The National Health Service (Existing Liabilities Scheme for General Practice) Regulations 2020

• Citation: S.I. 2020/296
• Sections: 12

Section 1 Citation, commencement and application

(1) These Regulations may be cited as the National Health Service (Existing Liabilities Scheme for General Practice) Regulations 2020 and come into force on 6th April 2020.

(2) These Regulations apply only in relation to services provided as part of the health service in England.

Section 2 Interpretation

In these Regulations—

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

“ancillary health services” means services, other than primary medical services, provided as part of the health service by a person who, at the time of providing the services, was—

a Part 4 contractor whose principal activity consisted of the provision of primary medical services;

a primary medical services sub-contractor whose principal activity consisted of the provision of primary medical services; or

a person providing the services under a contractual arrangement with a person mentioned in paragraph (a) or (b);

“eligible person” means a person specified in regulation 5;

“the health service” means the health service continued under section 1(1) of the 2006 Act ;

“Part 4 contractor” means a person providing, or making arrangements for the provision of, primary medical services in accordance with a contractual arrangement (including a contractual arrangement or agreement that is part of a set of arrangements for the provision of services, in addition to the primary medical services) made with that person under one of the following provisions in the 2006 Act—

section 83(2) (primary medical services) ;

section 84(1) (general medical services contracts) ; or

section 92(1) (arrangements by the Board for the provision of primary medical services) ;

“primary medical services” means the primary medical services that the Board has a duty to secure in accordance with section 83 of the 2006 Act;

“primary medical services sub-contractor” means a person providing primary medical services under a contractual arrangement made with a Part 4 contractor;

“relevant function” means—

making arrangements for the provision of primary medical services;

providing primary medical services;

making arrangements for the provision of ancillary health services;

providing ancillary health services; or

carrying out an activity in connection with any of the activities mentioned in paragraphs (a) to (d);

“relevant liability” means a liability to which the Scheme applies;

“the Scheme” means the scheme established under regulation 3(1).

Section 3 Establishment and administration of the Scheme

(1) A scheme, to be known as the Existing Liabilities Scheme for General Practice, is established.

(2) The purpose of the Scheme is to enable the Secretary of State to make provision to meet the relevant liabilities of eligible persons.

(3) The Scheme is to be administered by the Secretary of State.

Section 4 Meaning of existing liability

In these Regulations, “existing liability” means any liability in tort under the law of England and Wales owed by an eligible person to a third party which arises from an act, or an omission to act, that—

(a) occurred before 1st April 2019;

(b) was connected to a relevant function;

(c) results, or resulted, in personal injury or loss to the third party; and

(d) was an act, or an omission to act, on the part of the eligible person, or an employee of the eligible person, connected to the diagnosis of an illness or the care or treatment of any person.

Section 5 Eligible persons

(1) An eligible person is a person who is, or who, on the relevant date, was—

(a) a Part 4 contractor;

(b) a primary medical services sub-contractor;

(c) a person providing ancillary health services other than—

(i) a person mentioned in sub-paragraph (a) or (b); or

(ii) a person providing ancillary health services under a contract of employment; or

(d) any other person engaged or permitted (other than under a contract of employment), by a person mentioned in sub-paragraph (a), (b) or (c), to carry out a relevant function.

(2) In paragraph (1), “relevant date” means the date on which an act, or an omission to act, giving rise to an existing liability of the eligible person, occurred.

Section 6 Liabilities to which the Scheme applies

(1) Subject to paragraph (2), the Scheme applies to an existing liability where—

(a) the Secretary of State has entered into a contractual arrangement with a medical defence organisation; and

(b) under that arrangement, the Secretary of State is required to consider providing indemnity or assistance in respect of an act, or an omission to act, on the part of a member, or former member, of the medical defence organisation which gives rise to the existing liability.

(2) The Scheme applies to an existing liability falling within paragraph (1) from 1st April 2021 or any earlier date determined by the Secretary of State.

(3) The Secretary of State must publish any date determined under paragraph (2) in the London, Edinburgh and Belfast Gazettes.

(4) In paragraph (1), “medical defence organisation” means an organisation—

(a) that does not carry on activities for the purposes of making profits for distribution to its members or others; and

(b) whose objects include the provision of professional indemnity cover, on a discretionary basis, for persons providing services as part of the health service.

Section 7 Payments under the Scheme

(1) The Secretary of State may determine whether a payment under the Scheme is to be made in respect of a relevant liability.

(2) A payment under the Scheme may be made to, or on behalf of, an eligible person.

(3) A payment under the Scheme may also be made where the eligible person—

(a) has died;

(b) has been dissolved or wound up (within the meaning of the Companies Act 2006 ); or

(c) has entered into insolvency or is bankrupt.

(4) The amount of any payment made under the Scheme is to be determined by the Secretary of State in accordance with regulation 8.

