The National Health Service (Liabilities to Third Parties Scheme) (England) Regulations 2018
2018 No. 756
National Health Service, England
The National Health Service (Liabilities to Third Parties Scheme) (England) Regulations 2018
Made 25th June 2018
Laid before Parliament 29th June 2018
Coming into force 1st August 2018
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 71 and 272(7) and (8) of the National Health Service Act 20061.
In accordance with section 71(1) of that Act, these Regulations are made with the consent of the Treasury.
PART 1
General
Citation, commencement and application
1.—(1) These Regulations may be cited as the National Health Service (Liabilities to Third Parties Scheme) (England) Regulations 2018.
(2) These Regulations come into force on 1st August 2018.
(3) These Regulations apply to England only.
Interpretation
2. In these Regulations—
“the 1999 Regulations” means the National Health Service (Liabilities to Third Parties Scheme) Regulations 19992;
“the 2006 Act” means the National Health Service Act 2006;
“the 2012 Act” means the Health and Social Care Act 20123;
“the appointed day” means the day on which these Regulations come into force;
“eligible body” means a body specified in regulation 4;
“membership year” means, in relation to an eligible body, any period of 12 months beginning on 1st April during any part of which that body is a member of the Scheme;
“qualifying liability” has the meaning given by regulation 9;
“relevant function” means—
(a) arranging for the provision of, or providing services for the purposes of, or exercising functions in relation to, the health service continued under section 1(1) of the NHS Act 2006;
(b) a power exercised by virtue of section 7 of the Health and Medicines Act 19884;
(c) a power exercised under section 13W, 14Z5, 43(3) or 44 of, or paragraphs 19 or 20 of Schedule 4 to, the 2006 Act5;
(d) a power exercised under section 243 or 270 of the 2012 Act;
(e) a function conferred by regulations made under section 240(1)(a) or (b) of the 2012 Act.
PART 2
The Scheme
Liabilities to Third Parties Scheme
3.—(1) The Liabilities to Third Parties Scheme (“the Scheme”)6established under the 1999 Regulations shall continue to exist in accordance with, and as if it had been established under, these Regulations.
(2) An eligible body may participate in the Scheme only if it is a member of the Scheme.
(3) The Secretary of State is to continue to administer the Scheme.
Eligible Bodies
4.—(1) The bodies which are eligible to be members of the Scheme are—
(a)
(a) the Board7,
(b)
(b) a clinical commissioning group,
(c)
(c) an NHS Trust,
(d)
(d) a Special Health Authority,
(e)
(e) NICE8,
(f)
(f) the Health and Social Care Information Centre,
(g)
(g) Health Education England,
(h)
(h) an NHS foundation trust,
(i)
(i) the Care Quality Commission,
(j)
(j) the Health Research Authority, and
(k)
(k) a company formed under section 223 of the 2006 Act and wholly owned by the Secretary of State.
Membership of the Scheme
5.—(1) Any eligible body may apply to the Secretary of State to become a member of the Scheme.
(2) An application under paragraph (1) must—
(a)
(a) be in writing;
(b)
(b) be made in such form and submitted in such manner as the Secretary of State may require;
(c)
(c) specify a date on which the eligible body proposes that its membership should start; and
(d)
(d) if required by the Secretary of State, contain, or be accompanied by the information specified in paragraph (4).
(3) At any time before determining an application, the Secretary of State may in writing require the applicant to provide such further information as the Secretary of State considers necessary for the purposes of that determination.
(4) Information that may be required under paragraph (2) is—
(a)
(a) the nature of the applicant’s relevant functions;
(b)
(b) the number of employees of the applicant who are engaged in the performance by the applicant of any relevant function specified by the Secretary of State, or any part of such a function;
(c)
(c) the qualifications and experience of such employees; and
(d)
(d) the details of any claim made against the applicant in respect of any qualifying liability arising from loss, damage or injury sustained by third parties as a result of the exercise by the applicant of any relevant function.
