The National Health Service (Performers Lists) (Wales) Regulations 2004

Made: 30th March 2004

Coming into force: 1st April 2004

The National Assembly for Wales, in exercise of the powers conferred upon it by sections 28X, and 126(4) of the National Health Service Act 1977 , hereby makes the following Regulations:

PART I — GENERAL

Citation, commencement and application

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• (1) These Regulations may be cited as the National Health Service (Performers Lists) (Wales) Regulations 2004 and shall come into force on 1st April 2004.

• (2) These Regulations apply to Wales only.

PART 2 — PROVISIONS AS TO PERFORMERS LISTS

Interpretation and modification

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• (1) In these Regulations unless the context otherwise requires —

• “Abolition of the Tribunal Regulations” means the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2001 ;

• “Abolition of the Tribunal (Wales) Regulations” means the Abolition of the National Health Service Tribunal (Consequential Provisions) Regulations 2002 ;

• “the Amendment Regulations” means the National Health Service (Performers Lists) (Wales) (Amendment) Regulations 2006;

• “armed forces” means the United Kingdom Armed Forces of Her Majesty;

• “contingent removal” shall be construed in accordance with regualtion12;

• “dental list” means the list prepared by a Local Health Board under regulation 4(1) of the Dental Regulations;

• “dental performers list” means the list prepared by a Local Health Board and published pursuant to regulation 3(1)(b);

• “the Dental Regulations” means the National Health Service (General Dental Services) Regulations 1992;

• “director” means —a director of a body corporate; ora member of the body of persons controlling a body corporate (whether or not a limited liability partnership);

• “employment” means any employment, whether paid or unpaid and whether under a contract for services or a contract of service, and “employed” and “employer” shall be construed accordingly;

• “equivalent body” means NHS England in England, a Health Board or an NHS trust in Scotland, a Health and Social Services Board in Northern Ireland, in relation to any time prior to 1st April 2003 a Health Authority in Wales, in relation to any time prior to 1st April 2013 and after 30th September 2002, a Primary Care Trust in England, or in relation to any time prior to 1st October 2002, a Health Authority in England;

• “equivalent list” means a list kept by an equivalent body;

• “FHSAA” means the Family Health Services Appeal Authority constituted under section 49S ;

• “fraud case” means a case where a person satisfies the second condition for removal from the medical performers list, set out in section 49F(3) or, by virtue of section 49H, is treated as doing so;

• “indemnity arrangement” means an arrangement which may comprise—a policy of insurance;an arrangement made for the purposes of indemnifying a person; ora combination of a policy insurance and an arrangement made for the purposes of indemnifying a person;

• “licensing or regulatory body” means a body that licenses or regulates any profession of which the performer is, or has been a member, including a body regulating or licensing the education, training or qualifications of that profession, and includes any body which licences or regulates any such profession, its education, training or qualifications, outside the United Kingdom;

• “list” means list referred to in section 49N(1)(a) to (c) , a performers list, a dental list, a medical list, a services list or a supplementary list;

• “medical list” means the list prepared by the Local Health board under regulation 4 of the Medical Regulations;

• “medical performers list” means a list of medical performers prepared and published pursuant to regulation 3(1)(a);

• “Medical Regulations” means the National Health Service (General Medical Services Contracts) (Wales) Regulations 2023;

• “a national disqualification” means a decision —made by the First-tier Tribunal to nationally disqualify a performer under section 49N or under regulations corresponding to that section made under section 28X(4) (persons performing primary medical and dental services);to nationally disqualify a performer under provisions in force in Scotland or Northern Ireland corresponding to section 49N; orby the Tribunal, which is treated as a national disqualification by the FHSAA by virtue of regulation 6(4) of the Abolition of the Tribunal Regulations or regulation 6(4)(b) of the Abolition of the Tribunal (Wales) Regulations;

• “the NCAA” means the National Clinical Assessment Authority established as a Special Health Authority under section 11 ;

• “NICE” means the National Institute for Health and Clinical Excellence established as a Special Health Authority by the National Institute for Clinical Excellence (Establishment and Constitution) Order 1999;

• “the NHSLA” means the National Health Service Litigation Authority established as a Special Health Authority by the National Health Service Litigation Authority (Establishment and Constitution) Order 1995;

• “the NHS Counter Fraud and Security Management Service” means the service with responsibility for policy and operational matters relating to the prevention, detection and investigation of fraud or corruption and the management of security in the National Health Service, established by the Counter Fraud Management Service (Establishment and Constitution) Order 2002 ;

• “notice” means a notice in writing (including electronically) and “notify” shall be construed accordingly;

