Office of Public Sector Information

“(2A) In sub-paragraph (1)(c) above as it has effect in relation to functions of the Tribunal conferred by or under any enactment relating to the preferential treatment of medical practitioners on transferring to medical lists, the reference to the person concerned is a reference to the medical practitioner to whom the matter before the Tribunal relates.”

59 (1) Schedule 9 is amended as follows.

(2) In paragraph 1(1) and (3), omit “, or any part of the goodwill,”.

(3) In paragraph 1, for sub-paragraph (2) substitute—

“(2) Any person proposing to be a party to a transaction or series of transactions which he thinks might amount to a sale of the goodwill of a medical practice in contravention of section 35(1) may ask the Medical Practices Committee for a certificate under this paragraph.”

(4) In paragraph 1, omit sub-paragraph (8).

(5) In paragraph 2, for sub-paragraph (1) substitute—

“(1) For the purposes of section 35(1) and paragraph 1, a disposal of premises previously used for the purposes of a medical practice shall be deemed to be a sale of the goodwill of a medical practice if—

(a) the person disposing of the premises did so knowing that another person (“A”) intended to use them for the purposes of A’s medical practice; and

(b) the consideration for the disposal substantially exceeded the consideration that might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice.

(1A) If a person disposes of any premises together with any other property, the court shall, for the purposes of sub-paragraph (1), make such apportionment of the consideration as it thinks just.

(1B) For the purposes of sub-paragraphs (1) and (1A)—

(a) “disposal” means any sale, letting or other form of disposal (whether by a single transaction or a series of transactions) and “disposes” and “disposing” are to be read accordingly; and

(b) a person who procures the disposal of any premises is to be treated as having disposed of them.”

(6) In paragraph 2(2)—

(a) omit “between medical practitioners”; and

(b) omit “, or part of the goodwill,”.

(7) In paragraph 2, for sub-paragraph (3) substitute—

“(3) Sub-paragraph (3A) applies if a person (“the assistant”)—

(a) performs services on behalf of a person who carries on a medical practice (or as an employee of a person employing a practitioner who carries on a medical practice);

(b) receives substantially less remuneration for performing those services than might reasonably have been expected, having regard to the circumstances at the time when the remuneration was fixed; and

(c) subsequently succeeds, whether as a result of a partnership agreement or otherwise, to that practice.

(3A) For the purposes of section 35 and paragraph 1, a sale of the goodwill of the practice is to be deemed to have taken place (at the time when the remuneration was fixed), unless it is proved that the remuneration was not fixed in contemplation of the assistant’s succeeding to the practice.”

(8) In paragraph 2, for sub-paragraphs (4) and (5) substitute—

“(4) For the purposes of section 35(1) and paragraph 1, the goodwill of a medical practice shall be deemed to have been sold if—

(a) a person carrying on the practice (or employing a practitioner who carries on a medical practice) agrees, for valuable consideration—

(i) to do or refrain from doing any act, for the purpose of facilitating the succession of another person to the practice; or

(ii) to allow any act to be done, for that purpose; or

(b) a person—

(i) gives valuable consideration to a person carrying on the practice (or employing a practitioner who carries on a medical practice); and

(ii) succeeds, or has previously succeeded, to the practice.

(5) Sub-paragraph (4) does not apply—

(a) if it is proved that no part of the consideration was given in respect of the goodwill; or

(b) to anything done—

(i) in relation to the acquisition of premises for the purposes of a medical practice;

(ii) in pursuance of a partnership agreement; or

(iii) in the performance of medical services by one person as an assistant to another.”

(9) In paragraph 2, for sub-paragraph (7) substitute—

“(7) For the purposes of section 35 and this Schedule—

(a) consideration is deemed to be given to a person (“B”) if—

(i) it is given to another person but with B’s knowledge and consent; and

(ii) it appears to the court that B has derived, or will derive, a substantial benefit from the giving of the consideration; and

(b) unless the context otherwise requires, references to a person include, in the case of an individual who has died, references to his personal representative.”

(10) At the end insert—

“Carried-over goodwill

3 The fact that a person’s medical practice was previously carried on by another person who at any time provided general medical services or personal medical services does not, by itself, make it unlawful under section 35(1) for the goodwill of his practice to be sold.”

60 In Schedule 11, in paragraph 1(1)(b), after “drug or medicine” insert “(otherwise than in accordance with section 17C arrangements)”.

The Medical Act 1983 (c. 54)

61 (1) The Medical Act 1983 is amended as follows.

(2) In section 11(4), in the definition of “approved”, for “, in relation to a hospital or institution,” substitute “(except in subsection (5)”.

