ANNEX A: Outline of the existing law relating to the NHS(12) Part 2 system: family health services
213.The system provided for under Part 2 of the Act is quite different.  The broad structure of the Part 2 system is similar for doctors, dentists, persons providing ophthalmic services and persons providing pharmaceutical services. This Annex first describes the existing system as it applies to doctors, and then if necessary describes any differences between that system and those relating to other professional groups.
214.Under section 29 of the 1977 Act, it is the duty of each HA in accordance with regulations to arrange as respects their area with medical practitioners to provide “personal medical services” for all persons in the area who wish to take advantage of the arrangements.  These services are described as GMS.  A principal feature of this system as it operates in practice is that (apart from certain exceptional cases) it is not the HA which itself provides the GMS; instead, it enters into separate statutory arrangements with independent practitioners for the provision of those services.  GPs are therefore not (save in the exceptional circumstances referred to above, and which are not currently relevant) employees of the HA; they are independent professionals who undertake to provide GMS in accordance with the body of regulations governing that activity.  Those regulations are currently the National Health Service (General Medical Services) Regulations 1992 (S.I. 1992/635) (“the GMS Regulations”) as amended.
215.The remainder of section 29, as amended, sets out certain things which must or may appear in the regulations.  Section 29 is prospectively amended by section 23 of the HSC Act.  Section 29A (inserted by section 32 of the Primary Care Act and amended by section 20 of the HSC Act) prevents a HA making arrangements with a doctor unless he is on a medical list, and sets out certain restrictions on who is eligible to be on such a list, but are not yet in force.  Section 29B gives a regulation-making power for the filling of vacancies for doctors which was also extended by section 20 of the HSC Act. Sections 31 and 32 provide for regulations requiring that each GP must be “suitably experienced” as prescribed.  Section 33 provides the Secretary of State with power to control GP numbers if necessary.   Provision relating to the Medical Practices Committee, set up under section 7 of the 1977 Act, which had a role in admitting GPs to the medical list is repealed by sections 14 and 15 of the HSC Act.  Vacancies are now determined by HAs.  A new power for regulations to enable HAs to conditionally include doctors in the medical list is in the new section 43ZA prospectively inserted into the 1977 Act by section 21 of the HSC Act but not yet in force.  Similar provision is made for all the professions.  Section 43D inserted by section 24 of the HSC Act gives power in regulations for HAs to keep lists of persons who assist in the provision of General Medical Services (in contrast to GP principals, who are included in the medical list) (See the National Health Service (Supplementary List) Regulations 2001 (SI 2001/3740) as amended). Similar provision is made for the other professions.
216.It is the duty of each HA in accordance with regulations to administer the arrangements made for the provision of GMS (and the other services): see section 15 of the 1977 Act.  The HA must also perform such other management and other functions relating to those services as may be prescribed; and a number of functions have indeed been prescribed.
217.In contrast to the Part 1 system, the duty to make the arrangements for these services is conferred directly upon HAs, rather than upon the Secretary of State.   Nonetheless, in exercising functions under Part 2, HAs may be the subject of Secretary of State directions issued under section 17 of the 1977 Act.  HAs are able to delegate their Part 2 functions in accordance with regulations made under section 16 of the Act.
218.Subject to any Secretary of State directions under section 17A(4) of the 1977 Act, HAs may direct PCTs to exercise their functions in relation to GMS, but not in relation to other Part 2 services (see section 17A(3) of the Act).
219.This broad structure of the Part 2 system is similar for dentists, opticians, and chemists, but there are significant differences, most notably relating to chemists and opticians.
220.The provision for dentists (section 35 of the 1977 Act) is in very similar terms to that for doctors in section 29, although it will be noted that the duty upon the HA is subtly different.  In the case of doctors, the HA must arrange for sufficient GMS to be provided for everybody in the area who wishes to take advantage of the arrangements.  In the case of dentists this duty is not quite the same: the duty is not to arrange the provision of GDS for every-body in the area who wishes to have GDS, but rather to arrange with dentists in the area that any person for whom those dentists have under-taken to provide GDS receive the promised GDS. However, subject to that, the systems are by no means dissimilar: there exists a dental list of GDPs who undertake to provide GDS, there is a system of dental vocational training (although it has been introduced by regulations and not by primary legislation); the relationship between the HA and the GDP is (usually) again a statutory one between a HA and an independent professional.  Unlike the case of GPs, however, there is in regulations provision in the case of dentists for the employment of salaried dentists at health centres: these dentists are employed by the HA, and represent one of the rare occasions when it is the HA itself which provides the services in question via its employees.
