The National Health Service (Clinical Negligence Scheme) (Wales) Regulations 2019

Jurisdiction
CitationSI 2019/422

2019No. 422 (W. 97)

NATIONAL HEALTH SERVICE, WALES

The National Health Service (Clinical Negligence Scheme) (Wales) Regulations 2019

Made4March2019

Laid before the National Assembly for Wales5March2019

Coming into force1April2019

The Welsh Minsters make the following Regulations in exercise of the powers conferred by sections 30, 47(1) and (2), and 203(9) and (10) of the National Health Service (Wales) Act 2006( 1).

Title, commencement and application

1.—(1) The title of these Regulations is the National Health Service (Clinical Negligence Scheme) (Wales) Regulations 2019.

(2) These Regulations come into force on 1 April 2019.

(3) These Regulations apply in relation to Wales.

Interpretation

2. In these Regulations—

“the Act” (“y Ddeddf”) means the National Health Service (Wales) Act 2006;

“eligible body” (“corff cymwys”) means a body specified in regulation 4;

“Local Health Board” (“Bwrdd Iechyd Lleol”) means a Local Health Board established in accordance with section 11(2) of the Act;

“member” (“aelod”) means an eligible body which is a member of the Scheme;

“membership year” (“blwyddyn aelodaeth”) means, in respect of any eligible body, any 12 month period starting on 1 April during which the body is a member of the Scheme;

“NHS Trust” (“Ymddiriedolaeth GIG”) means a National Health Service Trust established in accordance with section 18(2) of the Act;

“primary medical services” (“gwasanaethau meddygol sylfaenol”) means health services provided under a contract, arrangement or agreement made under or by virtue of the following sections of the Act—

(a) section 41(2) (primary medical services);

(b) section 42(1) (general medical services contracts);

(c) section 50 (arrangements by Local Health Boards for the provision of primary medical services);

“primary medical services provider” (“darparwr gwasanaethau meddygol sylfaenol”) means the person who has entered into a contract to provide primary medical services in accordance with section 41(2)(b), 42 or 50 of the Act:

“relevant function” (“swyddogaeth berthnasol”) means—

(a) arranging for the provision of services for the purposes of the health service( 2);

(b) providing services for the purposes of the health service;

(c) exercising functions in relation to the health service;

(d) providing primary medical services;

(e) exercising powers under, or by virtue of, section 7 of the Health and Medicines Act 1988( 3);

(f) exercising powers under section 169 of, or paragraphs 19 and 20 of Schedule 3 to, the Act;

“relevant health services” (“gwasanaethau iechyd perthnasol”) means primary medical services provided in Wales for the purposes of the health service;

“the Scheme” (“y Cynllun”) means the Clinical Negligence Scheme for NHS Trusts and Local Health Boards established by regulation 3.

Clinical Negligence Scheme for NHS Trusts and Local Health Boards

3.—(1) There is hereby established a scheme, to be known as the Clinical Negligence Scheme for NHS Trusts and Local Health Boards.

(2) The purpose of the Scheme is to enable an eligible body to make provision to meet liabilities to which the Scheme applies.

(3) An eligible body may participate in the Scheme only if it is a member of the Scheme.

(4) The Scheme is to be administered by the Welsh Ministers.

Eligible bodies

4. The bodies which are eligible to be a member of the Scheme are—

(a) a NHS Trust, or

(b) a Local Health Board.

Membership of the Scheme

5.—(1) An eligible body may apply to the Welsh Ministers to become a member of the Scheme.

(2) An application made in accordance with paragraph (1) must—

(a) be made in writing,

(b) be made in such form and be submitted in such manner as the Welsh Ministers may require,

(c) specify a date on which the eligible body proposes that its membership should start, and

(d) contain, or be accompanied by, such information as the Welsh Ministers may require.

(3) At any time after receiving an application and before determining it, the Welsh Ministers may in writing require the applicant to provide such further information as the Welsh Ministers consider necessary for the purposes of determining the application.

(4) Information that may be required in accordance with paragraphs (2) and (3) includes—

(a) the nature of the applicant's functions;

(b) the number of employees and contractors;

(c) qualifications and experience of such employees and contractors;

(d) details of any previous claims in which the applicant has been the defendant in respect of personal injury claims made as a result of the exercise of any relevant function;

(e) such other information as the Welsh Ministers may request for the purposes of determining the application.

(5) The Welsh Ministers must—

(a) within 6 weeks of receiving an application made in accordance with the requirements in paragraphs (2) and (3), determine whether or not to grant it, and

(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 Welsh Ministers must have regard to—

(a) the information provided by the applicant, and

(b) such other factors as the Welsh Ministers consider relevant.

(7) Where an eligible body's application is granted, that body's membership of the Scheme starts on the date specified in the notice given in accordance with paragraph (5)(b).

(8) For the purposes of paragraph (4)(b) and (c), reference to “contractors” is to be construed in accordance with regulation 9(2).

Cancellation of membership by a member

6.—(1) This regulation applies only in relation to any member which has been a member of the Scheme for at least 3 consecutive membership years.

(2) A member of the Scheme may cancel its membership of the Scheme by giving notice of the cancellation in writing to the Welsh Ministers.

(3) Where a notice under paragraph (2)—

(a) is given before 1 September in a membership year, the notice takes effect at the end of that membership year;

(b) is given on or after 1 September in a membership year, the notice takes effect at the end of the following membership year.

Cancellation of membership by the Welsh Ministers

7.—(1) The Welsh Ministers may cancel a member's membership of the Scheme in any of the circumstances specified in paragraphs (2) to (4).

(2) The circumstances specified in this paragraph are where the member is liable to make a payment to the Welsh Ministers 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 with the date on which the payment became due.

(3) The circumstances specified in this paragraph are where the member has failed to provide any information required under regulation 19 (duty of members to provide information)—

(a) before the end of the period of 28 days which starts with the date on which the Welsh Ministers request the information, or

(b) if the Welsh Ministers in writing allow a further period for providing such information, before the end of that further period.

(4) The circumstances specified in this paragraph are where the Welsh Ministers consider 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) The Welsh Ministers 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—

(a) where the cancellation is in circumstances specified in paragraph (2), (3), or (4)—

(i) the date to be specified must not be less than 28 days after the date on which the notice is given, but

(ii) the Welsh Ministers may determine not to cancel the membership by giving the member a further notice in writing to that effect.

Liabilities of members

8.—(1) The Scheme applies to—

(a) any liability in tort under the law of England and Wales which a member of the Scheme owes to a third party in respect of or consequent upon personal injury or loss specified in paragraph (2), and

(b) any contractual liability of a member of the Scheme—

(i) arising as a consequence of an arrangement to provide relevant health services referred to in regulation 9(2), and

(ii) specified as a qualifying liability of a contractor in regulation 9(4).

(2) The personal injury or loss referred to in paragraph (1) is personal injury or loss arising out of or in connection with any breach of a duty of care, which—

(a) the member owes to any person in connection with the diagnosis of any illness or the care or treatment of any patient, and

(b) is in consequence of any act or omission specified in paragraph (3).

(3) The act or omission referred to in paragraph (2) is an act or omission to act on the part of—

(a) a person employed or engaged by the member in connection with any relevant function provided by the member, or

(b) an employee or agent of a person engaged by the member in connection with the provision of any relevant function.

Other liabilities for which members are treated as liable

9.—(1) In this regulation, “health services provider” means an NHS Trust, Local Health Board or a primary medical services provider.

(2) The Scheme applies to the qualifying liabilities of a health services provider which is not a member of the Scheme (“the contractor”) where its provision of relevant health...

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