(5) In this regulation—

(a) “bankrupt” has the same meaning as that given in section 381(1) of the Insolvency Act 1986 (“Bankrupt” and associated terminology); and

(b) “insolvency” has the same meaning as that given in section 247(1) of that Act (meaning of “insolvency” and “go into liquidation”).

Section 8 Relevant matters in determining the amount of a payment under the Scheme

(1) In determining the amount of a payment under the Scheme, the Secretary of State must have regard to the matters (“relevant matters”) specified in the following paragraphs.

(2) Where an award of damages has been made by a court against an eligible person, the relevant matters are the amount of—

(a) the award;

(b) the legal and associated costs awarded to the claimant; and

(c) any legal and associated costs incurred by, or on behalf of, the eligible person.

(3) Where, in any legal proceedings, a settlement has been agreed to by, or on behalf of, an eligible person, the relevant matters are the amount of—

(a) any sum paid or payable by the eligible person in relation to the claim for damages;

(b) any contribution by the eligible person towards any legal and associated costs incurred by the claimant; and

(c) any legal and associated costs incurred by, or on behalf of, the eligible person.

(4) Where, in any legal proceedings, a court has declined to award damages against an eligible person, the relevant matters are—

(a) the amount of any legal and associated costs incurred by, or on behalf of, the eligible person; and

(b) the extent to which those costs are not recoverable either from the claimant or from the Legal Aid Agency under regulations made under section 26(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (costs in civil proceedings).

(5) Where, other than in the course of legal proceedings, an eligible person has agreed, whether in settlement of a claim against the eligible person or otherwise, to make any payment to, or any contribution towards any legal and associated costs incurred by, a person in respect of a relevant liability of the eligible person, the relevant matters are the amount of any—

(a) payment;

(b) contribution; and

(c) legal and associated costs incurred by, or on behalf of, the eligible person.

(6) Where an eligible person has agreed to be bound by the determination of any person as to the making of a payment by the eligible person in respect of a relevant liability, the relevant matters are the amount of—

(a) the payment;

(b) any legal or associated costs awarded to the claimant; and

(c) any legal or associated costs incurred by, or on behalf of, the eligible person.

Section 9 Circumstances in which a payment may not be made under the Scheme

Without limit to the Secretary of State’s powers under regulation 7, the Secretary of State may determine that a payment is not to be made under the Scheme where—

(a) the eligible person has made an admission of liability, without first obtaining the Secretary of State’s written consent;

(b) liability has been determined by a court in proceedings conducted by, or on behalf of, the eligible person, other than in consultation with the Secretary of State;

(c) the eligible person has not complied with a condition imposed by the Secretary of State relating to a claim;

(d) a payment falls to be made by the eligible person and, without first obtaining the Secretary of State’s written consent, the eligible person agrees to—

(i) be bound by the determination of any person as to the making of a payment in respect of a relevant liability; or

(ii) make any other payment in respect of the relevant liability, other than in the course of legal proceedings, or agrees to make a payment in consequence of a settlement of legal proceedings;

(e) the payment would be an amount that is less than any amount specified by the Secretary of State as being the minimum amount payable under the Scheme in respect of a relevant liability; or

(f) the eligible person has failed, whether fully or in part, to comply with a notice under regulation 11.

Section 10 Payments on account

(1) Without limit to the powers of the Secretary of State under regulation 7, where a payment falls to be made by an eligible person in connection with a relevant liability and the Secretary of State has not yet made a determination under regulation 7 as to whether a payment is to be made in respect of the relevant liability, the Secretary of State may make a payment on account in respect of the relevant liability.

(2) A payment on account may be made to, or on behalf of, an eligible person.

(3) Where the amount of any payment on account exceeds any amount subsequently determined under regulation 7, the excess is recoverable from the eligible person or the person to whom the payment on account was made.

(4) Where, under regulation 7, the Secretary of State determines that no payment is to be made in respect of a relevant liability, any payment on account in respect of the relevant liability is recoverable from the eligible person or the person to whom the payment on account was made.

Section 11 Information and assistance to be provided by eligible persons

(1) For the purposes of the Scheme, the Secretary of State may, by notice in writing, require an eligible person to provide the Secretary of State with such assistance or information as may be specified in the notice.

(2) A notice under paragraph (1) may specify—

(a) the date by which any assistance or information specified in the notice must be provided; and

(b) the manner in which the assistance or information is to be provided.

(3) An eligible person must comply with a notice under paragraph (1).

Section 12 Information as to any directions or guidance given by the Secretary of State

The Secretary of State must make the following available to eligible persons, in such form and at such times as the Secretary of State considers appropriate—

(a) any directions given under section 71(6) of the 2006 Act; and

(b) any guidance, in relation to the Scheme, given by the Secretary of State to any of the bodies specified in that section.