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

Terms of general medical services contracts and default contracts

63

Unless the contract is of a type or nature to which a particular article does not apply–

• (a) a general medical services contract shall include or be deemed to include terms which have the effect specified in articles 64 to 74; and

• (b) a default contract shall include or be deemed to include terms which have the effect specified in articles 64 to 67 and 69, 70 and 74.

Applications for approval of out of hours arrangements under general medical services contracts and default contracts

64

• (1) Where, on or before 31st March 2004, a medical practitioner had applied to the Health Board for approval of an out of hours arrangement under paragraph 17A(7) of Schedule 1 to the 1995 Regulations but that application had not yet been determined, it shall, if the medical practitioner meets the requirements in paragraph (2), be treated, on 1st April 2004, as if it were an application made by the general medical services contractor under the term of its contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or by the default contractor under the equivalent term of its default contract) subject to the modification that the period of 28 days referred to in the term giving effect to paragraph 2(2) of Schedule 6 (or in the equivalent term of the default contract) shall be treated as beginning with the day on which the Health Board received the application under paragraph 17A(7) of Schedule 1 to the 1995 Regulations.

• (2) The requirements referred to in paragraph (1) are that the medical practitioner–

• (a) has entered as an individual medical practitioner into a general medical services contract, or a default contract;

• (b) is a partner in a partnership which has entered into such a contract; or

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

• (3) In any application which falls within paragraph (1)–

• (a) any references to the patients of the medical practitioner shall be deemed to be references to the patients of the general medical services contractor or the default contractor;

• (b) any references to the whole of the out of hours period shall be deemed to be references to–

• (i) the period beginning at 6.30pm on any day from Monday to Thursday and ending at 8am on the following day;

• (ii) the period between 6.30pm on Friday and 8am the following Monday; and

• (iii) Good Friday, Christmas Day, New Year’s day and any other public or local holiday;

• (c) in any reference to part of the out of hours period–

• (i) any reference to 7pm on Monday to Friday shall be deemed to be a reference to 6.30pm; and

• (ii) any reference to 1pm on Saturday shall be deemed to be a reference to 6.30pm on Friday; and

• (d) any references to a particular transferee doctor shall be deemed to be references to–

• (i) that person as a general medical services contractor, a default contractor or a party to contractual arrangements made under article 15 of the Transitional Order;

• (ii) the partnership in which that person is a partner and which has entered into a general medical services contract or a default contract or which is party to contractual arrangements made under article 15 of the Transitional Order; or

• (iii) the company in which that person is a legal and beneficial shareholder and which has entered into a general medical services contract.

Approvals of out of hours arrangements under general medical services contracts and default contracts

65

• (1) Where, on 31st March 2004–

• (a) a medical practitioner had approval from a Health Board of an out of hours arrangement; and

• (b) that approval had not been withdrawn under paragraph 17B[^f00056] or 17C of Schedule 1 to the 1995 Regulations and the withdrawal taken effect,

that approval shall, if the medical practitioner meets the requirements in article 67(2), be treated from 1st April 2004 as if it were an approval granted to the general medical services contractor by the Health Board pursuant to the term of its contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or to the default contractor under the equivalent term of its default contract) except in the circumstances specified in paragraph (2).

• (2) The circumstances referred to in paragraph (1) are that the approval under paragraph 17A of Schedule 1 to the 1995 Regulations related to an arrangement with a transferee doctor as defined in paragraph 17A(1)(c) of Schedule 1 to the 1995 Regulations and that doctor–

• (a) has not entered as an individual medical practitioner into a general medical services contract, or a default contract, which includes the provision of out of hours services;

• (b) is not a partner in a partnership which has entered into such a contract;

• (c) is not a legal and beneficial shareholder in a company which has entered into such a general medical services contract; or

• (d) is not a party or a partner in a partnership which is a party, to contractual arrangements under article 15 of the Transitional Order which include the provision of out of hours services.

• (3) The terms of an approval granted pursuant to sub-paragraph (1) shall be the same as those of an approval granted under paragraph 17A of Schedule 1 to the 1995 Regulations except that–

• (a) any references to the patients of the medical practitioner shall be deemed to be references to the patients of the general medical services contractor or the default contractor;

• (b) any references to the whole of the out of hours period shall be deemed to be references to–

• (i) the period beginning at 6.30pm on any day from Monday to Thursday and ending at 8am on the following day;

• (ii) the period between 6.30pm on Friday and 8am the following Monday; and

• (iii) Christmas Day, New Year’s Day and any other public or local holiday;

• (c) in any reference to part of the out of hours period–

• (i) any reference to 7pm on Monday to Friday shall be deemed to be a reference to 6.30pm; and

• (ii) any reference to 1pm on Saturday shall be deemed to be a reference to 6.30pm on Friday; and

• (d) any references to a particular transferee doctor shall be deemed to be references to–

• (i) that person as a general medical services contractor, a default contractor or a party to contractual arrangements made under article 15 of the Transitional Order;

• (ii) the partnership in which that person is a partner and which has entered in to a general medical services contract or a default contract or which is party to contractual arrangements made under article 15 of the Transitional Order; or

• (iii) the company in which that person is a legal and beneficial shareholder and which has entered into a general medical services contract.

Refusal of approval of out of hours arrangements under general medical services contracts and default contracts

66

• (1) Where–

• (a) on or before 31st March 2004, a Health Board had notified a medical practitioner under paragraph 17A(10) of Schedule 1 to the 1995 Regulations that it had refused approval of an out of hours arrangement; and

• (b) on or before 1st April 2004, that medical practitioner–

• (i) has entered as an individual medical practitioner into a general medical services contract, or a default contract, which requires the provision of out of hours services;

• (ii) is a partner in a partnership which has entered into such a contract; or

• (iii) is a legal and beneficial shareholder in a company which has entered into such a general medical services contract,

paragraphs (2) and (3) shall apply.

• (2) In a case where the time for appealing under paragraph 17A(11) of Schedule 1 to the 1995 Regulations had not expired on or before 31st March 2004, that refusal shall be treated as if it were a refusal under the term of the general medical services contract referred to in paragraph (1)(b) which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the default contract), subject to the modification that the 30 days referred to in the term of the general medical services contract giving effect to paragraph 2(5) of that Schedule (or in the equivalent term of the default contract) shall be treated as beginning with the day on which the Health Board’s notification under paragraph 17A(10) was sent.

• (3) In a case where, on 31st March 2004, an appeal had been made under paragraph 17A(11) of Schedule 1 to the 1995 Regulations but not yet been determined or withdrawn, that appeal shall, except in the circumstances specified in paragraph (4), continue to be dealt with as if paragraph 17A had not been revoked and, if the appeal is successful, the approval of the arrangement shall be treated as an approval given under the term of the general medical services contract referred to in paragraph (1)(b) which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the relevant default contract).

• (4) The circumstances referred to in paragraph (3) are that the appeal related to an arrangement with a transferee doctor as defined in paragraph 17A(1)(c) of Schedule 1 to the 1995 Regulations and that doctor–

• (a) has not entered as an individual medical practitioner, into a general medical services contract, or a default contract, which includes the provision of out of hours services;

• (b) is not a partner in a partnership which has have entered into such a contract;

• (c) is not a legal and beneficial shareholder in a company which has entered into such a general medical services contract; or

• (d) is not a party or a partner in a partnership which is a party, to contractual arrangements under article 15 of the Transitional Order which include the provision of out of hours services.

