The General Medical Services (Transitional and Other Ancillary Provisions) (Scotland) Order 2004

• (1) Where a person to whom article 13(2) or (3) applies is unable to enter into a default contract because the Health Board with whom that person would have entered into a default contract is not satisfied of the matters specified in paragraphs (5) or (6) of that article or because that person is performing relevant service in the armed forces, that Health Board may pay to that person any payment that that person would have been entitled to receive under the default contract, had that person been able to enter into a default contract, or may pay that person a proportion thereof (having regard, amongst other matters, to the cost of any temporary arrangements made by the Health Board for the provision of primary medical services to that person’s patients) for as long as that person is not able to enter into–

• (a) a GMS contract; or

• (b) a default contract following an appeal under article 13(9),

but that person remains entitled to enter into a GMS contract.

• (2) Where a person to whom payments have been made by a Health Board by virtue of paragraph (1) enters into a default contract or a GMS contract, the Health Board that is a party to the contract must ensure that the contract–

• (a) contains a condition to the effect that all rights to further payments under paragraph (1) are surrendered (they are hereby extinguished);

• (b) takes effect, for payment purposes, on 1st April 2004;

• (c) in the case of a GMS contract, contains a condition to the effect that any payment that has been made under paragraph (1) that could have been made–

• (i) as a payment on account under the GMS contract, shall be treated as a payment on account under the GMS contract (and for these purposes any payment of one twelfth of a final global sum equivalent made under paragraph (1) shall be treated as a payment on account in respect of a payable global sum monthly payment);

• (ii) as a payment under the GMS contract, shall be treated as a payment under the GMS contract,

and accordingly any condition that attaches, or is to be attached, to such a payment, when made under a GMS contract, by virtue of the GMS Statement of Financial Entitlements or the Premises Costs Directions, is attached to that payment; and

• (d) in the case of a default contract, contains a condition to the effect that any payment that has been made under paragraph (1) that could have been made as a payment under the default contract, had the contractor entered into the default contract on 1st April 2004, shall be treated as a payment under the default contract, and accordingly any condition attached to such a payment by virtue of this Order is attached to that payment.

Claims under the Statement of Fees and Allowances

42

• (1) Notwithstanding the repeal of the 1995 Regulations[^f00038], claims may still be made for payments under the Statement of Fees and Allowances by any person who may be entitled to such a payment, provided that the claim is made within any period stipulated in the Statement of Fees and Allowances as being the period during which a claim for the payment is to be made.

• (2) If a claim is made outside that stipulated period, the Health Board may extend that period for up to six years from the date on which the circumstances which gave rise to the claim first arose.

• (3) If the Health Board refuses the claim, or considers that the amount to be paid out in respect of the claim is significantly lower than the amount claimed, the arrangements for appeals set out in paragraph 80 of the Statement of Fees and Allowances are to apply.

Signed

MALCOLM CHISHOLM — A member of the Scottish Executive — 25th March 2004

Explanatory note

(This note is not part of the Order)

This Order is made under section 7 (ancillary provisions) of the Primary Medical Services (Scotland) Act 2004 (asp 1) (“the 2004 Act”).

The Order generally sets out transitional arrangements to cover the replacement of arrangements for general medical services under section 19 of the National Health Service (Scotland) Act 1978 (c. 29) (“the 1978 Act”) with general medical services contracts (“GMS contracts”) under section 17J of that Act (as inserted by section 4 of the 2004 Act). It also contains other ancillary provisions relating to this.

Part 2 of the Order sets out the circumstances in which those providing general medical services under section 19 of the 1978 Act on 31st March 2004 will be entitled, on and after 1st April 2004, to enter into a GMS contract with a Health Board (articles 3 and 4). If they do not enter into such a contract on 1st April 2004, they will, in general, only continue to be so entitled if they enter into a default contract with the Board and if the GMS contract is signed on or before 30th September 2004 (article 6).

Part 3 of the Order makes provision as to the circumstances in which a Health Board must enter into a default contract with a practitioner or a partnership and the duration of such a contract (articles 13 and 14).

