Removal from performers list

     10.  - (1) The Primary Care Trust must remove the performer from its performers list where it becomes aware that he - 

(a) has been convicted in the United Kingdom of murder;

(b) has been convicted in the United Kingdom of a criminal offence, committed on or after the day prescribed in the relevant Part, and has been sentenced to a term of imprisonment of over six months;

(c) is subject to a national disqualification;

(d) has died; or

(e) is no longer a member of the relevant health care profession.

    (2) Where a Primary Care Trust is notified by the FHSAA that it has considered an appeal by a performer against - 

(a) a contingent removal by the Trust and has decided to remove him instead; or

(b) a conditional inclusion, where he has been conditionally included in a performers list until the appeal has been decided, and has decided not to include him,

the Trust shall remove him from its performers list and shall notify him immediately that it has done so.

    (3) The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied.

    (4) The conditions mentioned in paragraph (3) are that - 

(a) his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform ("an efficiency case");

(b) he is involved in a fraud case in relation to any health scheme; or

(c) he is unsuitable to be included in that performers list ("an unsuitability case").

    (5) For the purposes of this regulation, in addition to the services covered by the definition of

"health scheme" in section 49F(8), the following shall also be health schemes - 

(a) health services, including medical and surgical treatment, provided by the armed forces;

(b) services provided by Port Health Authorities constituted under the Public Health (Control of Disease) Act 1984[29];

(c) medical services provided to a prisoner in the care of the medical officer or other such officer of a prison appointed for the purposes of section 7 of the Prison Act 1952[30]; and

(d) publicly-funded health services provided by or on behalf of any organisation anywhere in the world.

    (6) Where the performer cannot demonstrate that he has performed the services, which those included in the relevant performers list perform, within the area of the Primary Care Trust during the preceding twelve months, it may remove him from its performers list.

    (7) Subject to any provision in the relevant Part, in calculating the period of twelve months referred to in paragraph (6), the Primary Care Trust shall disregard any period during which - 

(a) the performer was suspended under these Regulations; or

(b) he was performing whole time service in the armed forces in a national emergency (as a volunteer or otherwise), compulsory whole-time service in the armed forces (including service resulting from reserve liability), or any equivalent service, if liable for compulsory whole-time service in the armed forces.

    (8) Where a Primary Care Trust is considering removing a performer from its performers list under paragraphs (3) to (6) or regulations 8(2), 12(3)(c) or 15(6)(b) or contingently removing a performer under regulation 12(1), it shall give him - 

(a) notice of any allegation against him;

(b) notice of what action it is considering and on what grounds;

(c) the opportunity to make written representations to it within 28 days of the date of the notification under sub-paragraph (b); and

(d) the opportunity to put his case at an oral hearing before it, if he so requests, within the 28 day period mentioned in sub-paragraph (c).

    (9) If there are no representations within the period specified in paragraph (8)(c), the Primary Care Trust shall decide whether or not to remove the performer and then, within 7 days of making that decision, notify him of - 

(a) that decision and the reasons for it (including any facts relied upon); and

(b) any right of appeal under regulation 15.

    (10) If there are representations, the Primary Care Trust must take them into account before reaching its decision, and shall then, within 7 days of making that decision, notify him of - 

(a) that decision and the reasons for it (including any facts relied upon); and

(b) any right of appeal under regulation 15.

    (11) If the performer requests an oral hearing, this must take place before the Primary Care Trust reaches its decision, and it shall then, within 7 days of making that decision, notify him of - 

(a) that decision and the reasons for it (including any facts relied upon); and

(b) any right of appeal under regulation 15.

    (12) When the Primary Care Trust notifies the performer of any decision, it shall inform him that, if he wishes to exercise a right of appeal, he must do so within the period of 28 days beginning with the date on which it informed him of its decision and it shall tell him how to exercise any such right.

    (13) The Primary Care Trust shall also notify the performer of his right to have the decision reviewed in accordance with regulation 14.

    (14) Where the Primary Care Trust decides to remove a performer under paragraph (6), he shall not be removed from its performers list, until - 

(a) a period of 28 days starting with the day on which it reaches its decision; or

(b) any appeal is disposed of by the FHSAA,

whichever is the later.

