The National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019
| Jurisdiction | UK Non-devolved |
| Citation | SI 2019/334 |
2019 No. 334
National Health Service, England
The National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019
Made 20th February 2019
Laid before Parliament 25th February 2019
Coming into force 1st April 2019
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 20061.
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 Board2is 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—
(a) made or entered into under one of the specified sections in Part 4 of the 2006 Act; or
(b) 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—
(b) making arrangements for the provision of primary medical services;
(c) providing primary medical services;
(d) making arrangements for the provision of ancillary health services;
(e) providing ancillary health services;
(f) 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)
(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)
(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)
(a) “subsidiary” has the same meaning as in section 1159(1) of the Companies Act 20066; and
(b)
(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) a Part 4 contractor;
(b)
(b) a primary medical services sub-contractor; or
(c)
(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)
(a) “relevant date” means the date on which a breach of a duty of care, as mentioned in regulation 5(1), occurred; and
(b)
(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)
(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)
(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)
(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)
(a) an employee of the eligible person; or
(b)
(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 20157(“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)
(a) to, or on behalf of, an eligible person in respect of a relevant liability of the eligible person; or
(b)
(b) where paragraph (3) applies.
(3) This paragraph applies where—
(a)
(a) an eligible person—
(i) has died;
(ii) has been dissolved or wound up (within the meaning of the Companies Act 20068); or
(iii) is bankrupt or insolvent; and
(b)
(b) the Secretary of State is satisfied that a relevant liability of a person falling within paragraph (a) is not also a relevant liability of any other eligible person.
(4) For the purposes of this regulation, the amount of any payment to be made is to be determined by the Secretary of State in accordance with regulation 7.
(5) In this regulation—
(a)
(a) “bankrupt” has the same meaning as that given in section 381(1) of the Insolvency Act 19869(“Bankrupt” and associated terminology); and
(b)
(b) “insolvent” has the same meaning as that given in section 247(1)10of that Act (meaning of “insolvency” and “go into liquidation”).
Determination of amount of payment to be made in respect of a relevant liability
7.—(1) In determining the amount of any payment to be made under regulation 6 in the circumstances specified in each of paragraphs (2) to (7), the Secretary of State must have regard to the relevant matters specified in each of those paragraphs, as appropriate.
(2) Where an award of damages has been made by a court against an eligible person, the relevant matters are the amount of—
(a)
(a) the award;
(b)
(b) the legal and associated costs awarded to the claimant; and
(c)
(c) any legal and associated costs incurred by or on behalf of the eligible person.
(3) Where, in any legal proceedings, a settlement has been agreed...
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