(3) In section 13—

(a) in subsection (1), for “approved hospital or approved institution” substitute “approved hospital, approved institution or approved medical practice”;

(b) in subsection (2), for “hospital or institution” substitute “hospital, institution or medical practice”;

(c) in subsection (3)(a), for “an approved hospital or an approved institution” substitute “an approved hospital, an approved institution or an approved medical practice”.

(4) In section 15(3), for “approved hospitals or approved institutions” substitute “approved hospitals, approved institutions or approved medical practices”.

(5) In section 21(3), for “approved hospitals or approved institutions” substitute “approved hospitals, approved institutions or approved medical practices”.

The Dentists Act 1984 (c. 24)

62 In section 53(3)(a) of the Dentists Act 1984, for the words from “services under” to “1978 or” substitute—

“(a) services under—

(i) section 2, 3, 5(1)(a) or 28C of, or Schedule 1 to, the [1977 c. 49.] National Health Service Act 1977;

(ii) section 17C, 36, 38 or 39 of the [1978 c. 29.] National Health Service (Scotland) Act 1978; or

(iii)”.

The Copyright, Designs and Patents Act 1988 (c. 48)

63 In section 240(4) of the Copyright, Designs and Patents Act 1988, for the words from “(a) pharmaceutical services” to the end of the subsection substitute—

“(a) pharmaceutical services, general medical services or general dental services under—

(i) Part II of the National Health Service Act 1977,

(ii) Part II of the National Health Service (Scotland) Act 1978, or

(iii) the corresponding provisions of the law in force in Northern Ireland; or

(b) personal medical services or personal dental services in accordance with arrangements made under—

(i) section 28C of the 1977 Act,

(ii) section 17C of the 1978 Act, or

(iii) the corresponding provisions of the law in force in Northern Ireland.”

The Health and Medicines Act 1988 (c. 49)

64 (1) The Health and Medicines Act 1988 is amended as follows.

(2) In section 2(1)(a), for the words from “provision of general medical services” to “Act 1978” substitute “provision of—

(i) general medical services under Part II of the National Health Service Act 1977 or Part II of the National Health Service (Scotland) Act 1978; or

(ii) personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act”.

(3) In section 8(2) omit “(a) or”.

(4) In section 17, at the end insert—

“(3A) This section applies also in relation to additional pharmaceutical services provided under arrangements made in accordance with directions under section 41A of the National Health Service Act 1977 or section 27A of the National Health Service (Scotland) Act 1978.”

The National Health Service and Community Care Act 1990 (c. 19)

65 (1) The National Health Service and Community Care Act 1990 is amended as follows.

(2) In section 5, after subsection (6) insert—

“(6A) The functions of an NHS trust also include power to provide services in accordance with arrangements made under section 28C of the principal Act, and to do so as a member of a qualifying body (within the meaning of section 28D of that Act).”

(3) In section 14(1), after “principal Act” insert “, or (in the case of practitioners who are not employed by another person) personal medical services in accordance with arrangements made under section 28C of that Act,”.

(4) For section 14(6)(g) substitute—

“(g) the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) above is also—

(i) on the medical list of a Health Board; or

(ii) providing personal medical services in accordance with arrangements made under section 17C of the [1978 c. 29.] National Health Service (Scotland) Act 1978;”.

(5) In section 15(4)(b), for “individuals on the list of patients of any of the members of the practice” substitute “practice patients”.

(6) In section 15(7)(b)—

(a) after “general medical services” insert “or personal medical services provided in accordance with arrangements made under section 28C of the principal Act”;

(b) for “individuals on the lists of patients of the members of the practice” substitute “practice patients”.

(7) In section 15, after subsection (9) insert—

“(10) In this section “practice patient”, in relation to a recognised fund-holding practice, means an individual who is on the list of patients of any of the members of the practice (or, if any of those members together have a single list of patients in connection with arrangements made under section 28C of the principal Act, an individual who is on that single list).”

(8) In section 18(1) for “subsection (2)” substitute “subsections (2) and (8)”.

(9) In section 18(3)—

(a) in paragraph (a), after “who” insert “is on the medical list of a Health Authority and”; and

(b) for paragraph (b) substitute—

“(b) in the case of two or more medical practitioners who practise in partnership with each other, each medical practitioner who is on the medical list of a Health Authority;”.

(10) After section 18(7) insert—

“(8) This section does not apply in relation to the performance or provision of personal medical services in accordance with arrangements made under section 28C of the principal Act.”

(11) In section 62(7), after paragraph (a)(i) in the definition of “services” insert—

“(ia) arrangements made under section 28C of that Act;”.

The Access to Health Records Act 1990 (c. 23)

66 (1) The Access to Health Records Act 1990 is amended as follows.