• “the NPSA” means the National Patient Safety Agency established as a special health authority under section 11;

• “originating events” means the events that gave rise to the conviction, investigation, proceedings, suspension, refusal to admit, conditional inclusion, removal or contingent removal that took place;

• “performer” means a health care professional;

• “performers list” means a list prepared and published pursuant to regulation 3(1);

• “previous list” means a list in which the performer’s name was included prior to inclusion in the performer’s list;

• “Primary Care Act” means the National Health Service (Primary Care) Act 1997

• “primary care organisation” means in respect of Wales a Local Health Board, in respect of England NHS England, in respect of Scotland a Health Board and in respect of Northern Ireland a Health and Social Services Board or such successor bodies to those primary care organisations as may exist from time to time.

• “professional conduct” includes matters relating both to professional conduct and professional performance;

• “relevant body” means the body for the time being mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 , which regulates the profession of the performer;

• “relevant performers list” means the performers list applicable to that description of performer;

• “relevant Part” means the Part, other than Part I, of these Regulations applicable to the description of performer therein prescribed;

• “services list” means a list prepared by a Primary Care Trust under regulation 3 of the Services List Regulations;

• “Services List Regulations” means the Regulations, if any, prepared by a Primary Care Trust under sections 8ZA, 9 and 39 of the Primary Care Act ;

• “supplementary list” means a list prepared by a Local Health Board under regulation 3 of the Supplementary List Regulations;

• “Supplementary List Regulations” means the National Health Service (General Medical Services Supplementary List) (Wales) Regulations 2002 ;

• “suspended” means —suspended by a Local Health Board or equivalent body under section 49I , or 49J , regulations made under section 43D or under section 8ZA of the Primary Care Act, including these Regulations,in relation to Scotland or Northern Ireland, suspended under provisions in force corresponding to those in or made under sections 28DA , 43D, 49I, 49J or under section 8ZA of the Primary Care Act,and shall be treated as including a case where a person is treated as suspended by a Local Health Board or, prior to 1st April 2003, a Health Authority by virtue of regulation 6(2) of the Abolition of the Tribunal (Wales) Regulations, or in England by NHS England or, after 30th September 2002 and prior to 1st April 2013, by a Primary Care Trust or, prior to 1st October 2002, by a Health Authority by virtue of regulation 6(2) of the Abolition of the Tribunal Regulations, and “suspends” and “suspension” shall be construed accordingly;

• “the Tribunal” means the Tribunal constituted under section 46 for England and Wales, and which, except for prescribed cases, had effect in relation to England until 14th December 2001 and in relation to Wales until 26th August 2002 ; and

all references to sections are to sections of the National Health Service Act 1977, except where specified otherwise.

• (2) The provisions of this Part shall have effect in relation to each description of performer as prescribed in the relevant Part, subject to any modification or further provision in that relevant Part.

Performers Lists

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• (1) A Local Health Board will prepare and publish, in accordance with this Part, as modified or supplemented by the relevant Part—

• (a) a medical performers list; and

• (b) a dental performers list.

• (2) Performers lists shall be available for public inspection.

Application for inclusion in a performers list

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• (1) An application by a performer for inclusion in a performers list must be made by sending the Local Health Board an application in writing, including the information and documentation required by this regulation, and—

• (a) in relation to application for inclusion in the medical performers list, satisfy the requirements of regulation 23; and

• (b) in relation to an application for inclusion in the dental performers list, satisfy the requirements of regulation 30.

• (2) The performer shall provide the following information—

• (a) full name;

• (b) sex;

• (c) date of birth;

• (d) private address and telephone number;

• (e) chronological details of professional experience (including the starting and finishing dates of each appointment together with an explanation of any gaps between appointments) with any additional supporting particulars, and an explanation of why the performer was dismissed from any post;

• (f) names and addresses of two referees who are willing to provide clinical references relating to two recent posts (which may include any current post) as a performer which lasted at least three months without a significant break, and where this is not possible, a full explanation and the names and addresses of alternative referees;

• (g) whether the performer has any outstanding application, including a deferred application, to be included in a list or an equivalent list, and if so, particulars of that application;

• (h) details of any list or any equivalent list from which the performer has been removed or contingently removed, or to which the performer has been refused admission or in which the performer has been conditionally included, with an explanation as to why;

• (i) if the performer is the director of any body corporate that is included in any list or any equivalent list, or which has an outstanding application (including a deferred application) for inclusion in any list or equivalent list, the name and registered office of that body and details of the Local Health Board or equivalent body concerned; ...

