The National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992

Michael B. Forsyth — Minister of State, Scottish Office — 2nd March 1992

Explanatory note

(This note is not part of the Regulations)

These Regulations re-enact, with amendments, the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1974 (S.I. 1974/504).

Part II and Schedules 1, 2 and 3 make provision as to the investigation of matters relating to services provided by doctors, dentists, pharmacists, ophthalmic medical practitioners and opticians under arrangements with Health Boards in terms of sections 19, 25, 26 and 27 of the National Health Service (Scotland) Act 1978 (c. 29) (“the Act”). Health Boards are required to constitute service committees for the purpose of investigating complaints con cerning allegations of a failure by any such professional person to comply with his terms of service under those arrangements and also to investigate matters relating to such services which are referred by the Health Board.

Each Health Board must have separate medical, dental, pharmaceutical and ophthalmic service committees. Each service committee consists of a chairman appointed from the lay members of the Heath Board and 6 other persons of whom 3 are lay persons appointed by the Health Board and 3 (4 in the case of an ophthalmic service committee) are professional persons of the category relevant to the committee and who are appointed by the area medical, dental, pharmaceutical or optical committee as the case may be. Provision is made for a joint services committee and also for deputies to the chairman and members of a service committee (regulation 2).

A complaint involving an allegation of a failure by a professional person to comply with his terms of services requires to be submitted to the General Manager of the relevant Health Board in writing or orally where the complainer is unable by reason of physical disability or otherwise to write in the English language. There are time limits for submitting a complaint. Except where a dentist is the subject of the complaint, the complaint must be made within 13 weeks after the event which gave rise to the complaint. In the case of a dentist, the complaint must be made within that 13 week period or within six months after the completion of the treatment in which the failure is alleged to have arisen, whichever is the sooner. Provision is made for receipt of late complaints subject to certain conditions being satisfied. There is also a right of appeal to the Secretary of State to require an investigation of a complaint where the late complaint has not been accepted (regulations 3, 6 and 7).

Provided that a complaint has been made properly, it must be referred to the appropriate service committee (regulation 4). A complaint may be withdrawn in certain circumstances (regulation 5).

The Health Board is empowered to refer to the appropriate service committee matters relating to services provided as part of general medical services, general dental services, general ophthalmic services or pharmaceutical services. Where there is an allegation of a failure by a professional person to comply with his terms of services, the same time limits as apply to complaints under regulation 3 must be complied with.

Regulation 10 and Schedule 1 provide detailed rules of procedure applicable to investigations by service committees of matters referred to them either on complaint or by the Health Board of its own accord.

Following receipt of a report by a service committee the Health Board must determine the matter in accordance with regulation 11. Various sanctions are specified. These include recovery of any expenses incurred by a patient due to the failure of the professional person to comply with his terms of service; recommending to the Secretary of State that an amount should be recovered from the professional person by way of withholding from his remuneration or otherwise; requiring him to submit estimates to the Scottish Dental Practice Board for prior approval; warning the professional person to comply with his terms of service in the future; and making a representation to the NHS Tribunal.

Provision is made in regulations 12 to 14 for appeals to the Secretary of State by a complainer or by a professional person against a decision of the Health Board relating to an allegation whether there has been a failure to comply with the terms of service which decision is adverse to him. A professional person may also appeal certain sanctions which a Health Board has determined to apply. A complainer may appeal a decision on the issue of expenses which he has incurred in relation to the matter complained of.

The Secretary of State is empowered in certain circumstances to make a direction to a Health Board to recover from a professional person on a relevant list of persons providing services to which the Regulations apply an amount by deduction from remuneration or otherwise (regulation 15).

Part II of the Regulations also contains provisions relating—

• (a) to investigation of excessive prescribing by doctors (regulation 16);

• (b) determination of questions as to whether treatment by a doctor given to a patient on his list is treatment for which he may demand or accept a fee or remuneration under his terms of service (regulation 18);

• (c) determination of questions 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 pharma ceutical services (regulation 19); and

• (d) appeals from decisions of the Scottish Dental Practice Board in relation to general dental services (regulation 20).

Part III of, and Schedule 4 to, the Regulations make provision in connection with representations to the NHS Tribunal that the continued inclusion of any professional person in the relevant list of such persons would be prejudicial to the efficiency of the services in question and also with applications for removal of any disqualification from that list. Schedule 4 prescribes forms in connection with proceedings in relation to representations and applications.

Part IV of the Regulations makes general provision as to the notices to be issued under the Regulations and for attendance at hearings by a member of the Council on Tribunals. Part V of the Regulations provides for revocation of the 1974 Regulations and those Regula tions which have amended them. Transitional provisions are specified which in effect mean that the 1974 Regulations will continue to apply in relation to investigations and appeals which have been commenced under the 1974 Regulations but have not been concluded by the date of coming into force of these Regulations.

