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SOMERSET PRIMARY CARE TRUST (1)

AS CO-ORDINATING COMMISSIONER FOR ITSELF AND AS AGENT FOR AND ON BEHALF OF THE ASSOCIATES

AND

TAUNTON AND SOMERSET NHS FOUNDATION TRUST (2)

AS PROVIDER

TERMS AND CONDITIONS FOR THE PROVISION OF HEALTH SERVICES

Gateway Reference 9164 C O N T E N T S

1. DEFINITIONS AND INTERPRETATION...... 1

2. COMMENCEMENT, DURATION AND TRANSITION...... 1

3. CO-ORDINATING COMMISSIONER AND REPRESENTATIVES...... 2

4. SERVICES...... 2

5. SERVICES ENVIRONMENT AND EQUIPMENT...... 4

6. CO-OPERATION...... 4

7. PRICES AND PAYMENT...... 4

8. REVIEW...... 6

9 CONSENT...... 8

10 COMPLAINTS...... 8

11 STAFF...... 8

12 CLINICAL NETWORKS AND SCREENING PROGRAMMES...... 9

13 EMERGENCY AND CRITICAL CARE...... 9

14 DEATH OF A PATIENT...... 9

15 SERIOUS UNTOWARD INCIDENT AND PATIENT SAFETY INCIDENT REPORTING...... 10

16 QUALITY...... 10

17 PROCEDURES AND PROTOCOLS...... 11

18 DISCHARGE OBLIGATIONS...... 11

19 CLINICAL GOVERNANCE, RECORDS AND AUDIT...... 12

20 MANAGING ACTIVITY AND REFERRALS...... 13

21 PATIENT HEALTH RECORDS...... 13

22 CONFIDENTIAL INFORMATION OF THE PARTIES...... 14

23 INTELLECTUAL PROPERTY...... 15

24 NHS BRANDING, MARKETING AND PROMOTION...... 15

25 CHAPLAINCY...... 15 26 LIABILITY AND INSURANCE...... 15

27 DATA PROTECTION & FREEDOM OF INFORMATION...... 16

28 DISPUTE RESOLUTION...... 16

29 INFORMATION REQUIREMENTS...... 18

30 MONITORING...... 20

31 SERVICE TARGETS AND CANCELLED OPERATIONS...... 20

32 PERFORMANCE...... 21

33 CLINICAL QUALITY REVIEW...... 25

34 SUSPENSION...... 29

35 TERMINATION...... 30

36 CONSEQUENCES OF EXPIRY, TERMINATION OR SUSPENSION...... 33

37 INDUCEMENTS TO PURCHASE...... 35

38 VARIATIONS...... 35

39 REPRESENTATIONS AND WARRANTIES...... 35

40 NOTICES...... 36

41 FORCE MAJEURE...... 36

42 EMERGENCY RESPONSE AND MAJOR INCIDENTS...... 37

43 NHS COUNTER-FRAUD AND SECURITY MANAGEMENT...... 37

44 THIRD PARTY RIGHTS...... 37

45 WAIVER...... 37

46 ENTIRE AGREEMENT...... 37

47 SEVERABILITY...... 38

48. ASSIGNMENT AND SUB-CONTRACTING...... 38

49. CHANGE IN CONTROL...... 38

50. EXCLUSION OF PARTNERSHIP...... 39

51. NON-SOLICITATION...... 39

52. PROVISIONS SURVIVING TERMINATION...... 39

53. CONFLICTS OF INTEREST...... 39 54. EQUALITY OF ACCESS AND NO DISCRIMINATION...... 39

55. NON-COMMISSIONED ACTIVITY...... 40

56. COMPLIANCE WITH THE LAW...... 40

57. COUNTERPARTS...... 40

58. REMEDIES...... 40

59. COSTS AND EXPENSES...... 40

60. GOVERNING LAW AND JURISDICTION...... 40 S C H E D U L E S

SCHEDULE 1

DEFINITIONS AND INTERPRETATION...... 42

SCHEDULE 2

THE SERVICES...... 59

PART 1:SERVICE SPECIFICATIONS...... 59 PART 2: DISCHARGE PROTOCOLS...... 60 PART 3: MAJOR INCIDENT PLAN AND EMERGENCY RESPONSE PLAN...... 61 PART 4: ESSENTIAL SERVICES...... 64 SCHEDULE 3

MANAGING ACTIVITY AND REFERRALS, CARE AND RESOURCE UTILISATION TECHNIQUES AND RETENTION OF PAYMENT SCHEME...... 66

PART 1:MANAGING ACTIVITY AND REFERRALS...... 66 PART 2:PATIENT BOOKING AND PATIENT CHOICE...... 82 PART 3: EMERGENCY AND CRITICAL CARE PROCEDURE...... 84 PART 4:QUALITY STANDARDS...... 86 SCHEDULE 4

TRANSITION...... 111

PART 1:CONDITIONS PRECEDENT...... 111 PART 2: LONGSTOP DATE...... 111 PART 3:TRANSITION ARRANGEMENTS...... 111

SCHEDULE 5

INFORMATION REQUIREMENTS...... 112

PART 1:MANDATORY NATIONAL REQUIREMENTS...... 112 PART 2:NATIONAL REQUIREMENTS FOR LOCAL DEFINITION...... 112 PART 3:LOCAL REQUIREMENTS...... 114 SCHEDULE 6

VARIATION PROCEDURE...... 116

PART 1:VARIATION PROCEDURE...... 116 PART 2:RECORDED VARIATIONS AND DISPUTE RESOLUTIONS...... 117 SCHEDULE 7

ADDITIONAL USE OF PERSONAL DATA...... 118

SCHEDULE 8

NHS BRANDING, MARKETING AND PROMOTION...... 119

SCHEDULE 9

DISPUTE RESOLUTION PROCEDURE...... 120

SCHEDULE 10

PROVIDER’S SUB-CONTRACTORS...... 126 PART 1:DEFINITION OF “MATERIAL SUB-CONTRACT”...... 126 PART 2:MATERIAL SUB-CONTRACTORS...... 126 PART 3:OTHER SUB-CONTRACTORS...... 126 SCHEDULE 11

CONSORTIUM AGREEMENT AND COMMISSIONING INTENTIONS...... 127

PART 1:CONSORTIUM AGREEMENT OR ESTABLISHMENT AGREEMENT...... 127 PART 2:COMMISSIONING INTENTIONS...... 137 PART 3:NOTICES TO AGGREGATE / DISAGGREGATE PAYMENTS...... 139 SCHEDULE 12

SERIOUS UNTOWARD INCIDENTS AND PATIENT SAFETY INCIDENTS...... 140

SCHEDULE 13

NHS COUNTER-FRAUD AND SECURITY MANAGEMENT...... 141

PART 1:NHS COUNTER-FRAUD AND SECURITY MANAGEMENT FOR NON-NHS PROVIDERS...... 141 PART 2:NHS COUNTER-FRAUD AND SECURITY MANAGEMENT FOR NHS PROVIDERS...... 142 SCHEDULE 14

DOCUMENTS RELIED ON...... 148

SCHEDULE 15

PERFORMANCE MONITORING FORMS...... 149

SCHEDULE 16

INTELLECTUAL PROPERTY...... 158

PART 1:PROVIDER IPR...... 158 PART 2:PCT IPR...... 158 SCHEDULE 17

NOTICES...... 159

SCHEDULE 18

PERFORMANCE INCENTIVE SCHEMES...... 160

PART 1:NATIONALLY MANDATED INCENTIVE SCHEMES...... 160 PART 2: LOCALLY AGREED INCENTIVE SCHEMES...... 160 SCHEDULE 19

LOCATION OF PROVIDER’S PREMISES...... 161

SCHEDULE 20

CLINICAL NETWORKS AND SCREENING PROGRAMMES...... 162

SCHEDULE 21

PROVISIONS THAT MAY BE VARIED...... 163 THIS AGREEMENT is made on the 1st day of April 2008

BETWEEN

(1) Somerset Primary Care Trust, in its capacity as host Primary Care Trust to the Yeovil District Hospital NHS Foundation Trust whose principal office is at Wynford House (the "Co- ordinating Commissioner"), for itself and as agent for and on behalf of the Associates

(2) Taunton and Somerset NHS Foundation Trust whose principal or registered office address is at Musgrove Park Hospital, Taunton, Somerset, TA1 5DA (the "Provider")

BACKGROUND:

This Agreement is made by the Co-ordinating Commissioner and its Associates (the “Commissioners”) with the Provider to secure the provision of healthcare services by the Provider.

The Commissioners wish to secure the provision of healthcare services to Patients and the Provider wishes to provide such services on the following terms.

IT IS AGREED:

1. DEFINITIONS AND INTERPRETATION

1.1 This Agreement shall be interpreted in accordance with Schedule 1 (Definitions and Interpretation).

1.2 The Parties shall have regard to the NHS Core Principles.

2. COMMENCEMENT, DURATION AND TRANSITION

2.1 This Agreement shall take effect on the date it is executed by or on behalf of the Parties (the “Effective Date”).

2.2 Subject to satisfaction of the Conditions Precedent, the Provider shall commence delivery of the Services on 01/04/2008. If the Conditions Precedent are not satisfied in full on or prior to 01/04/2008 then, subject to clause 35.9.10, the Provider shall commence delivery of the Services on but not before the date that the Conditions Precedent are satisfied. The date on which the Provider commences delivery of the Services in accordance with this clause 2.2 shall be the “Service Commencement Date”.

2.3 This Agreement shall expire on 31 March of the calendar year in which the third anniversary of the Service Commencement Date falls (the “Expiry Date”), unless it is terminated earlier in accordance with clause 35 (Termination), or extended by up to 1 year from the Expiry Date in accordance with clauses 2.5, 2.6, 2.7 and 2.8.

