The Primary Medical Services (Prohibition on the Sale of Goodwill) Regulations 2019

Made: 13th February 2019

Laid before Parliament: 13th February 2019

Coming into force: 1st April 2019

The Secretary of State, in exercise of the powers conferred by sections 89(1), 94(1), 259(4) and (5) and 272(7) and (8) of, and paragraph 1(4) of Schedule 21 to, the National Health Service Act 2006[^f00001] makes the following Regulations.

Citation, commencement and application

1

• (1) These Regulations may be cited as the Primary Medical Services (Prohibition on the Sale of Goodwill) Regulations 2019.

• (2) These Regulations come into force on 1st April 2019 and apply in relation to England only.

Interpretation

2

In these Regulations—

• “the Act” means the National Health Service Act 2006;

• “default contract” means a contract entered into by virtue of an order made under section 176(3) of the Health and Social Care (Community Health and Standards) Act 2003 (general medical services: transitional)[^f00002]; and

• “primary medical services” means medical services which are provided under or by virtue of a contract or arrangements to which Part 4 of the Act (medical services)[^f00003] applies.

Relevant area

3

For the purposes of section 259(1) of the Act (sale of medical practices), “the relevant area”, in relation to NHS England means—

• (a) the area for which an area team of NHS England is responsible; and

• (b) in which the performers or providers specified in regulation 4(2) have performed or, as the case may be, provided primary medical services, in accordance with a contract or arrangements under Part 4 of the Act (medical services), notwithstanding that contract or arrangements may no longer subsist.

Prohibition on the sale of goodwill in certain primary medical services practices

4

• (1) For the purposes of section 259(1) of the Act, the performers or providers of primary medical services specified in paragraph (2), or any other person on their behalf, may not sell the goodwill of a medical practice owned by those performers or providers or at which they perform or provide primary medical services.

• (2) The performers and providers specified in this paragraph are—

• (a) a GMS contractor;

• (b) a PMS contractor that has a list of registered patients;

• (c) an APMS contractor that has a list of registered patients;

• (d) an integrated care provider; and

• (e) in a case where the responsibility for providing primary medical services is sub-contracted to another provider of primary medical services by an integrated care provider, any person responsible for the performance or provision of those services under the sub-contract.

• (3) A performer or provider of primary medical services specified in paragraph (2) who is a member of, or shareholder in, a company to which paragraph (4) applies, or any person on behalf of that performer or provider, may not in any circumstances sell a share in that company the value of which includes an element in respect of the goodwill relating to a medical practice which is owned by that performer or provider or at which that performer or provider performs or, as the case may be, provides primary medical services.

• (4) This paragraph applies to a company where all or part of the medical practice of a performer or provider specified in paragraph (2) is comprised of that company.

• (5) For the purposes of section 259(1) of the Act and of these Regulations, “medical practice” in the case of—

• (a) an integrated care provider; or

• (b) a relevant sub-contractor,

is to be construed so as to apply in respect of the whole, or any part, of the contractual arrangements for the provision of primary medical services in the area in which the integrated care provider or a relevant sub-contractor is, under or by virtue of those arrangements, required to provide primary medical services.

• (6) In this regulation—

• “APMS contractor” means a person with whom NHS England has made arrangements under section 83(2) of the Act (primary medical services)[^f00005] for the provision of primary medical services or who, as a consequence of a scheme made under section 300 of the Health and Social Care Act 2012 (transfer schemes)[^f00006], is a party to such arrangements but does not, in either case, include an integrated care provider;

• “GMS contractor” means a person with whom NHS England has entered into a general medical services contract under section 84 of the Act (general medical services contracts: introductory)[^f00007] or a default contract or who, as a consequence of a transfer scheme under section 300 of the Health and Social Care Act 2012 (transfer schemes), is a party to such a contract;

• “integrated care provider” means a person, other than a person specified in paragraph 3(3) of Schedule 3A to the National Health Service (General Medical Services) Contracts Regulations 2015[^f00008], who is party to an integrated care provider contract;

