . . . . . . . . . . . . .

Complainer

Dated . . . . . . . . . . . . . . . . . .

Notes

    (1) State whether the respondent is a doctor, dentist, ophthalmic medical practitioner, optician, pharmacist or pharmacist contractor.

    (2) Delete whichever is inapplicable.

    (3) State whether the list is the medical, dental, ophthalmic, pharmaceutical or supplementary list.

    (4) Delete whichever of (a) or (b) is inapplicable (if either).

    (5) Delete in the case of a representation under paragraph 3 (representations against preferential treatment) of Schedule 1 (preferential treatment on transferring to medical lists) to the National Health Service (Primary Care) Act 1997.

    (6) Paragraph 2 of the representation must contain a concise statement of the alleged facts and grounds upon which the complainer intends to rely.

    (7) If any document to be put in evidence is of a nature which renders it difficult to make or obtain a copy of it, you are not required to submit copies of any such document.

(a) a copy of representations that (5)


(i) your [continued (6)] inclusion in the list referred to would be prejudicial to the efficiency of services which those included in the list undertake to provide or are approved to assist in providing;

(ii) you have (whether on your own or together with another) by an act or omission caused, or risked causing, detriment to a health scheme by securing or trying to secure for yourself or another a financial or other benefit and knew that you or (as the case may be) the other was not entitled to the benefit



which representation was submitted to the Tribunal by the complainer on . . . . . . . . . . . . . . . . . . (7);

(b) a copy of each document which accompanied the representation (8).

    (2) The Tribunal intends to hold an inquiry in relation to the representation and notice will be sent to you not less than 2 weeks before the date on which the inquiry will commence.

    (3) You may, if you so desire, submit to me within 4 weeks from the date of receipt of this notice a written statement-in-answer and 2 copies of each document which you propose to put in evidence (9).

Signed . . . . . . . . . . . . . . . . . .

Clerk to the Tribunal

Dated . . . . . . . . . . . . . . . . . .

Notes

    (1) The full name of the respondent should be inserted.

    (2) State whether the respondent is a doctor, dentist, ophthalmic medical practitioner, optician, pharmacist or pharmacist contractor.

    (3) Delete whichever is inapplicable.

    (4) State whether the list is the medical, dental, ophthalmic, pharmaceutical or supplementary list.

    (5) Delete whichever of (i) or (ii) is inapplicable (if either).

    (6) Delete in the case of a representation under paragraph 3 (representations against preferential treatment) of Schedule 1 (preferential treatment on transferring to medical lists) to the National Health Service (Primary Care) Act 1997.

    (7) State the date on which the representation was submitted.

    (8) The complainer may intend to put in evidence documents or material which it is difficult to make or obtain a copy of. If this is the case, the clerk to the Tribunal will inform you accordingly.

    (9) If any document to be put in evidence is of a nature which renders it difficult to make or obtain a copy of it, you are not required to submit copies of any such document.

(a) the [continued (6)] inclusion of the respondent in the list referred to would be prejudicial to the efficiency of services which those included in the list undertake to provide or are approved to assist in providing;

(b) the respondent has (whether on the respondent's own or together with another) by an act or omission caused, or risked causing, detriment to a health scheme by securing or trying to secure for the respondent or another a financial or other benefit, and knew that the respondent or (as the case may be) the other was not entitled to the benefit.

I enclose a copy of the representations and a copy of each document which accompanied them.

     2. The Tribunal intends to hold an inquiry in relation to the representations and notice will be sent to you not less than 2 weeks before the date on which the inquiry will commence.

     3. . . . . . . . . . . . . . . . . . . Health Board or primary care NHS trust may, if they so desire, submit to me within 4 weeks from the date of receipt of this notice a written statement.

     4. If any documents are to be put in evidence in support of the statement, 2 copies of each such document must accompany the statement (7).

     5. . . . . . . . . . . . . . . . . . . Health Board or primary care NHS trust are entitled to be represented and take part in the proceedings at the inquiry as the Tribunal shall think proper.

