The National Health Service (General Ophthalmic Services) Amendment (No. 2) Regulations 2001

• Citation: S.I. 2001/3739
• Sections: 10

Section 1 Citation, commencement, extent and interpretation

(1) These Regulations may be cited as the National Health Service (General Ophthalmic Services) Amendment (No.2) Regulations 2001 and shall come into force on 14th December 2001.

(2) These Regulations extend to England only.

(3) In these Regulations “the principal Regulations ” means the National Health Service (General Ophthalmic Services) Regulations 1986 .

(4) The principal Regulations shall be amended in accordance with the following provisions of these Regulations.

Section 2 Amendment of regulation 2

In regulation 2 (interpretation)—

(a) insert the following definitions in the appropriate alphabetical positions—

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

“corresponding decision” means a decision of the Tribunal in Wales, Scotland or Northern Ireland to impose a local or national disqualification on an ophthalmic medical practitioner or optician;

“director” means—

a director of a body corporate; or

a 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 a Health Authority in Wales, a Health Board or an NHS Trust in Scotland or a Health and Social Services Board in Northern Ireland;

“equivalent lists” means lists kept by an equivalent body;

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

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

“licensing or regulatory body” means a body such as the General Medical Council or the General Optical Council that licenses or regulates any profession of which the ophthalmic medical practitioner or optician is or has been a member and includes an approved training institution for ophthalmic medical practitioners or opticians;

“lists” means lists referred to in section 49N(1)(a) to (c);

“Medical Supplementary List” means a list prepared by a Health Authority in accordance with section 43D of the Act, of doctors approved by the Health Authority for the purposes of assisting in the provision of General Medical Services;

“a national disqualification” means—

a decision made by the FHSAA in relation to an ophthalmic medical practitioner or optician under section 49N of the Act,

a decision under provisions in force in Scotland or Northern Ireland corresponding to section 49N of the Act,

a decision by 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,

a decision by the Tribunal, which applies to all of Wales and which is made after 13th December 2001;

“the National Health Service Counter Fraud Service” means the service provided by the Secretary of State to deal with inquiries and investigations in relation to any allegations of fraud or corruption in the health service ;

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

“professional registration number” means the number against the ophthalmic medical practitioner’s or optician’s name in the register maintained by the General Medical Council or the General Optical Council;

“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,

“suspended” means—

suspended by a Health Authority under sections 49I or 49J of the Act, or under Regulations made under sections 28DA or 43D of the Act, or section 8ZA of the National Health Service (Primary Care) Act 1997 ,

in relation to Wales, suspended by the Tribunal,

in relation to Scotland or Northern Ireland, suspended under provisions in force corresponding to those in section 49I or 49J of the Act,

and shall be treated as including a case where a person is treated as suspended by a Health Authority in England by virtue of Regulation 6(2) of the Abolition of the Tribunal Regulations,

and “suspends” and “suspension” shall be construed accordingly;

(b) for the definition of “the Tribunal” substitute ““the Tribunal" means the Tribunal constituted under section 46 of the Act for England and Wales, and which had effect in relation to England only until 14th December 2001;”; and

(c) omit the definitions of “Committee” and “suspended by direction of the Tribunal”.

(2) In the provisions of the principal Regulations listed in the Schedule to these Regulations, for “the Committee” wherever it appears substitute “Health Authority”.

Section 3 Amendment of regulation 7

In regulation 7(1) (application for inclusion in ophthalmic list) for sub-paragraph (c) substitute—

(c) the information and undertakings set out in Schedule 2.

Section 4 Insertion of new regulations

(1) After regulation 7 (application for inclusion in ophthalmic list) insert—

Grounds for refusal

(7A)

(1) The grounds on which a Health Authority may refuse to include an ophthalmic medical practitioner or optician under regulation 7 are—

(a) that the Health Authority has considered the information provided under paragraph 7 of Schedule 2 and any other information in its possession in relation to this application and considers he is unsuitable to be included in the list;

(b) that having checked the information provided by the ophthalmic medical practitioner or optician in paragraphs 5 and 6 of Schedule 2, the Health Authority is not satisfied with the information;

(c) that having contacted referees, the Health Authority is not satisfied with the references given in accordance with paragraph 8 of that Schedule;

(d) that having checked with the National Health Service Counter Fraud Services for any facts that they consider relevant relating to past or current investigations into a fraud case involving the ophthalmic medical practitioner or optician, and having considered these and any fraud case relating to the ophthalmic medical practitioner or optician, the Health Authority considers these justify such refusal;

(e) that there are any grounds for the Health Authority to consider that admitting the ophthalmic medical practitioner or optician to the list would be prejudicial to the efficiency of the service which he would undertake.

(2) The grounds on which a Health Authority must refuse to include an ophthalmic medical practitioner or optician are—

(a) where he has been convicted in the United Kingdom of murder;

(b) where, after 13th December 2001, he has been convicted in the United Kingdom of a criminal offence and sentenced to a term of imprisonment of over six months;

(c) where he is the subject of a national disqualification;

(d) where he has not updated his application in accordance with regulation 7B(4);

(e) where he does not notify the Health Authority under regulation 7D(13) that he wishes to be included in the list subject to the specified conditions.

