Section 41 of National Health Service (Wales) Act 2006 (NHSWA 2006) provides that each Local Health Board (LHB) must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers to provide primary medical services in its area, or ensure that such services are provided. A LHB may, in addition to any other power conferred on it, provide primary medical services itself (whether within or outside its area), and make such arrangements for their provision as it considers appropriate. LHBs may make contractual arrangements with any person to this effect. The Welsh Ministers may make regulations to provide that services of a particular description must, or must not, be regarded as primary medical services.
Section 42 provides that a LHB may enter into a contract, known as a General Medical Services contract, under which primary medical services are to be provided. The contract may make such provision as is agreed between the parties in relation to the services to be provided, remuneration under the contract, and any other matters. The services to be provided under such a contract may include services which are not primary medical services and may include services to be provided outside the area of the LHB. Section 43 provides that the contract must require the person entering into the contract with the LHB (the contractor) to provide such primary medical services as are prescribed in regulations made by the Welsh Ministers.
The National Health Service (General Medical Services Contracts) (Wales) Regulations 2004 (SI 2004/478) (GMSCR 2004) provide, at regulations 15 and 16, for the ‘essential’ and ‘additional’ services which are to be provided under the contract. By virtue of section 4 of, and paragraph 1(2) of Schedule 2 to, the National Health Service (Consequential Amendments) Act 2006, GMSCR 2004 have effect as if made under section 42 of NHSWA 2006. A summary of the essential and additional services is provided below. However, GMSCR 2004 should be consulted for full details of the primary medical services that are to be provided under the contracts.
Essential services – Contractors must, throughout the core hours (Monday to Friday 8.00-18.30), provide services for the management of patients or temporary residents who are or believe themselves to be ill, terminally ill, or suffering from chronic disease, delivered in the manner determined by the medical practice in discussion with the patient, and must provide ongoing treatment and care to all registered patients and temporary residents including the provision of advice in connection with the patient’s health, and the referral of the patient for other services under NHSWA 2006.
A contractor must also provide primary medical services within core hours for the immediately necessary treatment of any person the contractor has been asked to treat as a result of an accident or emergency at any place in its practice area, and, in some circumstances, provide the same treatment for persons who are not registered with a provider in the LHB area.
Additional services – Contractors may be required to provide cervical screening, contraceptive services, vaccinations and immunisations for adults and/or children, child health surveillance, maternity medical services, and minor surgery.
Section 44 of NHSWA 2006 provides that a LHB may, subject to such conditions as may be prescribed in regulations made by the Welsh Ministers, enter into a General Medical Services contract with a medical practitioner, two or more individuals practising in partnership where the statutory conditions of section 44(2) are satisfied, or a company limited by shares where the statutory conditions of section 44(3) are satisfied. 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 holds a licence to practise under that Act.
Regulations 3 to 8 of GMSCR 2004 make further provision about eligibility to enter into a General Medical Services contract. The Regulations have effect as if made under section 44 of NHSWA 2006. A brief summary of the other requirements set out in the GMSCR 2004 is provided below.
Regulation 4 provides that the medical practitioner with whom the contract is made (or at least one of the partners or shareholders where the contract is made with a partnership or a company) must be a general medical practitioner, i.e. a medical practitioner whose name is included in the General Practitioner Register kept by the General Medical Council.
Regulation 5 provides that subject to exceptions set out in regulation 5(3)-(5), contracts may not be entered into with a medical practitioner, a partnership, or a company, where any of the practitioners (or any other partner or joint-owner, or the partnership/company itself):
- is subject to a national disqualification,
- is suspended,
- has been dismissed from employment in a health service body in the five years prior to the signing of the contract,
- has been removed from, or refused admission to, a primary care list,
- has been convicted of murder,
- has been convicted of committing a criminal offence other than murder since August 2002 and sentenced to a term of imprisonment of over six months,
- has been convicted of an offence elsewhere which would, if committed in England and Wales constitute murder, or which if committed in England and Wales since August 2002, would have led to a sentence of a term of imprisonment of over six months,
- has been convicted of an offence against children or young persons under the Children and Young Persons Act 1933,
- has been adjudged bankrupt or, made the subject of a bankruptcy restriction order, or made the subject of a debt relief restriction order,
- has been removed from office as a trustee of a charity, or
- is disqualified from being a company director.
Regulations 6 and 7 provide that where a LHB is of the opinion that the conditions set out in regulations 4 and/or 5 are not satisfied, it must write to the person who has applied to enter into the contract, setting out the reason for the refusal and informing the person of the right of appeal to the First-Tier tribunal provided by regulation 7.
In particular, the directions may:
provide for payments to be made by reference to compliance with standards or the achievement of levels of performance,
provide for payments to be made by reference to any scheme or scale specified in the direction, or a determination made by any person in accordance with factors specified in the direction,
provide for the making of payments in respect of individual practitioners,
provide that the whole or any part of a payment is subject to conditions, and
make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.