Signed . . . . . . . . . . . . . . . . . .

Clerk to the Tribunal

Dated . . . . . . . . . . . . . . . . . .

Notes

    (1) State the name of the Health Board or primary care NHS trust to which the notice is being sent.

    (2) State whether the respondent is a doctor, dentist, ophthalmic medical practitioner, optician, pharmacist or pharmacist contractor.

    (3) State whether the list is the medical, dental, ophthalmic, pharmaceutical or supplementary list.

    (4) State the name of each Health Board or primary care NHS trust in whose list the respondent's name is included.

    (5) Delete whichever of (a) or (b) is inapplicable (if either).

    (6) Delete in the case of a representation under paragraph 3 (representations against preferential treatment) of Schedule 1 (preferential treatment on transferring to medical lists) to the National Health Service (Primary Care) Act 1997.

    (7) If any document to be put in evidence is of a nature which renders it difficult to make or obtain a copy of it, the Health Board or primary care NHS trust are not required to submit copies of any such document.

(a) a copy of an application for a review under section 30 (review etc. of disqualification) of the said Act / paragraph 5 (termination of directions) of Schedule 1 (preferential treatment on transferring to medical lists) to the National Health Service (Primary Care) Act 1997 of the decision of the Tribunal made on . . . . . . . . . . . . . . . . . . (2) in respect of . . . . . . . . . . . . . . . . . . (3).

(b) a copy of each document which accompanied the application(4).

     2. The Tribunal intends to hold an inquiry in relation to the application. A notice will be sent to you not less than 2 weeks before the date on which the inquiry will commence.

Signed . . . . . . . . . . . . . . . . . .

Clerk to the Tribunal

Dated . . . . . . . . . . . . . . . . . .

Notes

    (1) The full name of the respondent or, as the case may be, the appropriate Health Board or primary care NHS trust should be inserted.

    (2) State the date on which the Tribunal made the relevant direction.

    (3) State the full name of the practitioner in respect of which the application relates.

    (4) The applicant may intend to put in evidence documents or material which it is difficult to make or obtain a copy of. If this is the case, the clerk to the Tribunal will inform you accordingly.

(a) the Health Act 1999 ("the 1999 Act") and the Community Care and Health (Scotland) Act 2002 ("the 2002 Act") to the sections of the National Health Service (Scotland) Act 1978 ("the 1978 Act"), dealing with the NHS Tribunal and the disqualification of practitioners; and

(b) the 2002 Act to Schedule 1 to the National Health Service (Primary Care) Act 1997 ("the 1997 Act"), dealing with representations to the NHS Tribunal against preferential treatment on transferring to medical lists.

Those provisions of the 1999 Act and the 2002 Act were commenced on 4th March 2004 by Article 2(2) of the Health Act 1999 (Commencement No. 14) (Scotland) Order 2004 (S.S.I. 2004/32) and Article 2 of the Community Care and Health (Scotland) Act 2002 (Commencement No. 3) Order 2004 (S.S.I. 2004/33).

The changes to the 1978 Act by the 1999 Act include powers and duties for the NHS Tribunal to inquire into representations that a practitioner meets a new second condition for disqualification (which are referred to in the Act as "fraud cases"), powers to make a conditional disqualification (a disqualification which is to come into effect only if the NHS Tribunal determine on a review that a person subject to the inquiry has failed to comply with any conditions), and new powers and duties in relation to reviews of disqualifications, conditional disqualifications or declarations of unfitness. The changes to the 1978 Act by the 2002 Act include extending the jurisdiction of the Tribunal to include inquiries into representations concerning a practitioner on a list of persons approved to assist in the provision of general medical services. The changes to the 1997 Act by the 2002 Act give the Tribunal power to inquire into representations that applicants with preferential treatment to be included in a medical list meet the new second condition for disqualification. These Regulations make amendments consequential upon these changes, and other amendments, to the relevant provisions of the 1992 Regulations.