(3) Where the Health Authority is considering refusal of an ophthalmic medical practitioner or optician under paragraph (1), it shall consider all facts which appear to it to be relevant and shall in particular take into consideration in relation to paragraph (1)(a), (b) and (d) above—

(a) the nature of any offence, investigation or incident;

(b) the length of time since such offence or incident was committed and since any conviction or investigation;

(c) whether there are other offences, incidents or investigations to be considered;

(d) any action or penalty imposed by any licensing, regulatory or other body, the police or the courts as a result of any such offence, incident or investigation;

(e) the relevance of any offence, investigation or incident to the provision by him of general ophthalmic services and any likely risk to his patients or public finances;

(f) whether any offence was a sexual offence to which Part I of the Sexual Offences Act 1997 applies;

(g) whether the ophthalmic medical practitioner or optician has been refused admittance to or conditionally included in, removed, contingently removed or is currently suspended from any of a Health Authority’s lists or from equivalent lists, and if so, what the facts were in those cases and the reasons given by the Health Authority or equivalent body involved; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events, a director of a body corporate which was refused admittance to, conditionally included, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case.

(4) When the Health Authority takes into consideration the matters set out in paragraph (3), it shall consider the overall effect of all the matters being considered.

(5) When refusing an application from an ophthalmic medical practitioner or optician, the Health Authority shall notify the ophthalmic medical practitioner or optician of its decision and the reasons for it (including any facts relied upon) and of any right of appeal under regulation 7C.

Deferment of decision

(7B)

(1) A Health Authority may defer consideration of a decision on an application by an ophthalmic medical practitioner or optician to be included in the ophthalmic list—

(a) where there are legal proceedings that are criminal proceedings in the United Kingdom or, if brought elsewhere in the world, would be criminal proceedings if brought in the United Kingdom, and that if successful would be likely to lead to the removal of the ophthalmic medical practitioner or optician from the Health Authority list if he had been included;

(b) where there are legal proceedings against a body corporate of which the ophthalmic medical practitioner or optician is, has in the preceding six months been, or was to his knowledge a director at the time of the originating events, that are criminal proceedings in the United Kingdom or if brought anywhere else in the world would be criminal proceedings if brought in the United Kingdom, and that if successful would be likely to lead to the removal of the ophthalmic medical practitioner or optician from the Health Authority list if he had been included;

(c) where there is an investigation anywhere in the world by the ophthalmic medical practitioner’s or optician’s licensing or regulatory body or any other investigation (including one by another Health Authority or equivalent body) relating to him in his professional capacity that if successful would be likely to lead to the removal of the ophthalmic medical practitioner or optician from the Health Authority list if he were to be included;

(d) where the ophthalmic medical practitioner or optician is suspended from any of the lists or equivalent lists;

(e) where a body corporate of which the ophthalmic medical practitioner or optician is, has in the preceding six months been, or was at the time of the originating events a director, is suspended from any of the lists or equivalent lists;

(f) where the FHSAA is considering an appeal by the ophthalmic medical practitioner or optician against a decision of a Health Authority to refuse to admit an ophthalmic medical practitioner or optician to its list, or to conditionally include in or to contingently remove from, or to remove from any list kept by a Health Authority, and if that appeal is unsuccessful the Health Authority would be likely to remove the ophthalmic medical practitioner or optician from the Health Authority list if he had been included;

(g) where the FHSAA is considering an appeal by a body corporate of which the practitioner is, has in the preceding six months been, or was at the time of the originating events a director, against a decision of a Health Authority to refuse to admit an ophthalmic medical practitioner or optician to its list, or to conditionally include in or to contingently remove from, or to remove from any list kept by a Health Authority or equivalent body,and if that appeal is unsuccessful the Health Authority would be likely to remove the practitioner from the Health Authority list if he had been included;

(h) where the ophthalmic medical practitioner or optician is being investigated by the National Health Service Counter Fraud Service in relation to any fraud case, where the result if adverse would be likely to lead to the removal of the ophthalmic medical practitioner or optician from the Health Authority list if he had been included;

(i) where a body corporate, of which the ophthalmic medical practitioner or optician is, has in the preceding six months been, or was at the time of the originating events a director, is being investigated by the National Health Service Counter Fraud Service in relation to any fraud case, where the result if adverse would be likely to lead to the removal of the ophthalmic medical practitioner or optician from the Health Authority list if he had been included;

(j) where the FHSAA is considering an application from a Health Authority for a national disqualification of the ophthalmic medical practitioner or optician;

(k) where the FHSAA is considering an application from a Health Authority for a national disqualification of the ophthalmic medical practitioner or optician or a body corporate of which the ophthalmic medical practitioner or optician is, has in the preceding six months been, or was at the time of the originating events a director.

(2) A Health Authority may only defer consideration under paragraph (1) above until the outcome of the relevant event mentioned in paragraph (1) is known.

(3) A Health Authority must notify the ophthalmic medical practitioner or optician of a decision to defer a decision on an application and the reasons for this.

(4) Once the outcome of the relevant event mentioned in paragraph (1) is known, the Health Authority shall notify the ophthalmic medical practitioner or optician that he must update his application within 28 days (or such longer period as the Health Authority may agree) with any relevant information before it can be considered.