• (5) For the purposes of a dispute pursuant to paragraph (2) or an appeal dealt with pursuant to paragraph (3) , the application which is the subject of the appeal shall be read as if–

• (a) any references to the patients of the medical practitioner were references to the patients of the general medical services contractor or the default contractor;

• (b) any references to the whole of the out of hours period were references to–

• (i) the period beginning at 6.30pm on any day from Monday to Thursday and ending at 8am on the following day;

• (ii) the period between 6.30pm on Friday and 8am the following Monday; and

• (iii) Christmas Day, New Year’s Day and any other public or local holiday;

• (c) in any reference to part of the out of hours period–

• (i) any reference to 7pm on Monday to Friday were a reference to 6.30pm; and

• (ii) any reference to 1pm on Saturday were a reference to 6.30pm on Friday; and

• (d) any references to a particular transferee doctor were references to–

• (i) that person as a general medical services contractor, a default contractor or a party to contractual arrangements made under article 15 of the Transitional Order;

• (ii) the partnership in which that person is a partner and which has entered in to a general medical services contract or a default contract or which is party to contractual arrangements made under article 15 of the Transitional Order; or

• (iii) the company in which that person is a legal and beneficial shareholder and which has entered into a general medical services contract.

Review of approval of out of hours arrangements under general medical services contracts and default contracts

67

Where–

• (a) an approval of an out of hours arrangement granted under paragraph 17A of Schedule 1 to the 1995 Regulations is to be treated, pursuant to article 65, as an approval granted under the term of a general medical services contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or under the equivalent term of a default contract); and

• (b) on or before 31st March 2004, the Health Board had commenced a review of its approval of that arrangement under paragraph 17B of Schedule 1 to the 1995 Regulations but had not yet made its determination,

that review shall continue as if it were a review under the term of the general medical services contract which gives effect to paragraph 4 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the default contract), subject to the modification that the 30 days referred to in the term giving effect to paragraph 4(2) of that Schedule (or in the equivalent term of the default contract) shall be treated as beginning with the day on which the Health Board sent its notice under paragraph 17B(1) of Schedule 1 to the 1995 Regulations.

Review of approval of out of hours arrangements under general medical services contracts which follow default contracts

68

Where–

• (a) an approval of an out of hours arrangement granted under a default contract is to be treated, pursuant to article 35, as an approval granted under the term of a general medical services contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations; and

• (b) on or before the date on which the default contract ceases to have effect, the Health Board has commenced a review of its approval of that arrangement under the term of the default contract which is equivalent to paragraph 4 of Schedule 6 to the 2004 Regulations but has not yet made its determination,

that review shall continue as if it were a review under the term of the general medical services contract which gives effect to paragraph 4 of Schedule 6 to the 2004 Regulations, subject to the modification that the 30 days referred to in the term giving effect to paragraph 4(2) of that Schedule shall be treated as beginning with the day on which the Health Board sent its notice under the equivalent term of the default contract.

Withdrawal of approval of out of hours arrangements under general medical services contracts and default contracts

69

• (1) Where–

• (a) an approval of an out of hours arrangement granted under paragraph 17A of Schedule 1 to the 1995 Regulations is to be treated, pursuant to article 65, as an approval granted under the term of a general medical services contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations (or under the equivalent term of a default contract); and

• (b) on or before 31st March 2004, a Health Board had notified a medical practitioner of its withdrawal of approval of an out of hours arrangement under paragraph 17B of Schedule 1 to the 1995 Regulations but that withdrawal had not yet taken effect,

paragraphs (2) to (4) shall apply.

• (2) In a case where, on 31st March 2004–

• (a) the time for appealing under paragraph 17B(6) of Schedule 1 to the 1995 Regulations had expired without any appeal being made; or

• (b) an appeal had been made under that paragraph but had been determined or withdrawn before the end of the period of two months beginning with the date on which the notice of withdrawal was sent by the Health Board under paragraph 17B(4) of that Schedule,

the withdrawal shall take effect as a withdrawal of approval under the term of the general medical services contract which gives effect to paragraph 4 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the default contract) on the date on which it would have taken effect had paragraph 17B(7) of Schedule 1 to the 1995 Regulations not been revoked.

• (3) In a case where the time for appealing under paragraph 17B(6) of Schedule 1 to the 1995 Regulations had not expired on or before 31st March 2004, the notice of determination of withdrawal shall be deemed to be a notice of determination of withdrawal of approval on notice under the term of the general medical services contract which gives effect to paragraph 4 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the default contract), subject to the modifications that–

• (a) the 30 days referred to in the term of the general medical services contract giving effect to paragraph 17B(8) (or in the equivalent term of the default contract) shall be treated as beginning with the day on which the Health Board sent the notice under paragraph 17B; and

• (b) the date referred to in the term of the general medical services contract giving effect to paragraph 17B(9)(a) (or in the equivalent term of the default contract) shall be treated as being the date on which the Health Board sent the notice under paragraph 17B.

• (4) In a case where, on 31st March 2004, an appeal had already been made under paragraph 17B(6) of Schedule 1 to the 1995 Regulations but not yet been determined or withdrawn, the appeal shall continue to be dealt with as if paragraphs 17A and 17B of that Schedule had not been revoked and, if the appeal is dismissed, the withdrawal of approval shall take effect as a withdrawal of approval under the term of the general medical services contract which gives effect to paragraph 4 of Schedule 6 to the 2004 Regulations (or under the equivalent term of the default contract) on the date on which the general medical services contractor or the default contractor received notice of the dismissal of the appeal.

Appeal against immediate withdrawal of approval of out of hours arrangements under general medical services contracts and default contracts

70

Where–

• (a) on or before 31st March 2004, a Health Board had notified a medical practitioner of its immediate withdrawal of approval of an out of hours arrangement under paragraph 17C of Schedule 1 to the 1995 Regulations; and

• (b) on or before 1st April 2004, that medical practitioner–

• (i) has entered as an individual medical practitioner into a general medical services contract, or a default contract, which requires the provision of out of hours services;

• (ii) is a partner in a partnership which has entered into such a contract; or

• (iii) is a legal and beneficial shareholder in a company which has entered into such a general medical services contract,

paragraphs (2) and (3) shall apply.

• (2) In a case where the time for appealing under paragraph 17C(4) had not expired on or before 31st March 2004, that withdrawal shall be treated as if it were a withdrawal of approval under the term of the general medical services contract which gives effect to paragraph 5(1)(c) of Schedule 6 to the 2004 Regulations (or under the equivalent term of a default contract) subject to the modification that the 30 days referred to in the term giving effect to paragraph 5(5) of that Schedule (or in the equivalent term of the default contract) shall be treated as beginning with the day on which the Health Board’s notification under paragraph 17C(2) of Schedule 1 to the 1995 Regulations was sent.

• (3) In a case where, on 31st March 2004, an appeal had already been made under paragraph 17C(4) but not yet been determined or withdrawn, that appeal shall, except in the circumstances specified in paragraph (4), continue to be dealt with as if paragraphs 17A and 17C of Schedule 1 to the 1995 Regulations had not been revoked and, if the appeal is successful, the approval of the arrangement shall be treated as an approval given under the term of the general medical services contract which gives effect to paragraph 2 of Schedule 1 to the 2004 Regulations (or under the equivalent term of the default contract).

• (4) The circumstances referred to in paragraph (3) are that the appeal related to an arrangement with a transferee doctor as defined in paragraph 17A(1)(c) of Schedule 1 to the 1995 Regulations and that doctor–

• (a) has not entered as an individual medical practitioner into a general medical services contract, or a default contract, which includes the provision of out of hours services;

• (b) is not a partner in partnership which has entered into such a contract;

• (c) is not a legal and beneficial shareholder in a company which has entered into such a general medical services contract; or

• (d) is not a party or a partner in a partnership which is a party, to contractual arrangements under article 15 of the Transitional Order which include the provision of out of hours services.

• (5) The terms of an approval granted pursuant to paragraphs (2) or (3) shall be the same as those of the approval previously granted approval under paragraph 17A of Schedule 1 to the 1995 Regulations except that–

• (a) any references to the patients of the medical practitioner shall be amended to be references to the patients of the general medical services contractor or the default contractor;

• (b) any references to the whole of the out of hours period shall be amended to be references to–

• (i) the period beginning at 6.30pm on any day from Monday to Thursday and ending at 8am on the following day;

• (ii) the period between 6.30pm on Friday and 8am the following Monday; and

• (iii) Christmas Day, New Year’s Day and any other public or local holiday;

• (c) in any reference to part of the out of hours period—

• (i) any reference to 7pm on Monday to Friday shall be amended to be a reference to 6.30pm; and

• (ii) any reference to 1pm on Saturday shall be amended to be a reference to 6.30pm on Friday; and

• (d) any references to a particular transferee doctor shall be amended to be references to–

• (i) that person as a general medical services contractor, a default contractor or a party to contractual arrangements made under article 15 of the Transitional Order;

• (ii) the partnership in which that person is a partner and which has entered in to a general medical services contract or a default contract or which is party to contractual arrangements made under article 15 of the Transitional Order; or

• (iii) the company in which that person is a legal and beneficial shareholder and which has entered into a general medical services contract.