2.4 The period beginning on the Effective Date and ending on the day before the Service Commencement Date shall be the transition period (the “Transition Period”). During the Transition Period the Parties shall plan the Services; agree the Activity Plan for the first Contract Year to the extent that it has not been agreed prior to the Effective Date; satisfy the Conditions Precedent; and work together and reasonably assist one another to facilitate the delivery of the Services on the Service Commencement Date; and during the Transition

1 Period the Parties may in addition implement any Transition Arrangements set out in Schedule 4 Part 3.

2.5 The Co-ordinating Commissioner may in its discretion propose to the Provider that this Agreement should be extended in whole or in part by a period of 3 months commencing on the day after the Expiry Date (the “First Extension”), by issuing to the Provider, not later than 3 months prior to the Expiry Date, an extension request notice (the “First Extension Request”).

2.6 Within 10 Operational Days of the Provider’s receipt of the First Extension Request, the Co- ordinating Commissioner and the Provider shall meet to discuss and agree whether to proceed with the First Extension, and if the Co-ordinating Commissioner and the Provider agree to proceed with the First Extension, this Agreement shall not expire on the Expiry Date but on the final day of the First Extension, unless it is further extended in accordance with clause 2.7.

2.7 The Co-ordinating Commissioner may in its discretion, 1 month prior to the expiry of any previously agreed extension period (including the First Extension), propose to the Provider that this Agreement should be extended in whole or in part by a further period of 3 months commencing on the day after the final day of the previously agreed extension period (a “Subsequent Extension”), by in each case issuing to the Provider, not later than 1 month prior to the expiry of the previously agreed extension period, an extension request notice (a “Subsequent Extension Request”), provided that there shall not be more than 3 Subsequent Extensions under this Agreement.

2.8 Within 10 Operational Days of the Provider’s receipt of a Subsequent Extension Request, the Co-ordinating Commissioner and the Provider shall meet to discuss and agree whether to proceed with the Subsequent Extension, and if the Co-ordinating Commissioner and the Provider agree to proceed with the Subsequent Extension, this Agreement shall not expire on the final day of the previously agreed extension period, but on the final day of the Subsequent Extension, unless it is agreed to be extended further in accordance with clause 2.7 and this clause 2.8.

2.9 The Provider and the Co-ordinating Commissioner shall each notify the other of any material change to any Conditions Precedent document that it has delivered to the other pursuant to Schedule 4 Part 1 within 5 Operational Days of becoming aware of such change.

3. CO-ORDINATING COMMISSIONER AND REPRESENTATIVES

3.1 The Co-ordinating Commissioner shall act for itself in relation to such Schedules and Annexes that bear its own name and as agent for its Associates (who are separate principals) in relation to such Schedules and Annexes that bear their names, and sums payable are to be severally attributed to the relevant Associate or to the Co-ordinating Commissioner, as appropriate.

3.2 The Co-ordinating Commissioner and the Provider shall each appoint representatives and deputy representatives to be their key points of contact for day-to-day communications.

4. SERVICES

4.1 Subject to clause 4.2, the Provider shall provide relevant Services to each Patient, either from the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) or from the premises of its Sub-contractors in accordance with the terms of this Agreement, and in particular but without limitation in accordance with:

4.1.1 the Service Specifications set out in Schedule 2 Part 1;

4.1.2 the Activity Plans set out in Annex 1 to Schedule 3 Part 1;

2 4.1.3 the requirements of Patient Booking and Patient Choice set out in Schedule 3 Part 2;

4.1.4 the Quality Standards set out in Schedule 3 Parts 4A and 4B; and

4.1.5 the Law, including the Code of Conduct for Payment by Results and the PbR Guidance.

4.2 The Provider shall not be required to provide or to continue to provide Services to Patients:

4.2.1 who in the reasonable professional opinion of the relevant responsible clinician are unsuitable for treatment, for as long as such unsuitability remains; or

4.2.2 in respect of whom no valid consent has been given in accordance with the Consent Policy; or

4.2.3 who display abusive, violent or threatening behaviour unacceptable to the Provider (provided that the Provider must act reasonably and take into account the mental health of such Patients).

4.3 Where the Provider proposes not to provide or to discontinue provision of Services to any Patient under clause 4.2:

4.3.1 the Provider shall explain to the Patient the action that it is taking and the reasons for it (following up any oral explanations in writing within 2 Operational Days) and tell the Patient that he/she has the right to challenge the Provider's decision through the Provider’s complaints procedure; and

4.3.2 the Provider shall inform the Co-ordinating Commissioner and the Patient’s GP, and shall liaise with the relevant Commissioner and the Patient’s GP to resolve the issue of the treatment of the Patient in a way that minimises any disruption to the Patient's care.

4.4 Where the Provider, the relevant Commissioner and the Patient’s GP cannot agree on the continued treatment of a Patient, the Provider shall (subject to any discharge requirements under clause 18 (Discharge Obligations)) notify the Co-ordinating Commissioner, the relevant Commissioner and the Patient’s GP that it will discontinue treatment of that Patient, and the Co-ordinating Commissioner shall liaise with the relevant Commissioner and the Patient’s GP to procure alternative treatment for that Patient.

4.5 The Provider shall not withhold any clinically urgent treatment that is in the best clinical interests of any Patient other than in accordance with clause 4.2, nor shall the Provider withhold any treatment on the grounds of the behaviour of any person other than the Patient.

4.6 Where the Provider discontinues provision of Services to a Patient under clause 4.2, the relevant Commissioner shall pay the Provider in accordance with clause 7 (Prices and Payment) for Services provided to such Patient prior to the Patient’s discharge, unless such activity requires rectification by another provider.

4.7 Unless a relevant Prior Approval Scheme applies, the Provider shall avoid carrying out, or referring to another provider to carry out, any non-urgent or routine treatment that is unrelated to a Patient's original referral or presentation without first referring the matter to the Patient's GP.

4.8 The Provider shall at all times during the term of this Agreement maintain its ability to provide, and shall ensure that it is able to offer to the Commissioners, the Essential Services.

4.9 The Provider shall have and at all times maintain an up-to-date plan agreed with the Co- ordinating Commissioner to ensure the continual availability to the Commissioners of the Essential Services in the event of any interruption or suspension of the Provider’s ability to provide them, and in the event of any partial or entire suspension or termination of this

3 Agreement (the “Essential Services Continuity Plan”). The Provider shall, in consultation with the Co-ordinating Commissioner, implement the Essential Services Continuity Plan as required in any such event.

4.10 The Provider shall maintain a Business Continuity Plan and shall notify the Co-ordinating Commissioner within 5 Operational Days of its activation.

4.11 The Provider and the Commissioners shall comply with their respective obligations in relation to Patient Booking and Patient Choice set out in Schedule 3 Part 2.

5. SERVICES ENVIRONMENT AND EQUIPMENT

5.1 The Provider shall at all times comply with the Law and the Quality Standards in relation to the Services Environment and the Equipment and shall ensure that they are suitable and sufficient. The Provider shall store, use and maintain all Equipment strictly in accordance with the manufacturer's instructions.

6. CO-OPERATION

6.1 The Provider and the Commissioners shall co-operate in accordance with the Law, Good Clinical Practice and Good Healthcare Practice to ensure the performance of the Services in accordance with this Agreement, having regard at all times to the best interests of the Patients.

6.2 The Provider shall co-operate fully with the Commissioners, and any third party engaged by the Co-ordinating Commissioner, in order to:

6.2.1 ensure a co-ordinated approach to promoting the quality of Patient care across all pathways spanning more than one provider; and

6.2.2 achieve a continuation of the Services that avoids inconvenience to, or risk to the health and safety of Patients, employees of the Commissioners or members of the public.

6.3 The Parties wish to encourage the improvement of the Services (in particular as regards quality, clinical outcomes, patient experience, information provision and the Services Environment) and to achieve this objective the Co-ordinating Commissioner and the Provider may agree a Services development plan.

6.4 The Provider shall ensure that the provision by it of any activity to NHS Bodies that are not Commissioners for the purposes of this Agreement shall not hinder or in any way adversely affect its delivery of the Services to the Commissioners or its performance of this Agreement generally.

7. PRICES AND PAYMENT

7.1 Subject to clauses 29.14, 29.15, 32.16, 32.17, 33.17, paragraphs 6.3, 8.2 and 9 of Schedule 3 Part 1 and the provisions of Schedule 3 Part 4, each Commissioner shall pay the Provider in accordance with the Code of Conduct for Payment by Results and the PbR Guidance for the applicable Contract Year for all Services that the Provider delivers to it in accordance with the relevant Activity Plan, Prior Approval Scheme and Utilisation Management Scheme, and the prices shall be calculated in accordance with:

7.1.1 National Tariff for all the Services to which the National Tariff applies;

7.1.2 clause 7.2 for all Services to which the National Tariff does not apply;

7.2 For Services to which the National Tariff does not apply, the prices (the “Non-Tariff Prices”) shall be set by agreement between the Co-ordinating Commissioner and the Provider on the basis of the properly incurred costs of providing those Services (which shall from time to time be set out in each Schedule 2), being:

4 7.2.1 wages and salaries constituting a direct charge to the work to be performed;

7.2.2 materials and bought supplies and instruments; and

7.2.3 overhead and administration charges appropriate to the Services

and the Non-Tariff Prices may reflect a reasonable margin for the Provider.

