General ophthalmic services
Section 71 of the National Health Service (Wales) Act 2006 (NHSWA 2006) provides that each Local Heath Board (LHB) must, in accordance with regulations made by the Welsh Ministers, arrange with medical practitioners with the prescribed qualifications and with optometrists, for securing sight tests by them for:
- persons whose resources are deemed, under regulations made by the Welsh Ministers, as being less than or equal to those persons’ requirements, or
- persons of such other description as may be prescribed by the regulations.
The regulations made under section 71 must define the services for the provision of which arrangements must be made, referred to as ‘general ophthalmic services’, and may:
- direct how a person’s resources and requirements must be calculated for the purposes of ascertaining whether a LHB is under a duty to arrange for the provision of sight tests for that person,
- describe persons by reference to the following criteria:
- the fact that a prescribed person or body accepts them as suffering from a prescribed medical condition,
- the fact that a prescribed person or body accepts that a prescribed medical condition from which they suffer arose in prescribed circumstances,
- their receipt of benefit in money or in kind under any legislation, or the entitlement to receive such benefit,
- their receipt of such benefit by other persons satisfying prescribed conditions, or the entitlement to receive such benefit.
Section 206 of NHSWA 2006 defines an optometrist as a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989, or in the register of visiting optometrists from relevant European States under section 8B(1) of that Act, or a body corporate registered in the register of bodies corporate maintained under section 9 of that Act carrying on business as an optometrist. Section 206 of NHSWA 2006 and section 5 of, and Schedule 1 to, the Interpretation Act 1978 define a ‘medical practitioner’ as a fully registered person within the meaning of the Medical Act 1983 who hold s a licence to practise under that Act.
Sections 72 to 74 of NHSWA 2006 make further provision about what may be included in any regulations made by the Welsh Ministers in exercise of their power under section 71.
Section 72 provides that the Welsh Ministers’ regulations may provide for the arrangements to be made under section 71 and must include provision:
- for the preparation and publication by each LHB of a list of medical practitioners and a list of optometrists who undertake to provide general ophthalmic services for persons in the area of the LHB. This list is known as the ‘ophthalmic list’, and may only contain the names of registered opticians and medical practitioners with the required qualifications. Supplementary performers lists exist for other persons who assist in the provision of general ophthalmic services (see below),
- for conferring a right on any medical practitioner having the prescribed qualifications, and any optometrist, who wishes to be included in a ophthalmic list, to be included,
- for conferring on any person a right to choose the medical practitioner or optometrist by whom his or her sight will be tested, or from whom any prescription for the supply of optical appliances will be obtained, and
- for the removal from an ophthalmic list of the name of any person who has never provided, or has ceased to provide, general ophthalmic services for persons in that area.
Section 72(3) provides that the regulations may, in particular, make provision in relation to:
- grounds on which a LHB may, or must, refuse to include a medical practitioner or an optometrist in an ophthalmic list,
- information which must be supplied to a LHB by a person included or seeking inclusion in an ophthalmic list,
- the supply to a LHB by an individual who is included in the list, or is seeking to be included, or an individual who is a director of a body corporate which is included in the list or seeking inclusion, of relevant certificates, including criminal record certificates,
- grounds on which a LHB may defer a decision whether or not to include a person in the ophthalmic list,
the disclosure by a LHB to prescribed persons of information about applicants, and refusals by the LHB to include them,
- criteria to be applied in making decisions under the regulations. If a LHB may refuse to include a person in an ophthalmic list, the regulations must also provide for an appeal to the First-tier Tribunal.
Before making regulations under section 71 of NHSWA 2006, the Welsh Ministers must consult such organisations as they consider appropriate who appear to them to represent persons providing general ophthalmic services.
Section 104 of NHSWA 2006 makes further provision in relation to ophthalmic (and pharmaceutical) lists. It provides that the Welsh Ministers may make regulations to provide:
- that if a person is included in an ophthalmic list, they are subject to conditions determined by the LHB,
- for the LHB to vary that person’s terms of service in connection with the imposition of such conditions,
- that the LHB may vary the conditions or impose different ones,
- for the consequences of failing to comply with a condition (including removal from the list), and
- for the review by the LHB of any decision made by virtue of the regulations.
If regulations provide for the above, the regulations must also provide for an appeal by the practitioner to the First-tier Tribunal against the LHB’s decision:
- to impose conditions,
- to vary conditions,
- to vary terms of service,
- on any review of an earlier such decision of the LHB,
- to remove that practitioner from the list for breach of condition.
If the regulations provide for a practitioner’s removal from the list, the regulations may provide that the practitioner may not withdraw from the list while the LHB is conducting an investigation, and must provide that the practitioner is to be given:
- notice of any allegation against them,
- the opportunity to put their case before the LHB at a hearing, and
- notice of the LHB’s decision and the reasons for it and for a right of appeal to the First-tier Tribunal.
Regulation 7D of the National Health Service (General Ophthalmic Services) Regulations 1986 (SI 1986/975) makes provision for conditional inclusion in the ophthalmic list and has effect as if made under section 104 of NHSWA 2006.
