Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report


PART 4: MEDICAL AND DENTAL SERVICES

226.  The provisions in Part 4 significantly amend the legislative basis under which general medical services and general dental services are presently provided and repeal a significant amount of primary and secondary legislation. The part 4 provisions provide for the replacement of a number of delegated powers. However, the overall balance is that of a modernising package of measures aimed at simplifying the legislative base. Despite the new delegated powers, it is intended that the volume of delegated legislation post implementation will be smaller and more coherent than that currently in existence. For example the regulation making powers in relation to persons performing medical services (clause 175) will replace three similar powers relating to medical lists each of which is exercised in a separate set of regulations. The same can be said for the dental services list also provided for under clause 175.

227.  Regulations under Part 4 of the Bill will be subject to the negative resolution procedure. This is in keeping with existing equivalent powers and appropriate having regards to the matters to be legislated for.

Clause 166: Provision of primary dental services

228.  Clause 166 inserts new section 16CA into the 1977 Act placing a responsibility on Primary Care Trusts and Local Health Boards (PCTs and LHBs) to secure the provision of primary dental services in their areas. This replaces the existing duty in section 35 of the 1977 Act to make arrangements for the provision of general dental services. In doing so the PCT/LHB can provide the services itself or it can enter into a general dental services contract or a personal dental services contract with a dental practice or dental corporation.

229.  Sections 16CA(3) and (5) introduce two regulation making powers. First, section 16CA(3) provides for regulations to prescribe information about local primary dental services that must be published by the PCT/LHB. It is intended that the PCT will publish details of all the primary dental services that are available in its area, together with details of providers, to improve the information available to users of the service. The requirements will inevitably change over time as providers' abilities to provide information improve. For example, in the future it may be a requirement to make available certain statistical information that providers currently do not record because they currently do not have the capacity or are not required to keep or record such information. Further, the regulations will contain a level of detail that justifies a regulation making power.

230.  Secondly, section 16CA(5) allows regulations to be made that set the parameters of primary dental services. In general terms, it is believed that custom and practice will suffice to determine the scope of primary dental services. The regulations may be used to clarify whether any particular service is or is not a primary dental service which a PCT/LHB has a responsibility to provide. For example, this could be used to maintain consistent national standards for primary dental services across all PCTs/LHBs. It is therefore not intended to exercise this power on implementation with the new GDS contracts provisions.

231.  Section 16CA(6) allows any regulations to describe services by reference to the manner or circumstances in which they are delivered. For example, services might be described through the hour of the day in which they are delivered, through the premises at which they are delivered or through the status of the clinician who provides the service.

Clause 167: Dental public health

232.  New section 16CB, inserted into the 1977 Act by this clause, contains a regulation making power to confer on PCTs, LHBs and the Assembly dental public health functions. Currently, certain dental public health functions are carried on as part of the Secretary of State's general duties under section 1 of the 1977 Act. Whilst section 5 of the 1977 Act lays down duties in relation to school dental inspection.

233.  Functions that are likely to be prescribed under section 16CB(1) include school screening, oral health promotion and local oral health surveys which will help services to be planned to meet the PCT/LHB's obligations under section 16CA(1) It is desirable for functions to be conferred in regulations as the dental public health needs of the population will not remain constant. Further, it allows for flexibility in deciding what dental services will be provided under a GDS contract and what services will be provided as part of the PCT/LHB's dental public health functions to reduce oral health inequalities in that particular area.

Clause 168: General dental services contracts

234.  This clause inserts sections 28K - 28P into the 1977 Act. These sections govern the terms and content of the new general dental services contract. The new sections contain a number of regulation making powers relevant to the new GDS contracts and as such replace the National Health Service (General Dental Services) Regulations 1992 (SI 1992/661) and the National Health Service (Service Committee and Tribunal) Regulations 1992 (SI 1992/664) in so far as these Regulations relate to dentistry.

235.  Section 28K contains no delegated powers. It refers to the general content of the new GDS contracts.

236.  Section 28L provides a power to set out in regulations those services that must be provided under a GDS contract. Section 28L(2) allows services to be described by reference to the manner or circumstances in which they are provided. It would be inappropriate to set out in primary legislation the detail of the services that must be provided under a GDS contract for two main reasons:

flexibility must be maintained to allow for a shift from secondary to primary dental care; and

flexibility for services to reflect the current primary dental care needs of patients is needed.

