The General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004

Made: 30th March 2004

Laid before the Scottish Parliament: 30th March 2004

Coming into force: 1st April 2004

The Scottish Ministers, in exercise of the powers conferred by section 7 of the Primary Medical Services (Scotland) Act 2004[^f00001] and of all other powers enabling them in that behalf, hereby make the following Order:

PART 1 — GENERAL

Citation, commencement and interpretation

1

• (1) This Order may be cited as the General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 and shall come into force on 1st April 2004.

• (2) In this Order–

• “the 1978 Act” means the National Health Service (Scotland) Act 1978[^f00002];

• “the 1995 Regulations” means the National Health Service (General Medical Services) Regulations 1995[^f00003];

• “the 2003 Order” means the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003[^f00004];

• “the 2004 Act” means the Primary Medical Services (Scotland) Act 2004[^f00005];

• “the 2004 Regulations” means the National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004[^f00006];

• “additional services” has the same meaning as in the 2004 Regulations;

• “area medical committee” has the same meaning as in the 2004 Regulations;

• “core hours” has the same meaning as in the 2004 Regulations;

• “the Choice Regulations” means the National Health Service (Choice of Medical Practitioner) (Scotland) Regulations 1998[^f00007];

• “contractor” means a person with whom a Health Board enters into a contract;

• “default contract” means a contract entered into under article 13 of the Transitional Order and “default contractor” shall, except in Part 3, where it has the meaning given in article 34(3), be construed accordingly;

• “essential services” has the same meaning as in the 2004 Regulations;

• “general medical services contract” means a contract under section 17J of the 1978 Act and general medical services contractor shall, except in Part 3, where it has the meaning given in article 34(3), be construed accordingly;

• “Health Board” means a Health Board constituted under section 2 of the 1978 Act[^f00008] and, in relation to any time before 1st April 2004, includes a National Health Service trust to which functions of the Health Board were delegated under section 12AA of the 1978 Act[^f00009];

• “list of patients” means– in relation to a person providing general medical services under section 19 of the 1978 Act[^f00010], the list of patients of a medical practitioner prepared by the Health Board under regulation 27[^f00011] of the 1995 Regulations; in relation to a general medical services contractor or a default contractor, the list prepared and maintained by the Health Board under the term of a general medical services contract which gives effect to paragraph 14 of Schedule 5 to the 2004 Regulations or under the equivalent term of a default contract; and in relation to a person providing services under an agreement for primary medical services made (or, pursuant to article 49, deemed to be made) under section 17C of the 1978 Act– the list prepared and maintained by the Health Board under the term of that agreement which gives effect to paragraph 8 of Schedule 2 to the Section 17C Agreements Regulations; the performers or pooled list required to be kept under the terms of any directions made by the Scottish Ministers in relation to patient lists for transitional agreements; or the performers or pooled list required to be kept under regulation 9 of the National Health Service (Personal Medical Services) (Scotland) Regulations 2001[^f00012];

• “medical list” means the list of medical practitioners undertaking to provide general medical services for persons in its area kept by a Health Board under regulations made under section 19(2)(a) of the 1978 Act;

• “NHS dispute resolution procedure”, except in Part 4 where it has the meaning given in article 48, has the same meaning as in the 2004 Regulations;

• “National Health Service Trust” has the meaning indicated by section 12A of the 1978 Act[^f00013];

• “out of hours period” has the same meaning as in the 2004 Regulations;

• “Performers Lists Regulations” means the National Health Service (Primary Medical Services Performers' Lists (Scotland) Regulations 2004[^f00014];

• “pilot scheme” means an agreement made under Part 1 of the National Health Service (Primary Care) Act 1997[^f00015];

• “pilot scheme provider” means a person who is providing services under a pilot scheme;

• “practice premises” in relation to a person providing services under section 19 of the 1978 Act, has the same meaning as in regulation 2(1) of the 1995 Regulations[^f00016] and, in relation to a general medical services contractor or a default contractor, has the same meaning as in regulation 2(1) of the 2004 Regulations;

• “primary medical services performers list” has the same meaning as in the 2004 Regulations;

• “public or local holiday” has the same meaning as in the 2004 Regulations;

• “section 17C agreement” means an agreement made under section 17C of the 1978 Act[^f00017];

• “the Section 17C Agreements Regulations” means the National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2004[^f00018];

• “section 17C provider” means– a provider as defined in regulation 2 of the Section 17C Agreements Regulations; or in relation to a transitional agreement, a provider as defined in article 48;

• “registered patient” means– a person who is recorded by the Health Board as being on the list of patients of a default contractor or a general medical services contractor; or a person whom a default contractor or a general medical services contractor has accepted for inclusion on its list of patients, whether or not notification of that acceptance has been received by the Health Board and who has not been notified by the Health Board as having ceased to be on that list;

• “temporary resident” means a person accepted by a general medical services contractor or a default contractor as a temporary resident under the term of its general medical services contract which gives effect to paragraph 16 of Schedule 5 to the 2004 Regulations (or under the equivalent terms of its default contract) and for whom the contractor’s responsibility has not been terminated in accordance with the terms of the general medical services contract or default contract;

• “transitional agreement” means an agreement which is deemed under article 49 to have been made under section 17C of the 1978 Act and which has not been varied in accordance with article 50;

• “the Transitional Order” means the General Medical Services (Transitional and other Ancillary Provisions) (Scotland) Order 2004[^f00019].

PART 2 — TRANSITIONAL PROVISIONS RELATING TO GENERAL MEDICAL SERVICES

Application and interpretation of this Part

2

• (1) In this Part–

• (a) articles 3 to 26 apply to a default contract, or a general medical services contract entered into on 1st April 2004, with–

• (i) an individual medical practitioner who has entered into the general medical services contract pursuant to an entitlement under article 3 of the Transitional Order or the default contract pursuant to article 13 of that Order;

• (ii) a partnership which has entered into the general medical services contract pursuant to an entitlement under article 4 of that Order or the default contract pursuant to an entitlement under article 13 of that Order; or

• (iii) a company in which one or more of the legal and beneficial shareholders is, on 31st March 2004, providing services under section 19 of the 1978 Act;

• (b) articles 27 and 28 apply to the contracts specified in sub-paragraph (a) and to a general medical services contract which takes effect immediately after a default contract with the same parties ceases to have effect; and

• (c) article 29 applies to all general medical services contracts and default contracts entered into before 1st April 2005.

• (2) Unless it is entered into with a person to whom the particular article does not apply, a general medical services contract or a default contract which falls within paragraph (1) shall include, or be deemed to include, terms which have the effect specified in articles 3 to 29.

• (3) In this Part–

• “relevant medical practitioner” means a medical practitioner who, on 31st March 2004, is providing services under section 19 of the 1978 Act and– as an individual medical practitioner has entered into– a default contract; or a general medical services contract under which services are to be provided from 1st April 2004; is a partner in a partnership that has entered into– a default contract; or a general medical services contract under which services are to be provided from 1st April; or is a legal and beneficial shareholder in a company which has entered into a general medical services contract under which services are to be provided from 1st April 2004;

• “succeeding contractor” means the default contractor which is a party to the default contract or the general medical services contractor which is a party to the general medical services contract which– a relevant medical practitioner has entered into as an individual medical practitioner; has been entered into by a partnership in which the relevant medical practitioner is a partner; or has been entered into by a company in which a relevant medical practitioner is a legal and beneficial shareholder.

Applications for inclusion in lists of patients

3

Where, on or before 31st March 2004, a person had applied to a relevant medical practitioner for inclusion in that medical practitioner’s list of patients pursuant to regulation 2 or 3(1) of the Choice Regulations[^f00020] but on 31st March 2004 that application had not yet been determined, the application shall, on 1st April 2004, be regarded as if it had been made to the succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 15 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

Acceptance of applications for inclusion in lists of patients

4

• (1) Where, on or before 31st March 2004, a relevant medical practitioner had agreed to accept a person on that medical practitioner’s list of patients pursuant to paragraph 6 of Schedule 1 to the 1995 Regulations but on 31st March 2004 the relevant medical practitioner had not yet sent the signed medical card or the application to the Health Board in accordance with sub-paragraph (3) of that paragraph, that acceptance shall be regarded on 1st April 2004 as an acceptance by the succeeding contractor and notification of that acceptance shall be sent by the succeeding contractor to the Health Board in accordance with–

• (a) the term of its general medical services contract which gives effect to paragraph 15(5) of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

• (2) In paragraph (1), “medical card” has the same meaning as in the 2004 Regulations.