References to the NHS dispute resolution procedure in general medical services contracts which follow default contracts

71

Where–

• (a) on or before the date on which a default contract ceases to have effect, a default contractor has received notice of–

• (i) the refusal of an application for approval of an out of hours arrangement under the term of its contract equivalent to paragraph 2(4) of Schedule 6 to the 2004 Regulations;

• (ii) a determination of a Health Board under the term of its contract equivalent to paragraph 4(6) of Schedule 6 to the 2004 Regulations which gives notice of immediate withdrawal of approval; or

• (iii) immediate withdrawal of approval under the term of its contract equivalent to paragraph 5(1)(b) of that Schedule;

• (b) on the date on which the default contract ceases to have effect–

• (i) the 30 days for referring that matter in accordance with the NHS dispute resolution procedure has not expired; and

• (ii) no referral under that procedure has yet been made; and

• (c) the default contractor has entered into a general medical services contract which takes effect immediately after the default contract ceases to have effect,

the refusal or notice shall be treated, for the purposes of referring the matter in accordance with the NHS dispute resolution procedure contained in the general medical services contract, as if it were a refusal or notice of withdrawal given under the equivalent terms of the general medical services contract and the general medical services contractor may refer the matter in accordance with that dispute resolution procedure before the end of the period of 30 days beginning with the day on which the Health Board sent the notice of refusal, determination, or, as the case may be, withdrawal, to the default contractor.

Carry over of disputes relating to out of hours arrangements between default contracts and general medical services contracts

72

• (1) Where–

• (a) on or before the date on which a default contract ceases to have effect, a default contractor has referred a dispute to be determined in accordance with the NHS dispute resolution procedure under the terms of its default contract equivalent to paragraph 4(8) or 5(5) of Schedule 6 to the 2004 Regulations;

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

• (c) the default contractor has entered into a general medical services contract which takes effect immediately after the default contract ceases to have effect,

paragraph (2) shall apply.

• (2) The dispute shall continue to be dealt with as if it were a dispute referred under the NHS dispute resolution procedure contained in the general medical services contract relating to–

• (a) a refusal of an application under the term of the general medical services contract giving effect to paragraph 2 of Schedule 6 to the 2004 Regulations;

• (b) a determination of the Health Board under the term of the general medical services contract giving effect to paragraph 4 of that Schedule; or

• (c) an immediate withdrawal of approval under the term of the general medical services contract giving effect to paragraph 5 of that Schedule.

Sub-contracting of out of hours services under general medical services contracts

73

• (1) Where, prior to 1st January 2005, a general medical services contractor wishes to sub-contract all or part of its out of hours services in circumstances which would require the written approval of the Health Board in accordance with the term of the general medical services contract which gives effect to paragraph 63 of Schedule 5 to the 2004 Regulations, it shall be deemed to have such written approval if, at the date on which it enters into the sub-contract–

• (a) it has, or, pursuant to article 65, 66 or 70, is deemed to have, approval of an out of hours arrangement under the term of the general medical services contract which gives effect to paragraph 2 of Schedule 6 to the 2004 Regulations whose terms are, in all material respects, identical to those of the proposed sub-contract; and

• (b) that approval has not been withdrawn; and

• (c) it has not previously entered into a sub-contract for its out of hours services in reliance on the approval referred to in sub-paragraph (a).

• (2) The general medical services contractor shall notify the Health Board in writing as soon as reasonably practicable of any sub-contract which it proposes to enter into or has entered into pursuant to paragraph (1).

• (3) An approval deemed to have been granted pursuant to paragraph (1) shall be regarded, for all purposes, as an approval granted under the term of the general medical services contract which gives effect to paragraph 63 of Schedule 5 to the 2004 Regulations.

Out of hours services to patients not registered with general medical services contractors and default contractors

74

• (1) Where a general medical services contractor or a default contractor is required under article 24 or 25 of the Transitional Order to provide any of the additional services to patients who are not included on its list of patients, it shall, for so long as that requirement continues, and subject to paragraphs (2) and (4), also be required to provide that service to those patients throughout the out of hours period.

• (2) In the case of a general medical services contract, the requirement referred to in paragraph (1) shall cease on the date on which any opt out of out of hours services commences pursuant to the terms of the general medical services contract which gives effect to paragraph 4 or 5 of Schedule 2 to the 2004 Regulations.

• (3) Where paragraph (2) applies, the requirement to inform patients of opt outs in the term of the general medical services contract which gives effect to paragraph 6 of Schedule 2 to the 2004 Regulations shall apply to the patients to whom services are provided pursuant to this article as it applies to the general medical services contractor’s own registered patients.

• (4) Nothing in this article shall require a general medical services contractor or a default contractor to provide services under this article if, in the reasonable opinion of the default contractor or the general medical services contractor in the light of the patient’s medical condition it would be reasonable in all the circumstances for the patient to wait for the services required until the next time at which he could obtain such services during core hours.

• (5) Services included in a general medical services contract or a default contract pursuant to this article shall be deemed to fall within the definition of out of hours services for the purposes of–

• (a) the terms of the general medical services contract which give effect to paragraphs 11 and 63 to 65 of Schedule 5 to the 2004 Regulations and Schedule 6 to those Regulations; or

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

• (6) In this article “out of hours period” has the same meaning as in regulation 2(1) of the 2004 Regulations.

Application of regulation 30 of the 2004 Regulations to general medical services contracts entered into under Part 2 of the Transitional Regulations

75

Where a person enters into a general medical services contract pursuant to an entitlement under Part 2 of the Transitional Order under which services are not to be provided until on or after 1st January 2005, regulation 30 of the 2004 Regulations (out of hours services) shall apply to that general medical services contract as it applies to general medical services contracts under which services are to be provided before that date.

PART 7 — TRANSITIONAL ARRANGEMENTS: THE NATIONAL HEALTH SERVICE (SERVICE COMMITTEES AND TRIBUNAL) (SCOTLAND) REGULATIONS 1992

Interpretation

76

• (1) In this Part–

• “appropriate Health Board” has the same meaning as in the Service Committees Regulations;

• “contracting Health Board” means a Health Board that has entered into a default contract or a general medical services contract (as the case may be) with– a doctor who is the subject of the allegation; a partnership, where a doctor who is the subject of the allegation is a partner; a limited company, where a doctor who is the subject of the allegation is the legal and beneficial shareholder of shares in that company;

• “doctor” has the same meaning as in the Service Committees Regulations;

• “Performers List Health Board” means a Health Board in whose primary medical services performers list the doctor’s name appears on 1st April 2004 pursuant to article 86;

• “relevant contractor” means a party to a general medical services contract or default contract with a contracting Health Board, where that contractor is– a doctor who is the subject of the allegation; a partnership, where a doctor who is or was the subject of the allegation is a partner in that partnership; a limited company, where a doctor who is or was the subject of the allegation is the legal and beneficial shareholder of shares in that company; and

• “relevant date” means 1st April 2004.

• “the Service Committees Regulations” means the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992[^f00057];

• (2) Unless the context otherwise requires, any reference in this Part to–

• (a) a numbered regulation is to the regulation bearing that number in the Service Committees Regulations; and

• (b) a numbered Schedule is to the Schedule to the Service Committees Regulations bearing that number.

