APPENDIX A

POLICY FOR THE MANAGEMENT OF PERFORMER LISTS

Policy Reference: / Version: 4 / Status: For Approval
Type: Operational
Policy applies to (area): Primary care professional lists
Policy applies to (staff groups): Primary Care Practitioners
Required compliance: This policy must be complied with fully at all times by the appropriate staff. Where it is found that this policy cannot be complied with fully, this must be notified immediately to the owner through the waiver process
Policy owner: /

Interim Director of Primary Care

Policy author: /

Clinical Governance Manager

Other contact: /

Medical Director

Date this version adopted:
Last review date: / March 2011
Next review date: / March 2013
Location of hardcopy master: / Primary Care Directorate NHS Suffolk
Location of electronic master:
EQUI assessed: / Yes

AGREED POLICY REVIEW / RATIFICATION / ADOPTION PATH:

Level 1:
Approval body:
Date agreed: / Level 2:
Approval body:Executive Management Team
Date agreed:
Level 3:
Approval body:LRC’s – for information & comment
Date agreed: / Level 4:
Approval body:Board
Date agreed:
STATEMENT OF OVERARCHING PRINCIPLES

All Policies, Procedures, Guidelines and Protocols of the Trust are formulated to comply with the overarching requirements of legislation, policies or other standards relating to equality and diversity.

  1. INTRODUCTION

1.1This policy describes NHS Suffolk’s responsibilities in relation to the management of its lists of primary care practitioners.

  1. PURPOSE OF THIS POLICY

2.1NHS Suffolk’s powers under current legislation are set out, together with a description of the local arrangements in place to allow the organisation to exercise these powers.

  1. POLICY AGREEMENT PATH

3.1See front cover of this document.

  1. DEVELOPMENT OF THIS POLICY

4.1The provisions of the NHS (Performers Lists) Regulations 2004 (as amended) set out the responsibilities of Primary Care Trusts in relation to the management and administration of Primary Care Performers Lists. The arrangements allow PCTs to regulate the performance of primary care services in their areas by making local decisions about the acceptability of primary care performers. This policy sets out NHS Suffolk’s procedures for managing its responsibilities under the Regulations

4.2The procedures in this policy apply to primary care performers (medical, dental, optometrists and pharmaceutical primary care contractors and dealspecifically within the processes for applications, suspensions, reviews and removals from the Lists of primary care practitioners held by NHS Suffolk. The relevant Regulations and guidance are detailed in paragraph 12.

4.3A practitioner (with the exception of a pharmaceutical primary care contractor) must be listed as a performer in order to perform NHSservices in a primary care setting. This applies whether a practitioner is an independent contractor or a practitioner who has been engaged or employed by a contractor or provider to perform the services (whether directly or via some other body or agency), or a practitioner who is employed to perform the services by a PCT. A practitioner who is on one PCT’s Performers List may perform primary care services in any PCT in England.

4.4The steps PCTs may take under the Regulations to regulate the performance of primary care services are quite distinct from the arrangements they have for ensuring that contractors comply with their contracts to provide services and the two systems should not be confused.

4.5Distinction between these procedures and employment contract procedures: where a contractor, provider or PCT employs a practitioner under a contract of service (or contract for services), any action that is taken under the provisions of the Performers Lists Regulations does not preclude other action that may be available under the terms of the contract. In the case of an employment contract with an NHS body this is dealt with in “Maintaining High Professional Standards in the Modern NHS” (Department of Health, December 2003).

4.6This policy is based on the ‘Procedures for the Conduct of Oral Hearings’ originally adopted in November 2004 by all the Suffolk PCTs following the introduction of the NHS Performers Lists) Regulations in April 2004. The following have been involved in the development of this policy; Head of Contractor Support, the Trust Secretary and Anglia Support Partnerships. All the Local Representative Committees have been consulted.

4.7This policy was updated in January 2010 following further guidance issued from the East of England Strategic Health Authority requiring the review of the process for applications to performers lists, following an investigation into the provision of out of hours services.The PCT will keep this policy under regular review to ensure that it is up to date and fit for purpose.