Removal from the list of patients at the request of the patient

5

Where, on or before 31st March 2004, a Health Board had received notice from a patient under regulation 25(1) of the 1995 Regulations[^f00021] that the patient wished to be removed from a relevant medical practitioner’s list of patients but on 31st March 2004 that removal had not yet taken effect in accordance with that regulation, the removal shall take effect as a removal from the list of patients of the succeeding contractor as if it were a removal pursuant to a request received by the Health Board in accordance with–

• (a) the term of the succeeding contractor’s general medical services contract which gives effect to paragraph 19 of Schedule 5 to the 2004 Regulations, subject to the modification that the reference to the period of 14 days in the term which gives effect to paragraph 19(3)(b) shall be read as a reference to the period of 14 days after the date on which the request made under regulation 25(1) of the 1995 Regulations was received by the Health Board; or

• (b) the equivalent term of its default contract, subject to a modification to the same effect.

Removal from the list of patients at the request of the relevant medical practitioner

6

• (1) Where, on or before 31st March 2004, a relevant medical practitioner had notified the Health Board that the relevant medical practitioner wished to have a patient removed from that medical practitioner’s list of patients in accordance with paragraph 9 of Schedule 1 to the 1995 Regulations but that removal had, on 31st March 2004, not yet taken effect, paragraph (2) shall apply.

• (2) Except where paragraph (3) applies, the removal shall take effect as a removal from the list of patients of the succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 20(8) of Schedule 5 to the 2004 Regulations, subject to the modification that the reference in that term to the eighth day after the Health Board receives the notice shall be read as a reference to the eighth day after the Health Board received the notice sent under paragraph 9 of Schedule 1 to the 1995 Regulations; or

• (b) the equivalent term of its default contract, subject to a modification to the same effect.

• (3) Where, on or before 31st March 2004, the Health Board had been–

• (a) informed by the relevant medical practitioner under paragraph 9(3) of Schedule 1 to the 1995 Regulations that that medical practitioner was treating the patient at intervals of less than seven days but had not yet been notified by that medical practitioner that the patient no longer needed such treatment; or

• (b) notified by the relevant medical practitioner under that paragraph that the person no longer needed treatment at intervals of less than seven days,

paragraph (4) shall apply.

• (4) In a case which falls within paragraph (3), the removal shall take effect as a removal from the list of patients of the succeeding contractor on–

• (a) the date on which the Health Board receives notification of the registration of the person with another provider of essential services (or their equivalent);

• (b) the eighth day after the Health Board received notice from the relevant medical practitioner that the person no longer needed treatment at intervals of less than seven days; or

• (c) the eighth day after the Health Board receives notice from the succeeding contractor that the patient no longer needs treatment at intervals of less than seven days,

whichever is the sooner.

Removals from the list of patients who are violent

7

• (1) This article applies where, on or before 31st March 2004, a person had been removed from a relevant medical practitioner’s list of patients with immediate effect pursuant to paragraph 9(2) of Schedule 1 to the 1995 Regulations but–

• (a) confirmation in writing had not yet been given to the Health Board under paragraph 9(3);

• (b) reasonable steps had not yet been taken by the relevant medical practitioner under paragraph 9(5) to inform the person whose name had been removed; or

• (c) written notice of the removal had not yet been given to the person by the Health Board under regulation 27(6) of the 1995 Regulations[^f00022].

• (2) In a case to which paragraph (1)(a) applies written confirmation of the request for removal shall be given to the Health Board by the succeeding contractor within 7 days from the date on which notification was given under paragraph 9(2).

• (3) In a case to which paragraph (1)(b) applies, reasonable steps shall be taken by the succeeding contractor to inform the patient of the request for removal.

• (4) In a case to which paragraph (1)(c) applies, the Health Board shall send written notice of the removal to the patient.

Removals from the list of patients who have moved

8

Where, on or before 31st March 2004, a Health Board had given a relevant medical practitioner notice in writing, in accordance with regulation 25(3) of the 1995 Regulations[^f00023], that it intended to remove a person from the practitioner’s list of patients but the six months referred to in that regulation had not yet expired, that notice shall be regarded as if it had been given to the succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 24 of Schedule 5 to the 2004 Regulations, subject to the modification that the reference to the period of six months in the term which gives effect to paragraph 24(a) shall be read as a reference to six months from the date of the notice given by the Health Board under regulation 25(3) of the 1995 Regulations; or

• (b) the equivalent term of its default contract, subject to a modification to the same effect.

Removals not reflected in the list of patients on 31st March 2004

9

• (1) This article applies where–

• (a) on or before 31st March 2004 the removal of a patient from a relevant medical practitioner’s list of patients had taken effect under the 1995 Regulations; and

• (b) the Health Board had not, on 31st March 2004, reflected that removal in the list of patients of that medical practitioner which it maintained under regulation 27 of the 1995 Regulations.

• (2) In a case to which this article applies, the Health Board shall–

• (a) remove the patient from the succeeding contractor’s list of patients as soon as reasonably practicable after 1st April 2004; and

• (b) if notification of the removal was required to be given to the medical practitioner or the patient under the provision of the 1995 Regulations relevant to the removal and had not been given on or before 31st March 2004, notify the succeeding contractor and the patient of the removal.

Applications for acceptance as a temporary resident

10

Where, on or before 31st March 2004, a person had applied to a relevant medical practitioner for acceptance as a temporary resident under regulation 7 of the Choice Regulations[^f00024] but on 31st March 2004 that application had not yet been determined, the application shall be regarded as if it had been made to the succeeding contractor and shall be dealt with in accordance with–

• (a) the term of its general medical services contract which gives effect to paragraphs 16 and 17 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent terms of its default contract.

Acceptance of temporary residents

11

• (1) This article applies where–

• (a) on or before 31st March 2004, a relevant medical practitioner had accepted a person as a temporary resident under paragraph 7(b) of Schedule 1 to the 1995 Regulations; and

• (b) on 31st March 2004, his responsibility for that patient had not yet been terminated under paragraph 9A of that Schedule or the period for which the person was accepted as a temporary resident had not yet come to an end.

• (2) In a case to which this article applies, the person shall, on 1st April 2004, be treated as if he had been accepted as a temporary resident by the succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 16 of Schedule 5 to the 2004 Regulations, subject to the modification that reference to a period of three months in that term shall be read as a reference to a period of three months starting with the date on which the person was accepted as a temporary resident by the relevant medical practitioner under paragraph 7 of Schedule 1 to the 1995 Regulations; or

• (b) the equivalent term of its default contract subject to a modification to the same effect.

Termination of responsibility for temporary residents

12

Where, on or before 31st March 2004, a relevant medical practitioner had informed the Health Board in writing in accordance with paragraph 9A of Schedule 1 to the 1995 Regulations that he wished to terminate his responsibility for a temporary resident but, on 31st March 2004, that responsibility had not yet terminated under that paragraph, the responsibility of the succeeding contractor for that temporary resident shall terminate seven days after the date on which the information under that paragraph was given to the Health Board by the relevant medical practitioner.

Provision of immediately necessary treatment

13

Where, on 31st March 2004, a relevant medical practitioner was responsible for providing immediately necessary treatment to any person under paragraph 4(2) of Schedule 1 to the 1995 Regulations[^f00025], the succeeding contractor shall continue to be responsible for providing such treatment to that person for the period for which the relevant medical practitioner would have been responsible if that paragraph had not been revoked.

Newly registered patients

14

• (1) This article applies where, on 31st March 2004, a patient specified in paragraph (2)–

• (a) was entitled to be invited to participate in a consultation under paragraph 14(1) of Schedule 1 to the 1995 Regulations[^f00026]; and

• (b) had not been given such an invitation.

• (2) The patient referred to in paragraph (1) is a patient–

• (a) who, on or before 31st March 2004–

• (i) had applied for inclusion in a relevant medical practitioner’s list of patients under regulation 2 or 3 of the Choice Regulations[^f00027] and whose application had been accepted; or

• (ii) had been assigned to a relevant medical practitioner’s list under regulation 4 of the Choice Regulations[^f00028]; and

• (b) in respect of whom a Health Board had not granted deferment of the obligation to invite him to participate in a consultation under paragraph 14 of Schedule 1 to the 1995 Regulations.