7.3 The calculation and basis of the Non-Tariff Prices shall be transparent, equitable and open to revision annually by Review by 31 January in each Contract Year. If the Co-ordinating Commissioner and the Provider cannot agree Non-Tariff Prices either may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

7.4 On the 15th day of each month after the Service Commencement Date during the term of this Agreement each Commissioner shall pay to the Provider one twelfth of its individual Annual Contract Value identified in Annex 3 to Schedule 3 Part 1, and to facilitate the making of such payments the Provider shall supply to each Commissioner a monthly statement of account. In respect only of Services for which there is no Annual Contract Value, the Provider shall issue a monthly invoice to each Commissioner in respect of Services provided to that Commissioner which the Commissioner shall pay within 30 calendar days of receipt.

7.5 In order to ascertain the actual sums payable for the Services delivered, the Co-ordinating Commissioner shall provide a separate reconciliation account for itself and each Associate for each month after the Service Commencement Date (or for such other period as may be agreed between the Provider and the Co-ordinating Commissioner), showing the sum equal to the National Tariff and Non-Tariff Prices (together the “Prices”) for all the Services delivered and completed in that month (or other agreed period).

7.6 Each reconciliation account shall be:

7.6.1 based on the information submitted by the Provider to the Co-ordinating Commissioner under clauses 29.3 and 29.8; and

7.6.2 sent by the Co-ordinating Commissioner to the Provider within 5 Operational Days after the Reconciliation Point for the month (or other period) to which it relates; and

7.6.3 within 5 Operational Days after its receipt, either agreed by the Provider, or wholly or partially contested by the Provider under clause 7.12.

7.7 The Provider’s agreement of a reconciliation account (such agreement not to be unreasonably withheld) shall trigger a reconciliation payment by the relevant Commissioner to the Provider or by the Provider to the relevant Commissioner, as appropriate, and such payment shall be made within 31 calendar days of the Provider’s agreement of the reconciliation account.

7.8 The Co-ordinating Commissioner may make or receive all (but not some only) of the payments becoming due under clauses 7.4 and 7.7 in aggregate amounts for itself and on behalf of each of its Associates provided that it gives the Provider 28 calendar days written notice of its intent to do so. These aggregated payments shall not prejudice any immunity from liability of the Co-ordinating Commissioner, or any rights of the Provider to recover any overdue payment from the relevant Commissioner individually. However, they shall discharge the separate liability or entitlement of the Commissioners in respect of their separate Services. To avoid doubt, notices to aggregate and reinstate separate payments may be repeated from time to time, but must be recorded in Schedule 11 Part 3.

7.9 The Provider shall administer all statutory benefits as if the Provider were itself an NHS Trust in England, and within 30 calendar days of receipt of an appropriate invoice the relevant Commissioner shall reimburse the Provider any such benefits correctly administered.

5 7.10 The Provider shall administer and collect all statutory charges which may lawfully be made in relation to the provision of the Services, and shall account to such person as the Co- ordinating Commissioner may reasonably direct in respect of such charges.

7.11 Payment is exclusive of any applicable VAT for which the Commissioners shall be additionally liable to pay the Provider upon receipt of a valid tax invoice at the prevailing rate in force from time to time.

7.12 If a Party, acting in good faith, contests all or any part of any payment calculated in accordance with this clause 7 (Prices and Payment):

7.12.1 the contesting Party shall without delay notify the other Party or Parties;

7.12.2 any uncontested amount shall be paid in accordance with this Agreement by the Party from whom it is due; and

7.12.3 if the matter has not been resolved within 20 Operational Days of the date of notification under clause 7.12.1, the contesting Party shall refer the matter to dispute resolution under clause 28 (Dispute Resolution);

and following the resolution of any Dispute referred to dispute resolution in accordance with this clause 7.12 , the relevant Party shall pay any amount agreed or determined to be payable immediately with interest calculated in accordance with clause 7.13.

7.13 Subject to clauses 29.14, 29.15, 32.16, 32.17, 33.17, paragraphs 6.3, 8.2 and 9 of Schedule 3 Part 1 and the provisions of Schedule 3 Part 4, each Party shall be entitled, without prejudice to any other right or remedy, to receive interest at the Default Interest Rate on any payment not made from the day after the date on which payment was due up to and including the date of payment.

7.14 Whenever any sum of money is due from one Party to another as a consequence of reconciliation under this clause 7 (Prices and Payment) or dispute resolution under clause 28 (Dispute Resolution), the Party who is due to be paid that sum may deduct it from any amount that it is due to pay the other, provided that it has given 5 Operational Days notice in writing of its intention to do so.

7.15 The Provider shall not provide or offer to a Patient any clinical or medical services for which any charges (other than Hospital Charges) would be payable by the Patient.

7.16 Where the Co-ordinating Commissioner and the Provider have agreed in accordance with clause 38 (Variations) and Schedule 6 (Variation Procedure) that the Provider should provide to any Commissioner any activity involving a new treatment or procedure which the Provider has not previously provided to any Commissioner under the terms of this Agreement, then:

7.16.1 unless the National Tariff applies to such activity, the relevant price shall be calculated in accordance with clause 7.2; and

7.16.2 unless an Annual Contract Value is applicable to such activity, the Provider shall issue a monthly invoice to the relevant Commissioner for the relevant Services which the Commissioner shall pay within 30 calendar days of receipt.

7.17 The Parties shall comply with the Code of Conduct for Payment by Results and with the PbR Guidance in relation to the activity provided by the Provider to the Commissioners under this Agreement.

8. REVIEW

8.1 Each month while this Agreement remains in force (and at such other intervals as they may agree) the Co-ordinating Commissioner and the Provider shall meet to monitor this Agreement and to review any matters they consider necessary, including without limitation:

6 8.1.1 the Activity Plan;

8.1.2 the Annual Contract Values;

8.1.3 the Schedules;

8.1.4 the performance of the Parties, including any Performance Notices and Warning Notices issued;

8.1.5 any Capacity Review undertaken in accordance with Schedule 3;

8.1.6 compliance with clauses 16 (Quality), 19 (Clinical Governance, Records and Audit) and 20 (Managing Activity and Referrals);

8.1.7 any complaints, Patient Safety Incidents or Serious Untoward Incidents, and any Services improvements introduced as a result;

8.1.8 any information supplied pursuant to clause 29 (Information Requirements);

8.1.9 any need for the Provider to introduce any new treatments, procedures or technologies to the provision of the Services;

8.1.10 whether any Variation to this Agreement is required in order to give effect to any applicable NHS Operating Framework; and

8.1.11 whether any documents or information concerning the development of Best Practice IPR are required to be disclosed by the Provider to the Co-ordinating Commissioner in accordance with clause 23.6

and unless otherwise agreed all issues raised in such a Review shall be completed by the end of the relevant Contract Year.

8.2 When reviewing the Schedules the Co-ordinating Commissioner and the Provider shall plan and agree realistic requirements under this Agreement for the next Contract Year taking into account:

8.2.1 the outturn in the 12 months preceding the Review against the demand indicated in the relevant Activity Plan(s), taking into account any Service Variations agreed;

8.2.2 any targets applicable to the Commissioners under the Law;

8.2.3 the assessment by the Commissioners of healthcare needs and demand for the Services;

8.2.4 the definition of demand for the Services developed jointly by the Provider and the Commissioners;

8.2.5 the assessment by the Co-ordinating Commissioner and the Provider of the quality and clinical viability of the Services and the Services Environment;

8.2.6 the likely impact of any modernisation and/or reconfiguration of healthcare services that may affect demand for the Services;

8.2.7 the impact of Patient Booking and Patient Choice;

8.2.8 the availability of alternative providers;

8.2.9 any Services development plan(s) agreed under clause 6.3;

7 8.2.10 the totality of Services provided by the Provider under this Agreement, and in particular the Provider’s ability to maintain effective provision of Mandatory Goods and Services and Essential Services.

8.3 A Review shall not include proposals to reduce the volume of activity of a Service to such a level as effectively results in a withdrawal of that Service unless the requirement for reduced volume is directly attributable to changes in demand that have been demonstrated at a Review. Any such proposal shall be dealt with as a Service Variation under clause 38 (Variations) and Schedule 6 (Variation Procedure).

8.4 Each Review shall be completed by the Co-ordinating Commissioner and the Provider signing a written review record (the “Review Record”) containing without limitation a summary of all the matters raised during Review, actions taken, agreements reached, disputes referred to dispute resolution under clause 28 (Dispute Resolution) and the outcome of any such referrals, and any Variations (including Service Variations) agreed.

8.5 If any dispute which has arisen during Review is not shown in the Review Record or is not referred to dispute resolution under clause 28 (Dispute Resolution) within 10 Operational Days after signature of that Review Record it shall be deemed to have been withdrawn.

8.6 A referral to dispute resolution under clause 28 (Dispute Resolution) in or following a Review shall not of itself give grounds for any suspension or termination of this Agreement, and in accordance with this Agreement the Provider shall deliver and shall be entitled to be paid for Services delivered until such time as the Review is completed.

9 CONSENT

9.1 The Provider shall operate a Patient consent policy ("Consent Policy") to comply with the Law, and in particular with:

9.1.1 the Department of Health Reference Guide to Consent for Examination or Treatment, and other guidance and advice issued from time to time;

9.1.2 Health Service Circular HSC 2001/023;

9.1.3 Good Practice in Consent Implementation Guide – Consent for Examination or Treatment; and

9.1.4 any relevant code of practice or guidance notified to the Provider by the Co-ordinating Commissioner;

each as amended, re-issued or replaced from time to time.

10 COMPLAINTS

10.1 The Commissioners and the Provider shall each operate and publicise a complaints procedure that complies with the Law.

10.2 The Provider shall provide to the Co-ordinating Commissioner such details of its complaints procedure as the Co-ordinating Commissioner may reasonably require.

10.3 The Co-ordinating Commissioner shall provide to the Provider such details of the complaints procedure of any Commissioner as the Provider may reasonably require.