Both Parts 2 and 3 set out the arrangements for medical practitioners who are suspended, unable to provide services under a contract on grounds of physical or mental ill-health or performing relevant service in the armed forces. They also provide a right of appeal to the Scottish Ministers where a Health Board refuses to enter into a GMS or a default contract because it is not satisfied that the criteria relating to suspended or unfit medical practitioners are met or where the Health Board has failed to enter into a GMS contract by the time a person’s entitlement to such a contract expires (articles 5, 11 and 13).

Part 4 provides for the continuation of arrangements by the Health Board to provide primary medical services to the patients of medical practitioners who are suspended or unable to perform services on the grounds of physical or mental ill-health (article 15).

Part 5 specifies certain terms for default contracts and certain types of GMS contracts. Articles 16 to 25 specify the services which must be provided in default contracts and certain types of GMS contracts. Articles 26 and 27 prescribe the premises which must be specified in default and GMS contracts and the practice area which must be specified in default contracts. Articles 28 to 32 specify who must be included in the list of patients for default contracts and certain types of GMS contracts and whether that list must be open or closed to applications from patients. Article 33 deals with the procedure for dispute resolution in default contracts. Article 34 provides for certain types of GMS contracts to be capable of termination on the basis of a dismissal from employment which occurred between 1st April 2004 and the commencement of the GMS contract.

Part 6 sets out the financial arrangements for default contracts, for GMS contracts which follow default contracts and for persons unable to enter into default contracts.

Footnotes

[^f00001]: 2004 asp 1.

[^f00002]: 1978 c. 29.

[^f00003]: 1983 c. 54.

[^f00004]: S.I. 1995/416. repealed by S.S.I. 2004/114.

[^f00005]: S.S.I. 2004/115.

[^f00006]: S.I. 1998/659.

[^f00007]: Section 17J was inserted into the 1978 Act by section 4 of the Primary Medical Services (Scotland) Act 2004 (asp 1).

[^f00008]: Section 2 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), section 14(2) and Schedule 7, paragraph 1, the Hospital Complaints Procedure Act 1985 (c. 42), section 1(1) and the National Health Service and Community Care Act 1990 (c. 19), section 28 and Schedule 9, paragraph 19 and Schedule 10.

[^f00009]: Section 12AA was inserted by the Health Act 1999 (c. 8), section 47.

[^f00010]: Section 19(2)(a) is repealed from 1st April 2004 by the Primary Medical Services (Scotland) Act (asp 1), schedule, paragraph 1(7).

[^f00011]: Section 3 is repealed from 1st April 2004 by the Public Appointments and Public Bodies (Scotland) Act 2003 (asp 4), Schedule 4, paragraph 5(2).

[^f00012]: Section 2 was amended by S.I. 1996/1591 and 2002/3135.

[^f00013]: Section 12A was inserted by the National Health Service and Community Care Act 1990 (c. 19), section 31 and amended by the National Health Service (Primary Care) Act 1997 (c. 46), Schedule 2, paragraph 34 and the Health Act 1999 (c. 8), sections 46 and 48 and Schedule 4, paragraph 45.

[^f00014]: Section 32A(2) was inserted by the National Health Service (Amendment) Act 1995 (c. 31) (“the 1995 Act”), section 8 and amended by the Health Act 1999 (c. 8) (“the 1999 Act”), Schedule 4, paragraph 51; section 32B(1) was inserted by the 1995 Act, section 8 and substituted by the 1999 Act, Schedule 4, paragraph 52; section 32D(1) was inserted by the 1995 Act, section 8, and amended by the 1999 Act, Schedule 4, paragraph 53 and the Community Care and Health (Scotland) Act 2002 (asp 5), Schedule 2, paragraph 2(11).

[^f00015]: Regulation 11 was amended by S.S.I. 1999/54.