  1. CROSS REFERENCE TO OTHER RELATED POLICIES

5.1Protecting Patients – Supporting Practitioners

5.2Policy for Admission to the PCT’s Medical, Dental & Ophthalmic Performer’s Lists

  1. POLICY STATEMENTS

6.1DEFINITIONS

6.1.1'PCT’ shall mean the Primary Care Trust or NHS Suffolk or ‘the organisation’.

6.1.2‘First Tier Tribunal’ shall mean the First Tier Tribunal –Primary Health Lists Health Education and Social Care Chamber (HESCC).

6.1.3'The Regulations' shall mean the NHS (Performers Lists) Regulations 2004 as amended; the NHS (Pharmaceutical Services) Regulations 2005 as amended, as appropriate.

6.1.4'List' shall mean the lists referred to in the Regulations maintained by the PCT.

6.1.5'Local Representative Committee' (LRC) shall mean a Local Medical Committee, Local Dental Committee, Local Pharmaceutical Committee or Local Optical Committee, as appropriate, recognised by the PCT

6.1.6'Lay Person' shall mean a person, who is not and never has been:

(i)a doctor, dentist, ophthalmic medical practitioner, optician or pharmacist:

(ii)a registered dispensary optician;

(iii)a registered nurse, registered midwife or registered health visitor,

6.1.7'Practitioner' shall mean a general medical practitioner, general dental practitioner, dental corporation, Optometrist, Ophthalmic Medical Practitioners pharmacist or pharmaceutical corporation, as appropriate, included in a list (or in admission cases, applying to be included in the list) as defined above.

6.1.8“Professional person” shall mean a doctor, dentist, pharmacist, Optometrist, or Ophthalmic Medical Practitioner as appropriate.

6.1.9The ‘Responsible Board Member’ shall mean the person (or authorised deputy) who will make the decision to admit, conditionally admit, suspend, remove, or contingently remove a practitioner. The Responsible Board Member shall be an executive member of NHS Suffolk’s Board.

6.1.10'Removal Proceedings' shall mean proceedings by the PCT for the removal or contingent removal of a practitioner from a list

6.1.11'Review Proceedings' shall mean proceedings for the review of a decision to contingently remove, or suspend a practitioner under the Regulations

6.1.12‘Suspension Proceedings’ shall mean proceedings by the PCT for the suspensionof a practitioner from a list or to extend such a suspension under the Regulations.

6.1.13‘Admission Procedures’ shall mean proceedings arising from an application by a practitioner for admission to the list under the Regulations.

6.1.14Any reference to “he/him/his” includes reference to “she/her/hers”.

6.2POLICY STATEMENTS

6.2.1PCTs have the power to prevent a practitioner from performing primary care services, or to place restrictions (conditions) on a practitioner. These powers are exercised by making decisions regarding applications to the Lists, as well as suspensions and removals from the Lists.

6.2.2Applications:

Where, under the relevant Regulations, a practitioner has made an application for inclusion in a List, the PCT must consider the application and may decide to include, refuse admission to, or conditionallyinclude the practitioner in the List. Processes in respect of applications for inclusion in a list will usually be administered on behalf of the PCT by Anglia Support Partnership (ASP).

  • Applicants are required to provide information in support of their application, including declaration of previous criminal convictions, adverse findings by regulatory, licensing or other bodies, references, fraud investigations etc.
  • There are certain circumstances where a PCT must refuse to include a practitioner in a List, e.g. any practitioner with a murder conviction in the UK, or a criminal conviction that leads to a sentence of more than six months, or where a practitioner is nationally disqualified from the relevant list by the First Tier Tribunal - Primary Health Lists (HESCC). There is no appeal against such a refusal.
  • A PCT may refuse to include a practitioner in a List - such discretionary decisions allow PCTs to refuse admission where this appears justified on efficiency, fraud or suitability grounds. They can consider any information available to them but they must consider certain specified issues (set out in national guidance) and the Regulations (e.g. PL Regulation 11).
  • PCTs can defer consideration of applications in certain circumstances, eg whilst awaiting the outcome of an investigation by a professional regulatory body, or a court.
  • As an alternative to admitting or refusing to admit a practitioner to a List, a PCT can decide to make admission to the List conditional on adherence to specific conditions set by the PCT - conditional inclusion (only on grounds of efficiency or fraud).
  • A practitioner can appeal to the First Tier Tribunal - Primary Health Lists HESCC(Health, Education and Social Care Chamber) against a decision by a PCT to refuse admission to a List or to conditionally include him/her in a List or to remove or contingently remove from the list. A practitioner may exercise a further right of appeal to the Second Tier Tribunal against a decision but only on the point of law.