• (3) A patient to whom this article applies shall, on 1st April 2004 be regarded as a patient who falls within–

• (a) the term of the succeeding contractor’s general medical services contract which gives effect to paragraph 4 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

Appointments system

15

Where, on or before 31st March 2004, a relevant medical practitioner had sought the approval of a Health Board under paragraph 23(4) of Schedule 1 to the 1995 Regulations for the operation of an appointments system, any notice shall be regarded as a notice given by the succeeding contractor to the Health Board for the purposes of the term of the general medical services contract which gives effect to paragraph 74(c) of Schedule 5 to the 2004 Regulations or the equivalent term of the default contract.

Qualifications of performers

16

• (1) Where, on 1st April 2004, a succeeding contractor continues to employ or engage a person who on 31st March 2004 was employed or engaged in accordance with the requirements of Schedule 1 to the 1995 Regulations by the relevant medical practitioner in relation to whom it is a succeeding contractor, paragraphs (2) and (3) shall apply.

• (2) The requirements to make checks contained in the terms of the general medical services contract which give effect to paragraphs 50(1)(b) and 51(1)(a) of Schedule 5 to the 2004 Regulations, or in the equivalent terms of the default contract–

• (a) in a case where equivalent checks have previously been carried out in respect of that person by the relevant medical practitioner, shall not apply; or

• (b) in any other case, shall apply subject to the modification that the checks may be carried out at any time up to 30th June 2004.

• (3) The requirement to obtain references in the term of the general medical services contract which gives effect to paragraph 52 of Schedule 5 to the 2004 Regulations, or in the equivalent term of the default contract, shall not apply if such references have been obtained, checked and found to be satisfactory by the relevant medical practitioner by whom the health care professional was employed or engaged on 31st March 2004.

Independent nurse prescribers and supplementary prescribers

17

• (1) Where, on or before 31st March 2004, a relevant medical practitioner had notified the Health Board of any matters relating to an independent nurse prescriber or a supplementary prescriber under paragraph 29(c) of Schedule 1 to the 1995 Regulations[^f00029], the succeeding contractor shall not be required to notify the Health Board of those same matters under–

• (a) the term of its general medical services contract which gives effect to paragraph 58 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

• (2) In paragraph (1) “independent nurse prescriber” and “supplementary prescriber” have the same meaning as in paragraph 1 of Schedule 1 to the 1995 Regulations.

Patient records

18

• (1) Where, on 31st March 2004, a relevant medical practitioner had the written consent of the Health Board to the keeping of computerised records under paragraph 32 of Schedule 1 to the 1995 Regulations[^f00030] and that consent had not been withdrawn, that consent shall be regarded as written consent to the succeeding contractor for the purposes of–

• (a) the term of its general medical services contract which gives effect to paragraph 66 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of the default contract.

• (2) Where–

• (a) on or before 31st March 2004, a Primary Care Trust had requested a relevant medical practitioner to send it the records relating to a patient under paragraph 32(8) of Schedule 1 to the 1995 Regulations; and

• (b) on 31st March 2004 that request had not yet been complied with,

the records requested shall be sent by the succeeding contractor to the Health Board as soon as possible.

• (3) Where, on or before 31st March 2004, a relevant medical practitioner had been informed of the death of a patient on its list by the Health Board or had otherwise learned of the death of such a patient but on 31st March 2004 had not yet sent that patient’s records to the Health Board in accordance with paragraph 32(8)(b) of Schedule 1 to the 1995 Regulations, those records shall be sent to the Health Board by the succeeding contractor–

• (a) in a case in which the relevant medical practitioner was informed of the death by the Health Board, within 14 days of the date on which he was so informed; or

• (b) in any other case, within one month of the date on which the relevant medical practitioner learned of the death.

Rights of entry

19

• (1) Where, on or before 31st March 2004, a relevant medical practitioner had received a written request for inspection of his practice premises under paragraph 23(1)(b) of Schedule 1 to the 1995 Regulations but, on 31st March 2004, no inspection had yet taken place pursuant to that request, the request shall, on 1st April 2004, be regarded as notice of an intended entry to the succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 81 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

• (2) In determining whether reasonable notice was given of any entry to the practice premises following a notice referred to in paragraph (1), regard shall be had to the date on which the request under paragraph 23(1)(b) of Schedule 1 to the 1995 Regulations was made.

Refusal of approval of premises under paragraph 24 of Schedule 1 to the 1995 Regulations

20

• (1) Where, on or before 31st March 2004 a Health Board had notified a relevant medical practitioner under paragraph 24(12) of Schedule 1 to the 1995 Regulations of its refusal of an application made under paragraph 24(1) of Schedule 1 to the 1995 Regulations in relation to any place at which he was to be available paragraphs (2) and (3) shall apply.

• (2) Where, on 31st March 2004, the time for appealing against the refusal specified in paragraph 24(13) of Schedule 1 to the 1995 Regulations had not expired and no appeal had yet been made, the time for appealing shall continue as if paragraphs 24 of that Schedule had not been revoked.

• (3) Where–

• (a) on 31st March 2004, the relevant medical practitioner had appealed in writing against that refusal under paragraph 24(13) of that Schedule but the appeal had not been determined or withdrawn; or

• (b) after 31st March 2004, an appeal is made pursuant to paragraph (2),

that appeal shall be dealt with or continue to be dealt with as if paragraph 24 of Schedule 1 to the 1995 Regulations had not been revoked.

• (4) Where an appeal dealt with under paragraph (3) is successful, the Health Board shall agree to a variation of the contract which it holds with the succeeding contractor which has the effect of adding to the list of practice premises under that contract the premises approved as a result of the appeal.

• (5) A variation agreed by the Health Board pursuant to paragraph (4) shall have effect–

• (a) from a date no later than 28 days after the date on which the outcome of the appeal was notified to the relevant medical practitioner; and

• (b) only if it is in writing and signed by or on behalf of the Health Board and the succeeding contractor.

Investigation of outstanding complaints

21

• (1) Where, on 31st March 2004–

• (a) a complaint had been made under paragraph 12A of Schedule 1 to the 1995 Regulations[^f00031] by or on behalf of a patient or former patient of a relevant medical practitioner; and

• (b) the investigation of that complaint under the practice based complaints procedure required to be established under paragraph 12A, had not concluded,

that complaint must, from 1st April 2004, be investigated, or in an appropriate case continue to be investigated, by the succeeding contractor as if paragraph 12A had not been revoked.

• (2) Where, on 31st March 2004–

• (a) a complaint had been made under paragraph 12A of Schedule 1 to the 1995 Regulations by or on behalf of a patient or former patient of a medical practitioner to whom there is no succeeding contractor; and

• (b) the investigation of that complaint under the practice based complaints procedure required to be established under paragraph 12A, had not concluded,

that complaint must be investigated by a person specified in paragraph (3) as if paragraph 12A had not been revoked.

• (3) The person referred to in paragraph (2) is–

• (a) any person who was the former partner of the medical practitioner on whose list of patients the complainant was included, if that person meets the requirements in paragraph (4);

• (b) if the person specified in paragraph (a) satisfies the Health Board on whose medical list the former partner was included for the purposes of providing general medical services to the complainant that, having regard to the nature of the complaint, it would not be appropriate for the complaint to be investigated by that person, that Health Board; or

• (c) in any other case, the Health Board on whose medical list the medical practitioner was included for the purposes of providing general medical services to the complainant.

• (4) The requirements referred to in paragraph (3) are that the former partner–

• (a) has entered into a default contract or a general medical services contract as an individual medical practitioner with the Health Board on whose medical list the former partner was included for the purposes of providing general medical services to the complainant;

• (b) is a partner in a partnership which has entered into a default contract or a general medical services contract with that Health Board; or

• (c) is a legal and beneficial shareholder in a company which has entered into a general medical services contract with that Health Board.

• (5) Where, under paragraph (3), a complaint made by or on behalf of a patient or former patient would fall to be investigated, or continue to be investigated, by more than one general medical services contractor or default contractor, the contractors concerned shall–

• (a) enter into discussions as to which of them would be the most appropriate person to deal with the complaint; and

• (b) if they are unable to reach agreement, refer the matter to the Health Board on whose medical list their former partner was included for the purposes of providing general medical services to the complainant and that Health Board shall investigate the complaint itself.

