The National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019

CitationSI 2019/334
JurisdictionUK Non-devolved

2019No. 334

NATIONAL HEALTH SERVICE, ENGLAND

The National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019

Made20thFebruary2019

Laid before Parliament25thFebruary2019

Coming into force1stApril2019

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 71 (1) to (3) and 272(7) and (8) of the National Health Service Act 2006( 1).

In accordance with section 71(1) of that Act, these Regulations are made with the consent of the Treasury.

Citation, commencement and application

1.—(1) These Regulations may be cited as the National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019 and come into force on 1st April 2019.

(2) These Regulations apply only in relation to services provided as part of the health service in England.

Interpretation

2.—(1) In these Regulations—

“2006 Act” means the National Health Service Act 2006;

“ancillary health services”, subject to paragraph (2)(a), means services, other than primary medical services, provided as part of the health service by—

(a) a Part 4 contractor whose principal activity consists of the provision of primary medical services;

(b) a primary medical services sub-contractor whose principal activity consists of the provision of primary medical services; or

(c) a person (“P”) with whom a person specified in paragraph (a) or (b) has made arrangements for P to provide the ancillary health services;

“eligible person” means a person specified in regulation 4;

“health service” means the health service continued under section 1(1) of the 2006 Act;

“Part 4 contractor” means a person providing, or arranging for the provision of, primary medical services in accordance with a contractual arrangement made with that person under one of the specified sections in Part 4 of the 2006 Act;

“primary medical services” means the primary medical services that, pursuant to section 83 of the 2006 Act, the Board( 2) is under a duty to secure and which are provided in accordance with a contractual arrangement or agreement (including any such contractual arrangement or agreement that is part of a set of arrangements for the provision of services, in addition to the primary medical services) that is—

(d) made or entered into under one of the specified sections in Part 4 of the 2006 Act; or

(e) made between a Part 4 contractor and a primary medical services sub-contractor;

“primary medical services sub-contractor” means a person providing primary medical services under a contractual arrangement made with a Part 4 contractor;

“relevant function” means—

(f) making arrangements for the provision of primary medical services;

(g) providing primary medical services;

(h) making arrangements for the provision of ancillary health services;

(i) providing ancillary health services;

(j) carrying out an activity in connection with any of the activities in paragraphs (a) to (d);

“relevant liability” means a liability falling within regulation 5;

“Scheme” means the scheme established under regulation 3(1).

(2) In paragraph (1),—

(a) in the definition of “ancillary health services”, unless determined otherwise by the Secretary of State, a person specified in paragraphs (a) to (c) of that definition excludes a subsidiary company; and

(b) “specified sections in Part 4 of the 2006 Act” means the following sections of the 2006 Act—

(i) section 83(2)( 3) (primary medical services);

(ii) section 84(1)( 4) (general medical services contracts); and

(iii) section 92(1)( 5) (arrangements by the Board for the provision of primary medical services).

(3) For the purposes of paragraph (2)(a)—

(a) “subsidiary” has the same meaning as in section 1159(1) of the Companies Act 2006( 6); and

(b) “company” has the same meaning as in subsection (4) of that section.

Establishment, purpose and administration of scheme

3.—(1) A scheme, to be known as the Clinical Negligence Scheme for General Practice, is established.

(2) The purpose of the Scheme is to enable the Secretary of State to make provision to meet relevant liabilities of eligible persons.

(3) The Scheme is to be administered by the Secretary of State.

Eligible persons

4.—(1) An eligible person is a person who is, or who, on the relevant date, was—

(a) a Part 4 contractor;

(b) a primary medical services sub-contractor; or

(c) a person with whom a Part 4 contractor or a primary medical services sub-contractor has made arrangements for that person to provide ancillary health services.

(2) For the purposes of paragraph (1),—

(a)“relevant date” means the date on which a breach of a duty of care, as mentioned in regulation 5(1), occurred; and

(b) “arrangements” in sub-paragraph (c) excludes arrangements made under a contract of employment.

Liabilities to which the Scheme applies and exclusions

5.—(1) The Scheme applies to any liability in tort under the law of England and Wales that arises as a consequence of a breach of a duty of care owed by an eligible person to a third party in connection with a relevant function where—

(a) an act, or an omission to act, on the part of the eligible person, or any other person specified in paragraph (2), results in personal injury or loss to the third party;

(b) the act, or omission to act, is in connection with the diagnosis of an illness or the provision of care or treatment to the third party; and

(c) the act, or omission to act, occurs on or after 1st April 2019.

(2) The persons specified for the purposes of paragraph 5(1)(a) are—

(a) an employee of the eligible person; or

(b) any other individual who is otherwise engaged, or permitted, by the eligible person to carry out an activity connected to a relevant function.

(3) Where a liability of an eligible person is a liability to which both paragraph (1) and regulation 8(1) (liabilities to members) of the National Health Service (Clinical Negligence Scheme) Regulations 2015( 7) (“CNST Regulations”) apply, the Secretary of State must determine whether the liability is to be met under this Scheme or the scheme under the CNST Regulations.

Payments in respect of relevant liabilities

6.—(1) The Secretary of State may determine whether a payment is to be made in respect of a relevant liability.

(2) Without limit to the power in paragraph (1), a payment may be made—

(a) to, or on behalf of, an eligible person in respect of a relevant liability of the eligible person; or

(b) where paragraph (3) applies.

(3) This paragraph applies where—

(a) an eligible person—

(i) has died;

(ii) has been dissolved or wound up (within the meaning of the Companies Act 2006( 8)); or

(iii) is bankrupt or insolvent; and

(b)...

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