237.  Section 28M sets out the persons with whom a PCT/LHB may enter into a GDS contract. Regulations under section 28M(1) will be used to set conditions that those who are party to a GDS contract must meet. Conditions might be, for example, that a contractor should not be disqualified by a professional regulatory body from practising or convicted of a serious offence in the UK. The General Dental Services Regulations mentioned above already make equivalent provision, but these regulations will fall with the repeal of section 35 of the 1977 Act.

238.  Section 28M(2)(b)(iv) will allow regulations to prescribe the period during which a person must have been providing primary dental services or primary medical services in order to fall within the list of potential contractors. The purpose of the provision is to cover the situation where a person was a provider of such services, but the GDS contract terminates before a new contract is agreed. The exercise of the power will allow such a person to enter into a new contract notwithstanding the fact that he is not currently a provider.

239.  Section 28M(3) will allow regulators to make provision about the effect on a GDS contract of a change of partnership. It is intended that in prescribed circumstances the GDS contract should not fall notwithstanding a change in the partnerships such as when a partnership splits with a majority of the partners wishing to continue under the existing GDS contract.

240.  Section 28N replaces the existing system of remuneration for dentists providing general dental services under sections 35, 43A and 43B of the 1977 Act. Section 28N(1) will allow the Secretary of State to give directions regarding payments to be made under the new contract. Where directions are made, the GDS contract must require that payments are made under the contract in accordance with the directions (subsection (2)). In this way, payments in respect of any particular matter under the contract can be set on a national basis. Directions may relate to payments to be made by a PCT/LHB to a GDS provider or by a GDS provider to a PCT/LHB. Where there are no applicable directions, the parties to the GDS contract are free to determine the remuneration to be paid under the contract.

241.  This is similar to the existing system whereby the Secretary of State sets out entitlements to payments to GDS contractors by a series of determinations (the Statement of Dental Remuneration made under regulation 19 of the NHS (General Dental Services) Regulations 1992). Section 28N(4) places a duty of consultation on the Secretary of State before he makes directions under this section. Section 28N(5) provides the flexibility to issue directions under this section either as regulations or as an instrument in writing.

242.  Section 28O provides a broad regulation making power to impose general requirements that must be included in all GDS contracts. Section 28O provides examples of the areas that will be covered by the regulations such as: -

  (i) the manner in which, and standards to which services are to be provided;

  (ii) the persons who perform services;

  (iii) contract variation and enforcement; and

  (iv) the adjudication of disputes.

243.  In many respects regulations under this section will cover areas that are similar to those set out in Schedule 1 to the NHS (General Dental Services) Regulations 1992 (the terms of service for dentists). There will, however, be differences which will reflect local commissioning.

244.  New section 28P(1) and (2) provide for regulations concerning the resolution of pre-contract disputes. In particular, the regulations may provide for the Secretary of State or the Assembly or a person appointed by him or it to determine the terms on which any GDS contract may be entered into. Section 4(4) of the National Health Service and Community Care Act 1990 makes similar provision in relation to NHS contracts entered into by health service bodies It is likely that the regulations will make similar provision to that applying to disputes relating to PDS pilots and NHS contracts (National Health Service Contracts (Dispute Resolution) Regulations 1996 (S.I. 1996/623)).

245.  Section 28P(3) to (5) allows for regulations to set out the circumstances under which a contractor may elect to become a health service body for contracting purposes. This regulation making power replicates that for personal dental services (PDS) contracts under section 28E(3)(h) of the 1977 Act. To limit the need to renegotiate contracts following routine partnership changes, subsection (4) of section 29P allows for the regulations to provide for the maintenance of health service body status despite changes in the partners with a GDS contract.

Clause 169: General dental services: Transitional

246.  The main purpose of this clause is to create an order making power to address issues that are consequential to the transition from the old general dental services provisions under section 35 of the 1977 Act to the new arrangements set out above in clause 168.

247.  The order making power is required to ensure that dental practitioners moving from the existing arrangements with PCTs/LHBs for the provision of GDS, which are based on an individual basis, to the new practice based contracts can be offered appropriate and necessary protection.

