National Health Service (General Ophthalmic Services) (Amendment) (Wales) Regulations 2002

Prospective

Insertion of new regulationsE+W

6.  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(1);

(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(2);

(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 7 of Schedule 1A 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, incident, 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 the ophthalmic medical practitioner or optician 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(3) applies; and

(g)whether the ophthalmic medical practitioner or optician has been refused admittance to, conditionally included in, 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 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 of a body corporate, which was refused admittance to, conditionally included in, 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 7 of Schedule 1A, and must apply the criteria set out in paragraph (4).

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

(a)the nature of any fraud case;

(b)the length of time since the incident of fraud (if any) occurred, and since any investigation into that incident of fraud 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 any incident of fraud to the provision by the ophthalmic medical practitioner or optician 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 in, removed, contingently removed or is currently suspended from other Health Authority lists or equivalent lists, and if so, the facts relating to the matter which led to such action and the reasons given by the Health Authority or equivalent body for such action; and

(g)whether 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 of a body corporate which was refused admittance to, conditionally included in, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, the facts relating to the matter which led to such action and the reasons given by the Health Authority or equivalent body for such action.

(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 7 of Schedule 1A, and must apply the criteria set out in paragraph (6).

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

(a)whether the continued inclusion in the list of the ophthalmic medical practitioner or optician would be 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 of the incident 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(4);

(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 in, removed, contingently removed or is currently suspended from other Health Authority lists or equivalent lists, and if so, the facts relating to the matter which led to such action and the reasons given by the Health Authority or equivalent body for such action; and

(h)whether the ophthalmic medical practitioner or optician 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 in, removed or contingently removed from other Health Authority lists or equivalent lists, or is currently suspended from such lists, and if so, the facts relating to the matter which led to such action and the reasons given by the Health authority or equivalent body for the such action.

(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 30th July 2002 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 the ophthalmic medical practitioner or optician 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 the inclusion of the ophthalmic medical practitioner or optician 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 additionally notify those specified in paragraph (3) if so requested by those persons or bodies in writing (including electronically), of the matters set out in paragraph (4).

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

(a)the National Assembly for Wales;

(b)any Health Authority in Wales 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 Secretary of State;

(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) The persons or bodies who shall be additionally notified in accordance with paragraph (1) are persons or bodies that can establish that they are considering employing the ophthalmic medical practitioner or optician in a professional capacity.

(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) The Health authority shall send the ophthalmic practitioner or optician concerned a copy of any information about the ophthalmic medical practitioner or optician provided to the persons or bodies specified in paragraph (2) or (3) and any correspondence with those persons or bodies relating to that information.

(6) 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.

(7) 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).

(8) 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 9C);

(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 the ophthalmic medical practitioner or optician 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 the ophthalmic medical practitioner or optician,

the Health Authority shall remove the ophthalmic medical practitioner or optician and shall notify the ophthalmic medical practitioner or optician 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 the ophthalmic medical practitioner or optician;

(b)give the ophthalmic medical practitioner or optician notice of what action the Health Authority is considering and on what grounds;

(c)give the ophthalmic medical practitioner or optician the opportunity to make written representations to the Health Authority within 28 days of the date of the notification under sub-paragraph (b);

(d)give the ophthalmic medical practitioner or optician the opportunity to put his or her case at an oral hearing before the Health Authority, if the ophthalmic medical practitioner or optician 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 the ophthalmic medical practitioner or optician that if the ophthalmic medical practitioner or optician wishes to exercise a right of appeal, the ophthalmic medical practitioner or optician has 28 days from the date of the decision to do so, and shall tell the ophthalmic medical practitioner or optician how to do so.

(8) The Health Authority shall also notify the ophthalmic medical practitioner or optician of his or her 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 the ophthalmic medical practitioner or optician;

(b)give the ophthalmic medical practitioner or optician notice of what action the Health Authority is considering and on what grounds;

(c)give the ophthalmic medical practitioner or optician the opportunity to put his or her 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 the ophthalmic medical practitioner or optician of what action it has in mind and the reasons for it;

(c)give the ophthalmic medical practitioner or optician the opportunity to make written representations to the Health Authority within 28 days of the date of the notification under sub-paragraph (b);

(d)give the ophthalmic medical practitioner or optician the opportunity to put his or her case at an oral hearing before the Health Authority if the ophthalmic medical practitioner or optician requests one within the 28 day period mentioned above.

(2) If there are representations, the Health Authority must take them into account before reaching its decision.

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

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

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

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

National Disqualification

9H.—(1) if 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, the reference to “two years” in that provision shall be a reference to five years;

(2) if 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, the reference to “one year” in section 49N(8)(b) of the Act shall be a reference to three years;

(3) if 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, 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;

(4) if 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, 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.”.