The principal changes introduced by these Regulations are as follows:—

• (a) the time limit for making a complaint has been increased from 6 to 13 weeks (regulation 3(2) and (3));

• (b) complaints may in certain circumstances be made orally (regulation 3(4));

• (c) the Health Board may seek further information as to the substance of a complaint (regulation 3(5));

• (d) provision is made for withdrawal of complaints either by the complainer or where the respondent dies (regulation 5);

• (e) the Health Board’s duties and powers in relation to reports submitted by service committees are further clarified (regulation 11);

• (f) amounts determined as recoverable by Health Boards under regulation 11(4)(a) or by the Secretary of State under regulation 15(1) are recoverable from a professional person even if he is no longer on the relevant list (regulations 11(6) and 15(12));

• (g) provision is made for exchanges of comments among parties in appeals to the Secre tary of State (regulation 13(3) to (6);

• (h) a professional person is given the option of making representations about the amount of a withholding from remuneration recommended by a Health Board in lieu of exercising his full right of appeal (regulation 12(3));

• (i) 3 weeks' notice of a hearing of a service committee is required instead of 2 weeks (paragraph 8 of Schedule 1);

• (j) parties to a hearing of a service committee are required to provide names of witnesses and statements of any person whose evidence they rely on but who will not be present (paragraph 10 of Schedule 1);

• (k) the quorum for a service committee has been increased (paragraph 14 of Schedule 1);

• (l) subject to exceptions, a complaint will be treated as abandoned if the complainer fails to attend a hearing (paragraph 16(2) of Schedule 1);

• (m) provisions concerning who may assist a part in presentation of a case at a hearing of a service committee have been altered (paragraph 17 of Schedule 1);

• (n) assistance may be given to a complainer to explain technical terms in comments made by the professional person in relation to the complaint (paragraph 5(3)(b)(ii) of Schedule 1);

• (o) regulation 20A of the 1974 Regulations (investigation of excessive prescribing of optical appliances) is not re-enacted.

Footnotes

[^f00001]: 1978 c. 29; section 19 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41) (“the 1983 Act”), Schedule 7, paragraph 2, and was extended by the Health and Medicines Act 1988 (c. 49) (“the 1988 Act”), section 17; section 25(2) was extended by the 1988 Act, section 17 and was amended by the National Health Service and Community Care Act 1990 (c. 19) (“the 1990 Act”), section 40(2) and Schedule 9, paragraph 19(6); section 26(2) was amended by the Health and Social Security Act 1984 (c. 48) (“the 1984 Act”), Schedule 1, part II, paragraphs 2, 3 and 4 and Schedule 8, Part I and was extended by the 1988 Act, section 17; section 27(2) was amended by the National Health Service (Amendment) Act 1986 (c. 66), section 3(3) and by the 1990 Act, Schedule 9, paragraph 19(7)(b) and was extended by the 1988 Act, section 17; section 29(1) was amended by the 1984 Act, Schedule 8, Part I; section 105(7), which was amended by the Health Services Act 1980 (c. 53), Schedule 6, paragraph 5 and Schedule 7 and by the 1983 Act, Schedule 9, paragraph 24, contains provisions relevant to the making of Regulations; section 108(1) contains definitions of “prescribed” and “regulations” relevant to the exercise of the statutory powers under which these Regulations are made.

[^f00002]: 1971 c. 62; see paragraph 41 of Part II of Schedule 1 to that Act, as amended by the National Health Service (Scotland) Act 1972 (c. 58), Schedule 6, paragraph 152 and the National Health Service (Scotland) Act 1978 (c. 29), Schedule 16, paragraph 35.

[^f00003]: 1978 c. 29.

[^f00004]: S.I. 1974/505; the relevant amending instruments are S.I. 1974/2048, 1981/900, 1984/1491, 1985/1552, 1987/1634, 1989/363 and 851, 1990/1772, 1940 and 2497, 1991/569 and 1349 and 1992/16.

[^f00005]: S.I. 1974/506, amended by S.I. 1975/696, 1976/733, 1976/1574, 1978/1762, 1981/56 and 965, 1982/1279, 1985/296, 534, 804, 1625 and 1713, 1986/303, 925, 1507 and 2310, 1987/385, 386 and 1382, 1988/1073, 1454 and 2259, 1989/1883 and 1990, 1990/883 and 2509, 1991/572 and 2241 and 1992/191.

[^f00006]: S.I. 1986/965, amended by S.I. 1988/543, 1989/387 and 1177, 1990/1048 and 1991/534.

[^f00007]: 1989 c. 44.

[^f00008]: 1968 c. 67; See the definition of “pharmacist” in section 132(1).

[^f00009]: 1974/505; regulation 12A was inserted by S.I. 1990/1772 and amended by S.I. 1992/16.