10.4 The Provider shall implement learning from complaints and demonstrate at Reviews the extent to which Service improvements have been made as a result.

11 STAFF

11.1 The Provider shall have sufficient clinical and non-clinical Staff to ensure that the Services are provided in all respects and at all times in accordance with this Agreement.

8 11.2 The Staff shall:

11.2.1 if applicable, be registered with the appropriate regulatory authority;

11.2.2 possess the appropriate qualifications, experience and skills to perform the duties required of them and, where this is not the case, be appropriately supervised; and

11.2.3 be covered by adequate indemnity insurance for the provision of the Services.

11.3 The Provider shall have in place systems for seeking and recording specialist professional advice and shall ensure that every member of Staff involved in the provision of the Services receives:

11.3.1 proper and sufficient training and instruction;

11.3.2 full and detailed appraisal (in terms of performance and on-going education and training); and

11.3.3 professional leadership commensurate with the Services

each in accordance with Good Clinical Practice and Good Healthcare Practice and the standards of their relevant professional body, if any.

12 CLINICAL NETWORKS AND SCREENING PROGRAMMES

12.1 The Provider shall:

12.1.1 participate in the Clinical Networks and Screening Programmes listed in Schedule 20; and

12.1.2 where it deems it to be appropriate having regard to its obligations under clause 6 (Co-operation), participate in such other partnership arrangements as may be in place in the relevant local health economies;

and the Provider shall adhere to all protocols and procedures operated or recommended by them, unless they conflict with existing protocols and procedures agreed between the relevant Parties, in which case the relevant Parties shall review such any conflict with a view to resolving it.

13 EMERGENCY AND CRITICAL CARE

13.1 The Provider shall comply with the Emergency and Critical Care Procedure at Schedule 3 Part 3.

13.2 This clause 13 (Emergency and Critical Care) shall continue to apply for the duration of any Major Incident to the extent that the Provider nevertheless still uses reasonable efforts to minimize the extent of the Major Incident in accordance with paragraph 2 of the Major Incident Plan at Schedule 2 Part 3.

14 DEATH OF A PATIENT

14.1 If a Patient dies at the Provider’s Premises, the Provider shall as soon as reasonably possible:

14.1.1 notify the Patient’s GP;

14.1.2 notify the relevant Commissioner through the relevant data set identified in Schedule 5 (Information Requirements);

14.1.3 notify the Patient’s next of kin;

9 14.1.4 notify H.M. Coroner as required;

14.1.5 notify the relevant Regulator as appropriate;

14.1.6 arrange for safe-keeping of the Patient’s remains and personal effects until authorised to release them by H.M. Coroner, the Patient’s next of kin or the representative of the Patient’s next of kin, as appropriate; and

14.1.7 comply with the provisions of clause 15 as appropriate (Serious Untoward Incident and Patient Safety Incident Reporting).

15 SERIOUS UNTOWARD INCIDENT AND PATIENT SAFETY INCIDENT REPORTING

15.1 The Provider shall promptly send the Co-ordinating Commissioner a copy of any notification it gives to a Regulator or Monitor where that notification directly or indirectly concerns any Patient.

15.2 The Parties shall comply with the arrangements for notification and investigation of Serious Untoward Incidents agreed between the Provider and the Co-ordinating Commissioner and as set out in Schedule 12 (Serious Untoward Incidents and Patient Safety Incidents).

15.3 The Commissioners shall have complete discretion to use the information provided by the Provider under this clause 15 (Serious Untoward Incident and Patient Safety Incident Reporting) and Schedule 12 (Serious Untoward Incidents and Patient Safety Incidents) in any report which they make to Monitor, to any Regulator, any NHS Body, any Strategic Health Authority, any office or agency of the Crown, or any other appropriate regulatory or official body in connection with such Serious Untoward Incident or in relation to the prevention of Serious Untoward Incidents, provided that they shall in each case notify the Provider of the information disclosed, and the body to which they have disclosed it.

15.4 The Provider shall comply in all respects with the procedures relating to Patient Safety Incidents set out in Schedule 12 (Serious Untoward Incidents and Patient Safety Incidents).

15.5 The provisions of this clause 15 (Serious Untoward Incident and Patient Safety Incident Reporting) shall in respect of any Services performed under this Agreement survive its expiry or its termination for any reason.

16 QUALITY

16.1 The Provider shall carry out the Services in accordance with the Law, Good Clinical Practice and Good Healthcare Practice, and shall comply with:

16.1.1 the core standards and recommendations from time to time contained in the Standards for Better Health;

16.1.2 the recommendations arising from any audit, Serious Untoward Incident report or Patient Safety Incident report;

16.1.3 the standards and recommendations from time to time issued by the UK National Screening Committee and the National Commissioning Group (or any successor of them) and agreed in writing between the Co-ordinating Commissioner and the Provider;

16.1.4 the standards and recommendations from time to time issued by any relevant professional body and agreed in writing between the Co-ordinating Commissioner and the Provider;

16.1.5 the standards and recommendations from time to time contained in technology appraisals issued by the National Institute for Health and Clinical Excellence (or any successor);

10 16.1.6 the Quality Standards set out in Schedule 3 Parts 4A and 4B;

16.1.7 the 18 Week Referral-to-Treatment Target; and

16.1.8 any applicable targets relating to the reduction of cases of MRSA bacteraemia and Clostridium difficile.

16.2 The Provider shall carry out patient experience surveys in relation to the Services at reasonable intervals in accordance with the Law and co-operate with any surveys that the Commissioners may carry out. Details of arrangements for such surveys shall be made available to the Co-ordinating Commissioner on request.

16.3 Within 2 months of the end of each Contract Year the Provider shall publish a review of clinical quality in that Contract Year, which shall take account of matters identified in the Reviews and the Clinical Quality Review Meetings conducted in that Contract Year, and of the joint process relating to that Contract Year conducted under paragraph 6 of Schedule 3 Part 1, and which shall include without limitation summary details of:

16.3.1 compliance or any failure to comply with the standards and recommendations set out in clause 16.1;

16.3.2 any Patient complaints received;

16.3.3 any Patient experience surveys conducted; and

16.3.4 any Staff satisfaction surveys performed.

16.4 For the avoidance of doubt, nothing in this Agreement is intended to prevent this Agreement from setting higher quality standards than those laid down under the Provider’s Terms of Authorisation (if any) or required by any Regulator, and the Parties shall make all reasonable efforts to comply with all NHS best practice guidance.

17 PROCEDURES AND PROTOCOLS

17.1 If requested by the Co-ordinating Commissioner, the Provider shall within 5 Operational Days of receipt of the request send to the Co-ordinating Commissioner copies of any patient guide or other written policy, procedure or protocol implemented by the Provider.

17.2 The Provider shall promptly notify the Co-ordinating Commissioner of any material changes to any items disclosed under clause 17.1.

18 DISCHARGE OBLIGATIONS

18.1 The Provider shall comply with the Discharge Protocols set out in Schedule 2 Part 2.

18.2 The Provider shall at the time of the Patient’s discharge from the Provider’s Premises issue to the Patient:

18.2.1 a Discharge Letter; and

18.2.2 any social security benefit sickness certificate requested by the Patient.

18.3 The Provider shall issue the Patient’s Discharge Summary to the Patient’s GP:

18.3.1 within 72 hours of the Patient’s discharge from the Provider’s Premises, where the Patient is discharged by the Provider on or prior to 31 March 2009;

18.3.2 within 48 hours of the Patient’s discharge from the Provider’s Premises, where the Patient is discharged by the Provider between 1 April 2009 and 31 March 2010;

11 18.3.3 within 24 hours of the Patient’s discharge from the Provider’s Premises, where the Patient is discharged by the Provider on or after 1 April 2010.

18.4 The Provider shall not discharge a Patient where discharge would not be in accordance with Good Clinical Practice or Good Healthcare Practice, and shall use best efforts to avoid circumstances and discharges likely to lead to emergency re-admissions.

19 CLINICAL GOVERNANCE, RECORDS AND AUDIT

19.1 The Parties shall comply with their duties under Law to improve the quality of clinical services for Patients through the integrated governance arrangements set out in Standards for Better Health, and having regard to Department of Health guidance on clinical governance. The Parties shall co-operate fully in this regard.

19.2 The Provider shall comply with all reasonable written requests made by Monitor, any Regulator, the National Audit Office, the Audit Commission or its appointed auditors, any Authorised NHS Person or the authorised representatives of Local Involvement Networks for entry to the Provider’s Premises for the purposes of auditing, viewing, observing or inspecting the Provider’s Premises and/or the provision of the Services, and for information relating to the provision of the Services. The Provider shall give all reasonable assistance with and provide all reasonable facilities for this.

19.3 Within 10 Operational Days of the Co-ordinating Commissioner’s reasonable request, the Provider shall send the Co-ordinating Commissioner the results of any audit, evaluation, inspection, investigation or research in relation to the Services, the Services Environment or services of a similar nature to the Services carried out by the Provider.

19.4 The Parties shall implement all relevant recommendations:

19.4.1 in any report by a Regulator or Monitor,

19.4.2 agreed with the National Audit Office or the Audit Commission as to be made following any audit; or

19.4.3 of any appropriate clinical audit; or

19.4.4 that are otherwise agreed by the Provider and the Co-ordinating Commissioner to be implemented.

19.5 The Parties shall maintain accurate accounts and records of all payments, receipts and financial and other information relevant to the provision of the Services ("Records").