• (6) Where, under this article, a complaint falls to be investigated by a Health Board the investigation shall be carried out in accordance with the directions on dealing with complaints about family health services practitioners given by the Secretary of State under section 2(5) of the 1978 Act on 26th March 1996[^f00032].

Complaints relating to general medical services made after 31st March 2004

22

The complaints procedure established and operated by a succeeding contractor under–

• (a) the term of its general medical services contract which gives effect to paragraph 82 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of the default contract,

shall apply to any complaint which a patient or former patient of the relevant medical practitioner to whom it is a succeeding contractor could have made (but did not make) on or before 31st March 2004 under paragraph 12A of Schedule 1 to the 1995 Regulations as it applies to complaints made by a patient or former patient of the succeeding contractor in relation to any matter reasonably connected with the provision of services under the contract.

Reports to a medical officer

23

• (1) Where, on or before 31st March 2004, a relevant medical practitioner had received a request for information or an inquiry from a medical officer (or an officer of the Department for Work and Pensions on his behalf or at his direction) under paragraph 34 of Schedule 1 to the 1995 Regulations[^f00033] but, on 31st March 2004, he had not yet responded to that request or inquiry, the succeeding contractor shall respond as if the request or inquiry had been made under–

• (a) the term of its general medical services contract which gives effect to paragraph 72 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of its default contract.

• (2) In this article, “medical officer” means a medical practitioner who is–

• (a) employed or engaged by the Department for Work and Pensions; or

• (b) provided by an organisation in pursuance of a contract entered into with the Secretary of State for Work and Pensions.

Arrangements with organisations providing deputy doctors

24

• (1) Where–

• (a) on 31st March 2004–

• (i) a Health Board had, on or before that date, issued a remedial notice to a relevant medical practitioner under paragraph 19(7) of Schedule 1 to the 1995 Regulations[^f00034]; and

• (ii) the date specified in the notice as the one before which remedial action should be taken had not yet been reached; and

• (b) on 1st April 2004, the arrangements covered by the remedial notice are continuing in the form of a sub-contract with the succeeding contractor,

the remedial notice issued under paragraph 19(7) of Schedule 1 to the 1997 Regulations shall be regarded as a remedial notice served in the same terms on the succeeding contractor on 1st April 2004 under the term of its general medical services contract which gives effect to paragraph 103(1) of Schedule 5 to the 2004 Regulations (or under the equivalent term of its default contract).

• (2) A remedial notice deemed to have been served on the succeeding contractor pursuant to paragraph (1) shall not count as a remedial notice for the purposes of the term of the general medical services contract which gives effect to paragraph 103(6) of Schedule 5 to the 2004 Regulations (or for the purposes of the equivalent term of the default contract).

• (3) In this article, “remedial notice” means, in relation to a notice issued before 1st April 2004, a notice issued under paragraph 19(7) of Schedule 1 to the 1995 Regulations and, in relation to a notice issued after that date, a notice served under the term of the general medical services contract which gives effect to paragraph 103(1) of Schedule 5 to the 2004 Regulations (or under the equivalent term of the default contract).

Practice leaflet

25

• (1) This article applies where a relevant medical practitioner had compiled a practice leaflet which met the requirements of paragraph 12 of Schedule 1 to the 1995 Regulations and that leaflet was, on 31st March 2004, available to patients on his list.

• (2) In the circumstances to which this article applies, the practice leaflet made available to patients by–

• (a) the succeeding contractor; or

• (b) a general medical services contractor who enters into a general medical services contract before 31st July 2004 which takes effect immediately after its default contract with the same Health Board ceases to have effect,

need not, until 1st August 2004, include all the information specified in the term of the general medical services contract which gives effect to Schedule 8 to the 2004 Regulations (or in the equivalent term of the default contract) provided that, from the date of commencement of the contract until the practice leaflet does so comply, the general medical services contractor or the default contractor makes available to patients in written form the information specified in paragraph (3).

• (3) The information referred to in paragraph (2) is–

• (a) the services available under the general medical services contract or the default contract;

• (b) the opening hours of the practice premises and the method of obtaining access to services throughout the core hours;

• (c) the arrangements for services in the out of hours period (whether or not provided by the general medical services contractor or the default contractor) and how the patient may contact such services; and

• (d) if the services in sub-paragraph (c) are not provided by the general medical services contractor or the default contractor the fact that the Health Board which is a party to the general medical services contract or the default contract is responsible for commissioning the services and the name address and telephone number of the Health Board.

• (4) In this article, “practice leaflet”–

• (a) in relation to the period before 1st April 2004, has the meaning given in paragraph 12 of Schedule 1 to the 1995 Regulations; and

• (b) in relation to the period from 1st April 2004 has the meaning given in regulation 2(1) of the 2004 Regulations (interpretation).

Medical examination of medical practitioners

26

Where, on or before 31st March 2004–

• (a) a Health Board had required a relevant medical practitioner to be medically examined under regulation 24(6) of the 1995 Regulations [^f00035]; and

• (b) that medical examination had not yet taken place,

the requirement shall, on 1st April 2004, unless the Health Board notifies him otherwise in writing, be regarded as a request made to that medical practitioner for him to be medically examined on the grounds that he is incapable of adequately providing services under the succeeding contract and arrangements for the medical examination shall, with the consent of the medical practitioner, continue to be made by the Area Medical Committee for the area of the Health Board which is a party to the succeeding contract, pursuant to the function conferred on that Committee by regulation 27 of the 2004 Regulations.

Patients not seen within three years

27

The term of a general medical services contract which gives effect to paragraph 5 of Schedule 5 to the 2004 Regulations (or the equivalent term of a default contract) shall be read as if the reference to a consultation or clinic provided by the general medical services contractor (or the default contractor) included a reference to a consultation or clinic provided by–

• (a) the relevant medical practitioner in relation to whom it is a succeeding contractor; or

• (b) in the case of a general medical services contract which takes effect immediately after a default contract between the same parties ceases to have effect, the contractor who held that default contract.

Patients aged 75 years and over

28

The term of a general medical services contract which gives effect to paragraph 6 of Schedule 5 to the 2004 Regulations (or the equivalent term of a default contract) shall be read as if the reference to participating in a consultation under that term included a reference to participating in a consultation under–

• (a) paragraph 16 of Schedule 1 to the 1995 Regulations [^f00036]; or

• (b) in the case of a general medical services contract which takes effect immediately after a default contract between the same parties ceases to have effect, under the term of the default contract which was equivalent to paragraph 6 of Schedule 5 to the 2004 Regulations.

Arrangements for GP Registrars

29

• (1) Where, before 1st April 2005, a general medical services contractor or a default contractor employs a GP Registrar for the purpose of being trained by a GP Trainer, the requirement for the general medical services contractor or the default contractor to have the agreement of the Scottish Ministers to that employment in–

• (a) the term of the general medical services contract which gives effect to paragraph 57 of Schedule 5 to the 2004 Regulations; or

• (b) the equivalent term of the default contract,

shall not apply.

• (2) In this article, “GP Registrar” and “GP Trainer” have the same meaning as in regulation 2(1) of the 2004 Regulations.

Refund of fees paid under paragraph 10(2) of Schedule 1 to the 1995 Regulations

30

Where, on 31st March 2004 a patient had paid a fee to a medical practitioner under paragraph 10(2) of Schedule 1 to the 1995 Regulations but–

• (a) the period for applying for a refund of that fee under paragraph 10(3) of that Schedule had not yet expired; or

• (b) an application for refund of the fee had been made but not yet determined,

the period for applying for a refund and the powers of the Health Board in dealing with any application for a refund shall continue as if paragraph 10(3) of that Schedule had not been revoked.

Annual reports

31

Notwithstanding the revocation of the 1995 Regulations, any medical practitioner to whom paragraph 35 of Schedule 1 to those Regulations (annual reports)[^f00037] applied shall, by 30th June 2004, provide, either individually or as a member of a partnership, to the Health Board on whose medical list he appeared on 31st March 2004, an annual report in respect of the period of 12 months ending on 31st March 2004 which includes the number of complaints received in accordance with paragraph 12A of Schedule 1 to the 1995 Regulations[^f00038].

Permission for use of facilities in private practice under section 64 of the 1978 Act

32

Where, on 31st March 2004, a relevant medical practitioner had the permission under section 64 of the 1978 Act [^f00039] (permission for use of facilities in private practice), that permission shall be regarded, from 1st April 2004, as permission granted under that section to the succeeding contractor.

