Joint Committee on Statutory Instruments Third Report


Memorandum from the Department of Health


1.  The Joint Committee has asked for a Memorandum on two points on the Regulations referred to above.

The first point:

    "In the substituted Part III of the principal Regulations, new regulation 18G(1) confers (subject to the exclusions in (2)) on a doctor a right of appeal to the Secretary of State on a point of law. Given the restriction to a point of law, explain why regulation 18G(2) expressly excludes it in the following cases—

    (a)  where the doctor has reached 70 years of age [18E(1)(c)];

    (b)  where he has been disqualified by the [section 46] Tribunal [18E(1)(d)];

    (c)  where his entry in the Medical Register is subject to conditions imposed by the Medical Act Committees [18E(2)(b)]."

2.  Dealing with each of the cases cited in turn—

    (a)  Section 8 of the Health and Medicines Act 1988 (1988 c.49) requires the Secretary of State to make regulations providing for the removal from any list maintained under section 29 of the National Health Service Act 1977 the name of any person who has attained an age specified in the Regulations. Accordingly, regulation 7(11) of the NHS (General Medical Services) Regulations 1992 (S.I. 1992/635) (the principal Regulations) requires a Health Authority to remove from its medical list the name of any doctor who has attained the age of 70 years, with effect from the date on which he attained that age.

    (b)  Where the NHS Tribunal has disqualified a doctor from inclusion in a medical list, he is not eligible to have his name placed on a Health Authority's medical list and is therefore not able to provide general medical services.

In both these cases, it is not inconceivable that such a doctor might apply for a vacancy and might thereafter appeal to the Secretary of State on the ground that the selection process had been procedurally flawed or otherwise unfair for reasons unconnected with his age or disqualification. To allow such an appeal would not assist that doctor in any way, because the Health Authority is prevented, in any event, from nominating or approving him for a vacancy by virtue of regulation 18E(1). It was therefore thought appropriate to exclude such a doctor's right of appeal in these circumstances.

    (c)  This case is slightly different from those referred to at (a) and (b) above. Where a doctor's entry in the Medical Register maintained by the General Medical Council is subject to conditions, there is nothing to stop a Health Authority approving or nominating such a doctor to a vacancy if they see fit. However, regulation 18E(2) grants to Health Authorities a discretionary power to refuse such nomination or approval on the basis that the doctor is conditionally registered. Such conditional registration might, for example, prevent a doctor carrying out certain clinical procedures or might provide that he is only to do so under the supervision of another doctor. This might cause considerable problems in many cases, and particularly where the vacancy is for a single-handed practitioner who is to provide the full range of general medical services. As a result, a Health Authority is empowered to refuse to approve or nominate an additional doctor on these grounds and, if a Health Authority does so, then that doctor will not have a right of appeal against his failure to be selected for the vacancy. Should such a doctor bring an appeal on a point of law unconnected with the status of his registration, allowing that appeal would not change that situation as far as he was concerned, and it was therefore thought appropriate to exclude such a right in these circumstances.

3.  Judicial review is not precluded in any of the three cases about which the Joint Committee has raised questions.

The second point:

    "The corresponding question as respects the exclusions specified in new regulation 18I(8)(a)".

4.  The exclusions here mirror those referred to in regulation 18G(2) and the reasons for them are exactly the same as those set out above.

8th December 1998

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Prepared 23 December 1998