• (j) where the performer is, or was in the preceding six months, or was at the time of the originating events, a director of a body corporate, details of any list or equivalent list to which that body has been refused admission, in which it has been conditionally included, from which it has been removed or contingently removed or from which it is currently suspended, with an explanation as to why and details of the Local Health Board or equivalent body concerned ; and

• (k) evidence that the performer has in force an appropriate indemnity arrangement which provides the performer with cover in respect of liabilities that may be incurred in carrying out the performer’s services.

• (3) The performer shall provide the following undertakings, certificate and consent —

• (a) undertaking to provide the declarations and document, if applicable, required by regulation 9;

• (b) undertaking to notify the Local Health Board within 7 days of any material changes to the information provided in the application until the application is finally determined or, if the performer’s name is included in the performers list, at any time when the performer’s name is included in that list;

• (c) undertaking to notify the Local Health Board if the performer is included, or applies to be included, in any other list held by a Local Health Board or equivalent body;

• (d) undertaking to co-operate with an assessment by the NHSLA when requested to do so by the Local Health Board;

• (e) undertaking, except where in the relevant Part provides to the contrary, to participate in an appraisal system provided on behalf of the Local Health Board;

• (f) an enhanced criminal record certificate under section 113B of the Police Act 1997 which includes suitability information relating to children and suitability information relating to vulnerable adults under sections 113BA and 113BB of that Act respectively;

• (g) consent to the disclosure of information in accordance with regulation 9 ; and

• (h) an undertaking to maintain an appropriate indemnity arrangement which provides cover in respect of liabilities that may be incurred in carrying out work as a performer at all times and to provide evidence of such an indemnity arrangement to the Local Health Board on request.

• (4) The performer shall send with the application a declaration as to whether the performer—

• (a) has any criminal convictions in the United Kingdom;

• (b) has been bound over to keep the peace in the United Kingdom;

• (c) has accepted a police caution in the United Kingdom;

• (d) has accepted a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal) or agreed to pay a penalty under section 115A of the Social Security Administration Act 1992 (penalty as alternative to prosecution);

• (e) has, in proceedings in Scotland for an offence, been the subject of an order under section 246(2) or (3) of the Criminal Procedure (Scotland) Act 1995 discharging him or her absolutely;

• (f) has been convicted elsewhere of an offence, or what would constitute a criminal offence if committed in England and Wales, or is subject to a penalty which would be the equivalent of being bound over or cautioned;

• (g) is currently the subject of any proceedings which might lead to a conviction in the United Kingdom or elsewhere which have not been notified to the Local Health Board;

• (h) has been subject to any investigation into his professional conduct by any licensing, regulatory or other body, where the outcome was adverse;

• (i) is currently subject to any investigation into the performer’s professional conduct by any licensing, regulatory or other body;

• (j) is to the performer’s knowledge, or has been where the outcome was adverse, the subject of any investigation by the NHS Counter Fraud and Security Management Service in relation to fraud;

• (k) is the subject of any investigation by another Local Health Board or equivalent body, which might lead to the performer’s removal from any of that Local Health Board’s lists or any equivalent lists;

• (l) is, or has been where the outcome was adverse, the subject of any investigation into the performer’s professional conduct in respect of any current or previous employment;

• (m) has been removed from, contingently removed from, refused admission to, or conditionally included in any list or equivalent list kept by a Local Health Board or equivalent body, or is currently suspended from such a list and if so, why and the name of that Local Health Board or equivalent body; or

• (n) is, or has ever been, subject to a national disqualification,

and, if so, the performer shall give details of any investigation or proceedings which were or are to be brought, including the nature of the investigation or proceedings, where and approximately when that investigation or those proceedings took place or are to take place, and any outcome.

• (5) If the performer is, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, the performer shall in addition make a declaration to the Local Health Board as to whether the body corporate—

• (a) has any criminal convictions in the United Kingdom;

• (b) has been convicted elsewhere of an offence, or what would constitute a criminal offence if committed in England and Wales, or is subject to a penalty which would be the equivalent of being bound over or cautioned;

• (c) is currently the subject of any proceedings which might lead to such a conviction, which have not yet been notified to the Local Health Board;

• (d) has been subject to any investigation into its provision of professional services by any licensing, regulatory or other body, where the outcome was adverse;

• (e) is currently subject to any investigation into its provision of professional services by any licensing, regulatory or other body;

• (f) is to the performer’s knowledge, or has been where the outcome was adverse, the subject of any investigation by the NHS Counter Fraud and Security Management Service in relation to fraud;

• (g) is the subject of any investigation by another Local Health Board or equivalent body, which might lead to its removal from any performers list or equivalent performers list; or