Recovery of overpayments

33

• (1) Where, on or before 31st March 2004, a medical practitioner had admitted an overpayment drawn to its attention by a Health Board under regulation 36(2) of the 1995 Regulations[^f00040] (claims and overpayments) but the overpayment had not been recovered, the amount overpaid shall, notwithstanding the repeal of the 1995 Regulations, continue to be recoverable as set out in regulation 36(2) of the 1995 Regulations and shall be treated as a debt owed by that medical practitioner to the Health Board.

• (2) Notwithstanding the repeal of the 1995 Regulations, where the Agency considers that a payment has been made to a medical practitioner under the Statement of Fees and Allowances when it was not due and the Health Board has not drawn that alleged overpayment to the attention of the medical practitioner on or before 31st March 2004, the Health Board may draw that overpayment to the attention of the medical practitioner and–

• (a) where the overpayment is admitted by the medical practitioner it may be recovered from the medical practitioner as set out in regulation 36(2) of the 1995 Regulations and shall be treated as a debt owed by that medical practitioner to the Health Board; and

• (b) where the overpayment is not admitted by the medical practitioner, the matter may be referred under regulation 3(7) of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992[^f00041], but subject to the provisions of Part 7 of this Order, for investigation.

• (3) In this article–

• “the Agency” means the body constituted under section 10 of the 1978 Act; and

• “Statement of Fees and Allowances” means the statement determined and published by the Scottish Ministers under regulation 35 of the 1995 Regulations[^f00042], as that statement had effect on 31st March 2004.

PART 3 — TRANSITIONAL PROVISIONS FOR GENERAL MEDICAL SERVICES CONTRACTS WHICH FOLLOW DEFAULT CONTRACTS

Application and interpretation of this Part

34

• (1) This Part applies where a person who holds a default contract with a Health Board enters into a general medical services contract with that Health Board which takes effect immediately after its default contract ceases to have effect.

• (2) In a case to which this Part applies, the general medical services contract shall, unless it is entered into with a person to whom the particular article does not apply, include, or be deemed to include, terms which have the effect specified in articles 35 to 46.

• (3) In this Part–

• “default contractor” means a person who holds a default contract with a Health Board and who has entered into a general medical services contract with that Health Board which takes effect immediately after the default contract ceases to have effect and “default contract” shall be interpreted accordingly;

• “general medical services contractor” means the person who holds the general medical services contract entered into by the default contractor and “general medical services contract” shall be construed accordingly.

Carry over of approvals, applications, notices etc.

35

• (1) Subject to paragraph (3), in a case to which this Part applies–

• (a) any approval, authorisation or consent given by the Health Board for the purposes of the default contract and still in force on the date on which that default contract ceases to have effect, shall be deemed to be an approval, authorisation or consent for the purposes of the general medical services contract on the date on which that general medical services contract takes effect and any such approval, authorisation or consent shall be on the same terms and subject to the same conditions (if any) as applied to the approval, authorisation or consent given under the default contract;

• (b) any application made to the Health Board by the default contractor under its default contract, and which has not been dealt with or determined on or before the date on which the default contract ceases to have effect, shall be deemed to be an application made by the general medical services contractor under its general medical services contract and any time specified in the general medical services contract for dealing with any such application shall be deemed to run from the date on which the application was made under the default contract;

• (c) any application or request made by a patient to the default contractor under its default contract and which has not been dealt with or determined on or before the date on which the default contract ceases to have effect, shall be deemed to be an application or request made by the patient to the general medical services contractor under its general medical services contract and any time specified in the general medical services contract in relation to that application or request shall be deemed to run from the date on which the application or request was made under the default contract;

• (d) any notice given to or served on the default contractor under its default contract by the Health Board which–

• (i) requires it to provide or cease providing services; or

• (ii) withdraws, suspends or varies an approval previously given to it by the Health Board,

from a date which is after the date on which the default contract ceases to have effect, shall be deemed to be a notice served on the general medical services contractor under its general medical services contract which takes effect on the date on which it would have taken effect had the default contract continued in force and any time specified in the general medical services contract for referring the matter to the NHS dispute resolution procedure shall be deemed to run from the date on which the notice was given to or served on the default contractor;

• (e) subject to paragraph (2), any notification or information given to the Health Board or a patient by the default contractor under its default contract shall be deemed to be a notification or information given by the general medical services contractor under the equivalent term of its general medical services contract on the date on which the general medical services contract takes effect and any reference in the relevant term of the general medical services contract to the date on which the event referred to in the notification shall take effect shall be read as a reference to the date on which that event would have taken effect had the default contract remained in force;

• (f) any report, notification or information (other than a notification required to be given under the term of the default contract equivalent to paragraph 78 of Schedule 5 to the 2004 Regulations) which, on the date on which the default contract ceased to have effect, was required to be given to any person by the default contractor under its default contract but had not been so given, shall be given by the general medical services contractor as if it was required to be given under the general medical services contract, subject to the modification that the timescale for giving any such report, notification or information shall be that which would have applied to the default contractor had the default contract remained in force;

• (g) any notifications or acknowledgements required to be given by the Health Board to a default contractor under its default contract on the date on which it ceases to have effect but which had not been so given shall be given by the Health Board to the general medical services contractor as if it was required under the terms of the general medical services contract;

• (h) any notifications required to be given by the Health Board under a default contract to a patient on the default contractor’s list of patients on the date on which the default contract ceases to have effect but which had not been so given, shall be given to that patient by the Health Board–

• (i) if the patient is included in the list of patients of the general medical services contractor, as if the notification were required to be given under the general medical services contract; or

• (ii) in any other case, as soon as possible after the default contract ceases to have effect;

• (i) any request or inquiry made to the default contractor under the default contract but which has not been complied with on or before the date on which the default contract ceases to have effect, shall be complied with by the general medical services contractor as if it was a request or inquiry made under the equivalent term of the general medical services contract and any time specified in the general medical services contract for responding to any such request shall be deemed to run from the date on which the request was made to the default contractor;

• (j) any preference expressed by a patient under the default contract to receive services from a particular performer or class of performer under that default contract and which he has not withdrawn on or before the date on which the default contract ceases to have effect shall, with effect from the date on which the general medical services contract takes effect, be regarded, for the purposes of that general medical services contract, as a preference expressed under the term of that contract which gives effect to paragraph 18 of Schedule 5 to the 2004 Regulations;

• (k) any checks which the default contractor has made under the terms of its default contract which are equivalent to paragraphs 50 to 52 of Schedule 5 to the 2004 Regulations or steps which it has taken to satisfy itself under the terms of that contract equivalent to paragraphs 51(1)(b), 53 or 62(1) of that Schedule shall be regarded as checks made or steps taken by the general medical services contractor under the terms of its general medical services contract which give effect to those paragraphs;

• (l) any records relating to a patient or reports which are required to be sent to a Health Board by the default contractor under the term of its default contract which is equivalent to paragraphs 66(6) or 79(1) or (3) of Schedule 5 to the 2004 Regulations but which have not been sent on or before the date on which the default contract ceases to have effect, shall be sent to the Health Board by the general medical services contractor by the date on which the default contractor would have been required to send them had its default contract not ceased to have effect; and

• (m) the reference to a warning given by the general medical services contractor in the term of the general medical services contract which gives effect to paragraph 20(3) of Schedule 5 to the 2004 Regulations shall be deemed to include a reference to a warning given by the default contractor.

• (2) Where–

• (a) pursuant to paragraph (1)(e), a notification is deemed to have been given by a general medical services contractor under the term of its contract which gives effect to paragraph 62(1) of Schedule 5 to the 2004 Regulations on the date on which the general medical services contract takes effect; and

• (b) the notification under the equivalent provision of the default contract was given more than 28 days before the date on which the default contract ceased to have effect,

the right of the Health Board under the term of the general medical services contract which gives effect to paragraph 62 of Schedule 5 to the 2004 Regulations to object to the sub-contract covered by that notification shall not apply.

• (3) Paragraph (1) does not apply to any action taken or required to be taken by either party to a default contract under–

• (a) the dispute resolution procedure;

• (b) the provisions relating to variation of the contract; or

• (c) the provisions relating to termination of the contract,

contained in the default contract.