6.2.3Suspensions

  • PCTs have a discretionary power to suspend a practitioner where they consider it is necessary to protect members of the public or if it is otherwise in the public interest to do so.
  • Suspension can be pending a third party investigation (e.g. a practitioner charged with a criminal offence could be suspended from the NHS list pending the Crown Prosecution Service decision and any resultant court case), or whilst the PCT itself investigates serious concerns about the practitioner, or where the PCT has decided to remove the practitioner but before the decision takes effect, or pending an appeal to the First Tier Tribunal.
  • There is no right of appeal against a suspension, which is intended to be a neutral act. The practitioner can, however, request a Review under the appropriate Regulations (e.g. PL Regulation14 after a period of 3 months).
  • To the extent that a practitioner’s income is not maintained to a certain level whilst suspended, a separate determination made on behalf of the Secretary of State for Health requires PCTs to make payments to a suspended practitioner if he meets certain criteria set out in the Determination.

6.2.4Removals

  • PCTs are able to remove a practitioner from the List in similar circumstances to those that relate to refusal to admit, i.e. mandatory removals in certain circumstances and discretionary removals on grounds of efficiency, fraud or suitability.
  • Removal of a practitioner from a List will be seen as a last resort by the PCT. Complementary policies and systems for clinical governance, continued professional development, appraisal and occupational health services should play an important role in avoiding the need to use the PCT's formalpowers of removal.
  • PCTs can make retention on the List subject to conditions - contingent removal. If the condition(s) are not met, removal from the List will be likely to follow.A practitioner can appeal to the First-tier Tribunalagainst a decision by a PCT to remove him/her from a List or to contingently remove him/her. A practitioner may exercise a further right of appeal to the Second Tier Tribunal against a decision but only on a point of law.

6.2.5Reviews

  • The Regulations permit a PCT to review a decision it has taken at any time andalso permit the affected practitioner to seek a review of that decision.

6.2.6National Disqualifications

  • If a PCT has decided to refuse to include a practitioner in a List, or has removed a practitioner from a List – whether on mandatory or discretionary grounds – it may, if it considers the circumstances sufficiently serious, apply for a national disqualification to be imposed on that practitioner. The effect of a national disqualification is to exclude the practitioner from all PCT lists for the period or disqualification.

6.2.7Requirement for this policy document

  • When making the decisions described in paragraphs 6.2.2, 6.2.3 and in 6.2.4 above, the PCT will take into account any relevant facts and the relevant criteria as set out in the Performer’s List Regulations (2004). It is important that decisions are taken in line with the Regulationsby the relevant Responsible Board Memberand recorded in the Committee Minutes.
  • The PCT will not discriminate on grounds of gender, faith, race, disability, age or sexual orientation in the operation of any of the procedures dealt with in this document. Every case will be dealt with according to individual circumstances and care will be taken to avoid any risk of imposing preferences or prejudices, or of targeting the performance of individual performers because they appear to the PCT, or to PCT staff, to fit a stereotype.
  • Any decisions taken by PCTs must be procedurally robust as they may come under scrutiny by the First Tier Tribunal and may be vulnerable to other legal challenge.
  • Local arrangements need to command the confidence of local practitioners. The PCT may involve Local Representative Committees (LRCs) to help to publicise the local procedures within the profession, and to develop them in a way that maintains their confidence. Although PCTs are not obliged to consult LRCs on these matters, it is good practice to do so.