Cases where no decision has been made before the relevant date as to whether disciplinary action should be taken (regulation 3 of the Service Committees Regulations)

77

• (1) Where, before the relevant date, or on or after the relevant date in respect of a matter that occurred before the relevant date, a Health Board–

• (a) receives, or has received information that could amount to an allegation that a doctor had failed to comply with his terms of service and–

• (i) that Health Board has not taken a decision pursuant to regulation 3(1)[^f00058] before the relevant date as to whether it will take no action or take one or both of the courses of action set out in regulation 3(2); and

• (ii) any time limit specified in regulation 5[^f00059] has not expired; or

• (b) considers that a payment has been made to a doctor which was not due and the doctor does not admit that overpayment,

paragraph (2) shall apply.

• (2) Where this paragraph applies, the Health Board shall–

• (a) if it is the appropriate Health Board, continue to be the appropriate Health Board for the purposes of the Service Committees Regulations, and consider and take such action as it sees fit pursuant to the Service Committees Regulations, subject to article 84, as if section 19 of the 1978 Act[^f00060] had not been repealed; or

• (b) if it is not the appropriate Health Board, forward the information to that Health Board as soon as is reasonably practicable, and that Health Board shall consider the information received and take such action as it sees fit pursuant to the Service Committees Regulations, subject to the time limits specified in the Service Committees Regulations, and article 84, as if section 19 of the 1978 Act had not been repealed.

• (3) If a Health Board (A) decides, pursuant to paragraph (2)(a) or (b), to refer the matter to another Health Board (B) for investigation in accordance with regulation 3(2)(a) or (7)–

• (a) Health Board (B) shall investigate the matter and report to Health Board (A) as if section 19 of the 1978 Act had not been repealed; and

• (b) Health Board (A) shall be entitled, subject to article 80, to take any action it could have taken pursuant to the Service Committees Regulations as if section 19 of the 1978 Act had not been repealed.

Referrals to investigating discipline committees before the relevant date (regulation 4 of the Service Committees Regulations)

78

Where a Health Board(A) has, before the relevant date, referred a matter in respect of a doctor to another Health Board(B) in accordance with regulation 4(2)(a) or (7)[^f00061] and–

• (a) that matter has not been finally determined by the discipline committee of that Health Board (B) before the relevant date–

• (i) the discipline committee of Health Board (B) shall investigate the matter and report to Health Board (A), as if section 19 of the 1978 Act had not been repealed; and

• (ii) Health Board (A) shall be entitled to take any action it could have taken pursuant to the Service Committees Regulations as if section 19 of the 1978 Act had not been repealed, subject to article 80; or

• (b) Health Board (A) has received the report of the discipline committee of the Health Board (B) but has not yet determined what (if any) action to take as a result of the report, Health Board (A) shall be entitled to take any action it could have taken pursuant to the Service Committees Regulations as if section 19 of the 1978 Act had not been repealed, subject to article 80.

Determination of a Health Board or the Scottish Ministers made before the relevant date (regulation 7, 8, 9 and 10 of the Service Committees Regulations)

79

• (1) Where, before the relevant date, a Health Board has (or where relevant, the Scottish Ministers have) determined pursuant to regulation 7(5)(a) and 8(3) or regulation 10[^f00062] (as the case may be) that an amount should be recovered from the doctor, insofar as any of that amount has not been recovered before the relevant date, it shall continue to be recoverable by the Health Board that was the appropriate Health Board for the purposes of the Service Committees Regulations in respect of that matter, and it shall be treated as a debt owed by that doctor to that Health Board.

• (2) Where a contracting Health Board has a record of, or receives notification of, an adverse determination made before the relevant date pursuant to regulation 7, 8, 9 or 10[^f00063] in respect of a doctor (where, in the case of a determination under regulation 7, such a determination was not overturned on appeal), paragraph (3) shall apply without prejudice to any other rights the contracting Health Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

• (3) Where this paragraph applies, the contracting Health Board may take into account that adverse determination in relation to a relevant contractor if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 103(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

• (4) Where a Performers List Health Board has a record of, or receives notification of, an adverse determination pursuant to regulation 7, 8, 9 or 10 made before the relevant date in respect of a doctor (where, in the case of a determination under regulation 7, such a determination was not overturned on appeal) it may take that determination into account in determining what (if any) action it should take in respect of that doctor pursuant to sections 29, 30 or 32A of the 1978 Act[^f00064].

Determination of a Health Board made on or after the relevant date (regulation 7 of the Service Committees Regulations)

80

• (1) Where, on or after the relevant date, an appropriate Health Board is determining what action to take pursuant to regulation 7 in accordance with provision made in this Part, it shall make such a determination in accordance with such limitations and modifications to that regulation as are specified in this article.

• (2) The appropriate Health Board may–

• (a) pursuant to regulation 7(1)(c)(i), determine that no further action should be taken;

• (b) pursuant to regulation 7(3), determine after consultation with the area medical committee that it would have considered it appropriate to impose a special limit on the number of persons for whom a doctor may undertake to provide treatment;

• (c) pursuant to regulation 7(5)(a), determine that an amount shall be recovered from the doctor;

• (d) pursuant to regulation 7(5)(c), determine that it would have warned the doctor to comply more closely with the doctor’s terms of service in future, if those terms of service were still applicable,

and if it makes any one or more of the decisions specified in paragraphs (b) to (d), it shall, after the period specified in regulation 7(10)(a) has expired or it has received notice pursuant to regulation 7(10)(b) (as applicable), notify in writing the contracting Health Board and any Performers List Health Board of its decision and the reasons for it, where they are different Health Boards to the appropriate Health Board.

• (3) Where, pursuant to paragraph (2)(c), the appropriate Health Board determines that an amount should be recovered from the doctor, regulation 7(8) shall not apply and that amount shall be recoverable by the appropriate Health Board and it shall be treated as a debt owed by that doctor to that appropriate Health Board.

• (4) Where the appropriate Health Board has notified the contracting Health Board that it has taken any of the actions specified in paragraphs 2(b) to (d), or where the appropriate Health Board is the contracting Health Board, paragraph (5) shall apply without prejudice to any other rights the contracting Health Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

• (5) Where this paragraph applies, the contracting Health Board may, in relation to a relevant contractor, take into account the determination of the appropriate Health Board if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 103(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

• (6) Where–

• (a) a Performers List Health Board has received notification from an appropriate Health Board pursuant to paragraph (2); or

• (b) where an appropriate Health Board that has taken a decision pursuant to paragraph (2) is also a Performers List Health Board,

it shall consider what (if any) action it should take in respect of that doctor pursuant to sections 29, 30 or 32A of the 1978 Act.

Appeals to the Scottish Ministers against determinations of Health Boards (regulations 8, 9 and 10 of the Service Committees Regulations)

81

• (1) Where–

• (a) a doctor has appealed against a determination of a Health Board in accordance with regulation 8 of the Service Committees Regulations before the relevant date, but that appeal has not been finally determined before that date; or

• (b) in respect of a determination made by a Health Board in accordance with regulation 7 before the relevant date, the time limit specified in regulation 9(2) for appealing that determination has not expired before the relevant date, and the doctor serves a notice of appeal on or after the relevant date but within the time limit specified in regulation 9(2),

that appeal shall be determined pursuant to regulations 8, 9 and 10, as if section 19 of the 1978 Act had not been repealed.

• (2) Where an appropriate Health Board has made a determination in respect of a doctor on or after the relevant date pursuant to this Part–

• (a) the doctor shall be entitled to appeal against that determination in accordance with regulation 8; and

• (b) that appeal shall be determined pursuant to regulations 8, 9 and 10,

as if section 19 of the 1978 Act had not been repealed.

• (3) Where, on or after the relevant date, the Scottish Ministers are determining pursuant to regulation 8, 9 or 10 (as the case may be) what (if any) action to take in respect of a doctor, they shall make a determination pursuant to those regulations as if section 19 of the 1978 Act had not been repealed and that determination shall have effect in accordance with this article.