248.  The order will cover such issues as: -

  (i) the rights, and associated terms, of existing providers of GDS to be offered a new GDS contract;

  (ii) the circumstances in which an existing provider of GDS must be offered a 'default' contract where it has not been possible by the relevant date to conclude negotiations in respect of a new GDS contract;

  (iii) for the resolution of disputes; and

  (iv) for the backdating of terms and conditions.

249.  As can be seen the order making power will be required to cover a range of complex and detailed provision and it is considered that this amount of detail would be inappropriate for primary legislation. In accordance with clause 191(5) the order will be subject to negative resolution.

Clause 170: Provision of primary medical services

250.  Clause 170 inserts a new section 16CC into the National Health Service 1977 Act placing a responsibility on PCTs and LHBs to provide or secure the provision of primary medical services within its area to the extent that it considers necessary to meet all reasonable requirements. This replaces the existing duty in section 29 of the 1977 Act to make arrangements with general practitioners for the provision of general medical services. In doing so the PCT can provide the services itself or make such other arrangements, as it thinks fit. This duty will underpin the Patient Services Guarantee, that the range of services currently available under the existing GMS arrangements will continue to be offered to patients, set out in paragraph 6.38 of the agreement between NHS Confederation and the General Practitioners Committee of the British Medical Association as set out in the document "New GMS Contract 2003 - Investing in General Practice" (NHSC/GPC agreement).

251.  Section 16CC(3) allows the Secretary of State to prescribe the information, in relation to primary medical services, that must be published by a PCT/LHB. The purpose of this power is to ensure that patients receive detailed information about the primary medical services available to them to improve choice and access.

252.  Section 16CC(5) provides for regulations to be made that set the parameters of primary medical services. In general terms it is believed that custom and practice will suffice to determine the scope of primary medical services. The regulations may be used to clarify whether any particular service is or is not a primary medical service which a PCT has a responsibility to provide. For example, this could be used to maintain a national range of primary medical services across all PCTs.

253.  Section 16CC(6) allows any regulations to describe services by reference to the manner or circumstances in which they are delivered. For example, services might be described with reference to the hour of the day in which they are delivered, the premises at which they are delivered or the status of the clinician who provides the service.

Clause 171: General medical services contracts

254.  This clause inserts sections 28Q - 28V into the 1977 Act. These sections govern the terms and content of the new general medical services contract (GMS contract) and are particularly drafted to deliver the terms of the NHS Confederation/General Practitioners Committee agreement.

255.  The new section contains a number of regulation making powers relevant to the new GMS contract whose exercise will lead to the replacement of a large existing body of secondary legislation. This includes the National Health Service (General Medical Services) Regulations 1992 (S.I. 1992/635) (as amended by over 35 subsequent sets of regulations), the National Health Service (Service Committee and Tribunal) Regulations 1992 (S.I. 1992/664) in so far as these Regulations refer to medical practitioners (again as amended by over 10 sets of regulations), the National Health Service (Choice of Medical Practitioner) Regulations 1992 (S.I. 1998/668) (as amended) and a number of miscellaneous provisions such as the National Health Service ((Out of Hours Medical Services) and NHS (General Medical Services) Amendment Regulations 2002 (S.I. 2002/2548). The new regulation making powers will be subject to negative resolution procedure in common with the approach to delegated powers contained in the existing sections 28C - 28E in relation to personal medical services agreements.

256.  Section 28Q contains no delegated powers. It refers to the general content of the new GMS contract.

257.  Section 28R provides a power to set out in regulations those services that must be provided under a GMS contract; those referred to in the NHSC/GPC agreement as essential services (paragraph 2.8). Section 28R(2) allows services to be described by reference to the manner or circumstances in which they are provided. It would be inappropriate to set out in primary legislation the detail of the services that must be provided under a GMS contract for two main reasons:-

  (i) flexibility must be maintained to allow for a shift from secondary to primary medical care; and

  (ii) flexibility for services to reflect the needs of patients.

258.  Section 28S sets out the persons with whom a PCT/LHB may enter into a GMS contract. Regulations under section 28S(1) will be used to set conditions that those who are party to a GMS contract must meet. Conditions might be, for example:

  (i) that any individual practising in partnership does so on his or her own account and not for the benefit of a third party, such as a private company;

  (ii) that a contractor is not disqualified by a professional body from practising their profession or convicted of a serious offence in the UK; and

  (iii) that any contractor who is a medical practitioner is included in the proposed GP Register (established by article 10 of the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003 (S.I. 2003/1250), when in force.