Newly registered patients

36

• (1) Where a patient of a default contractor–

• (a) was, immediately before the default contract ceased to have effect, entitled to be invited to participate in a consultation under the term of the default contract equivalent to paragraph 4 of Schedule 5 to the 2004 Regulations; and

• (b) had not been given such an invitation,

that patient shall be regarded as a patient of the general medical services contractor who, on the date on which the general medical services contract takes effect, falls within the term of the general medical services contract which gives effect to paragraph 4 of Schedule 5 to the 2004 Regulations.

• (2) In the case of a patient to whom paragraph (1) applies, the reference to a period of six months in the term of the general medical services contract which gives effect to paragraph 4(2) of Schedule 5 to the 2004 Regulations shall be read as if it was a reference to six months from the date of the patient’s acceptance on or assignment to the default contractor’s list.

Temporary residents

37

Where, on the date on which the default contract ceases to have effect–

• (a) a default contractor has accepted a person as a temporary resident under the term of its default contract equivalent to paragraph 16 of Schedule 5 to the 2004 Regulations; and

• (b) its responsibility for that patient has not yet been terminated under that term,

the person shall be treated as if he had been accepted as a temporary resident by the general medical services contractor under the term of its general medical services contract which gives effect to paragraph 16 of Schedule 5 to the 2004 Regulations, subject to the modification that the reference to a period of three months in that term shall be read as a reference to a period of three months starting with the date on which the person was accepted as a temporary resident by the default contractor.

Provision of immediately necessary treatment

38

Where, on the date on which the default contract ceases to have effect, a default contractor is responsible for providing immediately necessary treatment to any person under the term of the default contract equivalent to regulation 15 of the 2004 Regulations, the general medical services contractor shall continue to be responsible for providing such treatment to that person for the period for which the default contractor would have been responsible if the default contract had remained in force.

Removals from the list of patients

39

• (1) Where, on the date on which the default contract ceases to have effect, a Health Board has received a request from a patient to be removed from a default contractor’s list of patients but that removal has not yet taken effect under the term of the default contract equivalent to paragraph 19(3) of Schedule 5 to the 2004 Regulations, that removal shall take effect as a removal from the list of patients of the general medical services contractor on the date on which it would have taken effect had the default contract remained in force.

• (2) Where, on the date on which the default contract ceases to have effect, a Health Board has informed a default contractor and one of its registered patients of the matters required under the term of the default contract equivalent to paragraph 23 of Schedule 5 to the 2004 Regulations but the 30 days referred to in that term has not expired, the information shall be regarded as if it had been given under the term of the general medical services contract which gives effect to paragraph 23 of Schedule 5 to the 2004 Regulations subject to the modification that the reference in that term to 30 days shall be read as a reference to 30 days from the date of the advice given to the patient by the default contractor.

• (3) Where, on the date on which the default contract ceases to have effect, a Health Board has given notice in writing to a default contractor in accordance with the term of its contract which is equivalent to paragraph 24 of Schedule 5 to the 2004 Regulations but the six months referred to in that term has not expired, the notice shall be regarded as if it had been given under the term of the general medical services contract which gives effect to paragraph 24 of Schedule 5 to the 2004 Regulations subject to the modification that the reference in that term to six months shall be read as a reference to six months commencing with the date of the notice to the default contractor.

Requirement to provide dispensing services

40

• (1) Where the Health Board has given notice to the default contractor under its default contract that it requires or authorises it to provide dispensing services to a patient from a date before the date on which the default contract ceases to have effect, that notice shall be regarded as a notice served on the general medical services contractor under the term of its general medical services contract which gives effect to paragraph 44 of Schedule 5 to the 2004 Regulations requiring or authorising it to provide dispensing services to the patient from the date on which the general medical services contract takes effect.

• (2) In this article “dispensing services” has the same meaning as in regulation 2(1) of the 2004 Regulations.

Sub-contracting

41

• (1) Where–

• (a) on the date on which the default contract ceases to have effect, the default contractor has in place a sub-contract, other than a contract for services with a health care professional for the provision by that health care professional personally of clinical services, which is in accordance with the terms of the default contract; and

• (b) the general medical services contractor wishes to continue that sub-contract for the period for which it would have continued had the default contract remained in force,

the term of the general medical services contract which gives effect to paragraph 62(1)(b) of Schedule 5 to the 2004 Regulations shall not apply to that sub-contract unless it is extended beyond the date referred to in sub-paragraph (b) or there is a material variation in its terms.

• (2) In this article “health care professional” has the same meaning as in section 17P(2) of the 1978 Act[^f00043].

Complaints

42

• (1) Where–

• (a) a complaint–

• (i) has been made to a default contractor under the complaints procedure established in accordance with the term of the default contract equivalent to paragraph 82 of Schedule 5 to the 2004 Regulations; or

• (ii) falls to be investigated by a default contractor pursuant to articles 21 or 22; and

• (b) on the date on which the default contract ceases to have effect the investigation of that complaint has not been concluded,

the complaint shall be investigated or, in an appropriate case, continue to be investigated, by the general medical services contractor under the complaints procedure established in accordance with the term of its general medical services contract which gives effect to paragraph 82 of Schedule 5 to the 2004 Regulations.

• (2) In a case to which this Part applies, any references in the terms of the general medical services contract which give effect to paragraphs 82 to 86 and 88 of Schedule 5 to the 2004 Regulations to–

• (a) services provided by or received from the general medical services contractor;

• (b) a patient or former patient of the general medical services contractor; or

• (c) complaints made to the general medical services contractor,

shall be read as if they included a reference to services provided by or received from the default contractor, to the patient or former patient of the default contractor or to complaints made to the default contractor.

Refund of fees

43

• (1) Where, on the date on which a default contract ceases to have effect, a patient has paid a fee to the default contractor under the term of its default contract equivalent to regulation 24(3) of the 2004 Regulations but–

• (a) the period in that term for applying for refund of the fee has not yet expired; or

• (b) an application for refund of the fee has been made but not yet determined,

the fee shall be regarded as if it had been paid to the general medical services contractor under its general medical services contract and the term of the general medical services contract which gives effect to regulation 24(4) of the 2004 Regulations shall apply subject to the modifications specified in paragraph (2).

• (2) The modifications referred to in paragraph (1) are that–

• (a) references to the date on which the fee was paid shall be read as references to the date on which the fee was paid to the default contractor; and

• (b) the reference to the general medical services contractor’s list of patients shall be read as a reference to the list of patients of the default contractor.

Annual returns and reviews

44

• (1) Where, in a case to which this Part applies, the periods or part of the periods covered by the default contract and the general medical services contract fall in the same financial year–

• (a) notwithstanding the term of the general medical services contract which gives effect to paragraph 73 of Schedule 5 to the 2004 Regulations, the Health Board shall not require an annual return from the general medical services contractor if a return covering all or part of the same financial year has been requested from the default contractor; and

• (b) any annual return submitted by the general medical services contractor for a financial year in which it also held a default contract shall provide the required information in relation to the default contract as well as in relation to the general medical services contract.

• (2) In this article “financial year” means the twelve months ending with 31st March.

Carry-over of disputes between default and general medical services contracts

45

• (1) Where–

• (a) on or before the date on which a default contract ceases to have effect, a default contractor has referred a dispute arising out of or in connection with the default contract, other than one to which article 72 applies, to be determined in accordance with the NHS dispute resolution procedure; and

• (b) on the date on which the default contract ceases to have effect, that dispute has not been determined or withdrawn,

the adjudicator shall in determining the dispute consider the relevance of his determination to the general medical services contract which took effect immediately after the default contract ceased to have effect and, if he considers that his determination is relevant to that general medical services contract, he shall determine the dispute as if it were a dispute referred to him by the general medical services contractor under the NHS dispute resolution procedure contained in the general medical services contract.

• (2) In this article “adjudicator” means the Scottish Ministers or a panel of 3 persons appointed by the Scottish Ministers under paragraph 91 of Schedule 5 to the 2004 Regulations.

Grounds for termination of the general medical services contract

46

Where, on or before the date on which the default contract ceases to have effect–

• (a) circumstances arise which would entitle the Health Board on or before that date to terminate the default contract under the term of the default contract equivalent to paragraph 101 of Schedule 5 to the 2004 Regulations; and

• (b) the Health Board has not terminated the default contract on those grounds,

those circumstances shall, for the purposes of the term of the general medical services contract which gives effect to paragraph 101 of Schedule 5 to the 2004 Regulations, be regarded as if they had arisen during the existence of the general medical services contract.