• (4) If, pursuant to paragraph (1), the Scottish Ministers determine pursuant to–

• (a) regulation 7(3), that they would have considered it appropriate to impose a special limit on the number of persons for whom a doctor may undertake to provide treatment;

• (b) pursuant to regulation 8(3)(d), that there has been an overpayment and, if so, what amount;

• (c) pursuant to regulation 7(5)(a) and 8(3) or 10, that an amount shall be recovered from the doctor; or

• (d) pursuant to regulation 7(5)(c), that they would have warned the doctor to comply more closely with the doctor’s terms of service in future, if those terms of service were still applicable,

the Scottish Ministers shall, in addition to the persons specified in regulation 9(14), notify the Health Boards specified in paragraph (5).

• (5) The Scottish Ministers shall, pursuant to paragraph (4)(a) to (d), notify the contracting Health Board and any Performers List Health Board of their determination if those Health Boards are different to the Health Board referred to in regulation 9(14).

• (6) Where, pursuant to regulation 7(5)(a) and 8(3) or 10, the Scottish Ministers have determined that an amount shall be recovered from a doctor they shall direct the appropriate Health Board to recover that amount from the doctor and that amount shall be a debt owed to that appropriate Health Board.

• (7) Where, pursuant to paragraph (5), the Scottish Ministers have notified the contracting Health Board that they have taken any of the actions specified in paragraph (4)(a) to (d), whether or not the contracting Health Board is also the appropriate Health Board, paragraph (8) shall apply without prejudice to any other right the contracting Health Board may have to take action against the relevant contractor pursuant to any term of the general medical services contract or default contract.

• (8) Where this paragraph applies, the contracting Health Board may, in relation to a relevant contractor, take into account the determination of the Scottish Ministers if it is considering, pursuant to a term of the general medical services contract that gives effect to paragraph 103(7) of Schedule 5 to the 2004 Regulations, or an equivalent term in the default contract, whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

• (9) Where a Performers List Health Board has received notification from the Scottish Ministers pursuant to paragraph (4) or (5), whether or not the Performers List Health Board is also the appropriate Health Board, it shall consider what (if any) action it should take in respect of that doctor pursuant to sections 29, 30 or 32A of the 1978 Act.

Excessive prescribing (regulations 16 and 17 of the Service Committees Regulations)

82

• (1) Where, on 31st March 2004, a Health Board had–

• (a) referred a question of excessive prescribing for investigation and determination by a medical discipline committee under regulation 16(7)[^f00065]; and

• (b) that committee had not yet made its determination,

the investigation by the committee shall continue and its determination be made as if section 19 of the 1978 Act had not been repealed.

• (2) Where, on 31st March 2004, a Health Board had given notice of its determination to a doctor and area medical committee under paragraph (9) of regulation 16 but–

• (a) the doctor or area medical committee had not given notice of appeal in accordance with regulation 17[^f00066]; and

• (b) the time for appealing in regulation 17(1) had not yet expired,

the time for appealing shall continue as if section 19 of the 1978 Act had not been repealed.

• (3) Where–

• (a) on 31st March 2004, a medical practitioner had given notice of appeal against the determination of a Health Board in accordance with regulation 17 but that appeal had not been determined or withdrawn; or

• (b) a medical practitioner has given notice of such an appeal after 31st March 2004, pursuant to paragraph (2),

that appeal shall continue to be dealt with as if section 19 of the 1978 Act had not been repealed.

Decision as to treatment for which fees may be charged by doctors (regulation 18 of the Service Committees Regulations)

83

• (1) Where a question has arisen as to whether any treatment given by a doctor to a patient is treatment for which the doctor may demand or accept a fee from a patient within the meaning of regulation 18(1)[^f00067], and that question has arisen before the relevant date, or on or after the relevant date in respect of any fee charged by a doctor before the relevant date, and that question–

• (a) has not been referred for consideration by the area medical committee; or

• (b) has been referred to the area medical committee and the area medical committee has not yet finally determined the matter pursuant to regulation 18,

the question may, in a case falling within sub-paragraph (a), be referred as if section 19 of the 1978 Act had not been repealed and, in relation to both sub-paragraphs, the area medical committee shall consider or continue to consider and determine the matter in accordance with regulation 18, subject to the provisions in this article.

• (2) Where an area medical committee makes a determination pursuant to paragraph (1), regulation 18(8) shall apply.

• (3) Where a Health Board has notified the Scottish Ministers pursuant to regulation 18(8) that the Health Board disagrees with a finding of an area medical committee–

• (a) made before the relevant date, and the referral has not been determined before the relevant date; or

• (b) on or after the relevant date,

that referral shall be determined in accordance with regulation 18 and Schedule 3 as if section 19 of the 1978 Act had not been repealed.

• (4) Where the Scottish Ministers–

• (a) have referred a finding of an area medical committee made before the relevant date pursuant to regulation 18(8), and that referral has not been determined before the relevant date; or

• (b) refer a finding of an area medical committee on or after the relevant date,

that referral shall be determined in accordance with regulation 18 and Schedule 3[^f00068] as if section 19 of the 1978 Act had not been repealed.

Determination whether a substance is a drug and recovery of cost (regulation 19 of the Service Committees Regulations)

84

• (1) Where a question has arisen as to whether a substance supplied by a doctor, or by a pharmacist on the prescription of a doctor, was a drug for the purposes of pharmaceutical services within the meaning of regulation 19(1)[^f00069], and that question has arisen before the relevant date, or on or after the relevant date in respect of any substance supplied by a doctor, or by a pharmacist on the prescription of a doctor before the relevant date, and–

• (a) that question has not been referred for consideration by the area medical committee; or

• (b) that question has been referred to the area medical committee and the area medical committee has not yet finally determined the matter pursuant to regulation 19,

the question may, in a case falling within sub-paragraph (a) be referred, or notified to the doctor and referred (as the case may be), and, in relation to both sub-paragraphs, the area medical committee shall consider or continue to consider (as the case may be) and determine the matter in accordance with regulation 19, subject to the provisions in this article, as if section 19 of the 1978 Act had not been repealed.

• (2) Where an area medical committee makes a determination pursuant to paragraph (1), regulation 19(8) shall apply.

• (3) Where a doctor has notified the Scottish Ministers pursuant to regulation 19(8) that the doctor is dissatisfied with a determination–

• (a) made before the relevant date, and the referral has not been determined before the relevant date; or

• (b) on or after the relevant date,

that referral shall be determined in accordance with regulation 19 as if section 19 of the 1978 Act had not been repealed.

• (4) Where a Health Board has notified the Scottish Ministers pursuant to regulation 19(8) that the Health Board is dissatisfied with a determination–

• (a) made before the relevant date, and the referral has not been determined before the relevant date; or

• (b) on or after the relevant date,

that referral shall be determined in accordance with regulation 19 as if section 19 of the 1978 Act had not been repealed.

• (5) Where the Scottish Ministers are dissatisfied with a determination pursuant to regulation 19(8) and–

• (a) have referred the question for determination before the relevant date pursuant to regulation 19(8), and that referral has not been determined before the relevant date; or

• (b) refer the question for determination on or after the relevant date,

that referral shall be determined in accordance with regulation 19 as if section 19 of the 1978 Act had not been repealed.

PART 8 — TRANSITIONAL PROVISIONS RELATING TO THE LISTING OF MEDICAL PRACTITIONERS

Interpretation

85

In this Part–

• “the 1997 Act” means the National Health Service (Primary Care) Act 1997[^f00070];

• “conditional disqualification” has the meaning indicated in section 29C(1) of the 1978 Act[^f00071], and includes conditions imposed by the Scottish Ministers under section 31(2) of the 1978 Act[^f00072], and “conditionally disqualified” shall be construed accordingly;

• “disqualification” means local or national disqualification but does not include conditional disqualification and “disqualified” shall be construed accordingly;

• “local disqualification” has the meaning indicated in section 29B(2)(a) of the 1978 Act[^f00073];

• “national disqualification” has the meaning indicated in section 29B(2)(b) of the 1978 Act;

• “review” means a review under section 30 of the 1978 Act[^f00074];

• “section 17C arrangements” means arrangements for the provision of services made under section 17C of the 1978 Act[^f00075];

• “supplementary list” means a list of medical practitioners approved by a Health Board to assist in the provision of general medical services prepared and published by the Health Board under regulations made under section 24B of the 1978 Act[^f00076];

• “suspended” means suspended by a direction of the Tribunal made pursuant to section 32A(2) or 32B(1) or suspended by virtue of the provisions of section 32D(1) of the 1978 Act[^f00077], and “suspension” shall be construed accordingly;

• “the Tribunal” has the meaning indicated in section 29 of the 1978 Act[^f00078].