221.So far as chemists and opticians are concerned, opticians are provided for in section 38 of the 1977 Act, again according to the same scheme where-by the HA makes statutory arrangements with independent practitioners (who, in this case, might be individuals or bodies such as companies).  However, the range of services to be provided by opticians is very much smaller.  The only content now surviving of general ophthalmic services is sight testing for children, for persons whose resources are less than their requirements, and for other prescribed persons.  Section 39 is a regulation making power in respect of ophthalmic services, which has also been extended by section 20 of the HSC Act.
222.More significant is the category of pharmaceutical services, provided for under section 41 of the 1977 Act.  Again, the arrangements are made by HAs with independent persons or bodies; the system is governed by regulations; but the duty this time is to arrange for the provision of drugs, medicines and listed appliances, which are pre-scribed for them by health service doctors, dentists, or nurses, and of such other services as may be prescribed, to persons who are present in the HA's area.  So far as pharmaceutical services are concerned, there are detailed regulations (introduced by sections 42 and 43) relating to entry on to a pharmaceutical list.
223.Additional pharmaceutical services may also be provided under section 41A of the 1977 Act, as inserted by the Primary Care Act.  Such services are governed by Secretary of State directions, rather than by regulations, as for pharmaceutical services under section 41.  A HA is only under a duty to make arrangements for such additional services where required to do so by direction.
224.Sections 43A and 43B of the 1977 Act, as substituted by section 10 of the Health Act, provide a structure for the remuneration of persons providing Part 2 services.  Section 10 of the Health Act has, however, yet to be brought into force.  Neither have the original sections 43A and 43B inserted by the Health and Social Security Act 1984 been commenced.  In effect the original sections inserted by the 1984 Act must be complied with because of section 7 of the Act, which provides that a determination of remuneration made before the coming into force of those provisions is deemed to be validly made if regulations authorising it could have been made had that provision been in force at that time.  It is therefore not open to the Secretary of State or anyone else to make a determination which is inconsistent with the provisions of sections 43A and 43B as inserted by the 1984 Act.  What in fact happens is that the Secretary of State makes and publishes a determination for each of the professions, which takes the form of the separate document referred to in each of the sets of regulations governing the four professions.  These determinations therefore have the force of law, although they are not subject to any further degree of formality or Parliamentary procedure.  The revised version of sections 43A and 43B, substituted by section 10 of the Health Act, were intended to provide a new framework to govern the remuneration of Part 2 practitioners, but have yet to be brought into force.
225.Each profession has in each HA area an LRC (called the Local Medical Committee, the Local Dental Committee, and so on).  These represent local practitioners and are provided for under sections 44 and 45 of the 1977 Act.
226.There are detailed provisions for the removal or suspension of practitioners from the list in which their names are included.  Initially, this was the responsibility of the NHS Tribunal, provided for under sections 46 to 49 of the 1977 Act.  These sections were extensively amended by the National Health Service (Amendment) Act 1995, section 40 of the Health Act and, prospectively, by the HSC Act.  A decision has been taken that section 40 of the Health Act will not be brought into force as it has been overtaken by the HSC Act amendments.  However, the HSC Act repeals the provisions relating to the Tribunal in England, though it remains in force for Wales and inserts new sections 49F to 49R.  These provide powers for HAs to remove doctors, dentists, opticians and those providing pharmaceutical services from their lists on prescribed grounds, or contingently remove them i.e. provide they will be removed unless they comply with certain specified conditions.  HAs may also suspend doctors, dentists, opticians and those providing pharmaceutical services in certain circumstances.  There is provision for review of HA decisions and for appeal to a new statutory body, the Family Health Services Appeal Authority (FHSAA).  The FHSAA is set up by section 49S of the 1977 Act, inserted by section 27 of the HSC Act.  It is constituted in accordance with new Schedule 9A.  This new body may turn a local removal from a particular HA list into a national disqualification that prevents any HA from including them in their list.
227.The funding of these services is effected through section 97 of the 1977 Act, as substituted by the 1995 Act, Schedule 1, paragraph 47, and amended by section 36 of the Primary Care Act, section 4(2) of the Health Act and section 1(2) of the HSC Act.  Section 97 must be read in conjunction with Schedule 12A to the 1977 Act, as inserted by section 4(1) of the Health Act.  Section 97(1) and paragraph 1(1) of Schedule 12A provide for the remuneration of family health services practitioners in so far as it does not fall within paragraph 1(2) of Schedule 12A.  Those paragraphs provide for:
228.Paragraph 3 of Schedule 12A provides a mechanism whereby the Secretary of State may apportion among HAs the total remuneration referable to the cost of drugs which is paid by each HA.  Each HA has a duty to reimburse the pharmacists in their area for the costs of the drugs which they dispense on the orders of GPs.  In some cases, a GP in the area of one HA prescribes a drug which is dispensed in the area of another HA.  The power in paragraph 3 is used so that the cost of the drugs prescribed by the GP in first HA area is met from that HA’s allotment, even though it is the other HA which initially reimburses the pharmacist for the cost of the drug.