6.3Procedures for managing applications, suspensions, removals and reviews

6.3.1Applications:

Applications are reviewed by the appropriate professional adviser. The PCT will verify the identity of applicants, check that information provided by the applicant in relation to the application is complete, accurate and authentic,satisfyitself that the applicant intends to perform services in the PCT’s area and satisfy itself that the applicant has the knowledge of English necessary to perform services which those included on a performers list perform in that area. Where the applicationraises concerns, such as the authenticity of qualifications, incomplete career history, significant professional breaks, poor references or lack of relevant NHS experience, the procedure described in the flowchart at Appendix 2 should be followed.

In the event that an application is not proceeded with or it withdrawn or any information, references or documentation is not supplied pursuant to a request under Regulation 4(7) or is not supplied within the period specified in that request the PCT will consider disclosing those facts to the Secretary of State in accordance with Regulation 20(1) (a) of the PL Regulations.

The PCT will also implement arrangements for notifying persons or bodies about applicants and performers where necessary and in accordance with Regulation 16 and for disclosing information about applicants and performers in accordance with PL Regulation 20 where (i) itreceives a request for information about the applicant or performer from another PCT or from a UK health services body or (ii) where it receives information that an applicant or performer is included on the performers list of another PCT or any equivalent list published and maintained by a UK health services body.

6.3.2Removals, reviews or suspensions:

  • The PCT has in place procedures for dealing with concerns about a practitioner’s conduct, performance and competence (Protecting Patients – Supporting Practitioners policy). These procedures are flexible and allow for informal resolution of less serious problems.

The PCT may receive information about a practitioner from any source, and from that information decide to make further inquiries. Where a PCT is investigating a practitioner and reaches a point in that investigation where there is evidence to suggest that there is a realistic prospect that suspending, removing or contingently removing the practitioner will have to be considered on efficiency, fraud or unsuitability grounds, under their discretionary powers (mandatory decisions need simply to be signed off by the Responsible Board Member) the procedures in flowcharts at Appendices 3 and 4 should be followed.

6.3.3Determinations and reporting to the PCT Board

All decisions made by the Responsible Board Member must be notified to the practitioner in writing. The notification must include, as appropriate, reasons for the decision (including any facts relied upon) and clarification of any rights to appeal or review. The decision does not need to be ratified by the PCT Board, but the Board will note all decisions and receive progress reports.

6.3.4PCT appointments

  • The PCT CEO will be the Responsible Board Member,the responsible officer for the operation of the powers to refuse to admit, remove or suspend. The CEO should also nominate a deputy. The Responsible Board member will make all decisions to refuse admission to a List, conditionally include, suspend, remove or contingently remove a practitioner. In the majority of the cases, the Responsible Board Member will chair a panel, which will make the decisions on behalf of the PCT.
  • The PCT should nominate a suitably qualified and experienced Investigating Officer at the point when it becomes apparent that inquiries may lead to suspension or removal. The Investigating Officer will conduct the investigation and produce a report for the PCT. The PCT may wish to nominate an officer from outside the PCT to perform this role, or to advise upon it. The Investigating Officer may not be a member of the panel (see 7.2 below) or the Responsible Board Member.
  • If a practitioner asks for an oral hearing under the appropriate Regulations then the PCT must convene a panel. The procedures for the membership and operation of the panel are described in detail in Appendix 1. Membership of the panel is decided by the PCT and the following appointments should be made by the PCT:
  • The appointment of the Responsible Board Member to chair the panel.
  • The appointment of a deputy to perform the role of the Responsible Board Member in his/her absence.
  • The appointment of a legally qualified lay panel member, not an employee of the PCT to ensure independence of process and impartiality.
  • The appointment of a pool of suitably qualified professional representatives nominated by the LRCs.
  • The appointment of one or more lay non-executive PCT Board members or other PCT lay assistants as appropriate to sit on the panel when necessary.
  1. SUMMARY OF ROLES AND RESPONSIBILITIES

7.1Responsible Board Member - the CEO is the responsible officer for the operation of powers to refuse to admit, remove or suspend. The Responsible Board Member will make all decisions to refuse admission to a List, conditionally include, suspend, remove or contingently remove a practitioner.

7.2 Investigating Officer - the PCT will nominate a suitably qualified and experienced Investigating Officer. The Investigating Officer will conduct aninvestigation and produce a report for the PCT. The officer in question may be nominated from other NHS organisations.