Allocation of medical practitioners on previous lists

86

In the case of a medical practitioner, whose name, immediately before 1st April 2004, was included in a Health Board's–

• (a) medical list; or

• (b) supplementary list,

the medical practitioner’s name shall, on that day, be included in that Health Board’s primary medical services performers list.

Applications not decided on 1st April 2004

87

In any case where there was any application by a medical practitioner to a Health Board for the medical practitioner’s name to be included in its medical list or supplementary list and that application has not been decided before 1st April 2004, it shall be deemed to be an application to have the medical practitioner’s name included in the primary medical services performers list of that Health Board.

Transitional provision for performers of personal medical services

88

Despite the provisions of regulation 3 of the Performers Lists Regulations, where a medical practitioner who, immediately before 1st April 2004 was performing personal medical services–

• (a) in accordance with section 17C arrangements; or

• (b) in connection with the provision of such services under a pilot scheme,

that medical practitioner may continue to perform, under a section 17C arrangement or transitional agreement, any primary medical service which a Health Board is, under section 2C(1) of the 1978 Act[^f00079], under a duty to provide or secure the provision of, despite not being included in the primary medical services performers list of that Health Board, until 1st June 2004.

Matters relating to the NHS Tribunal and medical and supplementary lists

89

Any representations made to the Tribunal under section 29 of the 1978 Act relating to any medical practitioner to which article 86 applies that had not been finally determined before 1st April 2004, shall be treated as though they had arisen in relation to the primary medical services performers list in which that medical practitioner has been included or, but for those representations, would have been included and shall continue to be dealt with by the Tribunal.

Matters relating to the NHS Tribunal and medical and supplementary lists

90

In a case where a medical practitioner included in the medical list or the supplementary list of a Health Board immediately before 1st April 2004, was conditionally disqualified or suspended, that conditional disqualification or suspension (as the case may be) shall continue to apply to the primary medical services performers list in which the medical practitioner is included on and after 1st April 2004 as it did, in relation to any other list, before that date.

Matters relating to the NHS Tribunal and medical and supplementary lists

91

In a case where a medical practitioner is, on 31st March 2004 disqualified for inclusion in–

• (a) a Health Board’s lists within section 29(8)(a) of the 1978 Act; or

• (b) all lists within section 29(8)(a) of the 1978 Act,

that disqualification shall continue to apply on and after 1st April 2004 to a Health Board’s list or all lists, as the case may be, within section 29(8)(a) of the 1978 Act.

Matters relating to the NHS Tribunal and medical and supplementary lists

92

In a case where–

• (a) a review has been requested by a disqualified or conditionally disqualified person;

• (b) a review has been requested by a Health Board; or

• (c) the Tribunal is to carry out a review in any other circumstances in which they consider appropriate,

relating to a medical practitioner to which article 86 applies or, but for the disqualification under review, would have applied, and that review has not been finally determined before 1st April 2004, that request for review or review shall be treated as though the request or review had arisen in relation to the primary medical services performers list in which that medical practitioner has been included, or would have been included, as the case may be, and shall continue to be dealt with by the Tribunal.

Transitional provisions in cases where preferential treatment on transferring to medical lists was given

93

• (1) This article applies to any case to which, on or before 31st March 2004, paragraph 1 of Schedule 1(preferential treatment on transferring to medical lists) to the 1997 Act[^f00080] applies.

• (2) If–

• (a) a medical practitioner had made an application to a Health Board, pursuant to paragraph 1 of Schedule 1 to the 1997 Act, for the practitioner’s name to be included in the Health Board’s medical list; and

• (b) the matter had not been determined on or before 31st March 2004,

article 87 shall apply.

• (3) In a case where–

• (a) paragraph (2) applies; and

• (b) the Health Board adds that practitioner’s name to its primary medical services performers list,

that medical practitioner shall be treated as though that medical practitioner’s name had been included in the medical list of that Health Board on 31st March 2004.

• (4) In any case where representations have been made to the Tribunal under paragraph 3 of Schedule 1 to the 1997 Act and have not been finally determined on or before 31st March 2004, the matter shall continue to be dealt with by the NHS Tribunal on and after 1st April 2004 as if they were representations under section 29 of the 1978 Act in relation to the primary medical services performers list in which that medical practitioner, but for those representations, would have been included.

• (5) If the Tribunal determines not to make a disqualification on representations to which paragraph (4) applies, then–

• (a) the medical practitioner’s name shall be included in the list of the Health Board to which the medical practitioner has applied; and

• (b) the medical practitioner shall be treated as though the medical practitioner’s name had been included in the medical list of that Health Board on 31st March 2004.

• (6) In a case where a medical practitioner is, on 31st March 2004, subject to a direction of the Tribunal under paragraph 4(1) of Schedule 1 to the 1997 Act, that direction shall continue to apply on and after 1st April 2004 as if–

• (a) in relation to a direction under paragraph 4(1)(a) or (b)(ii) it were a local disqualification for inclusion in the Health Board’s lists within section 29(8)(a) of the 1978 Act; and

• (b) in relation to a direction under paragraph 4(1)(b)(i) it were a national disqualification for inclusion in all lists within section 29(8)(a) of the 1978 Act.

• (7) In a case where a medical practitioner has requested the Tribunal to hold an inquiry into whether or not to give a direction under paragraph 5 of Schedule 1 to the 1997 Act, and that inquiry has not been finally determined on or before 31st March 2004 that request for an inquiry, or inquiry shall be treated as though the request or inquiry was a request for a review or a review under section 30 of the 1978 Act of a disqualification.

PART 9 — MISCELLANEOUS

Continuing validity of forms

94

Notwithstanding the amendment made by paragraphs 1(3) and 5 of Schedule 1 of the General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004[^f00081] to the form of certificate set out in Part 2 of Schedule 2 to the Social Security (Medical Evidence) Regulations 1976[^f00082] and in Part 2 of the Schedule to the Statutory Maternity Pay (Medical Evidence) Regulations 1987[^f00083], a form which complies with those regulations as in force on 31st March 2004 shall continue to be valid.

Transitory interpretation of references in enactments to primary medical services

95

For so long as default contracts entered into pursuant to article 13 of the Transitional Order continue to exist, a reference in any enactment to primary medical services under the 1978 Act shall be deemed to include a reference to services provided under such contracts.

Transitory interpretation of references to general medical services contracts

96

• (1) For as long as default contracts entered into pursuant to article 13 of the Transitional Order continue to exist, any reference to a general medical services contract or to a contract under section 17J of the 1978 Act[^f00084] in the enactments listed in paragraph (2) shall be deemed to include a reference to a default contract.

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

• (a) the 1978 Act, sections 15(1)(a)[^f00085] and 35(1)(c)[^f00086];

• (b) the Access to Health Records Act 1990[^f00087], section 1(2)(a);

• (c) the Trade Union and Labour Relations (Consolidation) Act 1992[^f00088], section 279(3)(b); and

• (d) the Employment Rights Act 1996[^f00089], section 43K(1)(bb).

PART 10 — SAVINGS, MODIFICATIONS, AMENDMENTS AND REVOCATIONS

Meaning of suitable experience

97

• (1) Until the coming into force of article 5 of the 2003 Order, where, in any enactment, there is a reference to a medical practitioner being “suitably experienced” within the meaning of section 21(2) of the 1978 Act, that reference shall be construed in accordance with paragraph (2).