19.6 The Co-ordinating Commissioner and the Provider shall each have the right to appoint (at their own expense), an independent third party auditor (“Auditor”):

19.6.1 who, for the Co-ordinating Commissioner, may audit in relation to the Provider’s calculation or charging of any of the Prices to any Commissioner, and any matters in respect of which the Provider appoints an Auditor; and

19.6.2 who, for the Provider, may audit in relation to payment of the Annual Contract Values, prices based on National Tariff, any non-payment made by a Commissioner, and any matters in respect of which the Co-ordinating Commissioner appoints an Auditor;

and subject to any applicable patient consent requirements, the Party being audited shall allow the Auditor a right of reasonable access to (and the right to take copies of) the Records, books of account and other sources of relevant information, and any Confidential Information so disclosed shall be treated in accordance with clause 22 (Confidential Information of the Parties).

12 19.7 In relation to Non-Tariff Prices, the Provider shall provide the Auditor appointed by the Co- ordinating Commissioner under clause 19.6 with particulars of its costs (including the costs of Sub-contractors and suppliers) and permit the costs to be verified by inspection of accounts and other documents and records, and any Confidential Information so disclosed shall be treated in accordance with clause 22 (Confidential Information of the Parties).

19.8 If the Auditor, whether appointed by the Co-ordinating Commissioner or by the Provider, concludes that the Provider has overcharged, the Provider shall, within 5 Operational Days of receiving written notice of the overcharge, reimburse the overcharged Commissioner the amount of the overcharge and shall pay the reasonable costs of the audit.

19.9 If the Auditor, whether appointed by the Co-ordinating Commissioner or by the Provider, concludes that the Provider has undercharged, the undercharged Commissioner shall, within 5 Operational Days of receiving notice of the undercharge, pay to the Provider the amount of the undercharge and the costs of the audit shall be borne by the appointing Party.

19.10 If the Auditor concludes that the Provider has charged the correct amount, the costs of the audit shall be borne by the appointing Party.

19.11 Each Commissioner shall on request provide to the Provider the results of its annual Clinical Coding Audit relating to the Provider, and for the avoidance of doubt the provisions of clauses 19.8 and 19.9 shall not apply in respect of any such Clinical Coding Audit.

19.12 For the avoidance of doubt the Parties may not recover any variances identified as part of any Audit Commission PbR Data Assurance Framework Audit, or any successor to such process.

20 MANAGING ACTIVITY AND REFERRALS

20.1 The Commissioners and the Provider shall each monitor and manage activity and referrals for the Services in accordance with Schedule 3 Part 1.

21 PATIENT HEALTH RECORDS

21.1 The Provider shall create, maintain, store and retain Patient Health Records for all Patients receiving treatment as part of the Services. Patient Health Records shall be kept by the Provider in an appropriate secure location. Subject to compliance with Law, the Consent Policy and the common law duty of confidentiality, Authorised NHS Persons shall be granted access by the Provider to such Patient Health Records and may inspect them and require copies to be provided by the Provider (at the Provider’s cost).

21.2 The Provider shall:

21.2.1 use Patient Health Records solely for the execution of the Provider's obligations under this Agreement and for such purposes as may be set out in Schedule 7 (Additional Use of Personal Data);

21.2.2 give each Patient full and accurate information regarding his/her treatment and evidence that in writing in the relevant Patient Health Record;

21.2.3 return any Patient Health Records and any other Personal Data relating to a Patient’s treatment to the Patient’s GP promptly upon request at any time, unless such Personal Data is to be used for the purposes set out in Schedule 7 (Additional Use of Personal Data) or where the Provider is required to retain it to comply with the Law, in either of which cases the Provider shall supply copies to the Patient’s GP on request.

21.3 The Provider shall notify the Co-ordinating Commissioner of the identity of its Caldicott Guardian and supply his/her contact details.

22 CONFIDENTIAL INFORMATION OF THE PARTIES

13 22.1 Other than as allowed in this clause, Confidential Information is owned by the Party that discloses it (the “Disclosing Party”) and the Party that receives it (the “Receiving Party”) has no right to use it.

22.2 Subject to clauses 22.3 and 22.4, the Receiving Party agrees:

22.2.1 to use the Disclosing Party’s Confidential Information only in connection with the Receiving Party’s performance under this Agreement;

22.2.2 not to disclose the Disclosing Party’s Confidential Information to any third party or to use it to the detriment of the Disclosing Party; and

22.2.3 to maintain the confidentiality of the Disclosing Party’s Confidential Information and to return it immediately on receipt of written demand from the Disclosing Party.

22.3 The Receiving Party may disclose the Disclosing Party’s Confidential Information:

22.3.1 in connection with any dispute resolution under clause 28 (Dispute Resolution);

22.3.2 in connection with any litigation;

22.3.3 to comply with Law;

22.3.4 to a Regulator and or to Monitor as required;

22.3.5 to its staff, who shall in respect of such Confidential Information be under a duty no less onerous than the Receiving Party’s duty set out in clause 22.2;

22.3.6 to NHS Bodies for the purpose of carrying out their duties; and

22.3.7 as permitted under or as may be required to give effect to clause 32 (Performance) or clause 33 (Clinical Quality Review).

22.4 The obligations in clauses 22.1 and 22.2 shall not apply to any Confidential Information which:-

22.4.1 is or comes into the public domain other than by breach of this Agreement;

22.4.2 the Receiving Party can show by its records was in its possession before it received it from the Disclosing Party;

22.4.3 the Receiving Party can prove that it was able to obtain from a source other than the Disclosing Party without breaching any obligation of confidence.

22.5 Subject to clause 39.1.3, the Disclosing Party does not warrant the accuracy or completeness of the Confidential Information.

22.6 The Receiving Party shall indemnify the Disclosing Party against Losses and Indirect Losses suffered or incurred by the Disclosing Party as a result of any breach of this clause 22 (Confidential Information of the Parties).

22.7 The Parties acknowledge that damages would not be an adequate remedy for any breach of this clause 22 (Confidential Information of the Parties) by the Receiving Party, and in addition to any right to damages the Disclosing Party shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this clause 22 (Confidential Information of the Parties).

22.8 This clause 22 (Confidential Information of the Parties) shall survive the expiry or the termination of this Agreement for any reason, for a period of 5 years.

23 INTELLECTUAL PROPERTY

14 23.1Except as set out expressly in this Agreement no Party shall acquire the IPR of any other Party.

23.2The Provider now grants the Commissioners a fully paid up non-exclusive licence to use Provider IPR for the duration of this Agreement for the purposes of the exercise of their functions and obtaining the full benefit of the Services which shall include the dissemination of best practice within the NHS.

23.3The Commissioners now grant the Provider a fully paid up non-exclusive licence to use PCT IPR for the duration of this Agreement for the sole purposes of providing the Services.

23.4Where Provider IPR is software the Provider shall enter into an Escrow Arrangement on signature of this Agreement.

23.5In the event that the Provider, the Co-ordinating Commissioner or any of its Associates at any time devise, discover or acquire rights in any Improvement it shall promptly notify the owner of the IPR to which such Improvement relates giving full details of the Improvement and such information and explanations as that party may reasonably require to be able to use such Improvement effectively and shall assign to that party all rights and title in any such Improvement without charge.

23.6The Provider shall disclose all documents and information concerning the development of Best Practice IPR to the Co-ordinating Commissioner at Reviews and shall grant the Commissioners a fully paid up non-exclusive perpetual licence to use Best Practice IPR solely for the purpose of teaching, training and research within their own organisations.

24 NHS BRANDING, MARKETING AND PROMOTION

24.1The Provider shall comply with the requirements set out in Schedule 8 (NHS Branding, Marketing and Promotion), as revised, updated or re-issued from time to time by the Department of Health.

24.2The Provider shall comply with the applicable NHS brand policy and guidelines, as revised, updated or re-issued from time to time by the Department of Health, and which are located at www.nhsidentity.nhs.uk.

25 CHAPLAINCY

25.1The Provider shall provide access to NHS chaplaincy and pastoral services as part of the Services.

26 LIABILITY AND INSURANCE

26.1Without prejudice to its liability for breach of any of its obligations under this Agreement, each Commissioner shall be severally liable to the Provider for, and shall severally indemnify the Provider against, and the Provider shall be separately liable to each Commissioner for, and shall separately indemnify each Commissioner against, any loss, damages, costs, expenses, claims or proceedings whatsoever in respect of:

26.1.1 any loss of or damage to property (whether real or personal);

26.1.2 any injury to any person, including injury resulting in death;

26.1.3 any Losses (excluding Indirect Losses) of the indemnified Party

that result from or arise out of the indemnifying Party's negligence or breach of contract in connection with the performance of this Agreement or the provision of the Services, (including in the case of the Provider (without limitation) its use of Equipment or other materials or products, and the actions or omissions of the Staff or Sub-contractors in the provision of the Services), except insofar as such loss, damage or injury has been caused by any act or

15 omission by, or on the part of, or in accordance with the instructions of the indemnified Party, its employees or agents.

26.2The Parties shall maintain in force at their own cost appropriate insurance policies having regard to their obligations and liabilities under this Agreement.

26.3The Provider shall provide documentary evidence to the Co-ordinating Commissioner that the Provider’s insurance policies taken out pursuant to clause 26.2 are fully maintained and that the premiums on them are fully paid and that the interests of the Commissioners as loss payees are endorsed on each of them.

26.4The Provider shall obtain and fully maintain membership of the NHSLA Clinical Negligence Scheme for Trusts, or an equivalent indemnity, and from time to time on request by the Co- ordinating Commissioner produce documentary evidence to it that such membership or indemnity is properly maintained.

26.5In connection with the Services, unless the Co-ordinating Commissioner and the Provider otherwise agree in writing, the Provider shall not require and shall ensure that no other person shall require any Patient to sign any document whatsoever containing any waiver of the Provider’s liability (other than a waiver in reasonable terms relating to personal property) to that Patient, except for where such a document is required pursuant to medical research procedures approved by the local research ethics committee and the Patient has given consent in accordance with the Consent Policy.