Before issuing a direction, the Welsh Ministers must consult any body appearing to them to be representative of persons to whose remuneration the direction would relate, and may consult such other persons as they consider appropriate.
The Welsh Ministers have made the Directions to Local Health Boards as to the Statement of Financial Entitlements 2013 (2013 No 8) (SFE 2013) in exercise of their power under section 45 of NHSWA 2006. SFE 2013 makes detailed provision about the content of General Medical Services contracts in relation to payment.
SFE 2013 has been subsequently amended by further directions issued by the Welsh Ministers. Care should be taken to ensure that the up to date version of SFE 2013 is used. Since it is a non-statutory instrument, SFE 2013 does not appear on the legislation.gov.uk website but it can be found in the ‘Legislation’ section of the Welsh Government website.
Prescription of drugs
Section 46 of NHSWA 2006 provides that a General Medical Services contract must contain provision requiring the contractor to comply with any directions given by the Welsh Ministers as to the drugs, medicines or other substances which may or may not be ordered for patients. Section 46(2) provides that, ordinarily, a section 46 direction must be given by regulations. It may be made by an instrument in writing, rather than regulations, where it gives effect to a request made to the Welsh Ministers by a person who is a holder of Community marketing authorisation or UK marketing authorisation in relation to the drug or medicine to which the request relates.
The National Health Service (General Medical Services Contracts) (Prescription of Drugs etc.) (Wales) Regulations 2004 (SI 2004/1022) make further provision about the prescription of drugs under General Medical Services contracts, and have effect as if made under section 46 of NHSWA 2006. Regulations 2 and 3 and the Schedules to the Regulations set out what drugs and medicines may be prescribed under General Medical Services contracts, and the particular circumstances in which certain drugs may be prescribed.
Other required contract terms
Section 47 of NHSWA 2006 provides that a General Medical Services contract must contain such provision as may be prescribed by the Welsh Ministers in regulations. In particular, any such regulations may make provision as to:
- the manner in which, and standards to which, services must be provided,
- the persons who perform services,
- the persons to whom services will be provided,
- the variation of contract terms,
- rights of entry and inspection,
- the circumstances in which, and the manner in which, the contract may be terminated,
- enforcement and the adjudication of disputes.
Any regulations made by the Welsh Ministers under section 47 must make provision as to the right of patients to choose the persons from whom to receive services.
Regulations 11 to 26 of the National Health Service (General Medical Services Contracts) (Wales) Regulations 2004 (GMSCR 2004) make provision about the other required contract terms. The Regulations have effect as if made under section 47 of NHSWA 2006 and require the contracts to include terms on:
- the names of the parties,
- whether the contract is to be regarded as an NHS contract,
- whether a contract with a partnership is to be regarded as a contract with the partnership as constituted from time to time,
- the duration of the contract,
- the essential and additional services (see above),
- out of hours provision,
- the issuing of free medical certificates,
- payments, including that the contract must include all the provisions of SFE 2013,
- fees and charges,
Resolution of disputes
Regulations may also make provision for a person entering into a General Medical Services contract to be regarded as a health service body in circumstances where that person so chooses, and for a contract with a partnership to be regarded as an NHS contract where the partners elect to become a health service body and there is a change in the membership of the partnership. If the provider is a health service body, this affects how any dispute relating to the contract is dealt with.
Regulation 9 of GMSCR 2004 makes provision about the resolution of disputes (and these Regulations have effect as if made under section 48 of NHSWA 2006). Regulation 9 provides that unless both parties to the prospective contract are health service bodies (in which case section 4(4) of the National Health Service and Community Care Act 1990 applies), if the parties cannot agree on a particular contract term, either party may refer the dispute to the Welsh Ministers to consider and make a binding determination on the matter. The determination may specify the terms to be included in the contract, may require the LHB to proceed with the proposed contract, but may not require the proposed contractor to proceed with the proposed contract, and shall be binding on the prospective parties.
Section 41 of the National Health Service Wales Act 2006 (NHSWA 2006) imposes a duty on each LHB to provide primary medical services, or to ensure that such services are provided. Section 49 of the same Act provides that the Welsh Ministers may make regulations setting out that a healthcare professional of a description prescribed in the regulations may not perform any primary medical service for which a LHB is responsible unless the healthcare professional is included in a list maintained under the regulations by that LHB.
The regulations may make provision, in particular, as to:
- the preparation, maintenance and publication of a list,
- applications for inclusion,
- grounds on which an application may or must be granted or refused,
- requirements with which a person included in a list must comply,
- suspension or removal from a list,
- circumstances in which a person may not withdraw from the list,
- payments to be made in respect of a person suspended from the list,
- the criteria to be applied in making decisions under the regulations,
- appeals against decisions made by a LHB under the regulations,
- disclosure of information about applicants for inclusion in the performers list, grants or refusals of applications, suspensions or removals, and
- disqualification of practitioners.
