5th Report, 2014 (Session 4): Subordinate Legislation

SP Paper 456 (Web Only)

DPLR/S4/14/R5

5th Report, 2014 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
Stuart McMillan (Deputy Convener)
John Scott
Stewart Stevenson

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 21 January 2014, the Committee agreed to draw the attention of the Parliament to the following instrument—

National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2013 (SSI 2013/355).

2. The Committee’s recommendations in relation to that instrument are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2013 (SSI 2013/355) (Health and Sport Committee)

4. The main purpose of the Regulations is to amend the principal 2006 Regulations on NHS general ophthalmic services, to correct an anomaly that is affecting access to domiciliary eye examinations (where the patient normally resides). The instrument corrects this situation, which was impacting on equal access to NHS eye examinations.

5. The Regulations are subject to the negative procedure, and are due to come into force on 3 February 2014.

6. In considering the instrument, the Committee asked the Scottish Government for explanation of a matter in connection with regulations 3(b) and 3(e). The correspondence is reproduced at the Annex.

7. Paragraphs (b) and (e) of regulation 3 substitute new definitions of “primary eye examination” and “supplementary eye examination” in regulation 2(1) of the principal 2006 Regulations.

8. The substituted definition for a primary eye examination becomes: “a general eye health check which includes a sight test, an internal and external examination of the eye as well as other tests and procedures appropriate to the needs of the patient.” The substituted definition for a “supplementary eye examination” “includes the tests and procedures appropriate to the clinical needs of the patient”. Before the substitution, the definitions in the 2006 Regulations refer directly to the tests and procedures as listed in the Tables in Schedules 3 and 4 of the principal Regulations (depending on whether it is a primary or supplementary examination).

9. The Committee queried why one new definition refers to the needs of the patient (in general), and the other refers to their clinical needs. The Scottish Government’s response to the Committee in conclusion states that it would be preferable for both definitions to use consistent terminology, and an amendment to that effect will be laid at the next convenient opportunity.

10. The response from the Scottish Government also contends that, while an amendment will be laid, in practice there should be no adverse effect or difference in the interpretation of the definitions. In reporting on this matter however, the Committee does not assess how in practice the new definitions of primary and supplementary eye examination may be likely to be interpreted. The Government’s response to the Committee has acknowledged that there is an inconsistency in the substituted definitions, which it is preferable to adjust by an amendment to be made at the next convenient opportunity. The Committee agrees with that approach.

11. The Committee therefore draws the Regulations to the attention of the Parliament on reporting ground (h) as the meaning of the instrument could be clearer in the following respect.

12. The definitions of “primary eye examination” and “supplementary eye examination” in regulations 3(b) and (e) could be made consistent in referring to tests and procedures which are appropriate to the needs of the patient.

13. The definition of “primary eye examination” refers to “other tests and procedures appropriate to the needs of the patient”. The definition of “supplementary eye examination” refers to “the tests and procedures appropriate to the clinical needs of the patient”.

14. The Committee notes that the Scottish Government will lay an amendment at the next convenient opportunity, as it would be preferable for both definitions to use consistent terminology.

NO POINTS RAISED

Health and Sport Committee

Sports Grounds and Sporting Events (Designation) (Scotland) Order 2014 (SSI 2014/5)

Infrastructure and Capital Investment Committee

Water and Sewerage Services to Dwellings (Collection of Unmetered Charges by Local Authority) (Scotland) Order 2014 (SSI 2014/3)

Justice Committee

Police Service of Scotland (Amendment) Regulations 2014 (SSI 2014/1)

Rural Affairs, Climate Change and Environment Committee

Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2014 (SSI 2014/2)

Environmental Protection (Duty of Care) (Scotland) Regulations 2014 (SSI 2014/4)

Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Amendment Regulations 2014 (SSI 2014/6)

Less Favoured Area Support Scheme (Scotland) Amendment Regulations 2014 (SSI 2014/7)

Long Leases (Appeal Period) (Scotland) Order 2014 (SSI 2014/8)

Long Leases (Prescribed Form of Notices etc.) (Scotland) Regulations 2014 (SSI 2014/9)

ANNEX

National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2013 (SSI 2013/355)

On 8 January 2014, the Scottish Government was asked:

Regulation 3(b) substitutes a definition of “primary eye examination” in regulation 2(1) of the principal 2006 Regulations - “a general eye health check which includes a sight test, an internal and external examination of the eye as well as other tests and procedures appropriate to the needs of the patient.”

Regulation 3(e) substitutes a definition of “supplementary eye examination”, which definition “includes the tests and procedures appropriate to the clinical needs of the patient”.

As it does not appear to be explained in the explanatory or policy notes, please clarify why one definition refers to clinical needs, but the other refers to needs in general - or whether there is any error in definition?

The Scottish Government responded as follows:

The Scottish Government notes the difference in reference to ‘clinical needs of the patient’ in the substituted definition of supplementary eye examination and to ‘needs of the patient’ in the substituted definition of primary eye examination. The definitions of both types of eye examination require to be substituted as a result of the policy decision to remove the detail of tests and procedures that may be performed at an eye examination from the principal 2006 Regulations to the Statement detailed in regulation 17 of the principal 2006 Regulations.

However notwithstanding their substitution, the meaning of both types of eye examination remains the same as it was in the principal 2006 Regulations. Both definitions provide that the patient must only be given tests and procedures during an eye examination that are appropriate based on their individual need and a decision as to what is appropriate will always be based upon the practitioner’s clinical assessment of the patient. For example, paragraph 14(1A) of Schedule 1 to the principal 2006 Regulations (as substituted by regulation 8(3) of the amending Regulations) illustrates how practitioners determine the appropriate tests and procedures that should be given to a patient during an eye examination. Paragraph 14(1A)(a) notes that one example of where a test or procedure should not be given is where the existence of a patient’s underlying condition renders the giving of such a test clinically inappropriate. This demonstrates that practitioners should base their decision on which tests and procedures a patient needs on their clinical assessment of that patient. It follows that the process of assessing a patient’s need for a test or procedure could not be completed without considering their clinical requirements. As such, the Scottish Government considers that there will be no adverse effect or difference in interpretation from the inclusion of the term ‘clinical’ in the substituted definition of “supplementary eye examination”. The Scottish Government accepts that it would be preferable for both definitions to use consistent terminology and will seek to amend them to that effect at the next convenient opportunity. However for the reasons set out above, the Scottish Government considers that the meaning of the definitions in regulation 3(b) and (e) are sufficiently clear.

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