Part I of these Regulations makes general provisions for the purpose of these Regulations. Regulation 3 prescribes the additional health and medical schemes that will be included in the definition of health schemes in section 29 of 1978 Act for the purposes of the new second condition for disqualification.

Part II of these Regulations consolidates the provisions of the 1992 Regulations relating to the appointment of members and officers of the NHS Tribunal.

Part III of these Regulations make provisions for the making of representations to the NHS Tribunal and for the procedure that inquiries under section 29 to 29C of the 1978 Act and paragraph 3 of Schedule 1 to the 1997 Act are to be held in accordance with.

The principal changes in Part III from the provisions of the 1992 Regulations as a result of the coming into force of the amendments made by the 1999 Act are:

(a) regulation 6(3) prescribes the time within which representations that the second condition for disqualification is met and which relate to a practitioner who has applied to join a list, must be made;

(b) regulations 9(3) and 15(3)(c) make provision for notifying Health Boards and primary care NHS trusts when a person is subject to an inquiry in a fraud case and when those representations are withdrawn; and

(c) regulation 17(1) provides that where it would be the duty of the NHS Tribunal to inquire into both an efficiency case and a fraud case in respect of the same person it may inquire into one case before the other.

The other principal changes in Part III from the provisions of 1992 Regulations are:

(a) regulation 6(5) prescribes that the time limit for submitting representations may be extended by the Tribunal, and confers on the Tribunal power to do so;

(b) regulations 9(1) and (2) and 11(4) and (6) require the clerk to the Tribunal to give additional information to all parties about documents submitted to the Tribunal;

(c) regulation 16 makes provision for where any party which has received notice of an inquiry fails to appear at the inquiry;

(d) regulation 17(2) makes provision that inquiries before the NHS Tribunal may not be adjourned solely because of an investigation into the same facts by the respondent's professional body;

(e) regulation 21(4) makes additional provision for the Scottish Ministers to publish decisions of the Tribunal by sending them to respondents' professional bodies.

Part IV of these Regulations make provision for, and for the determination of, procedure in relation to determining applications for interim suspension under the 1978 Act. The principal change from the 1992 Regulations is to make provision, in regulation 22(7), for the time limits for submitting a statement-in-answer and for notice of the date and time of an inquiry to be varied, provided that the respondent still has an opportunity to appear before the NHS Tribunal and to be heard and call witnesses and produce other evidence.

Part V of these Regulations makes provision for inquiries for the purposes of a review under the 1978 Act or an inquiry under paragraph 5(2) of Schedule 1 to the 1997 (which relates to the termination of directions by the NHS Tribunal made as a result of representations against preferential treatment). The principal change from the 1992 Regulations is to make provision, in regulation 24(7), for certain applications for review under the 1978 Act of a conditional disqualification by a Health Board or primary care NHS trust.

Part VI of these Regulations consolidate various miscellaneous provisions in the 1992 Regulations. The principal change to those provisions as a result of the coming into force of amendments made by the 1999 Act is provision, in regulation 26, for the purpose of securing that a person subject to an inquiry in a fraud case is not added to any list until proceedings in that case are finally concluded.

The other principal change in Part VI from the 1992 Regulations is to make provision for the Scottish Ministers, in certain circumstances, after notifying the practitioner and giving them an opportunity to make representations, to direct Health Boards and primary care NHS trusts to recover amounts from practitioners where there has been a decision of the NHS Tribunal against that practitioner.

In Part VI also, regulation 34 makes transitional provisions and regulation 35 and Schedule 3 repeal the provisions of the 1992 Regulations relating solely to the NHS Tribunal and amendments made to those provisions.

Schedule 1 makes provisions for procedure at all inquires before the NHS Tribunal. The principal change to equivalent provisions in the 1992 Regulations is that the maximum level of fine for which a person shall be liable for on summary conviction of an offence under paragraph 6 has been increased to level five on the standard scale.

Schedule 2 sets out the prescribed forms for use in proceedings in connection with representations and applications to the NHS Tribunal.