Criteria for a decision on removal

     11.  - (1) Where a Primary Care Trust is considering whether to remove a performer from its performers list under regulation 10(3) and (4)(c) ("an unsuitability case"), it shall - 

(a) consider any information relating to him which it has received in accordance with any provision of regulation 9;

(b) consider any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply if the Trust so requests; and

(c) in reaching its decision, take into consideration the matters set out in paragraph (2).

    (2) The matters referred to in paragraph (1) are - 

(a) the nature of any offence, investigation or incident;

(b) the length of time since any such offence, incident, conviction or investigation;

(c) whether there are other offences, incidents or investigations to be considered;

(d) any action taken or penalty imposed by any licensing or regulatory body, the police or the courts as a result of any such offence, incident or investigation;

(e) the relevance of any offence, incident or investigation to his performing relevant primary services and any likely risk to any patients or to public finances;

(f) whether any offence was a sexual offence to which Part I of the Sexual Offences Act 1997[31] applies, or if it had been committed in England and Wales, would have applied;

(g) whether the performer has been refused admittance to, conditionally included in, removed, contingently removed or is currently suspended from any list or equivalent list, and if so, the facts relating to the matter which led to such action and the reasons given by the Primary Care Trust or equivalent body for such action; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admission to, conditionally included in, removed or contingently removed from any list or equivalent list or is currently suspended from any such list, and if so, what the facts were in each such case and the reasons given by the Primary Care Trust or equivalent body in each case for such action.

    (3) Where a Primary Care Trust is considering removal of a performer from its performers list under regulation 10(3) and (4)(b) it shall consider - 

(a) any information relating to him which it has received in accordance with any provision of regulation 9;

(b) any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply, if the Trust so requests; and

(c) the matters set out in paragraph (4).

    (4) The matters referred to in paragraph (3)(c) are - 

(a) the nature of any incidents of fraud;

(b) the length of time since the last incident of fraud occurred, and since any investigation into it was concluded;

(c) whether there are any other incidents of fraud, or other criminal offences to be considered;

(d) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such offence, investigation or incident;

(e) the relevance of any investigation into an incident of fraud to his performing relevant primary services and the likely risk to patients or to public finances;

(f) whether the performer has been refused admittance to, conditionally included in, removed, or contingently removed or is currently suspended from, any list or equivalent list, and, if so, the facts relating to the matter which led to such action and the reasons given by the Primary Care Trust or equivalent body for such action; and

(g) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admission to, conditionally included in, or removed or contingently removed from, any list or equivalent list, or is currently suspended from any such list, and if so, what the facts were in each such case and the reasons given by the Primary Care Trust or equivalent body in each case.

    (5) Where a Primary Care Trust is considering removal of a performer from its performers list under regulation 10(3) and (4)(a) ("an efficiency case"), it shall - 

(a) consider any information relating to him which it has received in accordance with any provision of regulation 9;

(b) consider any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply, if the Trust so requests; and

(c) in reaching its decision, take into account the matters referred to in paragraph (6).

    (6) The matters referred to in paragraph (5)(c) are - 

(a) the nature of any incident which was prejudicial to the efficiency of the services, which the performer performed;

(b) the length of time since the last incident occurred and since any investigation into it was concluded;

(c) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;

(d) the nature of the incident and whether there is a likely risk to patients;

(e) whether the performer has ever failed to comply with a request to undertake an assessment by the NCAA;

(f) whether he has previously failed to supply information, make a declaration or comply with an undertaking required on inclusion in a list;

(g) whether he has been refused admittance to, conditionally included in, removed or contingently removed or is currently suspended from any list or equivalent list, and if so, the facts relating to the matter which led to such action and the reasons given by the Primary Care Trust or the equivalent body for such action; and

(h) whether he was at the time, has in the preceding six months been, or was at the time of the originating events a director of a body corporate, which was refused admission to, conditionally included in, removed or contingently removed from, any list or equivalent list, or is currently suspended from any such list, and if so, what the facts were in each such case and the reasons given by the Primary Care Trust or equivalent body in each case for such action.

    (7) In making any decision under regulation 10, the Primary Care Trust shall take into account the overall effect of any relevant incidents and offences relating to the performer of which it is aware, whichever condition it relies on.

    (8) When making a decision on any condition in regulation 10(4), the Primary Care Trust shall state in its decision on which condition it relies.