• “integrated care provider contract” has the meaning given in Schedule 3A to the National Health Service (General Medical Services Contracts) Regulations 2015;

• “PMS contractor” means a person with whom NHS England has entered into an agreement under section 92 of the Act (arrangements by NHS England for the provision of primary medical services)[^f00009] or who, as a consequence of a scheme under section 300 of the Health and Social Care Act 2012 (transfer schemes), is a party to such an agreement;

• “registered patient” has the meaning given in regulation 3 of the National Health Service (General Medical Services Contracts) Regulations 2015 (interpretation)[^f00010]; and

• “relevant sub-contractor” means a person who has entered into contractual arrangements with an integrated care provider for the provision of primary medical services.

Certificate that a transaction does not involve a sale of goodwill

5

The prescribed form of a certificate issued for the purposes of paragraph 1(4) of Schedule 21 to the Act (prohibition on sale of medical practices) is as set out in the Schedule to these Regulations.

Revocations and saving

6

• (1) The Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004[^f00011] are revoked.

• (2) Notwithstanding the revocation made by paragraph (1)—

• (a) regulation 6 of the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004, which relates to transitional arrangements for general medical services contracts and personal medical services agreements, is to continue to have effect pending the variation of any such contract or agreement so as to include the terms which, by virtue of the amendments made on 1st April 2004 to the National Health Service (General Medical Services Contracts) Regulations 2004[^f00012] and the National Health Service (Personal Medical Services Agreements) Regulations 2004[^f00013] by regulations 4 or 5 of those Regulations, must be included in it; and

• (b) for all purposes, default contracts are to continue to have effect as if they included the terms which were, by virtue of the amendments set out in regulation 4 of the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004, included in relation to general medical services contracts.

SCHEDULE — Certificate under paragraph 1(2) of Schedule 21 to the National Health Service Act 2006

Having considered the application made under paragraph 1(2) of Schedule 21 to the National Health Service Act 2006,this is to certify that the Secretary of State is satisfied that the transaction or series of transactions described in the Annex to this certificate does not involve giving valuable consideration in respect of the goodwill of a medical practice contrary to the prohibition on the sale of the goodwill of a medical practice contained in section 259(1) of the National Health Service Act 2006.

Dated this *** day of ***.

Signed by authority of the Secretary of State for the Department of Health and Social Care

ANNEX

1

Details of transaction or series of transactions.

2

Disclose all material facts and circumstances regarding the transaction or series of transactions.

Signed

Signed by authority of the Secretary of State for Health and Social Care.

Stephen Hammond — Minister of State, — Department of Health and Social Care — 13th February 2019

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations revoke and replace the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004 (S.I. 2004/906) (“the 2004 Regulations”).

The 2004 Regulations made provision in respect of the prohibition on the sale of goodwill of a medical practice further to that which is contained in section 259 of the National Health Service Act 2006. They also amended the National Health Service (General Medical Services Contracts) Regulations 2004 (S.I. 2004/291) and the National Health Service (Personal Medical Services Agreements) Regulations 2004 (S.I. 2004/697) so as to include in those Regulations provision which imposed a restriction on the sub-contracting of any rights and duties to provide services under primary medical services contracts. S.I. 2004/291 was revoked and replaced by the National Health Service (General Medical Services Contracts) Regulations 2015 (S.I. 2015/1862) and S.I. 2004/697 was revoked and replaced by the National Health Service (Personal Medical Services Agreements) Regulations 2015 (S.I. 2015/1879).

Regulation 3 defines the meaning of “the relevant area” for the purposes of section 259 of the National Health Service Act 2006 in the context of the area teams of the National Health Service Commissioning Board.

Regulation 4 sets out the types of performers or providers of primary medical services in respect of which the prohibition on the sale of goodwill of a medical practice in section 259 of the National Health Service Act 2006 applies. This provision takes account of new contractual arrangements for the provision of primary medical services under Part 4 of the National Health Service Act 2006 together with other health and social care services.