(5) Provided any additional information has been received within the 28 days or the time agreed, the Health Authority shall notify the ophthalmic medical practitioner or optician as soon as possible—

(a) that his application has been successful; or

(b) that the Health Authority has decided to refuse the application or impose conditions on his inclusion, and the reasons for it (including any facts relied on), and of any right of appeal under regulation 7C.

Appeal to the FHSAA

(7C)

(1) An ophthalmic medical practitioner or optician may appeal to the FHSAA against a decision of a Health Authority to refuse to include him in the ophthalmic list pursuant to regulation 7.

(2) Such appeal shall be by way of redetermination.

Conditional Inclusion

(7D)

(1) A Health Authority may determine that if a person is to be included in the list, he is to be subject, while he remains included in the list, to conditions imposed on his inclusion, having regard to the requirements of section 43ZA(2) of the Act.

(2) A Health Authority may vary the terms of service as provided for in Schedule 1 to these Regulations in relation to the applicant for the purpose of, or in connection with, the imposition of those conditions.

(3) The Health Authority may of its own volition or at the request of the ophthalmic medical practitioner or optician concerned review any decision made under this regulation.

(4) An ophthalmic medical practitioner or optician may not request a review of a Health Authority decision until the expiry of a three month period beginning with the date the Health Authority includes the ophthalmic medical practitioner or optician in the list.

(5) After a review has taken place, the ophthalmic medical practitioner or optician cannot request another review before the expiry of six months from the date of the decision on the previous review.

(6) On such a review, the Health Authority may vary the conditions, impose different conditions or remove the ophthalmic medical practitioner or optician from the list.

(7) Failure to comply with a condition may lead to removal of the ophthalmic medical practitioner or optician from the list.

(8) There shall be an appeal to the FHSAA from any decision of the Health Authority—

(a) to impose conditions, or any particular condition, on an ophthalmic medical practitioner or optician;

(b) to vary a condition;

(c) to vary his terms of service;

(d) on any review of an earlier such decision of the Health Authority;

(e) to remove him from the list for breach of condition,

and the appeal shall be by way of redetermination of the Health Authority decision.

(9) On appeal the FHSAA may make any decision which the Health Authority could have made.

(10) Where the decision of the FHSAA on appeal is that conditions be imposed on the ophthalmic medical practitioner or optician, whether or not those conditions are identical with the conditions imposed by the Health Authority, the Health Authority shall ask the ophthalmic medical practitioner or optician to notify it within 28 days of the decision, (or such longer period as the Health Authority may agree) whether he wishes to be included on the ophthalmic list subject to these conditions.

(11) If the ophthalmic medical practitioner or optician notifies the Health Authority that he does wish to be included in the ophthalmic list subject to the conditions, the Health Authority shall so include him.

(12) Any decision of the Health Authority that may be the subject of an appeal under paragraph (8) shall not have effect until the FHSAA has determined any appeal against it or any time for appeal has expired.

(13) A Health Authority shall disclose to those persons or bodies specified in paragraph (15) below, information of the kind mentioned in paragraph (14) about ophthalmic medical practitioners or opticians whose inclusion in the list is subject to conditions imposed under this regulation and about the removal of such persons from the list for breach of such a condition.

(14) The information referred to in paragraph (13) is—

(a) identifying details of the ophthalmic medical practitioner or optician;

(b) professional registration number;

(c) date and copy of the decision of the Health Authority;

(d) the contact name of a person in the Health Authority for further enquiries.

(15) Persons or bodies to whom information shall be disclosed under paragraph (13) are—

(a) the Secretary of State;

(b) any Health Authority in England that has the ophthalmic medical practitioner or optician on any of its lists, or a body corporate of which he is a director, or any Health Authority that is considering an application for inclusion in any of its lists from the ophthalmic medical practitioner or optician or body corporate;

(c) the Scottish Executive;

(d) the National Assembly for Wales;

(e) the Northern Ireland Executive;

(f) the General Medical Council or the General Optical Council or any other appropriate regulatory body;

(g) any other organisation that, to the knowledge of the Health Authority, employs or uses the services of the ophthalmic medical practitioner or optician in a professional capacity;

(h) where it is a fraud case, the National Health Service Counter Fraud Service.

(16) The Health Authority shall notify any body of the information specified in paragraph (14) if it can establish that it is considering employing the ophthalmic medical practitioner or optician and it receives a written request (including an electronic request) to do so.

(17) The Health Authority shall send to the ophthalmic medical practitioner or optician concerned a copy of any information about him provided to the persons or bodies listed in paragraph (15), and any correspondence with those persons.

(18) Where the Health Authority has notified any of the persons or bodies mentioned in paragraph (15) or (16) of the matters set out in paragraph (14), it may in addition notify that person or body of any evidence that was considered, including representations of the ophthalmic medical practitioner or optician if so requested.

(19) Where a Health Authority is notified by the FHSAA that it has imposed a national disqualification on an ophthalmic medical practitioner or optician whom the Health Authority had removed from its ophthalmic list, it shall notify the persons or bodies listed in paragraph (15)(b), (g) and (h) and paragraph (16).

(20) Where a decision is changed on review or appeal, or a suspension lapses, the Health Authority shall notify any person or body that was notified of the original decision of the later decision.