Section 73 of NHSWA 2006 provides that the Welsh Ministers’ power under section 71 to prescribe the qualification required by any medical practitioner includes a power to:
- prescribe a requirement that the practitioner must show to the satisfaction of a committee recognised by the Welsh Ministers for the purpose that he possess such qualifications, including experience, as may be mentioned in the regulations, and
- confer on a person who is dissatisfied with the determination of such a committee, a right of appeal to a committee appointed by the Welsh Ministers.
Section 74 of NHSWA 2006 provides that regulations may provide that, where the regulations confer a right on a person to choose the person by whom general ophthalmic services will be provided, that right must, in the case of prescribed persons, be exercised on their behalf by other prescribed persons.
The National Health Service (General Ophthalmic Services) Regulations 1986 make provision about the arrangements for general ophthalmic services under the National Health Service in Wales. The Regulations have effect as if made under section 71 of the NHSWA 2006.
The Regulations make provision about matters such as:
- the qualifications of ophthalmic medical practitioners (regulation 3),
- approval of qualifications of ophthalmic medical practitioners (regulation 4),
- the ophthalmic list (regulation 6),
- application for inclusion in the ophthalmic list, grounds for refusal and the right of appeal to the First-tier Tribunal (regulations 7A-7C),
- conditions for inclusion (regulation 7D),
- withdrawal from the ophthalmic list (regulation 8),
- removal from the ophthalmic list (regulation 9 – 9E),
- the determination of fees paid to the providers of general ophthalmic services – ‘the Statement’ (see further below) (regulation 10),
- the terms upon which general ophthalmic services are provided (regulation 11 and Schedule 11),
payment for services in accordance with the Statement (regulations 12 and 12A) (see further below),
eligibility for sight tests (regulation 13.
Inadequate provision of ophthalmic services
Remuneration for persons providing general ophthalmic services
Section 76 of NHSWA 2006 provides that the remuneration to paid to persons providing general ophthalmic services must be determined by the Welsh Ministers, or so far as they are authorised to do so by the Welsh Ministers by means of an ‘instrument of appointment’, a LHB or any other person. The instrument of appointment may contain requirements with which the determining authority must comply.
Section 76(6) provides that the Welsh Ministers may make regulations about determining remuneration for the providers of general ophthalmic services. Section 76(7) provides that that the regulations may provide that determinations may be made by reference to:
- rates or conditions of remuneration which are fixed or determined, otherwise than by way of determination under section 76 of NHSWA 2006,
- scales, indices or other data of any description specified in the regulations.
Section 76(9) provides that the regulations may provide that the determining authorities may make determinations which have effect in respect of a period beginning before the date of the determination, but that they may only do so if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates.
Section 77 of NHSWA 2006 provides that before the Welsh Ministers determine the level of remuneration which relates to all persons who provide general ophthalmic services, they must consult a body appearing to them to be representative of persons to whose remuneration the determination would relate, and may consult such other persons as they consider appropriate. Determinations may make different provision for different cases, including different provision for any particular case, class of case or area.
Section 77(6) provides that the remuneration may be determined from time to time and may consist of payments by way of salary, fees, allowances and reimbursements. Section 77(10) provides for some of the relevant factors that the determining authority will be required to take into account, including:
- the amount or estimated amount of expenses incurred in the past or likely to be incurred in the future in connection with the provision of general ophthalmic services,
- the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services,
- the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by such persons,
- the extent to which it is desirable to encourage the provision, either generally or in particular places, of general ophthalmic services,
- the desirability of promoting general ophthalmic services which are economic, efficient, and of an appropriate standard.
Regulations 10, 12 and 12A of the National Health Service (General Ophthalmic Services) Regulations 1986 make provision about remunerating the providers of ophthalmic services. The Regulations have effect as if made under section 76 of NHSWA 2006.
Regulation 10 provides that the Welsh Ministers must, after consultation with such organisations as appear to them to be representative of contractors providing general ophthalmic services, make provision in a determination, known as the ‘Statement’ as to:
- the fees to be paid by a LHB for the testing of sight by ophthalmic medical practitioners and opticians, and
- the allowances to be paid in respect of continuing education and training (CET).
The Statement must be published, and may be amended after consultation with such organisations as appear to the Welsh Ministers to be representative of contractors providing general ophthalmic services.
Regulation 12 provides that a LHB shall make payments to contractors in accordance with the Statement, and makes provision for the recovery of overpayment. Regulation 12A provides that a LHB shall make payments to any suspended ophthalmic medical practitioner or suspended optician in accordance with the determination made by the Welsh Ministers in relation to such payments. Regulation 12A(3)-(5) provides for the making of the determination in relation to suspended practitioners.
In relation to the Statement of remuneration for (non-suspended) ophthalmic medical practitioners and opticians, the Welsh Ministers have made the Statement of General Services Remuneration. The latest version was made in August 2014 and is available under the legislation tab of the eye care section of the NHS Wales website.