• (2) A medical practitioner shall, pursuant to paragraph (1), be regarded as being “suitably experienced” if he–

• (a) holds a certificate of prescribed experience;

• (b) holds a certificate of equivalent experience;

• (c) is exempt from the need to have acquired the prescribed experience pursuant to regulation 5 of the National Health Service (Vocational Training for General Medical Practice) (Scotland) Regulations 1998[^f00090] (exemptions); or

• (d) has an acquired right to practise pursuant to regulation 5 of the Vocational Training for General Medical Practice (European Requirements) Regulations 1994[^f00091], other than by virtue of regulation 5(1)(d) of those Regulations (acquired rights).

• (3) In this article, “certificate of prescribed experience” and “certificate of equivalent experience” have the meanings assigned to them in regulation 2(1) of the National Health Service (Vocational Training for General Medical Practice) (Scotland) Regulations 1998.

• (4) Notwithstanding the repeal of sections 19,21 and 22 of the 1978 Act by paragraph 1(7) of the Schedule to the 2004 Act, the National Health Service (Vocational Training for General Medical Practice) (Scotland) Regulations 1998 and the Vocational Training for General Medical Practice (European Requirements) Regulations 1994 shall remain in force (subject to the transitory modifications made in this Part) until their revocation by virtue of article 31(5) of, and Part 2 of Schedule 10 to, the 2003 Order.

Savings of certain provisions of the Medical Act 1983

98

Notwithstanding the coming into force of the amendments to sections 11 and 12 of the Medical Act 1983[^f00092] made by paragraph 4 of the Schedule to the Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 [^f00093], in relation to any employment before 1st April 2004 in–

• (a) an approved medical practice; or

• (b) a health centre,

sections 11(4) and 12(2)(a) of the Medical Act 1983 shall have effect as if those amendments had not been brought into force.

Saving of section 279 of the Trade Union and Labour Relations (Consolidation) Act 1992

99

Notwithstanding the coming into force of the amendments to the definition of worker in section 279 of the Trade Union and Labour Relations (Consolidation) Act 1992[^f00094] (health service practitioners) made by paragraph 7 of the Schedule to the Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004, in relation to any complaint arising in respect of a matter which occurred before 1st April 2004, section 279 shall have effect as if those amendments had not been brought into force.

Transitory modification of the Vocational Training for General Medical Practice (European Requirements) Regulations 1994

100

• (1) Until their revocation by virtue of article 31(5) of, and Part 2 of Schedule 10 to the 2003 Order, the Vocational Training for General Medical Practice (European Requirements) Regulations 1994 are to have effect as if they were amended in accordance with this article.

• (2) In regulation 5 (acquired rights)[^f00095], for paragraph (4)(a), substitute–

(a) a person who has the acquired right specified in paragraph (1)(a), but only by virtue of the fact that he was a restricted services principal included in a list specified in that paragraph, is not entitled to be considered as suitably experienced within the meaning of section 21(2) of the National Health Service (Scotland) Act 1978 for the purposes of regulation 4(1), (2)(a) or (3)(a) of the National Health Service (General Medical Services Contracts)(Scotland)Regulations 2004.

Transitory modification of the National Health Service (Vocational Training for General Medical Practice (Scotland) Regulations 1998

101

• (1) Until their revocation by virtue of article 31(5) of, and Part 2 of Schedule 10 to the 2003 Order, the National Health Service (Vocational Training for General Medical Practice) (Scotland) Regulations 1998[^f00096] are to have effect as if they were amended in accordance with this article.

• (2) In regulation 2 (interpretation)[^f00097]–

• (a) in the definition of “General Practice (GP) Registrar”–

• (i) for “has the meaning assigned to it in regulations made under section 19 of the Act” substitute–

means a medical practitioner who is being trained in general practice by a medical practitioner who has been approved for that purpose by the Joint Committee under regulation 7

; and

• (ii) for the words from “personal medical services” to the end, substitute–

primary medical services in connection with an agreement for primary medical services made under section 17C of the Act;

• (b) in the definition of “medical list”, in both sub-paragraphs (a) and (b), insert after “list” “that was”;

• (c) in paragraph (2)–

• (i) in sub-paragraph (a) for “is (or if the context so requires was)” substitute “was”; and

• (ii) omit the full out text at the end.

• (3) Regulation 4 shall be omitted[^f00098].

• (4) In regulation 5 (exemptions), in paragraph (1) for sub-paragraph (d) substitute–

(d) if his name was, on 31st December 1994, included in a medical list for the provision of general medical services limited to– (i) child health surveillance services only; (ii) contraceptive services only; (iii) maternity medical services only.

Revocation of the Choice Regulations

102

The National Health Service (Choice of Medical Practitioner) (Scotland) Regulations 1998[^f00099], the National Health Service (Choice of Medical Practitioner) (Scotland) Amendment Regulations 2000[^f00100] and the National Health Service (Choice of Medical Practitioner) (Scotland) Amendment Regulations 2001[^f00101] are hereby revoked.

Signed

MALCOLM CHISHOLM — A member of the Scottish Executive — 30th March 2004

Explanatory note

(This note is not part of the Order)

This Order is made under section 7 (ancillary provisions) of the Primary Medical Services (Scotland) Act 2004 (asp 1) (“the 2004 Act”).

The Order generally makes transitional and ancillary provision principally arising from–

• (a) the replacement on 1st April 2004 of arrangements for the provision of general medical services under section 19 of the National Health Service (Scotland) Act 1978 (c. 29) (“the 1978 Act”) with general medical services contracts under section 17J of that Act (as inserted by section 4 of the 2004 Act); and

• (b) the abolition on 1st April 2004 of the power to make pilot schemes for personal medical services by section 3 of the 2004 Act.

In the case of general medical services, this Order supplements the General Medical Services (Transitional and Other Ancillary Provisions) (Scotland) Order 2004 (S.S.I. 2004/142) (“the first transitional order”).

Part 2 of this Order sets out transitional provisions in relation to general medical services. It deals with matters which may still be outstanding on 31st March 2003 under the National Health Service (General Medical Services) (Scotland) Regulations 1995 (S.I. 1995/416) (“the 1995 Regulations”), which are revoked by the National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004 (S.S.I. 2004/114). In most cases, it provides for those matters to be dealt with as part of the new contractual arrangements.

Part 3 of this Order deals with transitional provision between default contracts (which under article 13 of the first transitional order, are short-term contracts which can be entered into by those who had been providing general medical services under section 19 of the 1978 Act pending agreement on a permanent general medical services contract) and general medical services contracts succeeding those default contracts. It provides for certain matters arising under the default contract to carry forward to the general medical services contract.

Part 4 of the Order provides for transitional provision for personal medical services pilot schemes. Article 49 provides for such schemes to be regarded from 1st April 2004 as agreements made under section 17C of the 1978 Act and to be known as “transitional agreements”. Article 50 provides for transitional agreements to be varied by 30th September to meet the requirements for personal medical services agreements set out in the National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2004 (S.S.I. 2004/116). Provision is also made in this part for various aspects of the working of transitional agreements.

Part 5 of the Order sets out the transitional arrangements for general medical services, pilot schemes and services provided under section 17C of 1978 Act in relation to the assignment of patients under the National Health Service (Choice of Medical Practitioner) (Scotland) Regulations 1998 (S.I. 1998/659) which are revoked by this Order.

Part 6 of the Order makes provision in relation to out of hours arrangements for general medical services. It provides for matters outstanding on the 31st of March under the provisions of the 1995 Regulations dealing with out of hours arrangements. It also provides for matters outstanding in relation to out of hours arrangements on the date on which a default contract is replaced by a general medical services contract. Finally, articles 73 to 75 deal with other miscellaneous transitional matters in relation to out of hours services.

Part 7 of the Order sets out the transitional provision in relation to referrals, investigations, determinations and appeals under the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992 (S.I. 1992/434).