Regulation 5 and the Schedule make provision in respect of the prescribed form of a certificate which the Secretary of State must issue under paragraph 3(b) of Schedule 21 to the National Health Service Act 2006 if the Secretary of State is satisfied that a transaction, or a series of transactions, does not involve giving valuable consideration in respect of the sale of goodwill of a medical practice.

Regulation 6 revokes the 2004 Regulations in their entirety but saves the effect of transitional provisions which were contained in regulation 6 of those Regulations.

Footnotes

[^f00001]: 2006 c.41. Sections 89 and 94 of the Act are cited because of the power to revoke provision contained in regulations made under those sections. Relevant amendments to section 89 were made by section 202(2) of, and paragraph 34 of Schedule 4 to, the Health and Social Care Act 2012 and to section 94 by paragraph 38 of Schedule 4 to that Act. Relevant amendments to section 259(4) and (5) were made by paragraph 132(2) and (4)(a) and (b) of Schedule 4 to the Health and Social Care Act 2012. Paragraph (b) in the definition “relevant area” in section 259(5) is defined for the purposes of determining to whom the regulations apply. See section 275(1) of the Act for the meaning given to “prescribed” and “regulations”.

[^f00002]: 2003 c.43.

[^f00003]: Part 4 of the Act imposes a duty on the National Health Service Commissioning Board (known as “NHS England”) to enter into contractual arrangements for the provision of primary medical services (i.e. GP services) with providers of such services as part of the NHS in England. The National Health Service Commissioning Board was established by section 1H of the Act. Section 1H was inserted into the Act by section 9(1) of the Health and Social Care Act 2012.

[^f00005]: Section 83(2) was substituted by paragraph 30(2) of Schedule 4 to the Health and Social Care Act 2012.

[^f00006]: 2012 c.7.

[^f00007]: Section 84 was amended by paragraph 31 of Schedule 4 to the Health and Social Care Act 2012.

[^f00008]: S.I. 2015/1862 as amended by S.I. 2016/211, 696, 875 and 1077, 2017/908 and 2019/248. Schedule 3A was inserted by Part 9 of S.I. 2019/248.

[^f00009]: Section 92 was amended by paragraph 36 of Schedule 4 to the Health and Social Care Act 2012.

[^f00010]: Regulation 3 was amended by S.I. 2016/696 and 1077.

[^f00011]: S.I. 2004/906; as amended by S.I. 2013/363 and 2015/1862 and 1879; there is another amending instrument which is not relevant.

[^f00012]: S.I. 2004/291 which was revoked and replaced by S.I. 2015/1862.

[^f00013]: S.I. 2004/627 which was revoked and replaced by S.I. 2015/1879.

Editorial notes

[^key-30e23c295390488109ce80de2683aa18]: Reg. 6 in force at 1.4.2019, see reg. 1(2)

[^key-86acb4ca408ccbc4a643c721c6c38cc3]: Reg. 1 in force at 1.4.2019, see reg. 1(2)

[^key-969f5b918a0d5b665084e1d90325fad6]: Reg. 2 in force at 1.4.2019, see reg. 1(2)

[^key-20040eb980e5713b00bc2e5314b5c32c]: Reg. 3 in force at 1.4.2019, see reg. 1(2)

[^key-4901558ae6d7804c4a23a71ba9787887]: Reg. 4 in force at 1.4.2019, see reg. 1(2)

[^key-d6b5b4316f3cb7feea1b24b266582bab]: Reg. 5 in force at 1.4.2019, see reg. 1(2)

[^key-422391c914f5d526405f87a623ece1f3]: Sch. para. 1 in force at 1.4.2019, see reg. 1(2)

[^key-45e2fa9e8a9d0712b44e67a56464e4d5]: Sch. para. 2 in force at 1.4.2019, see reg. 1(2)

[^key-31372d3a8b3b448c9376aa5056a63910]: Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1