(2) In section 1(2), for paragraph (a) substitute—

“(a) in the case of a record made by a general practitioner (other than an employed practitioner), or by a health professional employed by such a general practitioner—

(i) the general practitioner on whose list the patient is included (or, where the patient is included on the list of a medical practice consisting of two or more partners who are general practitioners, any such partner); or

(ii) where the patient is not on any such list, the Health Authority or Health Board by arrangement with whom a general practitioner last treated him;”.

(3) In section 11, in the definition of “general practitioner”, for the words from “providing” to “Act 1978” substitute “—

(a) providing general medical services in accordance with arrangements made under section 29 of the [1977 c. 49.] National Health Service Act 1977 or section 19 of the [1978 c. 29.] National Health Service (Scotland) Act 1978; or

(b) performing personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act”.

The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)

67 In section 279 of the Trade Union and Labour Relations (Consolidation) Act 1992—

(a) after “as a person” insert “performing personal medical services or personal dental services or”;

(b) before “29” insert “28C,”; and

(c) before “19” insert “17C,”.

The Health Service Commissioners Act 1993 (c. 46)

68 (1) The Health Service Commissioners Act 1993 is amended as follows.

(2) In section 2A(1), for the words from “if they are” to “Act 1977” substitute “if they are—

(a) individuals undertaking to provide in England general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in England general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in England personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)”.

(3) In section 2A(2), for the words from “if they are” to “Act 1977” substitute “if they are—

(a) individuals undertaking to provide in Wales general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in Wales general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Wales personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)”.

(4) In section 2A(3), for the words from “if they are” to “Act 1978” substitute “if they are—

(a) individuals undertaking to provide in Scotland general medical services or general dental services under Part II of the [1978 c. 29.] National Health Service (Scotland) Act 1978;

(b) persons (whether individuals or bodies) undertaking to provide in Scotland general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Scotland personal medical services or personal dental services in accordance with arrangements made under section 17C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)”.

(5) In section 3, after subsection (1) insert—

“(1ZA) Any failure or maladministration mentioned in subsection (1) may arise from action of—

(a) the health service body,

(b) a person employed by that body,

(c) a person acting on behalf of that body, or

(d) a person to whom that body has delegated any functions.”

Part II Pre-consolidation Amendments

The National Health Service Act 1966 (c. 8)

69 (1) Section 10 of the National Health Service Act 1966 is amended as follows.

(2) In subsection (1), omit “Part II of the [1977 c. 49.] National Health Service Act 1977 or” and “section 56 of the said Act of 1977 or”.

(3) In subsection (2), omit “the Minister or, as the case may be,”.

(4) Omit subsection (3).

The National Health Service Act 1977 (c. 49)

70 The 1977 Act is amended in accordance with paragraphs 71 to 78.

71 (1) Section 29 is amended as follows.

(2) In subsection (1), after “regulations” insert “which shall be made for the purpose”.

(3) In subsection (2)(a), for “of lists” substitute “by each Health Authority of a list” and after “services” insert “for persons in the Health Authority’s area”.

(4) Subsection (4) continues to have effect as originally enacted.

72 In section 35(1), after “regulations” insert “which shall be made for the purpose”.

73 In section 36(1)(a), for “of lists” substitute “by each Health Authority of a list” and after “services” insert “for persons in the Health Authority’s area”.

74 In section 38(1), after “with regulations” insert “which shall be made for the purpose”.

75 In section 39(a), for “of lists of medical practitioners, and ophthalmic opticians, respectively,” substitute “by each Health Authority of a list of medical practitioners and a list of ophthalmic opticians” and after “services” insert “for persons in the Health Authority’s area”.

76 In section 41, after “with regulations” insert “which shall be made for the purpose”.

77 Omit section 43A(3).

78 Omit paragraph 37 of Schedule 15.

Transitional provisions for amendments to 1977 Act

79 (1) This paragraph applies where an amendment made by this Part of this Schedule to section 29(1), 35(1), 38(1) or 41 of the 1977 Act imposes a duty on the Secretary of State to make regulations for certain purposes.

(2) If immediately before the amendment comes into force—

(a) regulations made for the same purposes are in force under the provision concerned or a related provision, and

(b) the regulations would have wholly, or to any extent, discharged the duty if it had been operative when they were made,

the regulations shall be deemed to discharge that duty, wholly or (as the case may be) to that extent.

(3) Nothing in this Part of this Schedule shall affect the validity of the regulations mentioned in sub-paragraph (2).

The Health and Medicines Act 1988 (c. 49)

80 In section 17(1) of the Health and Medicines Act 1988, for “36, 39 or 42” substitute “35, 36, 38, 39, 41 or 42”.

The Health Service Commissioners Act 1993 (c. 46)

81 In section 6(5) of the Health Service Commissioners Act 1993 for “36, 39 or 42” substitute “35, 36, 38, 39, 41 or 42”.