Part 8 of the Order deals with the transitional provision necessary in relation to the listing of medical practitioners. It provides for the transition from the previous arrangements whereby certain practitioners were listed on the medical lists provided for in section 19 of the 1978 Act or the supplementary lists provided for in terms of section 24B of the 1978 Act, to the new arrangements for primary medical services performers lists made under section 17P of the 1978 Act (added to that Act by section 5 of the 2004 Act). It makes transitional provision for those performing personal medical services in accordance with arrangements under section 17C of the 1978 Act or under pilot schemes, who have not previously required to be listed. It also makes provision for matters before the NHS Tribunal relating to those on medical or supplementary lists and for persons to whom the preferential treatment on transferring to medical lists under paragraph 1 of Schedule 1 to the National Health Service (Primary Care) Act 1997 ( c.46) applied.

Part 9 of the Order makes provision for a number of miscellaneous transitional and transitory provisions.

Part 10 of the Order sets out certain savings, modifications, and revocations.

Footnotes

[^f00001]: 2004 asp 1.

[^f00002]: 1978 c. 29.

[^f00003]: S.I. 1995/416.

[^f00004]: S.I. 2003/1250.

[^f00005]: 2004 asp. 1.

[^f00006]: S.S.I. 2004/115.

[^f00007]: S.I. 1998/659.

[^f00008]: Section 2 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), section 14(2) and Schedule 7, paragraph 1, the Hospital Complaints Procedure Act 1985 (c. 42), section 1(1) and the National Health Service and Community Care Act 1990 (c. 19), section 28 and Schedule 9, paragraph 19 and Schedule 10.

[^f00009]: Section 12AA was inserted by the Health Act 1999 (c. 8), section 47.

[^f00010]: Section 19 was amended by the Health and Medicines Act 1980 (c. 53), section 7, the Health and Social Security Adjudications Act 1983 (c. 41), Schedule 7, paragraph 2, the Medical Act 1983 (c. 54), Schedule 5, paragraph 17, the National Health Service and Community Care Act 1990 (c. 19), section 37, the Medical (Professional Performance) Act 1995 (c. 51), Schedule, paragraph 29, the National Health Service (Primary Care) Act 1997 (c. 46) Schedule 2, paragraph 39 and S.I. 2002/3135. It was extended by the Health and Medicines Act 1988 (c. 49), section 17(1). It is to be repealed from 1st April 2004 by the 2004 Act, Schedule, paragraph 1(7).

[^f00011]: Regulation 27 was amended by S.I. 1998/660, S.S.I. 1999/54 and S.S.I. 2003/443.

[^f00012]: S.S.I. 2001/72.

[^f00013]: Section 12A was inserted by the National Health Service and Community Care Act 1990 (c. 19), section 31 and amended by the National Health Service (Primary Care) Act 1997 (c. 46), Schedule 2, paragraph 34 and the Health Act 1999 (c. 8), sections 46 and 48 and Schedule 4, paragraph 45.

[^f00014]: S.S.I. 2004/114.

[^f00015]: 1997 c. 46 is to be amended from 1st April 2004 by the 2004 Act, Schedule, paragraph 2(2).

[^f00016]: Regulation 2 was amended by S.I. 1995/3199, S.I. 1996/1504, S.I. 1997/943, S.I. 1998/4, S.I. 1998/660, S.I. 1999/54, S.S.I. 1999/54, S.S.I. 2002/111 and S.S.I. 2003/443.

[^f00017]: Section 17C was inserted by the National Health Service (Primary Care) Act 1997 (c. 46), section 21(2) and was amended by the 2004 Act asp 1, section 2(2).

[^f00018]: S.S.I. 2004/116.

[^f00019]: S.I. 2004/142.

[^f00020]: Regulation 2 was amended by S.S.I. 2001/85 and Regulation 3 was amended by S.S.I. 2000/191 and S.S.I. 2001/85.

[^f00021]: Regulation 25 was amended by S.S.I. 1999/54.

[^f00022]: Regulation 27 was amended by S.I. 1998/660, S.S.I. 1999/54 and S.S.I. 2003/443.

[^f00023]: Regulation 25 was amended by S.S.I. 1999/54.

[^f00024]: Regulation 7 was amended by S.S.I. 2001/85.

[^f00025]: Paragraph 4 of Schedule 1 was amended by S.I. 1996/842 and S.I. 1998/660.

[^f00026]: Paragraph 14 of Schedule 1 was amended by S.I. 1998/660.

[^f00027]: Regulation 2 was amended by S.S.I. 2001/85 and Regulation 3 was amended by S.S.I. 2000/191 and S.S.I. 2001/85.

[^f00028]: Regulation 4 was amended by S.S.I. 2000/191 and S.S.I. 2001/85.

[^f00029]: Paragraph 29(c) of Schedule 1 was added by S.S.I. 2003/443.

[^f00030]: Paragraph 32 of Schedule 1 was substituted by S.S.I. 1999/1057.

[^f00031]: Paragraph 12A of Schedule 1 was added by S.I. 1996/842 and amended by S.I. 1999/749.

[^f00032]: A copy of these directions can be obtained from the Scottish Executive Health Department.

[^f00033]: Paragraph 34 of Schedule 1 was substituted by S.I. 1998/660.

[^f00034]: Paragraph 19 of Schedule 1 was amended by S.I. 1995/3199, S.I. 1998/660, and S.S.I. 2003/64 and was substituted by S.I. 1997/943.

[^f00035]: Regulation 24 was amended by S.I. 1995/3199, S.I. 1998/660 and S.S.I. 2003/443.

[^f00036]: Paragraph 16 of Schedule 1 was amended by S.I. 1998/660.

[^f00037]: Paragraph 35 was amended by S.I. 1997/943.

[^f00038]: Paragraph 12A of Schedule 1 was added by S.I. 1996/842 and amended by S.I. 1999/749.

[^f00039]: Section 64 was amended by the Health and Social Security Act 1984 c. 48, Schedule 8, Part 1.

[^f00040]: Regulation 36 was amended by S.I. 1998/1600, S.I. 1999/749, S.S.I. 1999/54.

[^f00041]: S.I. 1992/434.

[^f00042]: Regulation 35 was amended by S.I. 1998/1600, S.I. 1999/749 and S.S.I. 1999/54.

[^f00043]: Section 17P was inserted in to the 1977 Act the 2004 Act, section 5.

[^f00044]: 1997 c. 46.

[^f00045]: Section 17C was inserted by the 1997 Act sections 21(2) and 41(3) and is amended by section 2 of the 2004 Act.

[^f00046]: S.I. 1998/646.

[^f00047]: Section 17D was inserted by the 1997 Act, sections 21(2) and 40(3) and is amended by the 2004 Act section 2.

[^f00048]: Regulation 5 was amended by S.S.I. 2000/191 and S.S.I. 2001/85

[^f00049]: Section 17N was inserted by the 2004 Act, section 4.

[^f00050]: Regulation 1 was amended by S.S.I. 2000/191, S.S.I. 2001/85 and S.I. 2002/3135.

[^f00051]: Regulation 2 was amended by S.S.I. 2001/85.

[^f00052]: S.I. 1997/2929.

[^f00053]: Section 17A was inserted by the National Health Service and Community Care Act 1990 (c. 19), section 30 and amended by the Health Authorities Act 1995 (c. 17), Schedule 1, paragraph 102(2), the National Health Service (Primary Care) Act 1997 (c. 46), Schedule 2, paragraph 36, the Health Act 1999 (c. 8), Schedule 4, paragraph 46 and S.I. 1991/195.

[^f00054]: Regulation 4 was amended by S.S.I. 2000/191 and S.S.I. 2001/85.

[^f00055]: Paragraph 17A of Schedule 1 was added by S.I. 1996/842 and amended by S.I. 1998/660, S.I. 2002/3135

[^f00056]: Paragraph 17B of Schedule 1 was added by S.I. 1996/842.

[^f00057]: S.I. 1992/434. Relevant amending instruments are S.I. 1994/3138, 1996/938, 1998/1424 and S.S.I. 1999/53.

[^f00058]: Regulation 3 was amended by S.I. 1994/3038, 1996/938 and S.S.I. 1999/53.

[^f00059]: Regulation 5 was amended by S.I. 1996/938 and S.S.I. 1999/53.