[^f00016]: Section 19 was amended by the Health and Medicines Act 1980 (c. 53), section 7, the Health and Social Security Adjudications Act 1983 (c. 41), Schedule 7, paragraph 2, the Medical Act 1983 (c. 54), Schedule 5, paragraph 17, the National Health Service and Community Care Act 1990 (c. 19), section 37, the Medical (Professional Performance) Act 1995 (c. 51), schedule, paragraph 29, the National Health Service (Primary Care) Act 1997 (c. 46), Schedule 2, paragraph 39 and S.I. 2002/3135. It was extended by the Health and Medicines Act 1988 (c. 49), section 17(1). It is to be repealed from 1st April 2004 by the Primary Medical Services (Scotland) Act 2004 (asp 1), schedule, paragraph 1(7).

[^f00017]: Regulation 4 was amended by S.I. 1996/842 and S.S.I. 1999/54.

[^f00018]: Regulation 24 was amended by S.I. 1995/3199, S.I. 1998/660 and S.S.I. 1999/54.

[^f00019]: Section 36A was inserted by the Medical (Professional Performance) Act 1995 (c. 51), section 1 and amended by S.I. 2000/1803; section 38(1) was amended by paragraph 7 of the Schedule to that Act; paragraph 5A was inserted by paragraph 20 of the Schedule to that Act. All three provisions are prospectively substituted by S.I. 2002/3135.

[^f00020]: Section 37 was amended by the Medical (Professional Performance) Act 1995 (c. 51), Schedule, paragraph 6(2) to (4). It is prospectively substituted by S.I. 2002/3135.

[^f00021]: Section 41A was inserted by S.I. 2000/1803. It is prospectively substituted by S.I. 2002/3135.

[^f00022]: S.I. 2002/3135. This Order substitutes the sections referred to in article 3(5).

[^f00023]: Regulation 24(11) was amended by S.I. 1995/3199, 1998, 660 and S.S.I. 1999/54.

[^f00024]: Regulation 11 was amended by S.S.I. 1999/54.

[^f00025]: Section 23(2A) was inserted by the National Health Service and Community Care Act 1990 (c. 19), section 30 and is repealed from 1st April 2004 by the Primary Medical Services (Scotland) Act 2004, schedule, paragraph 1(7).

[^f00026]: Regulation 17 was amended by S.S.I 1999/54.

[^f00027]: The Default Contract 2004 is published by the Scottish Executive Health Department. It is available on Scottish Health on the Web (SHOW) at http://www.show.scot.nhs.uk/sehd/pca/PCA2004(M)10.pdf.

[^f00028]: Regulation 24 was amended by S.I. 1995/3199, S.I. 1998/660 and S.S.I. 1999/54..

[^f00029]: Regulation 11 was amended by S.S.I. 1999/54.

[^f00030]: Regulation 29 was amended by S.S.I. 1999/54.

[^f00031]: Regulation 30 was amended by S.S.I. 1999/54.

[^f00032]: Regulation 31 was substituted by S.I. 1997/943 and amended by S.I. 1998/660 and S.S.I. 1999/54.

[^f00033]: Section 19 was amended by the Health and Medicines Act 1980 (c. 53), section 7, the Health and Social Security Adjudications Act 1983 (c. 41), Schedule 7, paragraph 2, the Medical Act 1983 (c. 54), Schedule 5, paragraph 17, the National Health Service and Community Care Act 1990 (c. 19), section 37, the Medical (Professional Performance) Act 1995 (c. 51), schedule, para 29, the National Health Service (Primary Care) Act 1997 (c. 46) Schedule 2, paragraph 39 and S.I. 2002/3135. It was extended by the Health and Medicines Act 1988 (c. 49), section 17(1). It is to be repealed from 1st April 2004 by the Primary Medical Services (Scotland) Act 2004 (asp 1), schedule, paragraph 1(7).

[^f00034]: Regulation 4 was amended by S.S.I. 2001/ 85 and 191.

[^f00035]: Regulation 24 was amended by S.I. 1995/3199, 1998/660 and S.S.I. 1999/54.

[^f00036]: Section 17M was inserted into the 1978 Act by section 4 of the Primary Medical Services (Scotland) Act 2004.

[^f00037]: Regulation 35 was amended by S.I. 1998/1600, 1999/749 and S.S.I. 1999/54 and 2002/111.

[^f00038]: S.I. 1995/416, repealed by S.S.I. 2004/114.