Regulation 4 Insertion of new regulations

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^f1 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.”.