The Statement provides that the fee payable to a contractor for an NHS sight test carried out on or after 1 April 2014 is £21.10, that the fees payable to a contractor, in addition to the NHS sight test fee, for an NHS domiciliary visit are £37.19 for each of the first and second patients seen at one visit, and £9.31 for each of the third and subsequent patients seen at one visit, and that, subject to certain requirements, a practitioner may claim a CET allowance of £529 per year.
In relation to the determination for suspended practitioners, the Welsh Ministers have made the Determination on Payments to Suspended Practitioners Providing General Ophthalmic Services in exercise of their power under section 12A of the National Health Service (General Ophthalmic Services) Regulations 1986. The latest version was made in April 2010 and is available under the legislation tab of the eye care section of the NHS Wales website.
Amongst other things, the Determination in relation to suspended practitioners provides that the LHB shall, for each month that the practitioner is suspended, pay such sum as seems to the LHB to be fair and reasonable, having regard in particular to the average monthly remuneration paid to the practitioner before the suspension.
The National Health Service (Optical Charges and Payment) Regulations 1997 (SI 1997/818) makes further provision about payments made by LHBs to practitioners. The regulations have effect as if they were made, partly, under section 76 of NHSWA 2006. The Regulations provide, for example, at regulation 5 for the LHB to make a payment of a sight test voucher’s redemption value to a sight tester. The majority of the provisions in these Regulations are made in relation to charges paid by patients for sight tests etc., rather than to the payments to be made to the practitioners. Further information on charging can be found here.
Local Optical Committees
Section 78 of NHSWA 2006 provides that a LHB may recognise a committee formed for its area, or for its area and that of one or more other LHBs, which it is satisfied is representative of the optometrists providing general ophthalmic services in that area. The recognised committee is called the Local Optical Committee for the area.
The Welsh Ministers may make regulations to require a LHB to consult any committee recognised by it on such occasions and to such extent as may be prescribed, and a committee has such other functions as may be prescribed by the Welsh Ministers. The Welsh Ministers have not exercised their power to make regulations in this respect.
Part 8 of NHSWA 2006 makes further provision about qualification to practice. Section 105 provides that the Welsh Ministers may make regulations providing for the preparation and publication by each LHB of one or more lists of persons approved by the LHB for the purpose of assisting in the provision of general ophthalmic services and pharmaceutical services. Such a list is known as a ‘supplementary list’. This is to be distinguished from the ophthalmic list, since the supplementary list relates to persons assisting in the provision of services (i.e. otherwise than as principals in their own right).
The Welsh Ministers’ regulations in relation to supplementary lists may, in particular, make provision for the matters listed in section 105(3) and (4). There is the power to make provision about:
- the LHB to which an application for inclusion in a supplementary list must be made,
- the procedure for applying for inclusion,
- grounds on which the LHB may, or must, refuse a person’s application,
- requirements with which a person included in a supplementary list must comply,
- grounds on which a LHB may, or must, suspend or remove a person from a supplementary list, the procedures for doing so, and the consequence of doing so,
- payments to persons who are suspended from a supplementary list,
- the supply to the LHB by an applicant of a criminal conviction certificate and/or an enhanced criminal record certificate,
- circumstances in which a person included in a supplementary list may not withdraw from it,
- criteria to be applied in making decisions under the regulations,
- appeals against decisions of LHBs,
- the disclosure by a LHB to prescribed persons of prescribed descriptions, of information of a prescribed description about applicants for inclusion in a supplementary list.
The regulations may also provide for:
- conditions imposed by a LHB for a person’s inclusion in a supplementary list,
- the LHB’s power to vary the conditions,
- the consequence of failing to comply with a condition, and
- the review by the LHB of its decisions.
If the regulations provide that a LHB may suspend or remove a person from a supplementary list, they must include provision requiring the LHB to give that person:
- notice of any allegation against him or her,
- the opportunity to put his or her case before the LHB at a hearing, and
- notice of the LHB’s decision and the reasons for it and for a right of appeal to the First-tier Tribunal.
Finally, section 106 provides that regulations made by the Welsh Ministers under section 105 may require a person, ‘A’, included in an ophthalmic list (or a pharmaceutical list) not to employ or engage another person, ‘B’, to assist. A provision of the service to which the list relates unless B is included in a list, including:
- an ophthalmic or pharmaceutical list,
- a supplementary list,
- a medical or dental list.
If regulations are made to that effect, they need not require both persons A and B to be included in lists prepared by the same LHB, but may require both A and B to be included in lists prepared by an LHB. The intention in this respect is to help those who work across LHB boundaries by normally requiring them to join one, rather than several, supplementary lists.
The National Health Service (General Ophthalmic Service Supplementary List) and (General Ophthalmic Services) (Amendment and Consequential Amendment) (Wales) Regulations 2006 (SI 2006/181) have effect as if partly made in exercise of the Welsh Ministers powers under section 105 of NHSWA 2006.
Regulation 3 of the Regulations provides that each LHB must prepare and publish a supplementary list, and provide that no ophthalmic medical practitioners or opticians may assist in performing general ophthalmic services unless his or her name is included in such a list or in an ophthalmic list.