Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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The functions of the FHSAA will transfer to the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal in January 2010. This article summarises the effect of the changes for PCTs' List Management functions and activities, sets out their practical implications, and advises PCTs on the steps that they should now take in light of these changes.
The functions of the FHSAA will transfer to the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal in January 2010.
The FHSAA is an independent tribunal controlled by the
President. It is independent of the Department of Health, is
not a Special Health Authority, and it is not accountable to the
Secretary of State for Health. Appeals and applications are made to
Currently general practitioners (GPs), dentists and optometrists need to be on a locally managed performers list before being able to provide NHS services within the area of a Primary Care Trust (PCT). The FHSAA hears appeals and applications resulting from decisions made by PCTs as part of the local management of such performers lists.
The President will allocate appeals and applications to panels normally consisting of a legal chairman, a professional member and a lay member. The panels will hold oral hearings into the matters referred to them unless the appellant or applicant says that they do not want one. Panels may give their decisions at the end of the hearing or they may reserve their determination.
However, under the Tribunals, Courts and Enforcement Act 2007 the FHSAA will be transferred to the Tribunals Service, an Executive Agency of the Ministry of Justice.
The Tribunals, Courts and Enforcement Act 2007 (the Act) deals with a variety of issues, such as judicial appointments, enforcement, certification of bailiffs. It also introduces significant changes in how the tribunal system operates.
The effect of the Act is to transfer existing tribunal jurisdictions to a newly created and unified pair of tribunals:
The tribunals are concerned with the review of executive power and are independent of the agencies whose decisions they will be considering. It is intended that the jurisdictions which are currently vested in the vast number of administrative tribunals is transferred into either the First-tier or the Upper Tribunal. The purpose behind this reorganisation is to reform and simplify the rules and procedures for jurisdictions as they move into the First–tier Tribunal and Upper Tribunal.
This is a new generic tribunal. Its main function is to hear appeals against decisions of the Government where the tribunal has been given jurisdiction. There are currently four chambers:
The functions of the FHSAA are being transferred into the Health, Education and Social Care Chamber.
The main functions of the Upper Tribunal are to:
It should be noted that the functions of the FHSAU are not affected by these amendments - it is only the administration of the FHSAA which is transferred to the Tribunals Service.
Therefore any primary care contract disputes (where the contractor is classed as an NHS body) will still have to go to the FHSAU for determination. In addition the FHSAU continues to be responsible, as before, for determining appeals against PCT decisions concerning the provision of pharmaceutical services (under the NHS (Pharmaceutical Services) Regulations 2005) and those concerning payments to suspended primary care practitioners.
Appeals arising from decisions taken under the Performers Lists Regulations (e.g. refusal to include on a list, conditional inclusion, removal from a list, and contingent removal) will go to the Tribunals Service. Appeals before the Tribunal Service will take on a far more “court-like” structure in the way that they are approached and dealt with.
One consequence of this is that the Tribunals Service has cost awarding powers (unlike the FHSAA). Briefly this means that, following the determination of a case, the tribunals may make costs awards such as:
It is important to note that even if a PCT is successful and is awarded costs, any such acts or omissions on its behalf may still result in a wasted costs order being made against it.
Costs orders will be made at the tribunal’s discretion. In exercising their discretion on costs, the tribunals are encouraged to consider all the circumstances of the case, including:
Under s.11 of the Act there is a right of appeal to the Upper Tribunal on a point of law arising from any First-tier Tribunal decision (as long as it is not an excluded decision).
The Upper Tribunal has the power to set aside, remit or remake the decision.
There is a further right of appeal to the Court of Appeal on any point of law arising from a decision (other than an “excluded decision”) made by the Upper Tribunal. It may remit the matter to the Upper Tribunal, to the First-tier Tribunal or can re-make the decision itself – making “such findings of fact as it considers appropriate”.
In both of the above instances permission to appeal must be sought at the outset.
In light of the above, and in particular the ability to award costs, PCTs need to ensure they deal with Performers List Regulations cases in a more structured way to ensure strict compliance with the regulatory framework. Case handling procedures and oral hearing policies and/or procedures will need to be robust to reduce the likelihood of successful challenge.
PCTs must take into account the rules of natural justice and the obligations that are placed on them throughout the entire list process. For example, natural justice requires that every party has the right to a fair hearing, and every party has the right to be heard by an impartial tribunal, under Article 6 of the European Convention of Human Rights (ECHR). In addition, those accused of wrongdoing have rights such as access to legal representation and the right to examine witnesses against them or have them examined.
In light of this more rigorous tribunal process we advise PCTs that you:
One way in which you can monitor your List Management functions and activities is to employ a Panel Clerk to oversee the decisions and actions that are undertaken by the PCT in regard to List management. The employment of such a clerk can centralise responsibility for ensuring robust procedures are in place and consistently adhered to, and for ensuring adequate training is given to those who exercise list management functions.
Should any additional advice or information be required in relation to any of the above please contact a member of our Commercial Healthcare Team who will be able to offer further assistance.