Section 5 Amendment of regulation 8

(1) In regulation 8 (withdrawal from ophthalmic list), for paragraph (2) substitute—

(2) Where a Health Authority is investigating an ophthalmic medical practitioner or optician—

(a) for the purpose of deciding whether or not to exercise its powers under section 49F, 49G or 49I of the Act;

(b) in order to see whether the ophthalmic medical practitioner or optician has failed to comply with a condition imposed on his inclusion under regulation 7D so as to justify his removal from the list; or

(c) who has been suspended under section 49I(1)(a) of the Act,

the ophthalmic medical practitioner or optician may not withdraw from any list kept by any Health Authority in which he is included, except where the Secretary of State has given his consent, until the matter has been finally determined by the Health Authority.

(2A) Where a Health Authority has decided to remove an ophthalmic medical practitioner or optician from a list under section 49F or 49G of the Act, or contingently remove under section 49G of the Act, or remove him for breach of a condition imposed on inclusion under regulation 7D, but has not yet given effect to its decision, the ophthalmic medical practitioner or optician may not withdraw from any list kept by any Health Authority in which he is included, except where the Secretary of State has given his consent.

(2B) Where a Health Authority has suspended the ophthalmic medical practitioner or optician under section 49I(1)(b), he may not withdraw from any list kept by any Health Authority in which he is included, except where the Secretary of State has given his consent, until the decision of the relevant court or body is known and the matter has been considered and finally determined by the Health Authority.

Section 6 Insertion of new regulations

After regulation 9 (removal from ophthalmic list) insert the following new regulations—

Supplementary matters relating to removal

(9A) In addition to the services covered by the definition of “health scheme” in section 49F(8) of the Act, the following shall also be health schemes—

(a) health services, including medical and surgical treatment, provided by Her Majesty’s Forces;

(b) services provided by Port Health Authorities constituted under the Public Health (Control of Disease) Act 1984 ;

(c) health services provided to a prisoner in the care of the medical officer or any other such officer of a prison appointed for the purposes of section 7 of the Prison Act 1952 ;

(d) publicly-funded health services provided by or on behalf of any organisation anywhere in the world.

Criteria for decisions on removal

(9B)

(1) Where a Health Authority is considering whether to remove an ophthalmic medical practitioner or optician using the power in section 49F(4) of the Act it shall consider the information from the ophthalmic medical practitioner or optician supplied under paragraph 6 of Schedule 2 to these Regulations and must apply the criteria set out in paragraph (2).

(2) The criteria referred to in paragraph (1) are—

(a) the nature of any criminal offence, investigation or incident;

(b) the length of time since any such offence or incident was committed, and since any criminal conviction or investigation;

(c) whether there are other criminal offences to be considered;

(d) the penalty imposed on any criminal conviction or the outcome of any investigation;

(e) the relevance of any criminal offence or investigation into professional conduct on the provision by him of general ophthalmic services and the likely risk to patients;

(f) whether any criminal offence was a sexual offence to which Part I of the Sexual Offences Act 1997 applies; and

(g) whether the ophthalmic medical practitioner or optician has been refused admittance to, conditionally included, removed, contingently removed or is currently suspended from other Health Authority lists or equivalent lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admittance to, conditionally included, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case.

(3) Where a Health Authority is considering removal of an ophthalmic medical practitioner or optician under section 49F (3) of the Act, it shall consider the information from the ophthalmic medical practitioner or optician supplied under paragraph 6 of Schedule 2, and must apply the criteria set out in paragraph (4).

(4) The criteria referred to in paragraph (3) are—

(a) the nature of the incidents of any fraud case;

(b) the length of time since any incident occurred, and since the investigation was concluded;

(c) whether there are other incidents of fraud cases or other criminal offences to be considered;

(d) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;

(e) the relevance of the investigation to the provision by him of general ophthalmic services and the likely risk to patients or to public finances;

(f) whether the ophthalmic medical practitioner or optician has been refused admittance to, conditionally included, removed, contingently removed or is currently suspended from other Health Authority lists or equivalent lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case; and

(g) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate which was refused admittance to, conditionally included, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case.

(5) Where a Health Authority is considering removal of an ophthalmic medical practitioner or optician under section 49F (2) of the Act, it shall consider the information from the ophthalmic medical practitioner or optician supplied under paragraph 6 of Schedule 2, and must apply the criteria set out in paragraph (6).

(6) The criteria referred to in paragraph (5) are—

(a) whether it was prejudicial to the efficiency of the general ophthalmic services provided by the ophthalmic medical practitioner or optician;

(b) the length of time since any incident occurred, and since the investigation was concluded;

(c) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;

(d) the nature of the incident and whether there is a likely risk to patients;

(e) whether the ophthalmic medical practitioner or optician has ever failed to comply with a request by the Health Authority to undertake an assessment by the National Clinical Assessment Authority ;

(f) whether the ophthalmic medical practitioner or optician has previously failed to supply information or comply with an undertaking required by these Regulations;

(g) whether the ophthalmic medical practitioner or optician has been refused admittance to, conditionally included, removed, contingently removed or is currently suspended from other Health Authority lists or equivalent lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate which was refused admittance to, conditionally included, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, what the facts were in those cases and what were the reasons given by the Health Authority or equivalent body in the case.