26.6This clause 26 (Liability and Insurance) shall survive in all respects the expiry of this Agreement or its termination for any reason.

27 DATA PROTECTION & FREEDOM OF INFORMATION

27.1The Parties acknowledge their respective duties under the DPA and the FOIA and shall give all reasonable assistance to each other where appropriate or necessary to comply with such duties.

28 DISPUTE RESOLUTION

28.1Except and to the extent that any injunction is sought relating to a matter arising out of clause 22 (Confidential Information of the Parties), if any Dispute arises out of or in connection with this Agreement, the Parties in Dispute shall first attempt to settle it by either of them making a written negotiation offer to the other, and during the 15 Operational Days following receipt of such offer (the “Negotiation Period”) each of the Parties in Dispute shall negotiate and be represented:

1.1.1 for the first 10 of such Operational Days, by one of its senior clinicians or senior officers who has not had any direct day-to-day involvement in the matter and who has authority to settle the Dispute; and

1.1.2 for the last 5 of such Operational Days, by its Chief Executive, Deputy Chief Executive or a director.

28.2If the Parties in Dispute are unable to settle the Dispute by negotiation, they shall within 5 Operational Days after the end of the Negotiation Period:

28.2.1 where appropriate and they so agree, submit the Dispute to mediation arranged by the relevant Strategic Health Authority and Monitor; or

28.2.2 in default of agreement under clause 28.2.1, submit the Dispute to mediation by CEDR under the Model Mediation Procedure as set out in Schedule 9 (Dispute Resolution Procedure), and if under paragraph 2 of such Model Mediation Procedure the Parties in Dispute do not agree as to the mediator nominated by CEDR then CEDR shall in its discretion appoint a mediator.

16 28.3During the mediation phase and in advance of the mediation session, each Party to the Dispute must submit to the mediator within 5 Operational Days of the mediator’s request a signed position statement describing the precise points on which the Parties in Dispute disagree, and describing its own solution to the Dispute.

28.4The provisions of clauses 28.5, 28.6, 28.7 and 28.8:

3.1 shall apply where the Parties in Dispute agree to submit the Dispute to mediation arranged by the relevant Strategic Health Authority and Monitor under clause 28.2.1; and

3.2 shall not apply where under clause 28.2.2 the Parties in Dispute submit the Dispute to mediation by CEDR under the Model Mediation Procedure as set out in Schedule 9 (Dispute Resolution Procedure).

28.5Where the mediator is satisfied that the nature of the Dispute has been adequately documented in accordance with clause 28.3, the mediator will facilitate negotiation and the prospects of settling the Dispute. The mediator will allow each Party in Dispute 5 Operational Days in which to comment on the other Party in Dispute’s solution to the Dispute. At the end of this period the mediator will invite the Parties in Dispute to agree on the Dispute.

28.6Neither Party in Dispute will terminate such mediation until each of them has made its opening presentation and the mediator has met each of the Parties in Dispute separately for at least one hour.

28.7The Parties in Dispute will keep confidential and not use for any collateral or ulterior purpose all information, whether given orally, in writing or otherwise, arising out of or in connection with the mediation, including the fact of any settlement and its terms, save for the fact that the mediation is to take place or has taken place.

28.8All information, whether oral, in writing or otherwise, arising out of or in connection with the mediation will be without prejudice, privileged and not admissible as evidence or disclosable in any current or subsequent litigation or other proceedings whatsoever, provided that the provisions of this clause 28.8 shall not apply to any information which would in any event have been admissible or disclosable in any such proceedings.

28.9If the Parties in Dispute are unable to settle the Dispute within 20 Operational Days after the date it is submitted to mediation, then they shall submit the Dispute immediately to independent binding pendulum adjudication between the positions of the Parties in Dispute as set out in their signed position statements submitted to the mediator under clause 28.3, and such adjudication shall find wholly in favour of one of such positions. The independent binding pendulum adjudication under this clause 28.9 shall be undertaken by an independent panel appointed for the purpose by CEDR (none of which appointments being of persons who are or have been employed or engaged in any capacity by any of the Parties in Dispute) with authority to decide the Dispute, and the decision of such independent panel, if made by a simple majority, shall be final and binding on the Parties in Dispute.

28.10 The Parties in Dispute agree that a final and binding decision of a panel on a Dispute submitted to it under clause 28.9 shall be enforceable in the court as if it were an agreement made directly between the Parties in Dispute.

28.11 The costs of mediation under this clause 28 (Dispute Resolution) will be borne equally by the Parties in Dispute.

28.12 The costs of independent binding pendulum adjudication under this clause 28 (Dispute Resolution) will be borne by the unsuccessful Party in Dispute.

28.13 Unless this Agreement shall have been repudiated or terminated and notwithstanding that a Dispute remains unresolved, the Parties in Dispute shall continue to carry out their respective obligations in accordance with this Agreement and its Variations recorded in this Agreement

17 or its Schedules up to the Dispute. All agreements and decisions resulting from dispute resolutions shall be recorded in Schedule 6 Part 2.

29 INFORMATION REQUIREMENTS

29.1 The Parties acknowledge that in order to achieve accurate forecasting, activity monitoring and prompt and accurate payment by results (in accordance with the Code of Conduct for Payment by Results), there needs to be timely regular exchange of detailed and accurate information. The Provider shall therefore provide the information specified in this clause 29 (Information Requirements) and in Schedule 5 (Information Requirements) in a timely manner, ensuring its accuracy and completeness.

29.2 The Parties shall comply with guidance relating to clinical coding published by the NHS Classifications Service and with the definitions of activity maintained under the NHS Data Model and Dictionary.

29.3 The Provider shall collect national datasets and submit them to SUS on a monthly basis within 5 Operational Days of the end of the month to which the datasets relate, so that the datasets are completed by the applicable Reconciliation Point, in order that the Commissioners shall be able to access such datasets as required via SUS.

29.4 In the event of, for any reason:

3.1 a failure of SUS; or

3.2 an interruption of the availability of SUS to the Provider or to any Commissioner; or

3.3 the occurrence of circumstances which prevent the Provider from complying with clause 29.3; or

3.4 the Co-ordinating Commissioner’s reasonable request

the Provider shall submit directly to the Commissioners the national datasets collected in accordance with clause 29.3 within 5 Operational Days of the end of the month to which the datasets relate.

29.5 In relation only to the first Contract Year, if the Provider is not able to comply with the timescales set out in clauses 29.3 and 29.4, it shall promptly notify the Co-ordinating Commissioner and the Provider and the Co-ordinating Commissioner shall agree an implementation plan to enable the Provider to comply with such timescales with effect from the start of the second Contract Year, and for the avoidance of doubt in such circumstances the Provider shall comply with such timescales from the start of the second Contract Year.

29.6 The Provider may at any time make subsequent corrections or amendments to the information submitted under this clause 29 (Information Requirements) up to the Reconciliation Point.

29.7 The Provider shall without delay implement new datasets as they are adopted across the NHS and such other datasets as may be agreed from time to time between it and the Co- ordinating Commissioner, and the provisions of this clause 29 (Information Requirements) shall apply to them. The Provider shall comply with relevant published NHS information and data standards and Information Standards Board recommendations.

29.8 In addition, the Provider shall submit to the Co-ordinating Commissioner all of the items of information specified in Schedule 5 (Information Requirements) in the format, by the method, and within any timescales specified in Schedule 5 (Information Requirements). Where the Provider is an NHS Foundation Trust, the Co-ordinating Commissioner shall not require the Provider to supply any information for the purposes of national reporting which the Provider is not already obliged to supply under its Terms of Authorisation.

18 29.9 Subject to clause 29.7, the Provider shall notify and agree with the Co-ordinating Commissioner any change of practice in the counting and coding of activity at least 6 months before such change is to be implemented by the Provider. Any such change may only occur on 1 April of the following Contract Year unless the changes are required by the Department of Health in which case the Provider shall implement the changes on 1 April of the next Contract Year or earlier as agreed with the Co-ordinating Commissioner, and the Provider shall at all times comply with the Code of Conduct for Payment by Results.

29.10 In collecting, providing or exchanging information required, the Provider shall comply with the Electronic Government Interoperability Framework (e-GIF) and relevant standards and acknowledges that the information it provides, submits or exchanges in accordance with this Agreement may be subject to quality management.

29.11 All information to be provided pursuant to this clause 29 (Information Requirements) and Schedule 5 (Information Requirements) which is necessary for the purposes of calculation under clause 7 (Prices and Payment) shall be provided:

9.11.1 to the Co-ordinating Commissioner in aggregate form, and in disaggregated form for each separate Schedule and Annex that relates to each Commissioner and its use of the Services; and

9.11.2 direct to each Commissioner in disaggregated form relating to its own Schedules and Annexes and its own use of the Services.

29.12 All information to be provided pursuant to this clause 29 (Information Requirements) and Schedule 5 (Information Requirements) (other than information to be provided pursuant to clause 29.11) shall be provided to the Co-ordinating Commissioner in aggregate form and, if required by not less than 28 calendar days notice, additionally:

9.12.1 to the Co-ordinating Commissioner in disaggregated form in respect of the separate use of the Services by each Commissioner; and

9.12.2 directly to each Commissioner in disaggregated form in respect of its own use of the Services.

29.13 Where the Co-ordinating Commissioner reasonably believes that the Provider has failed to meet the requirements of this clause 29 (Information Requirements) and/or Schedule 5 (Information Requirements) with regard to the provision and/or accuracy and/or completeness of information, the Co-ordinating Commissioner shall inform the Provider of this by notice in writing, detailing its intention to instruct the Commissioners to withhold the sum specified in clause 29.14 or clause 29.15, unless the information is rectified and/or provided within 5 Operational Days.

