The National Health Service (Tribunal) (Scotland) Regulations 2004
| Jurisdiction | Scotland |
| Citation | SSI 2004/38 |
| Year | 2004 |
2004 No. 38
NATIONAL HEALTH SERVICE
The National Health Service (Tribunal) (Scotland) Regulations 2004
Made 2nd February 2004
Laid before the Scottish Parliament 3rd February 2004
Coming into force 4th March 2004
The Scottish Ministers, in exercise of the powers conferred by sections 19, 24B, 25(2), 26(2), 27(2), 29(4) and (9), 29A(5), 32, 32C(2), 105(7), 106(a) and 108(1) of, and paragraph 7 of Schedule 8 to, the National Health Service (Scotland) Act 19781and sections 39 and 40(2) of, and paragraphs 3(4) and (5), and 7 of Schedule 1 to, the National Health Service (Primary Care) Act 19972and of all other powers enabling them in that behalf, and after consultation with the Council on Tribunals and its Scottish Committee in accordance with sections 8(1) and (3) of the Tribunal and Inquiries Act 19923, hereby make the following Regulations:
PART I
GENERAL
Citation, commencement and extent
1.—(1) These Regulations may be cited as the National Health Service (Tribunal) (Scotland) Regulations 2004 and shall come into force on 4th March 2004.
(2) These Regulations extend to Scotland only.
Interpretation and forms
2.—(1) In these Regulations–
“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;
“conditional disqualification” has the meaning indicated in section 29C(1) of the 1978 Act4;
“dentist” means a fully registered dental practitioner;
“disqualification” means local or national disqualification but does not include conditional disqualification;
“doctor” means a fully registered medical practitioner;
“document” means a document in writing and includes–
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disk, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) any film (including any microfilm), negative, tape or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;
“efficiency case” has the meaning indicated in section 29(11) of the 1978 Act5;
“first condition for disqualification” has the meaning indicated in section 29(6) of the 1978 Act6;
“fraud case” has the meaning indicated in section 29(11) of the 1978 Act;
“Health Board” means a Health Board constituted under section 2 of the 1978 Act7;
“inquiry” means an inquiry held in accordance with the provisions of these Regulations and includes any hearing relating to suspension proceedings;
“in writing” does not include transmission by electronic means;
“list” has, unless the context otherwise requires, the meaning assigned to it in section 29(8) of the 1978 Act8;
“local or national disqualification” has the meaning indicated in section 29B(2)(a) and (b) of the 1978 Act9;
“ophthalmic medical practitioner” means a doctor having the qualifications prescribed by regulation 3 of the National Health Service (General Ophthalmic Services) (Scotland) Regulations 198610;
“optician” means a person registered in either of the registers kept under section 7 (registers of opticians) of the Opticians Act 198911of ophthalmic opticians or a body corporate enrolled in the list kept under section 9 (list of bodies corporate carrying on business as opticians) of that Act of such bodies carrying on business as ophthalmic opticians;
“pharmacist” means a registered pharmacist within the meaning of the Medicines Act 196812;
“pharmacist contractor” means a contractor who provides pharmaceutical services or a person lawfully conducting a retail pharmacy business in accordance with section 69 (general provisions) of the Medicines Act 196813;
“practitioner” means, unless the context otherwise requires, the doctor, dentist, ophthalmic medical practitioner, optician, pharmacist or pharmacist contractor, who is the subject of representations by a complainer or who is the subject of an application;
“primary care NHS trust” means an NHS trust to which functions referred to in section 12AA (additional functions of NHS trusts) of the 1978 Act14are delegated by the Health Board;
“representations” means, except in regulation 28(2), representations made to the Tribunal that a person meets the first or second condition for disqualification or representations under paragraph 3(1) or (2) of Schedule 1 to the 1997 Act (representations against preferential treatment)15;
“relevant professional body” means–
(a) in relation to a practitioner who is a doctor or an ophthalmic medical practitioner, the General Medical Council;
(b) in relation to a practitioner who is a dentist, the General Dental Council;
(c) in relation to a practitioner who is an optician, the General Optical Council; and
(d) in relation to a practitioner who is a pharmacist, the Royal Pharmaceutical Society of Great Britain;
“respondent” means–
(a) in the case of representations or an application for interim suspension, any practitioner in respect of whom representations are, or an application for interim suspension is, made;
(b) in the case of an application by a practitioner, the complainer in respect of whose representations the decision to which the application relates was made; and
(b) in the case of an application by a person other than a practitioner, the practitioner;
“review” means a review by the Tribunal under section 30 of the 1978 Act16(review etc. of disqualification) or an inquiry into whether or not to give a direction under paragraph 5 (termination of directions) of Schedule 1 (preferential treatment on transferring to medical lists) to the 1997 Act;
“second condition for disqualification” has the meaning indicated in section 29(7) of the 1978 Act17;
“the Tribunal” means the Tribunal constituted under section 29 of the 1978 Act (the NHS tribunal).
(2) In these Regulations, any reference to a numbered regulation or a numbered Schedule is, unless otherwise expressly provided, a reference to a regulation or a Schedule bearing that number in these Regulations.
(3) The forms set out in Schedule 2, (forms for use in proceedings in connection with representations and applications) or forms substantially to the like effect, shall be used in all cases to which those forms are applicable by virtue of the provisions of these Regulations and a reference to a numbered form in these Regulations is a reference to the form bearing that number set out in Schedule 2.
Health schemes
3. The schemes prescribed for the purposes of section 29(9) of the 1978 Act (definition of “health scheme”)18are–
(a) health services, including dental, medical and surgical treatment, provided by Her Majesty’s Forces;
(b) services provided by port local authorities and joint port local authorities constituted under section 172 (constitution of port local authorities) of the Public Health (Scotland) Act 189719;
(c) health services provided to a prisoner in accordance with section 3A (medical services in prisons) of the Prisons (Scotland) Act 198920; and
(d) publicly-funded health services provided by or on behalf of any organisation anywhere in the world.
PART II
CONSTITUTION OF TRIBUNAL
Term of office of members of the Tribunal
4. The chairman and deputy chairmen of the Tribunal shall hold office during the pleasure of the Lord President of the Court of Session and the other members shall hold office during the pleasure of the Scottish Ministers.
Officers of the Tribunal
5. The chairman of the Tribunal shall appoint the following persons, who shall hold office during the pleasure of the chairman:–
(a) a person approved by the Scottish Ministers to act as clerk to the Tribunal; and
(b) such other officers as may be necessary.
PART III
PROCEDURE FOR DEALING WITH REPRESENTATIONS
Submission of representations
6.—(1) Subject to paragraph (4), representations shall–
(a)
(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)
(b) be accompanied by 2 copies of each document which the complainer proposes to put in evidence; and
(c)
(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...
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