(7) In making any decision under section 49F of the Act, the Health Authority shall take into account the effect of all relevant incidents and offences relating to the ophthalmic medical practitioner or optician of which it is aware, whichever condition it relies on.

(8) When making a decision on any condition in section 49F of the Act, the Health Authority shall state in its decision on which condition (or conditions) in section 49F it relies.

Cases where the Health Authority must remove an ophthalmic medical practitioner or optician

(9C)

(1) The Health Authority must remove the ophthalmic medical practitioner or optician from the ophthalmic list where it becomes aware that the ophthalmic medical practitioner or optician—

(a) has been convicted in the United Kingdom of murder; or

(b) has been convicted in the United Kingdom since 13th December 2001 of a criminal offence and sentenced to a term of imprisonment of over six months.

(2) The Health Authority shall notify the ophthalmic medical practitioner or optician immediately that he has been removed from the list.

Notifications by Health Authorities

(9D)

(1) Where a Health Authority—

(a) refuses to include an ophthalmic medical practitioner or optician under regulation 7A;

(b) imposes conditions on his inclusion in the ophthalmic list under regulation 7D;

(c) removes an ophthalmic medical practitioner or optician under section 49F of the Act;

(d) contingently removes an ophthalmic medical practitioner or optician under section 49G of the Act; or

(e) suspends an ophthalmic medical practitioner or optician,

it shall notify the persons and bodies listed in paragraph (2), and shall notify those listed in paragraph (3) if so requested by those persons or bodies, of the matters set out in paragraph (4).

(2) Where paragraph (1) applies, a Health Authority shall notify—

(a) the Secretary of State;

(b) any Health Authority in England that has the ophthalmic medical practitioner or optician, or a body corporate of which the ophthalmic medical practitioner or optician is a director, on any of its lists, or is considering an application for inclusion in any of its lists by such an ophthalmic medical practitioner or optician or body corporate;

(c) the Scottish Executive;

(d) the National Assembly for Wales;

(e) the Northern Ireland Executive;

(f) the General Optical Council, General Medical Council or any other appropriate professional regulatory body;

(g) any other organisation that, to the knowledge of the Health Authority, employs or uses the services of the ophthalmic medical practitioner or optician in a professional capacity;

(h) where it is a fraud case, the National Health Service Counter Fraud Service.

(3) Where paragraph (1) applies, the Health Authority shall notify any person or body that can establish that it is considering employing the ophthalmic medical practitioner or optician in a professional capacity if the Health Authority receives a written request (including an electronic request) to do so.

(4) The matters referred to in paragraph (1) are—

(a) identifying details of the ophthalmic medical practitioner or optician;

(b) professional registration number;

(c) date and copy of the decision of the Health Authority;

(d) a contact name of a person in the Health Authority for further enquiries.

(5) Where the Health Authority has notified any of the persons or bodies mentioned in paragraph (2) or (3) of the matters set out in paragraph (4), it may in addition, if so requested by that person or body, notify that person or body of any evidence that was considered, including representations of the ophthalmic medical practitioner or optician.

(6) Where a Health Authority is notified by the FHSAA that it has imposed a national disqualification on an ophthalmic medical practitioner or optician whom the Health Authority had removed from its list, it shall notify the persons or bodies listed in paragraph (2)(b), (g) and (h) and paragraph (3).

(7) Where a decision is changed on review or appeal, or a suspension lapses, the Health Authority shall notify any person or body that was notified of the original decision of the later decision.

Procedure on removal

(9E)

(1) Where a Health Authority is considering—

(a) removing an ophthalmic medical practitioner or optician under section 49F of the Act (other than in cases specified in regulation 7C);

(b) contingently removing an ophthalmic medical practitioner or optician under section 49G of the Act; or

(c) removing an ophthalmic medical practitioner or optician for breach of a condition imposed under regulation 7D,

it shall follow the procedure set out in paragraphs (3) to (8) below.

(2) Where a Health Authority is notified by the FHSAA that it has considered—

(a) an appeal by an ophthalmic medical practitioner or optician against a contingent removal by the Health Authority and has decided to remove him instead; or

(b) an appeal by an ophthalmic medical practitioner or optician against a conditional inclusion, where the ophthalmic medical practitioner or optician has been conditionally included in the list until the appeal has been decided, and has decided not to include him,

the Health Authority shall remove the ophthalmic medical practitioner or optician and shall notify him immediately that it has done so.

(3) Before reaching a decision of the kind mentioned in paragraph (1), the Health Authority shall—

(a) give the ophthalmic medical practitioner or optician notice in writing of any allegation against him;

(b) give him notice of what action the Health Authority is considering and on what grounds;

(c) give him the opportunity to make written representations to the Health Authority within 28 calendar days of the date of the notification under sub-paragraph (b);

(d) give him the opportunity to put his case at an oral hearing before the Health Authority, if he so requests within the 28 day period mentioned in sub-paragraph (c).

(4) If there are no representations within the period specified in paragraph (3)(c), the Health Authority shall inform the ophthalmic medical practitioner or optician of its decision, the reasons for it (including any facts relied upon), and of any right of appeal.