29.14 If:

29.14.1 the information described in clause 29.13 is not provided and/or rectified by the Provider within 5 Operational Days; and

29.14.2 such information is necessary for the purposes of calculation under clause 7 (Prices and Payment)

and provided that the Provider’s failure to meet the requirements of this clause 29 (Information Requirements) and/or Schedule 5 (Information Requirements) is not due to any act or omission of any Commissioner, then the Co-ordinating Commissioner may instruct the Commissioners to withhold 10% of all the monthly sums payable by them pursuant to clause 7.4 for the month for which the information has not been received. The Commissioners shall withhold such sums until the Co-ordinating Commissioner’s confirmation of receipt of the relevant information, and the Commissioners shall then pay to the Provider the withheld sums within 5 Operational Days, and subject to clause 29.16 no interest shall be payable by any Commissioner to the Provider on any sum withheld under this clause 29.14.

19 29.15 If:

14.1 the information described in clause 29.13 is not provided and/or rectified by the Provider within 5 Operational Days; and

14.2 such information is required under this Agreement for purposes other than those of calculation under clause 7 (Prices and Payment)

and provided that the Provider’s failure to meet the requirements of this clause 29 (Information Requirements) and/or Schedule 5 (Information Requirements) is not due to any act or omission of any Commissioner, then the Co-ordinating Commissioner may instruct the Commissioners to withhold 10% of all the monthly sums payable by them pursuant to clause 7.4 for the month for which the information has not been received. The Commissioners shall withhold such sums until the Co-ordinating Commissioner’s confirmation of receipt of the relevant information, and the Commissioners shall then pay to the Provider the withheld sums within 5 Operational Days, and subject to clause 29.16 no interest shall be payable by any Commissioner to the Provider on any sum withheld under this clause 29.15.

29.16 Where within 20 Operational Days of the date of the first payment by a Commissioner to the Provider of a sum withheld under clause 29.14 or 29.15 the Provider produces evidence satisfactory to the Co-ordinating Commissioner that the relevant sums were withheld unjustifiably, then the relevant Commissioners shall pay interest to the Provider on their respective sums withheld at the Default Interest Rate for the period of their withholding. If the Co-ordinating Commissioner does not accept the Provider’s evidence, the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

29.17 The Co-ordinating Commissioner may from time to time notify the Provider of what further information it may reasonably require in order to monitor the Provider’s performance of this Agreement, and in particular the Provider’s compliance with the Quality Standards, and the Provider shall supply such information.

29.18 The obligations to provide information set out in this Agreement shall survive its expiry or termination.

30 MONITORING

30.1The Co-ordinating Commissioner and the Provider shall monitor and ensure compliance with all obligations under clauses 16 (Quality), 19 (Clinical Governance, Records and Audit) and 20 (Managing Activity and Referrals), and Schedule 3 (Managing Activity and Referrals, Care and Resource Utilisation Techniques and Retention of Payment Scheme) to underpin the monitoring under this Agreement.

30.2The Provider shall be responsible for monitoring its performance against this Agreement during the term of this Agreement. The Provider shall provide the Co-ordinating Commissioner with relevant particulars of any aspects of its performance which fail to meet the requirements of this Agreement, including in particular but without limitation any failure to meet a Performance Indicator.

31 SERVICE TARGETS AND CANCELLED OPERATIONS

31.1The Provider shall meet the service targets (if any) in each of the Service Specifications in addition to applicable national targets and outcomes measures from time to time set out in Guidance or otherwise specified by the Secretary of State (including without limitation the 18 Weeks Referral-to-Treatment Target and any applicable targets relating to the reduction of cases of MRSA bacteraemia, Clostridium difficile or HCAI).

31.2A failure by the Provider to comply with clause 31.1 shall be excused if it is directly attributable to or caused by an act or omission of a Commissioner, provided that (for the avoidance of doubt) no such excuse shall apply in the event of any increase in Patient referrals by GPs whether as a result of Patient Choice or otherwise.

20 31.3Non-compliance with clause 31.1 shall not be a material breach of this Agreement, unless non- compliance becomes repetitive or persistent. However, it shall be a material breach by the Provider if the Provider does not co-operate fully with the Co-ordinating Commissioner and the Patient’s GP in any re-referral of the Patient to another provider (including providing Patient Health Records, other information relating to the Patient’s Package of Care and clinical opinion if reasonably requested).

31.4If the Provider does not comply with clause 31.1, the Co-ordinating Commissioner may, without prejudice to any other rights that it may have under this Agreement or any of its Schedules (including in particular Schedule 3 Part 1):

31.4.1 issue a Contract Query under clause 32 (Performance) in relation to such non- compliance; and/or

31.4.2 take action to remove the Patient affected from the Provider’s waiting list; and/or

31.4.3 if it reasonably considers that there may be further such non-compliance in relation to other Patients, take action to remove those Patients from the Provider’s waiting list.

31.5 Without prejudice to clauses 31.1 and 31.2, where a Patient is admitted by the Provider for Elective Care and the Provider cancels that Patient’s operation after his/her admission for non-clinical reasons, the terms of the NHS Plan Cancelled Operations Guarantee shall apply, so that:

31.5.1 the Provider shall within 5 calendar days offer the Patient a new date falling within 28 calendar days of the original date; or

31.5.2 if the Provider cannot comply with clause 31.5.1, the Patient shall be offered the Package of Care at the time and at the hospital that the Patient selects in accordance with Patient Choice, and funded at the Provider’s expense,

and in the event of any conflict between this clause 31.5 and the terms of any of the Quality Standards, the requirement that would lead to the most favourable outcome for the Patient shall prevail.

31.6 The Provider’s level of cancellations for non-clinical reasons of Elective Care operations before and after Patient admission shall be the subject of monitoring by the Co-ordinating Commissioner in accordance with a Performance Indicator set out in Schedule 3 Part 4B.

32 PERFORMANCE

32.1Except as provided:

32.1.1 under clauses 29.13 to 29.17 inclusive (Information Requirements);

32.1.2 under clause 31 (Service Targets and Cancelled Operations);

32.1.3 under clause 33 (Clinical Quality Review); and

32.1.4 in Schedule 3 Parts 1 and 4

the performance management of this Agreement shall be as set out in this clause 32 (Performance).

32.2Where the Co-ordinating Commissioner or the Provider has a query regarding the other’s performance under this Agreement, it may issue a Contract Query to the other in writing setting out the nature of its query. The recipient is obliged to reply to it in writing, in a manner that satisfies the nature of the Contract Query, within 10 Operational Days unless otherwise agreed in writing.

21 32.3Where the Co-ordinating Commissioner has reasonable evidence that the performance of the Provider materially fails to meet the requirements of this Agreement in one or more of the ways set out below, it may issue a Performance Notice in the form set out in Schedule 15 (Performance Monitoring Forms) to the Provider setting out the performance deficiency and containing a reminder of its implications:

3.3.1 failure by the Provider to comply with any Performance Indicator set out in Schedule 3 Part 4B (Performance Indicators and Consequences);

3.3.2 failure by the Provider to provide the volume of activity agreed and set out in the Activity Plan or in any of the separate Schedules 2 (The Services);

3.3.3 a negative audit finding;

3.3.4 failure in the Provider's complaints handling process;

3.3.5 intervention by a Regulator or Monitor directly leading to a risk affecting or, in the reasonable opinion of the Co-ordinating Commissioner, likely to affect, the ability of the Provider to provide the Services;

32.3.6 breach by the Provider (whether or not material) of clause 31 (Service Targets and Inpatient Appointments and Cancelled Operations);

32.3.7 failure by the Provider to reply to a Contract Query, or a Service Variation Notice under Schedule 6 (Variation Procedure);

32.3.8 failure by the Provider to comply with the requirements of clause 24 (NHS Branding, Marketing and Promotion) and/or Schedule 8 (NHS Branding, Marketing and Promotion);

32.3.9 failure by the Provider to implement the agreed recommendations of an Audit Commission audit report;

32.3.10 failure by the Provider to comply with the requirements of Schedule 3 Part 3 (Emergency and Critical Care Procedure);

32.3.11 failure by the Provider to discharge any of its other obligations under this Agreement.

32.4Where the Provider has reasonable evidence that the performance of a Commissioner materially fails to meet the requirements of this Agreement in one or more of the ways set out below, it may issue a Performance Notice in the form set out in Schedule 15 (Performance Monitoring Forms) to the Co-ordinating Commissioner setting out the performance deficiencies and a reminder of the implications:

32.4.1 where a Commissioner is late in any payments to be made under this Agreement;

32.4.2 subject to clause 7.5, where there is an overpayment or underpayment by a Commissioner of any sums due under this Agreement;

32.4.3 where the Co-ordinating Commissioner fails to reply to a Contract Query or a Service Variation Notice;

32.4.4 where a Commissioner fails materially to comply with an obligation under this Agreement, compliance with which by the Commissioner is essential to the Provider’s ability to provide a Service or Services;

32.4.5 a negative audit finding in respect of a Commissioner;

32.4.6 failure by a Commissioner to implement the agreed recommendations of an Audit Commission audit report.

22 32.5Performance Notices that are agreed to have been unjustified, or are determined in dispute resolution under clause 28 (Dispute Resolution) to have been unjustified, shall be treated as cancelled.

32.6If:

32.6.1 the Provider or any Commissioner has committed any material breach of its obligations under this Agreement (and where it is capable of remedy has not remedied that breach within a reasonable period allowed in the written notice to remedy); and/or

32.6.2 the Provider has, or the Commissioners have, accrued not less than 4 Performance Notices in respect of each of which the relevant performance deficiency remains unresolved; and/or

32.6.3 the Provider or any Commissioner has not resolved a performance deficiency within the period provided in the relevant Performance Notice (which shall be a maximum of 3 months)

then the Co-ordinating Commissioner may give a Warning Notice to the Provider, or (as the case may be) the Provider may give a Warning Notice to the Co-ordinating Commissioner, each in the form set out in Schedule 15 (Performance Monitoring Forms), setting out the matter or matters giving rise to that notice and containing a reminder of its implications.