Notifications to patients affected by differences between the terms of a default and a general medical services contract

47

Where, in a case to which this Part applies–

• (a) the range of services provided to the registered patients of the general medical services contractor is to be different from that provided by the default contractor; or

• (b) patients who were on the default contractor’s list of patients are not to be included on the list of patients of the general medical services contractor as a result of a change in the practice area,

the Health Board shall notify those patients in writing of the change and inform them of the steps they can take to obtain elsewhere the services in question or, as the case may be, register elsewhere for the provision of essential services (or their equivalent).

PART 4 — TRANSITIONAL PROVISIONS RELATING TO PILOT SCHEME AGREEMENTS

Definitions

48

In this Part–

• “the 1997 Act” means the National Health Service (Primary Care) Act 1997[^f00044];

• “the Implementation Directions” means the Directions to Health Boards concerning the Implementation of Pilot Schemes (Personal Medical Services);

• “the NHS dispute resolution procedure” means the procedure for resolution of disputes specified in Part 7 of Schedule 1 to the Section 17C Agreements Regulations;

• “personal medical services” means medical services of a kind that could have been provided by a general medical practitioner in accordance with arrangements made under Part 2 of the 1978 Act prior to 1st April 2004;

• “pilot scheme agreement” means an agreement which constitutes or agreements which together constitute a pilot scheme under Part 1 of the 1997 Act under which personal medical services are provided;

• “provider” means the person other than the Health Board who is a party to a transitional agreement;

• “relevant body” means the Health Board who is the other party to the transitional agreement.

Existing pilot schemes

49

Any pilot scheme under which personal medical services were being provided on 31st March 2004 shall, on the coming into force of paragraph 2 of the Schedule to the 2004 Act, be deemed to have been made under section 17C of the 1978 Act[^f00045] and accordingly shall not cease to have effect merely because of the repeals in paragraph 2 of the Schedule to the 2004 Act.

Variation of transitional agreements

50

• (1) The parties to a transitional agreement shall as soon as is reasonably practicable after 1st April 2004 enter into discussions with each other with a view to agreeing variations to the transitional agreement that will ensure that the terms of the transitional agreement comply with the Section 17C Agreements Regulations.

• (2) Subject to paragraph (3), no variation shall have effect unless it is in writing and signed by or on behalf of the provider and the relevant body.

• (3) If the parties to the transitional agreement have not agreed variations to the transitional agreement by 30th September 2004, the relevant body shall vary the transitional agreement without the consent of the provider so that the terms of the transitional agreement comply with the Section 17C Agreements Regulations.

• (4) Where paragraph (3) applies, the relevant body shall notify the provider in writing of the wording of the proposed variations and the date upon which the variations are to take effect.

• (5) The date that the proposed variation is to take effect shall not be less than 14 days after the date on which the notice under paragraph (4) is served on the provider.

• (6) The parties to a transitional agreement may not agree (whether under this article or otherwise) any variation to the transitional agreement that would be contrary to the Section 17C Agreements Regulations.

Interpretation of transitional agreements

51

• (1) Until–

• (a) the parties to a transitional agreement vary the transitional agreement in accordance with article 50(1) and the variations have effect; or

• (b) the relevant body varies a transitional agreement in accordance with article 50(3) and the variations have effect,

a transitional agreement shall interpreted in accordance with this article.

• (2) Any reference in a transitional agreement to–

• (a) the Implementation Directions shall be a reference to those Directions as they had effect on 31st March 2004 but subject to the modifications mentioned in article 52;

• (b) the 1995 Regulations shall be a reference to those Regulations as they had effect on 31st March 2004 but subject to the modifications mentioned in article 53;

• (c) the Statement of Fees and Allowances made under regulation 35 of the 1995 Regulations shall be a reference to that Statement as it had effect on 31st March 2004;

• (d) the Choice Regulations shall be a reference to those Regulations as they had effect on 31st March 2004 but subject to the modifications mentioned in article 54 except as specified in paragraph (3);

• (e) the National Health Service (Pilot Schemes: Miscellaneous Provisions and Consequential Amendments) Regulations 1998[^f00046] shall be a reference to those regulations as they had effect on 31st March 2004;

• (f) in relation to the 1997 Act–

• (i) section 2(2), (b), (c), (d), or (e), shall be a reference to section 17D(1)(b), (c), (d), or (e) of the 1978 Act[^f00047]; and

• (ii) section 8, shall be a reference to Article 57(1) and (2);

• (g) personal medical services shall be a reference to medical services of a kind that could have been provided by a general medical practitioner in accordance with arrangements made under Part 2 of the 1978 Act prior to 1st April 2004;

• (h) pilot schemes or pilot scheme agreements shall be a reference to transitional agreements;

• (i) a medical list or supplementary list shall be a reference to a primary medical services performers list;

• (j) out of hours arrangements shall be a reference to out of hours arrangements within the meaning given to that expression by article 62.

• (3) In relation to the assignment of a patient to a medical practitioner in accordance with regulation 5 of the Choice Regulations[^f00048], any reference in a transitional agreement to regulation 4(2)(b) of those regulations shall be deemed to be a reference to article 55(1).

• (4) The transitional agreement shall be interpreted as if it had been varied to include a term or terms having the effect specified in paragraph 66 of Schedule 1 to the Section 17C Agreements Regulations, subject to the modifications that the reference in that term to a person falling within the cases specified in paragraph 66(3) during the existence of the agreement shall be read as if it referred to a person so falling on or after 1st April 2004.

Modification of the Implementation Directions for the purposes of transitional agreements

52

For the purposes of transitional agreements the Implementation Directions shall be read as if–

• (a) any reference to–

• (i) the 1995 Regulations were a reference to those regulations as they had effect on 31st March 2004 as modified by article 53; and

• (ii) the Choice Regulations were a reference to those Regulations as they had effect on 31st March 2004 as modified by article 54;

• (b) any reference to personal medical services were a reference to medical services of a kind that could have been provided by a general medical practitioner in accordance with arrangements made under Part 2 of the 1978 Act prior to 1st April 2004;

• (c) any reference to pilot schemes or pilot scheme agreements were a reference to transitional agreements;

• (d) any reference to a medical list or supplementary list were to a primary medical services performers list;

• (e) in direction 9 the words “under regulation 4(2)(b) of those Regulations” were omitted; and

• (f) any reference to out of hours arrangements were to out of hours arrangements within the meaning given to that expression by article 65.

Modification of the 1995 Regulations for the purposes of transitional agreements

53

For the purposes of transitional agreements the 1995 Regulations shall be read as if any reference to Schedule 10 or, as the case may be Schedule 11 to the 1995 Regulations were a reference to any directions given by the Scottish Ministers under section 17N(6) of the 2004 Act[^f00049].

Modification of the Choice Regulations for the purposes of transitional agreements

54

For the purposes of transitional agreements the Choice Regulations shall be read as if–

• (a) in regulation 1[^f00050] a new paragraph (4) were added at the end as follows–

(4) In these Regulations– - “provider” shall have the meaning given to it in Part 4 of the General Medical Services and 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004; and - “transitional agreement” shall have the meaning given to it in article 1 of the General Medical Services and 17C Agreements (Transitional and other Ancillary Provisions (Scotland) Order 2004.

• (b) in regulation 2(1)[^f00051] there were substituted–

(1) Any person who wishes to receive primary medical services under a transitional agreement may choose the doctor from whom he is to receive those services being a doctor who is primarily responsible for the performance of personal medical services under the transitional agreement, subject to the consent of that doctor.

• (c) in regulation 5–

• (i) paragraph (1) were substituted as follows–

(1) Where a provider is required to assign a patient to a doctor who performs personal medical services in connection with a transitional agreement to which the provider is a party, the provider shall assign the applicant to a doctor within the period of two days beginning on the day on which it received notice of the requirement to assign and shall, upon making that assignment, notify– (a) the Health Board of the name of the doctor to whom the patient has been assigned; and (b) the doctor of the assignment, and the Health Board shall, on receipt of the notification under sub-paragraph (a) notify the patient of the doctor to whom he has been assigned.

• (ii) references to the pilot scheme provider were to the provider;

• (iii) references to the applicant were to the patient;

• (iv) references to pilot scheme were to the transitional agreement; and

• (v) paragraphs (3), (5) and (6) were omitted; and

• (d) in regulation 7 the reference to a pilot scheme were to a transitional agreement.

