ANNEX A: OUTLINE OF THE EXISTING LAW Existing legislation about the NHS National Health Service Act 1977 General Medical Services
354.Under section 29 of the 1977 Act, it is the duty of each Health Authority in accordance with regulations to arrange for 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 general medical services (GMS). A principal feature of the system as it operates in practice is that (apart from certain exceptional cases) it is not the Health Authority itself which provides the GMS; instead, it enters into separate statutory arrangements with independent practitioners for the provision of those services. GPs are not employees of the Health Authority; 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) as amended.
355.The remainder of 1977 section 29 sets out certain things which must or may appear in the Regulations. Section 30 deals with the matter of applications by medical practitioners to be included in what is known as the “medical list”: that is the list kept by each Health Authority of GPs who provide GMS in its area. Sections 31 and 32 provide for each GP on a medical list to have undergone vocational training. Section 33 provides for the system for admitting GPs to medical lists. Section 34 provides for regulations to be made relating to the Medical Practices Committee (“MPC”), which has a role in admitting GPs to the medical list. The MPC is set up under section 7 of the 1977 Act. Sections 29A and 29B (as inserted by section 32 of the Primary Care Act) make further provision relating to medical lists and vacancies.
356.It is the duty of each Health Authority, in accordance with the Regulations, to administer the arrangements made for the provision of GMS and other family health services (section 15 of the 1977 Act). The Health Authority must also perform such management and other functions relating to those services as may be prescribed.
357.In contrast to the Part I system, therefore, the duty to make arrangements for those services is conferred directly upon Health Authorities, rather than upon the Secretary of State. Nonetheless, in exercising functions under Part II, Health Authorities may be the subject of Secretary of State directions issued under section 17 of the 1977 Act. Health Authorities are able to delegate their Part II functions in accordance with regulations made under section 16 of the Act.
358.Subject to any Secretary of State directions under section 17A(4) of the 1977 Act, Health Authorities may direct Primary Care Trusts to exercise their functions in relation to GMS, but not in relation to other Part II services (see section 17A(3) of the Act). The Secretary of State has directed Health Authorities that they may delegate only a limited range of GMS functions to Primary Care Trusts.
359.This broad structure of the Part II system is similar for dentists, persons providing ophthalmic services and persons providing pharmaceutical services, but there are significant differences, most notably relating to persons providing ophthalmic and pharmaceutical services.
360.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 Health Authority is subtly different. In the case of doctors, the Health Authority­ must arrange for suffi­cient PMS 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 every­body 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 under­taken to pro­vide GDS receive the promised GDS . There is also no equi­valent of the MPC to control the entry of GDPs to dental lists; and there is no equivalent of section 29(2)(c) of the 1977 Act (which provides for the assign­ment of patients to doctors). 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 Health Authority and the GDP is (usually) again a statutory one between a Health Authority 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 Health Authority, and repre­sent one of the rare occa­sions when it is the Health Authority itself which provides the services in ques­tion via its employees.
361.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 where­by the Health Authority­ 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 (“GOS”) is sight testing for children, for persons whose resources are less than their requirements, and for other prescribed persons.
362.For pharmaceutical services (“PhS”), pro­vided for under section 41 of the 1977 Act the arrangements are again made by Health Authorities with independent persons or bodies. The system is gov­erned by regula­tions; but the duty this time is to arrange for the provi­sion, to persons who are present in the Health Authority's area, of drugs, medicines and listed appli­ances which are pre­scribed for them by health service doctors, dentists, or nurses, and of such other services as may be prescribed . So far as PhS are con­cerned, there are detailed regula­tions (made under sections 42 and 43) relating to entry on to a phar­maceuti­cal list.
363.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 II 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 (c.48) 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 II practitioners, but have yet to be brought into force.
364.Each profession has in each Health Authority area a local representative committee (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.
365.Practitioners may be removed or suspended from the list in which their names are included by the NHS Tribunal, which is pro­vided for under sections 46-49 of the 1977 Act. The NHS Tribunal is an independent body which hears representations by Health Authorities and others against family health service practitioners, that is people with whom Health Authorities have made arrangements for the provision of general medical, general dental, general ophthalmic or pharmaceutical services under Part II of the NHS Act 1977 . Health Authorities (and others) may make representations that to allow a person to continue to be family health service practitioner would be prejudicial to efficiency of the service in question. The Tribunal may direct that a practitioner’s name is to be removed from one or more lists of people with whom Health Authorities have made arrangements for the provision of family health services. A person who has been removed from a list is no longer entitled to provide the service in question. The NHS Tribunal may also disqualify a person from involvement in any capacity in the provision of family health services.
366.The powers of the NHS Tribunal were extended by the National Health Service (Amendment) Act 1995, amongst other things to give it powers of interim suspension from lists. The powers of the NHS Tribunal were further extended by section 40 of the Health Act 1999, in particular to extend its jurisdiction to people who have acted fraudulently towards or in connection with the NHS (although this section has yet to be brought into force).
367.The remainder of Part II contains a number of miscellaneous provisions.