259.  The detail of any conditions to be prescribed will be discussed with the NHSC and the GPC as part of the implementation process.

260.  Section 28S(2)(b)(iv) permits those who are already providing services under a GMS/GDS contract or a PMS/PDS agreement to enter into new GMS contracts. It allows regulations to prescribe that this ability to enter into a GMS contract can be retained for a prescribed period during which the individual might not be providing services. The purpose of the provision is to cover a situation where a person is a provider of such services under a GMS contract or a PMS agreement, but the contract terminates before a new or replacement contract is agreed. The exercise of the power will allow such a person to enter into a new contract for a prescribed period of time notwithstanding the fact that he is not currently a provider.

261.  Section 28S(4) will allow regulations to make provision about the effect on a GMS contract of a change of partnership. For example, the regulations might make provision allowing a contract to continue in effect even though over time partners come and go due to routine changes caused by such things as such as career change, retirement etc. This avoids the bureaucracy which may be involved in terminating a contract and entering into a replacement contract each time there is a routine change in the membership of the partnership.

262.  Section 28T replaces the existing powers of remuneration for medical practitioners providing general medical services. Section 28T(1) will allow the Secretary of State or the Assembly to give directions regarding payments to be made under the new contract. Where directions are made, the GMS contract must require that payments are made under the contract in accordance with directions under subsection (2). In this way, payments in respect of any particular matter under the contract can be set on a national basis as required in the NHSC/GPC agreement. Directions may relate to payments made by a PCT to a GMS provider or by a GMS provider to a PCT.

263.  Under the existing system the Secretary of State sets out entitlements to payments to GMS contractors by a series of determinations (the Statement of Fees and Allowances made under regulations 34 & 34A of the NHS (General Medical Services) Regulations 1992). The Statement of Fees and Allowances sets the parameters for around 40 separate GMS fees and allowances. Many are sub-divided, for example, the fee related to Maternity Medical Services has 22 different alternatives. The Statement of Fees and Allowances will be abolished.

264.  Subsection (3) sets out the type of payments that may be set out in directions. For example payments in relation to the new quality framework (see Chapter 3 of the NHSC/GPC agreement) will be set in directions under 28T(3)(a). Section 28T(4) places a duty of consultation on the Secretary of State or the Assembly before he, or it, makes directions under this section. Section 28T(5) provides the flexibility to issue directions under this section either as regulations or as an instrument in writing.

265.  Section 28U(1) provides a broad regulation making power to impose general requirements that must be included in all GMS contracts. Section 28U(2) provides examples of the areas that may be covered by the regulations such as:-

  (i) the rights of patients to choose the person from whom they are to receive services;

  (ii) the manner in which, and standards to which services are to be provided;

  (iii) the persons who perform services;

  (iv) contract variation and enforcement; and

  (v) the adjudication of disputes.

266.  In many respects regulations under this section will cover areas that are similar to those set out in Schedule 2 to the NHS (General Medical Services) Regulations 1992 (S.I 1992/635) (the terms of service for medical practitioners). There will, however, be differences. For example, the contract will provide a procedure for resolving contractual disputes and will also set out the circumstances in which the contract may be terminated by either side.

267.  Section 28U(3) (read with section 28U(2)(d)) will allow regulations to set out the relationship between a contractor and their patients. These powers replace those in section 28F which is repealed by this Bill, and exercised in the National Health Service (Choice of Medical Practitioner) Regulations 1998 (S.I. 1998/668) and will:-

  (i) provide a framework to allow patients to register with a contractor;

  (ii) allow a contractor to refuse a patient registration (for example a violent patient);

  (iii) provide a framework under which a patient can be assigned to a particular contractor;

  (iii) provide for the termination of a contractors responsibility; and

  (iv) require all contractors to have in place systems that allow patients to choose the person who will treat them.

268.  Section 28U(4)(a) will allow regulations concerning contract variation to make provision about the circumstances in which a GMS contract variation may be imposed, for example where a failure to reach an agreement would prevent the PCT/LHB from fulfilling its statutory duty. Section 28U(4)(b) allows the regulations to make provision about the suspension or termination of a duty under the GMS contract of a prescribed nature. For example, the NHSC/GPC agreement (Chapter 2) identifies six "additional services" (cervical cytology, contraceptive services, vaccinations and immunisation, child health surveillance, maternity services and some minor surgery procedures) that practices can opt not to provide. The regulations will define these services and detail the procedures through which the option can be effected. Section 28U(5) allows the services prescribed under subsection 4(b) to be prescribed by reference to the manner or circumstances in which they are provided.