(5) If there are representations, the Health Authority must take them into account before reaching its decision, and notifying the ophthalmic medical practitioner or optician of its decision, the reasons for it (including any facts relied upon), and of any right of appeal.

(6) If the ophthalmic medical practitioner or optician requests an oral hearing, this must take place before the Health Authority reaches its decision, and the Health Authority must then notify the ophthalmic medical practitioner or optician of its decision, the reasons for it (including any facts relied upon) and of any right of appeal.

(7) When the Health Authority notifies the ophthalmic medical practitioner or optician of any decision, it shall inform him that if he wishes to exercise a right of appeal, he has 28 days from the date of the decision to do so, and shall tell him how to do so.

(8) The Health Authority shall also notify the ophthalmic medical practitioner or optician of his right to have the decision reviewed in accordance with section 49L of the Act.

Procedure on suspension

(9F)

(1) Before reaching a decision to suspend an ophthalmic medical practitioner or optician under section 49I or 49J of the Act, the Health Authority shall—

(a) give the ophthalmic medical practitioner or optician notice in writing of any allegation against him;

(b) give him notice of what action the Health Authority is considering and on what grounds;

(c) give him the opportunity to put his case at an oral hearing before the Health Authority on a specified day, provided at least 24 hours' notice of the hearing is given.

(2) If the ophthalmic medical practitioner or optician does not wish to have an oral hearing, or does not attend the oral hearing, the Health Authority shall inform the ophthalmic medical practitioner or optician of its decision and the reasons for it (including any facts relied upon).

(3) If an oral hearing takes place, the Health Authority shall take into account any representations made before it reaches its decision.

(4) The Health Authority may suspend the ophthalmic medical practitioner or optician with immediate effect following the hearing.

(5) The Health Authority shall notify the ophthalmic medical practitioner or optician of its decision and the reasons for it (including any facts relied upon).

Procedure on review of Health Authority decision

(9G)

(1) If a Health Authority decides to review its decision to conditionally include, contingently remove or suspend an ophthalmic medical practitioner or optician, it shall—

(a) notify the ophthalmic medical practitioner or optician in writing that it intends to review its decision;

(b) notify him of what action it has in mind and the reasons for it;

(c) give him the opportunity to make written representations to the Health Authority within 28 calendar days of the date of the notification under sub-paragraph (b);

(d) give him the opportunity to put his case at an oral hearing before the Health Authority if he requests one within the 28 day period mentioned above;

(e) after any hearing or on completion of the review, notify him of its decision and the reasons for it (including any facts relied upon).

(2) If there are representations, the Health Authority must take them into account before reaching its decision, and notifying the ophthalmic medical practitioner or optician of its decision and the reasons for it.

(3) The Health Authority shall notify the ophthalmic medical practitioner or optician of its decision and the reasons for it (including any facts relied upon).

(4) If the ophthalmic medical practitioner or optician requests an oral hearing, this must take place before the Health Authority reaches its decision.

(5) The Health Authority shall notify the ophthalmic medical practitioner or optician of any decision and the reasons for it (including any facts relied upon).

(6) When the Health Authority notifies the ophthalmic medical practitioner or optician of any decision, it shall inform him of any right of appeal, that he has 28 days from the date of the decision to exercise that right if he wishes to do so, and tell him how to do so.

(7) The Health Authority shall also notify the ophthalmic medical practitioner or optician of his right to have the decision further reviewed in accordance with section 49L of the Act.

National Disqualification

(9H)

(1) The period for review shall be the different period specified below instead of that in section 49N(8) of the Act where the circumstances are that—

(a) on making a decision to impose a national disqualification, the FHSAA states that it is of the opinion that the criminal or professional conduct of the ophthalmic medical practitioner or optician is such that there is no realistic prospect of a further review being successful if held within the period specified in section 49N(8)(a) of the Act, in which case the reference to “two years” in that provision shall be a reference to five years;

(b) on the last review by the FHSAA of a national disqualification the ophthalmic medical practitioner or optician was unsuccessful and the FHSAA states that it is of the opinion that there is no realistic prospect of a further review being successful if held within a period of three years beginning with the date of its decision on that review, in which case the reference to “one year” in section 49N(8)(b) of the Act shall be a reference to three years;

(c) the FHSAA states that it is of the opinion that because a criminal conviction considered by the FHSAA in reaching its decision has been quashed or the penalty reduced on appeal, there is a need for an immediate review, in which case the reference to “two years” or “one year” in section 49N(8) of the Act shall be a reference to the period that has already elapsed;

(d) the FHSAA is of the opinion that because the decision of a licensing, regulatory or other body has been quashed or the penalty reduced on appeal, there is a need for an immediate review, in which case the reference to “two years” or “one year” in section 49N(8) of the Act shall be a reference to the period that has already elapsed.

Section 7 Substitution of regulation 12A

For regulation 12A (payments to contractors suspended by direction of the Tribunal), substitute—

(12A)

(1) The Health Authority shall make payments to any ophthalmic medical practitioner or optician who is suspended in accordance with the Secretary of State’s determination for the time being in force in relation to such payments.

(2) The Secretary of State shall make the determination in accordance with paragraph (3) after consultation with the organisations referred to in regulation 10(1) and it shall be published with the Statement referred to in regulation 10(1).