Assignment of patients: transitional agreements

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• (1) A Health Board may require a provider to assign a patient to a medical practitioner who performs personal medical services in connection with a transitional agreement to which the provider is a party.

• (2) Where a Health Board is considering requiring a provider to assign a patient to a medical practitioner under paragraph (1), it shall have regard to_

• (a) the wishes and circumstance of the patient to be assigned;

• (b) the distance between the patient’s place of residence and the provider’s practice premises;

• (c) whether, during the six months ending on the date on which the application for assignment is received by the Health Board, the patient’s name has been removed from the list of patients of any provider of essential services (or their equivalent) in the area of the Health Board under paragraph 13 of Schedule 2 to the Section 17C Agreements Regulations (or other equivalent provision);

• (d) whether the patient’s name has been removed from the list of patients of any provider of essential services (or their equivalent) under paragraph 14 of Schedule 2 to the Section 17C Agreement Regulations (or other equivalent provision);

• (e) such other matters as the Health Board considers relevant.

• (3) Where a provider is unable to comply, in accordance with this article or regulation 5 of the Choice Regulations (as modified by article 54) with a requirement to assign a patient to a medical practitioner, and the Health Board is satisfied, after due enquiry, that the person concerned still wishes to be assigned to a provider of essential services (or their equivalent), the Health Board shall as soon as practicable assign or require the assignment of, that person to another provider of essential services (or their equivalent) or medical practitioner in accordance with any relevant agreement, contract or enactment.

• (4) A medical practitioner to whom a patient is assigned under this article or regulation 5 of the Choice Regulations (as modified by article 54) shall not be required to provide child health surveillance services, contraceptive services, maternity medical services or minor surgery services for that patient unless he is obliged to provide those services to that patient in connection with a transitional agreement.

• (5) Where a provider has requested the Health Board to remove a patient from a medical practitioner’s list or a pooled list under a provision equivalent to paragraph 14 of Schedule 2 to the Section 17C Agreements Regulations, the Health Board shall take all reasonable steps to assign, or require the assignment of, the patient to another provider of essential services (or their equivalent) or medical practitioner before the end of the working day after the day on which the Health Board receives notification from the contractor.

• (6) In paragraph (5)–

• “a medical practitioner’s list” means a list of a medical practitioner’s patients kept by a Health Board in respect of a medical practitioner performing personal medical services under a transitional agreement, in accordance with directions made under section 2(5) of the 1978 Act; and

• “a pooled list” means a list of persons who have been accepted by a provider for the provision of personal medical services under a transitional agreement, and whose names are not included in a medical practitioner’s list.

Representations against a requirement to assign: transitional agreements

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• (1) A provider who has been required under article 55(1) to assign a person to a medical practitioner may, within the period of seven days beginning with the day on which that assignment is made, make representations in writing to the Health Board against the requirement to assign, but shall remain responsible for providing personal medical services for the person to whom the requirement relates, pending notification of the confirmation or revision of the assignment by the Health Board.

• (2) Where representations are made to it against a requirement to assign, a Health Board shall, subject to paragraph (4), promptly review the decision to require assignment and shall either confirm or revise it, but no person who participated in making the decision to require assignment shall participate in a review of that decision.

• (3) Where representations are made against a decision to require assignment, the Health Board shall, before confirming or revising that decision, give the provider the opportunity of an oral hearing in support of those representations.

• (4) The Health Board shall, within the period of seven days beginning with the day on which it confirms or revises a decision under paragraph (3), notify the contractor accordingly and the provisions of this article and article 55 shall apply to any requirement to assign under a revised decision.

Variation and termination of transitional agreements

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• (1) The Scottish Ministers may by directions require a transitional agreement to be varied by the relevant body in accordance with the directions.

• (2) If the Scottish Ministers are satisfied that a transitional agreement is (for any reason) unsatisfactory, they may give directions to the relevant body requiring it to bring the transitional agreement to an end in accordance with the terms of the directions.

• (3) Where a transitional agreement has been varied under article 50 to include a term which gives effect to paragraph 66 of Schedule 1 to the section 17C Agreements Regulations, the reference in that term to a person falling within the cases specified in paragraph 66(3) during the existence of the agreement shall be read as if it referred to a person so falling on or after 1st April 2004.

Health body status

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• (1) A contractor (other than one falling within paragraph (2)) which was on 31st March 2004 a health service body pursuant to the National Health Service (Pilot Schemes – Health Service Bodies) Regulations 1997[^f00052] (“the 1997 Regulations”) shall be regarded as such a body after that date and regulation 8 of the Section 17C Services Agreements Regulations shall apply as if health service body status had been conferred on that contractor under that regulation.

• (2) A provider falls within this paragraph if it was a health service body only for the purpose of regulation 3(4) of the 1997 Regulations (being a party to an existing NHS contract).

• (3) A provider falling within paragraph (2) shall continue to be a health service body for the purpose of being a party to an NHS contract entered into on a date before that on which it ceased to be a pilot scheme health service body until the determination of that NHS contract.

• (4) Paragraph (3) shall also apply to a provider of personal medical services under a pilot scheme whose agreement terminated before 1st April 2004.

Dispute resolution

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Any dispute relating to a pilot scheme that has been referred to the Scottish Ministers under section 17A of the National Health Service (Scotland) Act 1978[^f00053] (NHS contracts) and which has not been determined on or before 31st March 2004 shall continue to be dealt with in accordance with the provisions of section 17A.

PART 5 — TRANSITIONAL PROVISIONS RELATING TO THE CHOICE REGULATIONS

Assignment of patients

60

Where, on 31st March 2004, a person had applied to a Health Board for assignment to a medical practitioner under regulation 4 of the Choice Regulations[^f00054] but that application had not yet been determined, the Health Board shall–

• (a) require a provider to assign the person to a medical practitioner who performs personal medical services under a transitional agreement in accordance with article 55(1) or a person who is a party to a section 17C agreement;

• (b) assign the patient in accordance with the terms of the contract, to–

• (i) a default contractor; or

• (ii) a general medical services contractor;

• (c) otherwise make arrangements for the applicant to be provided with essential services (or their equivalent) in the area of the Health Board.

Representations against assignments

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• (1) Where, on 31st March 2004, a Health Board had assigned a patient to a relevant medical practitioner under regulation 4 of the Choice Regulations but the seven days for the medical practitioner to make representations against that assignment in regulation 6(1) of those Regulations had not yet expired, the succeeding contractor shall be entitled to make representations to the Health Board in writing against that assignment within the period of seven days beginning on the day on which the relevant medical practitioner received notice of the assignment under regulation 4 of the Choice Regulations, as if regulation 6 of the Choice Regulations were still in force.

• (2) Where, on 31st March 2004, a Health Board had required a pilot scheme provider or a section 17C provider to assign a patient under regulation 4(2)(b) or (c) of the Choice Regulations but the seven days for the medical practitioner to make representations against that requirement to assign in regulation 6(2) of those Regulations had not yet expired, that section 17C provider or the section 17C provider who is a party to the section 17C agreement which has succeeded the pilot scheme, shall be entitled to make representations to the Health Board in writing against that requirement to assign within the period of seven days beginning on the day on which the pilot scheme provider received notice of the requirement under regulation 4 of the Choice Regulations, as if regulation 6 of the Choice Regulations were still in force.

• (3) Where representations are made to a Health Board under paragraphs (1) or (2), the Health Board shall deal with those representations in accordance with regulation 6 of the Choice Regulations as if those Regulations were still in force and shall, on or before 30th April 2004, either confirm or revise its decision to assign the patient.

• (4) In this article “relevant medical practitioner” and “succeeding contractor” have the meaning given in article 2(3).

PART 6 — TRANSITIONAL, TRANSITORY AND SAVING PROVISIONS RELATING TO OUT OF HOURS ARRANGEMENTS AND SERVICES

Interpretation of this Part

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In this Part–

• “out of hours arrangement” means– in relation to the period before 1st April 2004, an arrangement under paragraph 17A(2) of Schedule 1 to the 1995 Regulations[^f00055]; or in relation to the period from 1st April 2004, means an arrangement under the term of a general medical services contract which gives effect to paragraph 1(2) of Schedule 6 to the 2004 Regulations (or the equivalent term of a default contract);

• “out of hours services” means services required to be provided in all or part of the out of hours period which– would be essential services if provided in core hours; or are included– in a default contract as additional services funded under article 36(2) of the Transitional Order; or in a general medical services contract as additional services funded under the global sum.