269.  Section 28U(6) allows the Secretary of State/the Assembly by direction to place limits on the drugs, medicines or other substances that may be prescribed by a person providing GMS. It is envisaged that directions will provide for two lists, one of drugs that cannot be prescribed and one where the listed drugs can only be prescribed in certain circumstances. Any such directions will replace the lists set out in Schedules 10 and 11 of the National Health Service (General Medical Services) Regulations 1992 (S.I. 1992/635). Given the potential for change, as expert medical advice evolves, a direction making power is considered to be the most efficient route for this control. Section 28U(7) provides the flexibility to issue directions under this power either as regulations or as an instrument in writing.

270.  Section 28V(1) provides for regulations to make provision for the resolution the resolution of disputes concerning the terms of a proposed GMS contract. This power will enable regulations to provide for pre-contract disputes to be determined on the same basis as those that relate to actual contractual terms. It is envisaged that the pre-contract process will be modelled on the National Health Service Contracts (Dispute Resolution) Regulations 1996 (S.I. 1996/623) made under section 4(5) of the National Health Service and Community Care Act 1990.

271.  It is envisaged that most contractors will elect to hold NHS contracts as set out in section 4 of the 1990 Act. Section 28V(3) to (5) allows for regulations to set out the circumstances under which a contractor may be regarded as a health service body for contracting purposes. This regulation making power replicates that for personal medical services (PMS) contracts in section 28E(3)(h) of the 1977 Act. To limit the need to renegotiate contracts following routine partnership changes, subsection (4) allows for the regulations to provide for the maintenance of health service body status despite routine changes in the partners to a GMS contract.

Clause 172: General medical services: Transitional

272.  This clause has the same effect for medical services as clause 169 provides for dental services - to create an order making power to address issues that are consequential to the transition from the old general medical services provisions under section 29 of the 1977 Act to the new arrangements set out above in clause 165.

273.  The order making power is required to ensure that medical practitioners moving from the existing arrangements with PCTs for the provision of GMS, which are based on an individual basis, to the new practice based contract set out in the NHSC/GPC agreement can be offered appropriate and necessary protection.

Clause 173: Arrangements under section 2Cc of the 1977 Act

274.  Clause 173 deals with changes to arrangements under section 28C of the Act (personal dental services (PDS)) and personal medical services (PMS)).

275.  Subsection (2) substitutes section 28D(1)(b) and (c) of the Primary Care Act 1977, which specifies the persons who may enter into a PMS and PDS agreement. The four regulation making powers at section 28D(1)(b), (ba), (bb) and (bc) which are intended to ensure that the conditions that are to be prescribed in respect of GMS contractors under section 28S, or GDS contractors under section 28M, may be applied, where appropriate, to contractors of PMS or PDS under section 28C arrangements.

276.  Subsection (3) inserts new subsection (1A) into section 28E(3) in the 1977 Act to provide for conditions to be applied to individuals who wish to be part of a PMS/PDS agreement by virtue of being an existing provider of GMS/PMS/GDS or PDS. (This is equivalent to section 28S(2)(b)(iv) and GDS section 28M(2)(b)(iv).

277.  Subsection (7) amends section 28E(3) of the 1977 Act by inserting new subsections (3)(ca), (3)(cb) and (3)(cc). This extends the existing regulation making power allowing regulations to prescribe conditions (including qualifications and experience) that must be met by performers of PMS/PDS (section 28E(3)(ca) and to set out the relationship between a contractor and their patients (section 28E(3)(cb) and (cc). The new powers in subsections (3)(cb) and (3)(cc) replace those in sections 28G and 28F, which are repealed by this Bill, and exercised in the National Health Service (Choice of Dental Practitioner) Regulations 1998 (S.I. 1998/2222) and National Health Service (Choice of Medical Practitioner) Regulations 1998 (S.I. 1998/668) respectively and will, in relation to PMS,:-

  (i) provide a framework to allow patients to register with a contractor;

  (ii) allow a contractor to refuse a patient registration (for example a violent patient);

  (iii) provide a framework under which a patient can be assigned to a particular contractor;

  (iv) provide for the termination of a contractors responsibility;

  (v) require all contractors to have in place systems that allow patients to choose the person who will treat them. This will also apply to PDS patients.