(3) Subject to paragraphs (4) and (5), the Secretary of State’s determination shall be such as to secure that, as far as reasonably practicable, the suspended ophthalmic medical practitioner or optician receives payments at a rate corresponding to his remuneration by virtue of regulation 10 during the 12 months ending with his suspension.

(4) The Secretary of State’s determination may include provision that payments in accordance with the determination are not to exceed a specified amount in any specified period.

(5) The determination shall provide for a deduction to take account of any payments which the suspended doctor receives for providing general ophthalmic services otherwise than as a principal.

(6) Regulation 10(2) shall apply to determinations under this regulation as it applies to determinations under that regulation.

(7) Regulation 12(2) shall apply to payments made under this regulation as it applies to payments made under that regulation.

Section 8 Amendment of Schedule 1

(1) Schedule 1 (terms of service) shall be amended in accordance with the following provisions.

(2) After paragraph 6 (records) insert—

Declarations of Convictions

(6A)

(1) A contractor shall by 31st March 2002 supply in writing information to the Health Authority as to whether he—

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

(b) has been bound over following a criminal conviction in the United Kingdom;

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

(d) 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;

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

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

(g) is currently subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world, where the outcome was adverse;

(h) is, to his knowledge, or has been where the outcome was adverse, the subject of any investigation by the National Health Service Counter Fraud Service in relation to a fraud case;

(i) is the subject of any investigation by another Health Authority or equivalent body, which might lead to his removal from any of that Health Authority’s lists or equivalent lists;

(j) is, or has been where the outcome was adverse, subject to an investigation into his professional conduct in respect of any current or previous employment;

(k) has been removed, contingently removed, refused admission to, or conditionally included in any list or equivalent list kept by another Health Authority or equivalent body, or is currently suspended from such a list,

and if so, give details, including approximate dates, of where any investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome.

(2) If the contractor is, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, he shall in addition by 31st March 2002 supply in writing information to the Health Authority 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, if committed in England and Wales, would constitute a criminal offence 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 Health Authority;

(d) has been subject to any investigation into its provision of professional services by any licensing, regulatory or other body anywhere in the world, 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 anywhere in the world;

(f) is to his knowledge, or has been where the outcome was adverse, the subject of any investigation by the National Health Service Counter Fraud Service in relation to a fraud case;

(g) is the subject of any investigation by another Health Authority or equivalent body, which might lead to its removal from any of that Health Authority’s lists or equivalent lists;

(h) has been removed, contingently removed, refused admission to, or conditionally included in any list or equivalent list kept by another Health Authority or equivalent body, or is currently suspended from such a list,

and if so, give details, including approximate dates, of where any investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome.

(3) The contractor shall consent to a request being made by the Health Authority to any employer or former employer, licensing, regulatory or other body in the United Kingdom or elsewhere, for information relating to a current investigation, or an investigation where the outcome was adverse, by them into the contractor referred to in sub-paragraph (5).

(4) Having supplied the information referred to in paragraph (1), the contractor shall inform the Health Authority within 7 days if he—

(a) is convicted of any criminal offence in the United Kingdom;

(b) is bound over following a criminal conviction in the United Kingdom;

(c) accepts a police caution in the United Kingdom;

(d) is 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;

(e) is charged in the United Kingdom with a criminal offence, or is charged elsewhere with an offence which, if committed in England and Wales, would constitute a criminal offence;

(f) is notified by any licensing, regulatory or other body anywhere in the world, of the outcome of any investigation into his professional conduct, and there is a finding against him;

(g) becomes the subject of any investigation into his professional conduct by any licensing, regulatory or other body;

(h) becomes subject to an investigation into his professional conduct in respect of any current or previous employment, or is notified of the outcome of any such investigation and any finding against him;

(i) becomes the subject of any investigation by the National Health Service Counter Fraud Service in relation to a fraud case;

(j) becomes the subject of any investigation by another Health Authority or equivalent body, which might lead to his removal from any of that Health Authority’s lists or equivalent lists;

(k) is removed, contingently removed, suspended, refused admission to, or conditionally included in any list or equivalent list kept by another Health Authority or equivalent body,

and if so, give details, including approximate dates, of where any investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome.

(5) Having supplied the information referred to in paragraph (2), the contractor shall inform the Health Authority within 7 days if the body corporate of which he is, or was in the preceding six months or was at the time of the originating events a director—

(a) is convicted of any criminal offence in the United Kingdom;

(b) is convicted elsewhere of an offence, or is the subject of a lesser penalty which, if committed in England and Wales, would constitute a criminal offence;

(c) is charged in the United Kingdom with a criminal offence, or is charged elsewhere with an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) is notified by any licensing, regulatory or other body anywhere in the world, of the outcome of any investigation into its provision of professional services, and there is a finding against the body corporate;

(e) becomes the subject of any investigation by its professional body into its provision of professional services by any licensing, regulatory or other body anywhere in the world;

(f) becomes the subject of any investigation by the National Health Service Counter Fraud Service in relation to a fraud case or is notified of the outcome of such an investigation where it is adverse;

(g) becomes the subject of any investigation by another Health Authority or equivalent body, which might lead to its removal from any of that Health Authority’s lists or equivalent lists;

(h) is removed, contingently removed, suspended, refused admission to, or conditionally included in any list or equivalent list kept by another Health Authority or equivalent body,

and if so, give the name and registered address of the body corporate and details, including approximate dates, of where any investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome.