(5) The Secretary of State must—
(a)
(a) within six weeks of receiving an application made in accordance with requirements under paragraph (1), determine whether or not to grant it; and
(b)
(b) as soon as reasonably practicable, inform the applicant of the determination by a notice in writing which, if the application is granted, must specify the date on which the applicant’s membership is to start.
(6) In determining whether to grant an application, the Secretary of State must have regard to—
(a)
(a) the information provided by the applicant; and
(b)
(b) such other factors as the Secretary of State considers relevant.
(7) Where an eligible body’s application is granted, the body’s membership of the Scheme starts on the date specified in the notice under paragraph (5)(b).
Cancellation of membership by a member
6.—(1) This regulation applies only in relation to a member which has been a member of the Scheme for at least three consecutive membership years.
(2) The member may cancel its membership of the Scheme by giving the Secretary of State notice in writing of the cancellation.
(3) Where a notice under paragraph (2)—
(a)
(a) is given before 1st September in a membership year, the notice takes effect at the end of that membership year;
(b)
(b) is given on or after 1st September in a membership year, the notice takes effect at the end of the following membership year.
Cancellation of membership by the Secretary of State
7.—(1) The Secretary of State may cancel a member’s membership of the Scheme where any of paragraphs (2) to (4) apply.
(2) This paragraph applies where the member is liable to make a payment to the Secretary of State under regulation 11 (duty of members to make contributions to the Scheme) and that payment remains unpaid for a period of 28 days or more which starts on the date on which the payment becomes due.
(3) This paragraph applies where the member has failed to provide any information required under regulation 18 (duty of members to provide information)—
(a)
(a) before the end of the period of 28 days which starts on the date on which the Secretary of State requests the information; or
(b)
(b) if the Secretary of State in writing allows a further period for providing such information, before the end of that further period.
(4) This paragraph applies where the Secretary of State considers that it would be detrimental to the efficient administration of the Scheme or the interests of other members for the member to remain a member of the Scheme.
(5) Where the Secretary of State cancels a member’s membership under paragraph (1) the Secretary of State must inform the member by notice in writing that its membership of the Scheme is to cease with effect from a date specified in the notice and that date must not be earlier than the 28th day after the day on which the notice is sent.
(6) The Secretary of State may determine not to cancel the membership by giving the member a further notice in writing to that effect.
(7) A notice given under paragraph (6) must be given before the date on which membership was to cease as specified in the notice given under paragraph (5).
Automatic termination of membership
8. Where a member ceases to be an eligible body, its membership ceases immediately.
Liabilities to which the Scheme applies
Liabilities of members
9.—(1) The Scheme applies to any liability which a member of the Scheme owes to any third party in respect of loss, damage or injury arising out of an act or omission in the course of the carrying out of any relevant function of that member which is a qualifying liability.
(2) A “qualifying liability” is—
(a)
(a) a liability in respect of personal injury sustained by a relevant person arising out of and in the course of his or her employment or engagement by the member;
(b)
(b) a liability in respect of or consequent upon personal injury or loss arising out of or in connection with any breach of a duty of care or breach of any statutory duty in each case owed by the member to any person in consequence of any act or omission to act on the part of any relevant person;
(c)
(c) a contractual liability in respect of personal injury to any person or damage to any property of any third party;
(d)
(d) a liability arising out of the act or omission to act on the part of a relevant person which is dishonest, fraudulent, criminal or malicious;
(e)
(e) a liability arising out of the making or publishing of any defamatory statement (whether in written or oral form) by the member or a relevant person;
(f)
(f) a contractual liability to make payment to any relevant person in connection with any personal injury sustained by the relevant person directly as a result of assault;
(g)
(g) any legally enforceable liability in respect of or consequent upon personal injury or loss arising out of or in connection with any tortious or other wrongful act committed by any relevant person;
(h)
(h) a liability arising out of any indemnity properly given by a member to any board member;
(i)
(i) any liability in respect of any consequential or ancillary expense which arises in connection with any liability referred to in any of the above categories.
(3) For the purposes of paragraph (2)—
(a)
(a) “board member” means, in respect of a member, any member of the board of that member whether or not that person is an employee of that member;
(b)
(b) “personal injury”...
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