278.  Clause 173(8) introduces further new sections 28E(3A), (3B) and (3C), which extend the existing regulation making power in that section. New sections 28E(3A) and (3B) allow the Secretary of State to make regulations, which may require payments under PMS or PDS arrangements to be made in accordance with any directions he might make. This would permit the Secretary of State to direct, for example, that medical practitioners performing PMS receive seniority payments in accordance with a national scheme, or similarly, a dental practitioner performing PDS to receive maternity payments in accordance with a national scheme. New section 28E(3C) allows the Secretary of State or the Assembly to make regulations as to the circumstances under which the PCT or LHB must enter into a GMS or GDS contract with an existing provider of PMS or PDS when asked to do so. This replaces the existing preferential right of return provisions in section 28E(3)(g) and (7) and Schedule 1 to the National Health Service (Primary Care) Act 1997.

Clause 174: Abolition of pilot schemes

279.  This clause contains no regulation making powers.

Clause 175: Persons performing primary medical and dental services

280.  Clause 175 inserts new section 28W into the 1977 Act. Section 28W serves in respect of medical and dental services to rationalise the existing principal, supplementary and services lists into single medical and dental performer lists.

281.  Section 28W(1) provides for regulations requiring each PCT/LHB to prepare lists covering prescribed categories of healthcare professionals (as defined in subsection (3)) who will be performing primary medical or dental services. These regulations will replace the existing list provisions in the National Health Service (General Dental Services) Regulations 1992 (S.I. 1992/661), National Health Service (General Medical Services) Regulations 1992 (S.I. 1992/635), National Health Service (General Medical Services Supplementary List) Regulations 2001 (S.I. 2001/3740), National Health Service (General Dental Services Supplementary List) (General Dental Services) Amendment Regulations 2003 (S.I. 2003/250) and the prospective medical and dental list regulations to be made under 8ZA of the National Health Service (Primary Care) Act 1997 and section 28DA of the 1977 Act.

282.  The powers replicate the existing regulatory approach governing Primary Care Trust/Local Health Board lists for principal practitioners and non-principal practitioners. Regulations are necessary to avoid placing large amounts of administrative detail on the face of the Bill (for example, provisions as to the variety of factors that a practitioner may be required to submit with his application). The regulations will provide flexibility for the provisions to change as the new performer list system develops.

283.  In the first instance it is intended that the regulations will be applicable only to dentists and doctors but the position of other relevant clinicians will be considered in the future. These lists will be referred to as 'primary care performers lists". The regulations will not require a doctor or dentist to be on more than one such list.

284.  Section 28W(4) and (5) set out the matters that may be included in the regulations. This is to include the preparation, maintenance and publication of the lists and the procedure for applying for inclusion in a list, particularly details of information to be supplied to a PCT/LHB in order for that PCT/LHB to assess the applicant's suitability. Regulations are also to include matters such as the grounds on which a PCT/LHB may or must refuse an application for inclusion in a list; grounds on which a PCT/LHB may suspend or remove a person from a list and the procedure for doing so, and provision for making payments to or in respect of suspended practitioners. They are also to provide for the disclosure by PCT/LHB to prescribed persons of specified information about applicants for inclusion in a list as well as refusals or grants of applications and suspensions and removals from lists.

285.  The regulations may provide for any matter that corresponds to anything in section 49F-49N of the Act. This might cover issues such as:-

  (i) disqualification from the list (49F);

  (ii) contingent removal from the list (49G);

  (iii) suspension from the list (sections 49I, 49J and 49K);

  (iv) review of PCT/LHB decisions(49L);

  (v) appeals (section 49M);

  (vi) national disqualification(49N).

286.  The regulations are also to provide for an appeal, by re-determination to the Family Health Services Appeal Authority against any discretionary decision by a PCT/LHB. For example to remove, or contingently remove, a person from a primary care performers list or to apply conditions on a persons inclusion in the list.

