The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018

Temporary opt outs and permanent opt outs following temporary opt outs

2.—(1) As soon as is reasonably practicable and in any event within the period of 7 days beginning on the date on which a temporary opt out notice mentioned in paragraph 1(5) is received, the Health Board must—

(a) approve the opt out notice and specify in accordance with sub‑paragraphs (3) and (4) the date on which the temporary opt out is to commence and the date that it is to come to an end (“the end date”); or

(b) reject the opt out notice in accordance with sub‑paragraph (2),

and must notify the contractor of its decision as soon as possible, including reasons for its decision.

(2) A Health Board may reject the temporary opt out notice on the ground that the contractor—

(a) is providing additional services to patients other than its own registered patients or enhanced services; or

(b) has no reasonable need temporarily to opt out having regard to its ability to deliver the additional service.

(3) The date specified by the Health Board for the commencement of the temporary opt out is to be, wherever reasonably practicable, the date requested by the contractor in its opt out notice.

(4) Before determining the end date, the Health Board must make reasonable efforts to reach agreement with the contractor.

(5) Where the Health Board approves an opt out notice, the contractor’s obligation to provide the additional service specified in the notice will be suspended from the date specified by the Health Board in its decision under sub‑paragraph (1), and is to remain suspended until the end date unless—

(a) the contractor and the Health Board agree in writing an earlier date, in which case the suspension is to come to an end on that date;

(b) the Health Board specifies a later date under sub‑paragraph (6), in which case the suspension is to end on that date;

(c) sub‑paragraph (7) applies and the contractor refers the matter to the NHS dispute resolution procedure (or, where applicable in the case of a non‑NHS contract, commences court proceedings), in which case the suspension will end—

(i) where the outcome of the dispute is to uphold the decision of the Health Board, on the day after the date of the decision of the adjudicator or, as the case may be, the court;

(ii) where the outcome of the dispute is to overturn the decision of the Health Board, 28 days after the decision of the adjudicator or, as the case may be, the court; or

(iii) where the contractor ceases to pursue the NHS dispute resolution procedure or, as the case may be, court proceedings, on the day after the date that the contractor withdraws its claim or the procedure is or proceedings are otherwise terminated by the adjudicator or the court;

(d) sub‑paragraph (9) applies and—

(i) the Health Board refuses the contractor’s request for a permanent opt out within the period of 28 days ending with the end date, in which case the suspension will come to an end 28 days after the end date;

(ii) the Health Board refuses the contractor’s request for a permanent opt out after the end date, in which case the suspension will come to an end 28 days after the date of service of the notice; or

(iii) the Health Board notifies the contractor after the end date that the assessment panel has not approved its proposed decision to refuse the contractor’s request to opt out permanently under sub‑paragraph (16), in which case the suspension will come to an end 28 days after the date of service of the notice under that paragraph.

(6) Before the end date, a Health Board may, in exceptional circumstances and with the agreement of the contractor, notify the contractor in writing of a later date on which the temporary opt out is to come to an end, being a date no more than six months later than the end date.

(7) Where the Health Board considers that—

(a) the contractor will be unable to satisfactorily provide the additional service at the end of the temporary opt out; and

(b) it would not be appropriate to exercise its discretion under sub‑paragraph (6) to specify a later date on which the temporary opt out is to come to an end or the contractor does not agree to a later date,

the Health Board may notify the contractor in writing at least 28 days before the end date that a permanent opt out will follow the temporary opt out.

(8) Where a Health Board notifies the contractor under sub‑paragraph (7) that a permanent opt out will follow a temporary opt out, the permanent opt out must take effect immediately after the end of the temporary opt out.

(9) A contractor who has temporarily opted out may, at least three months prior to the end date, notify the Health Board in writing that it wishes to opt out permanently of the additional service in question.

(10) Where the contractor has notified the Health Board under sub‑paragraph (9) that it wishes to opt out permanently, the temporary opt out must be followed by a permanent opt out beginning on the day after the end date unless the Health Board refuses the contractor’s request to opt out permanently by giving notice in writing to the contractor to this effect.

(11) A Health Board may only give a notice under sub‑paragraph (10) with the approval of the assessment panel.

(12) The Health Board must ensure that an assessment panel is appointed by another Health Board as soon as is practicable to consider and determine whether or not to approve the Health Board’s proposed decision to refuse a permanent opt out.

(13) The Health Board must provide the assessment panel with such information as the assessment panel may reasonably require to enable it to reach a determination.

(14) Where a Health Board seeks the approval of the assessment panel to a proposed decision to refuse a permanent opt out, it must notify the contractor of having done so.

(15) If the assessment panel has not reached a decision as to whether or not to approve the Health Board’s proposed decision to refuse a permanent opt out before the end date, the contractor’s obligation to provide the additional service is to remain suspended until the date specified in sub‑paragraph (5)(d)(ii) or (iii) (whichever is applicable).

(16) Where after the end date the assessment panel notifies the Health Board that it does not approve the Health Board’s proposed decision to refuse a permanent opt out, the Health Board must notify the contractor in writing of this fact as soon as is reasonably practicable.

(17) A temporary opt out or a permanent opt out commences, and a temporary opt out ends, at 0800 hours on the relevant day unless—

(a) the day is not a working day, in which case the opt out will take effect on the next working day at 0800 hours; or

(b) the Health Board and the contractor agree a different day or time.

(18) Any decision or determination by the assessment panel for the purposes of this paragraph may be reached by a majority.