(6) Where paragraphs (4) or (5) apply, the contractor shall consent to a request being made by the Health Authority to any employer (or former employer), licensing, regulatory or other body in the United Kingdom or elsewhere, for information relating to a current investigation, or an investigation where the outcome was adverse, by them into the ophthalmic medical practitioner or optician or a body corporate referred to in sub-paragraph (5).

Applications to other lists

(6B) An ophthalmic medical practitioner or optician shall inform the Health Authority—

(a) if he, or a body corporate of which he is a director, applies to be included in any list held by another Health Authority or equivalent body, and of the outcome of any such application; and

(b) if he becomes a director of a body corporate that is included in any list held by a Health Authority, or applies to be included in such a list, and the outcome of any such application.

Section 9 Insertion of Schedule 2

After Schedule 1, insert—

Information and undertakings to be given when applying to be included in the ophthalmic list

(1) Full name

(2) Sex

(3) Date of birth

(4) Private address

(5) Qualifications and where obtained

(6) Professional registration number

(7)

(a) Information on whether—

(i) he has any criminal convictions in the United Kingdom;

(ii) he has been bound over following a criminal conviction in the United Kingdom;

(iii) he has accepted a police caution in the United Kingdom;

(iv) he 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;

(v) he is currently the subject of any proceedings which might lead to such a conviction, which has not yet been notified to the Health Authority;

(vi) he has been subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world, where the outcome was adverse;

(vii) he is currently subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world;

(viii) he has been subject to an investigation into his professional conduct in respect of any current or previous employment where the outcome was adverse;

(ix) he is currently subject to an investigation into his professional conduct in respect of any current or previous employment where the outcome was adverse;

(x) he is to his knowledge, or has been where the outcome was adverse, subject to any investigation by National Health Service Counter Fraud Services in relation to a fraud case,

and if so, give details, including approximate dates, of where the investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome;

(b) if he is, has in the preceding six months been, or was at the time of the originating events, a director of a body corporate, information on whether—

(i) it has any criminal convictions in the United Kingdom;

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

(iii) it is currently the subject of any proceedings which might lead to such a conviction, which has not yet been notified to the Health Authority;

(iv) it 9 has been subject to any investigation into its provision of professional services by any licensing, regulatory or other body anywhere in the world, where the outcome was adverse;

(v) it is currently subject to any investigation into its provision of professional services by any licensing, regulatory or other body anywhere in the world;

(vi) it has been, or is currently to his knowledge, subject to any investigation by the National Health Service Counter Fraud Services in relation to a fraud case where the outcome was adverse,

and if so, give the name and registered address of the body corporate and details, including approximate dates, of where the investigation or proceedings were or are to be brought, the nature of that investigation or proceedings, and any outcome.

(8) Professional experience (including starting and finishing dates of each appointment, with an explanation of any gaps between appointments), and an explanation of why he was dismissed from any post.

(9) Names and addresses of two referees who are willing to provide references in respect of two recent posts (which may include any current post) as an ophthalmic medical practitioner or optician,which lasted for at least three months without a significant break, and where this is not possible, a full explanation and alternative referees.

(10) If the ophthalmic medical practitioner or optician is not in the Health Authority’s ophthalmic list, the name of any Health Authority in whose dental, medical, pharmaceutical, supplementary or services list he is included, or from any of whose lists he has been removed or contingently removed or is currently suspended, or to any of whose lists he has been refused admission or conditionally included, with an explanation as to why, and particulars of any outstanding or deferred application for inclusion in the ophthalmic list, or any other list of a Health Authority, with the name of the Health Authority in question.

(11) If the applicant is the director of any body corporate that is included in any list of any Health Authority, or equivalent lists, or which has an outstanding application (including a deferred application) for inclusion in any list of any Health Authority or equivalent list, the name and registered office of any such body.

(12) Any other information the Health Authority may reasonably require.

(13) An undertaking to—

(a) be bound by the terms of service;

(b) notify the Health Authority within 7 days of any material changes to the information provided in the application until that application is finally determined;

(c) supply the information required by paragraph 6A in Schedule 1.

(14) Consent to a request being made by the Health Authority to any employer (or former employer), licensing, regulatory or other body in the United Kingdom or elsewhere, for information relating to a current investigation, or an investigation where the outcome was adverse, by them into the doctor or a body corporate referred to in sub-paragraph (5).

Section 10 Savings

(1) Notwithstanding the amendments made to the principal Regulations by the provisions of the regulations listed in paragraph (2) (“the listed amendments”), where by virtue of regulation 6(3) of the Abolition of the Tribunal Regulations a case continues before the Tribunal after 31st October 2001, the listed amendments shall not apply to an ophthalmic medical practitioner or optician in relation to his case until such time as the case has been concluded and the time for making an appeal has ended, or any appeal has been withdrawn, or he has exhausted his rights of appeal, as the case may be.

(2) For the purposes of paragraph (1) the listed amendments are those made by—

(a) regulation 2(1)(b) and (c);

(b) regulation 4

(c) regulation 6

(d) regulation 7.