Clause 176: Assistance and support

Clause 177: Abolition of Dental Practice Board

287.  These clauses contain no delegated powers.

Clause 178: Special Health Authorities

288.  Subsection (1) amends section 16B of the 1977 Act in relation to the exercise of functions by PCTs. An Order may provide for the transfer to a Special Health Authority of the rights and liabilities of a PCT under a GDS contract where the Special Health Authority is to exercise functions on its behalf, and for transfer back should that function cease. Similar provision is made for the Assembly in respect of Wales to transfer (and transfer back) the rights and liabilities of a LHB to a Special Health Authority. The power might be used to make the new Special Health Authority formally responsible for certain aspects of the contract rather than acting as an agent of the PCT. However, all this will depend on the shape of the contract and the division of work between the PCT and the new Special Health Authority. It is too early to say what exactly this division will be.

Clause 179: Charges for dental services

289.  Section 79A of the 1977 Act, provides for the charge to be paid by a patient for dental treatment under general dental services to be calculated by reference to the remuneration paid to the dentist. Clause 179 inserts a new section 79 and a new schedule 12ZA to the 1977 Act replacing sections 78A, 79 and 79A, and their regulation making power which link the calculation of dental charges to the remuneration of a dental practitioner and set out the authority for the dental charging regime.

290.  Subsection (1) of new section 79 provides for regulations to prescribe the way in which patient charges can be made and recovered for dental services.

291.  Subsection (2) provides that regulations made under subsection (1) may for example, set a maximum charge and exempt certain treatments from a charge. It is intended that dental charges will continue to bear relation to the level of service provided such as per course of treatment or per visit.

292.  Subsection (5) ensures that charges apply to all primary dental services whether provided under a GDS contract, PDS or by the PCT/LHB, and to dental appliances under other Part 1 services.

293.  Subsection (3) enables regulations made under subsection (1) to provide for the amount that PCTs, LHBs or Special Health Authorities recompense dental clinics or practices to be reduced by the amount that has been collected in patient charges by that clinic or practice.

294.  Schedule 12ZA maintains the same exemptions from dental charges as under the current provisions set out in s79 and Schedule 12 of the 1977 Act.

295.  Paragraphs 1, 2, 4 and 6 set out the circumstances in which dental charges will not apply. Paragraph 2 makes it clear that, normally, charges will not apply to the replacement or repair of appliances. Paragraph 3 provides that charges will, however, apply to the repair or replacement either of prescribed appliances, or of appliances which need to be repaired or replaced because of something that person supplied with the appliance has done (or where that person is under 16, something that their parent or guardian has done). Dental appliances will remain free of charge when provided by a hospital for its in-patients (paragraph 4). However, if dental appliances are provided for a hospital in-patient under GDS or PDS contracts or by a PCT as part of Primary Care Trust Dental Services, then the normal charges will apply (paragraph 5).

296.  Paragraph 7 enables regulations to prescribe the evidence that must be provided when a patient claims an exemption from charge. For example, a patient may be required to provide a birth certificate or FP92 Maternity Exemption Certificate issued by a PCT/LHB.

Clause 180: Minor and consequential amendments

297.  This clause introduces schedule 11 which provides for minor and consequential amendments. Paragraph 22, inserts sections 45Aand 45Binto the 1977 Act. These sections cover matter such as the recognition of Local Medical Committees (LMCs) and Local Dental Committees (LDCs). Sections 45A(7) to (9) and 45B(7) to (9) allow the Secretary of State to make regulations that require PCTs/LHBs or Strategic Health Authorities to consult LMCs and LDCs and to prescribe other functions of these Committees. Sections 45A and 45B separate out the roles of these committees from the existing provisions in sections 44&45 of the 1977 Act and the new regulation making powers simply replace those in section 45(1) in respect of LMCs and LDCs.

298.  Paragraph 25 makes a number of amendments to section 54 of the 1977 Act in relation to the sale of goodwill in medical practices. This includes a new regulation making power, which we are taking to ensure we achieve ECHR compatibility and coherence in the light of the changes to PCT commissioning patterns, for example the potential to have individual contracts just for additional services and/or out of hours services, if the PCT has to re-provision those services following opt-outs. The NHSC/GPC agreement (paragraph 7.21) agrees that the existing ban on the sale of goodwill needs to continue, and we will discuss the details of the subsequent regulations with the GPC and the Confederation.


 
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