The regulations may also provide for:
- a person’s inclusion in a list to be subject to conditions determined by a LHB,
- a LHB to vary the conditions or impose different ones,
- the consequences of failing to comply with a condition, and
- the review by a LHB of decisions made by it by virtue of the regulations.
The National Health Service (Performers Lists) (Wales) Regulations 2004 (SI 2004/1020) make provision about performers lists and have effect as if made under section 49 of NHSWA 2006. Regulation 3 imposes a requirement on each LHB to prepare and publish a medical performers list and a dental performers list and make them available for public inspection. Regulation 4 provides for applications for inclusion in the list, including the documents and declarations that are required to be sent with the application. Regulation 6 provides for the general grounds on which medical and dental practitioners may or must be refused admission to the lists, regulation 9 provides for the conditions with which a person on a performers list must comply, regulations 10 to 12 provide for removal from the lists, regulation 13 provides for suspension from the list, and regulation 15 provides for appeals against a LHB’s decision. Regulations 21 to 27 make further and specific provision about medical performers lists.
Other arrangements for the provision of primary medical services – Personal Medical Services Agreements
Section 50 of the National Health Service (Wales) Act 2006 provides that a LHB may enter into agreements under which primary medical services are provided by someone (other than by the LHB). The agreements must be in accordance with regulations made by the Welsh Ministers under section 52 of that Act. Section 50 agreements are commonly known as Personal Medical Services Agreements (PMS agreements), and are an alternative to the General Medical Services contracts described above. The principal difference between the PMS agreements and the General Medical Services contracts is that PMS agreements are agreed locally between the LHB and the general practice, rather than negotiated at a national level. There are no PMS agreements are currently in operation in Wales.
Section 50 provides that a PMS agreement may not combine arrangements for the provision of primary medical services with arrangements for the provision of primary dental or pharmaceutical services, and section 51 provides that a PMS agreement may only be entered into with one or more of the following:
- an NHS Trust or an NHS foundation trust,
- a medical practitioner who meets conditions prescribed in the Welsh Ministers’ regulations,
- a health care professional who meets conditions prescribed in the Welsh Ministers’ regulations,
- an individual who is providing services under a General Medical Services Contract or a General Dental Services Contract (or their equivalent in England), or in accordance with similar arrangements, or providing particular services in Scotland or Northern Ireland,
- an NHS employee,
- a company limited by shares which is wholly owned by a person with whom a LHB would otherwise be able to enter into a PMS agreement, or
- a LHB.
The Welsh Ministers may make regulations about PMS agreements. Section 52 provides that any regulations must include provision for participants other than LHBs to withdraw from the arrangements if they wish to do so, must provide for the circumstances in which a person providing services under a PMS agreement must or may accept a person as a patient, may decline to accept a person as a patient, and may terminate their responsibility for a patient, and must provide for patients’ rights to choose the persons from whom they receive services under PMS agreements.
The Welsh Ministers’ regulations may also, in particular:
- provide that PMS agreements may be made only in prescribed circumstances or areas,
- provide that only prescribed services, or categories of service, may be provided under PMS agreements,
- impose conditions to be satisfied by persons performing services under PMS agreements,
- require details of PMS agreements to be published,
- make provision about the variation and termination of PMS agreements,
- make provision for the parties to be treated as health service bodies in particular circumstances,
- provide for directions as to payments to be enforceable in a county court as if they were judgments or orders of that court.
The regulations may also require payments to be made under the PMS agreements in accordance with directions given by the Welsh Ministers, may require in certain circumstances a LHB to enter into a General Medical Services contract with any person who is providing services under a PMS agreement and who so requests, and may include provision as to the resolution of disputes as to the terms of the agreement.
The Welsh Ministers have not exercised their power to make regulations in relation to PMS agreements, and no PMS agreements are currently in operation in Wales at the time of writing.
Assistance and support – General Medical Services Contracts and PMS agreements
Section 53 of the National Health Service (Wales) Act 2006 provides that a LHB may provide assistance or support to any person providing primary medical services under a General Medical Services contract or a PMS agreement. Assistance includes financial assistance.
Local medical committees
Section 54 of NHSWA 2006 provides that a LHB may recognise a committee formed for its area, and that of one or more other LHBs, which it is satisfied is representative of:
(a) each medical practitioner who, under a General Medical Services Contract, is providing primary medical services in the committee’s area, and each medical practitioner providing general ophthalmic services, and
(b) each other medical practitioner performing primary medical services in the area and who has notified the LHB that they wish to be represented by the committee.
The recognised committee is called the Local Medical Committee for the area for which it is formed. 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.
Regulation 27 of the National Health Service (General Medical Services Contracts) (Wales) Regulations 2004 makes provision about the functions of Local Medical Committees. The Regulations have effect as if made under section 54 of NHSWA 2006.