32.7Where a Warning Notice is issued by the Co-ordinating Commissioner to the Provider, and in the view of the Provider the matter or matters giving rise to the Warning Notice are:

32.7.1 due in whole or in part to an act or omission by a Commissioner; or

32.7.2 a direct result of the Provider following the instructions of a Commissioner; or

32.7.3 due to circumstances beyond the Provider’s reasonable control which do not constitute an Event of Force Majeure or a Major Incident

then the Provider shall within 4 Operational Days of the issue of the Warning Notice issue an Excusing Notice in the form set out in Schedule 15 to the Co-ordinating Commissioner.

32.8Where a Warning Notice is issued by the Provider to the Co-ordinating Commissioner, and in the view of the Co-ordinating Commissioner the matter or matters giving rise to the Warning Notice are:

32.8.1 due in whole or in part to an act or omission by the Provider; or

32.8.2 a direct result of a Commissioner following the instructions of the Provider; or

32.8.3 due to circumstances beyond the relevant Commissioner’s reasonable control which do not constitute an Event of Force Majeure or a Major Incident

then the Co-ordinating Commissioner shall within 4 Operational Days of the issue of the Warning Notice issue an Excusing Notice in the form set out in Schedule 15 to the Provider.

32.9Within 4 Operational Days of the issue of a Warning Notice the Co-ordinating Commissioner and the Provider shall meet to discuss the subject matter of the Warning Notice, and any Excusing Notice that either may have issued.

32.10 Unless an Excusing Notice issued under clause 32.7 or 32.8 is agreed by the Co-ordinating Commissioner and the Provider to be valid, then within 5 Operational Days from the date of any meeting held pursuant to clause 32.9, the Co-ordinating Commissioner and the Provider shall agree a Remedial Action Plan to remedy the subject matter of the Warning Notice.

23 32.11 The Remedial Action Plan will specify targets and timescales within which those targets shall be achieved.

32.12 If the Co-ordinating Commissioner and the Provider have been unable to agree the Remedial Action Plan within the time period set out in clause 32.10, either of them may issue an Exception Report in the form set out in Schedule 15 (Performance Monitoring Forms) to the other’s Board of Directors and/or to any relevant Strategic Health Authority and/or to any appropriate Regulator and/or Monitor, each of which may take such steps as it thinks fit, having regard to its functions and those of the Co-ordinating Commissioner and the Provider. The Parties acknowledge that such steps may include publishing the Exception Report, provided this accords with the public interest disclosure requirement.

32.13 If following implementation of a Remedial Action Plan the matter that gave rise to the relevant Warning Notice remains unresolved, the Co-ordinating Commissioner and the Provider may agree a further Remedial Action Plan to remedy the matter, and the relevant provisions of this clause 32 (Performance) shall apply to any such further Remedial Action Plan.

32.14 If a Commissioner breaches a Remedial Action Plan and fails to remedy such breach within 5 Operational Days of its occurrence, the Provider may issue an Exception Report in the form set out in Schedule 15 (Performance Monitoring Forms) to:

32.14.1 such Commissioner’s Board of Directors; and/or

32.14.2 any relevant Strategic Health Authority; and/or

32.14.3 any appropriate Regulator; and/or

32.14.4 Monitor

each of which may take such steps as it thinks fit, having regard to its functions and those of the Co-ordinating Commissioner and the Provider, and the Parties acknowledge that such steps may include publishing the Exception Report, provided this accords with the public interest disclosure requirement.

32.15 If the Provider breaches a Remedial Action Plan and fails to remedy such breach within 5 Operational Days of its occurrence, the Co-ordinating Commissioner may issue an Exception Report in the form set out in Schedule 15 (Performance Monitoring Forms) to:

32.15.1 the Provider’s Board of Directors; and/or

32.15.2 any relevant Strategic Health Authority; and/or

32.15.3 any appropriate Regulator; and/or

32.15.4 Monitor

each of which may take such steps as it thinks fit, having regard to its functions and those of the Co-ordinating Commissioner and the Provider, and the Parties acknowledge that such steps may include publishing the Exception Report, provided this accords with the public interest disclosure requirement.

32.16 If the Provider fails to agree a Remedial Action Plan within the period set out in clause 32.10 or fails to rectify a breached Remedial Action Plan within the period specified in clause 32.15, and the Remedial Action Plan in question relates to a failure by the Provider to comply with a Performance Indicator, then the Co-ordinating Commissioner may, without prejudice to any other rights that it may have under this Agreement and provided that the Provider’s failure to agree or rectify the Remedial Action Plan is not due to the act or omission of any Commissioner, in respect of each such failure instruct the Commissioners where specified in Schedule 3 Part 4B to withhold for the period identified in Schedule 3 Part 4B, and where applicable retain as liquidated damages and not pay to the Provider, such percentage of all the monthly sums payable by them under clause 7.4, or such other amounts, as set out in

24 Schedule 3 Part 4B. The Commissioners shall withhold any sums to be withheld until the Co- ordinating Commissioner’s confirmation that the Provider has (as appropriate) agreed or rectified the relevant Remedial Action Plan, and the Commissioners shall then pay the withheld sums to the Provider within 5 Operational Days, less any sum specified in Schedule 3 Part 4B as to be retained as liquidated damages, and subject to clause 32.18 no interest shall be payable by any Commissioner to the Provider on any sum withheld under this clause 32.16.

32.17 If the Provider fails to agree a Remedial Action Plan within the period set out in clause 32.10, or fails to rectify a breached Remedial Action Plan within the period specified in clause 32.15, and provided that:

16.1 such failure is not due to the act or omission of any Commissioner; and

16.2 none of clauses 29.14, 29.15, 32.16, 33.17 and paragraphs 6.3, 8.2 and 9 of Schedule 3 Part 1 apply

then the Co-ordinating Commissioner may in respect of each individual failure instruct the Commissioners to withhold up to 20% of all the monthly sums payable by them under clause 7.4 in each month until the Remedial Action Plan is agreed or rectified. The Commissioners shall withhold such sums until the Co-ordinating Commissioner’s confirmation that the Remedial Action Plan has (as appropriate) been agreed or rectified, and the Commissioners shall then pay the withheld sums to the Provider within 5 Operational Days, and subject to clause 32.18 no interest shall be payable by any Commissioner to the Provider on any sum withheld under this clause 32.17.

32.18 Where within 20 Operational Days of the date of the first payment by a Commissioner to the Provider of a sum withheld under clause 32.16 or clause 32.17 the Provider produces evidence satisfactory to the Co-ordinating Commissioner that the relevant sums were withheld unjustifiably, then the relevant Commissioners shall pay interest on their respective sums withheld at the Default Interest Rate for the period of their withholding. If the Co-ordinating Commissioner does not accept the Provider’s evidence, the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

32.19 Where any Commissioner retains as liquidated damages under clause 32.16 a sum otherwise payable to the Provider, and within 20 Operational Days of the date of its retention the Provider produces evidence satisfactory to the Co-ordinating Commissioner that the relevant sum was retained unjustifiably, then the relevant Commissioner shall pay the retained sum to the Provider within 5 Operational Days of the date of the Co-ordinating Commissioner’s acceptance of the Provider’s evidence, together with interest on the retained sum at the Default Interest Rate for the period of its retention. If the Co-ordinating Commissioner does not accept the Provider’s evidence, the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

32.20 The provisions of the performance incentive schemes set out in Schedule 18 (Performance Incentive Schemes) shall apply.

33 CLINICAL QUALITY REVIEW

33.1The Provider shall for each month of this Agreement produce a report (the “Clinical Quality Performance Report”) detailing its performance against the Clinical Quality Performance Indicators set out in Schedule 3 Part 4A, and including without limitation:

1.1.1 details of all Clinical Quality Performance Indicators satisfied; and

1.1.2 details of, and reasons for, any failure to meet the Clinical Quality Performance Indicators.

33.2The Provider shall submit each Clinical Quality Performance Report to the Co-ordinating Commissioner within 10 Operational Days of the end of the month to which it relates.

25 33.3The Provider and the Co-ordinating Commissioner shall meet to review the Provider’s clinical performance:

33.3.1 within 5 Operational Days of the Co-ordinating Commissioner’s receipt of the Provider’s monthly Clinical Quality Performance Report; and

33.3.2 where either the Provider or the Co-ordinating Commissioner reasonably considers that the circumstances constitute an emergency, as soon as reasonably practicable following the issue by either of notice to the other requiring a meeting to be held as a matter of urgency, and in such circumstances the Provider and the Co-ordinating Commissioner shall use their best endeavours to arrange a meeting at the earliest possible opportunity

(each, a “Clinical Quality Review Meeting”).

33.4The Co-ordinating Commissioner may invite any of its Associates to participate in a Clinical Quality Review Meeting, and any Associate so invited shall use reasonable endeavours to ensure that its representative attends. Representatives who shall attend the Clinical Quality Review Meeting may include senior clinical or non-clinical management from the Provider and the Co-ordinating Commissioner, and from any Associate invited by the Co-ordinating Commissioner. The Co-ordinating Commissioner may in addition invite any responsible Healthcare Professional with a relevant interest to attend a Clinical Quality Review Meeting, but such individual shall not be entitled to vote.

33.5The Co-ordinating Commissioner and the Provider shall agree the quorum for any Clinical Quality Review Meeting and the number of representatives of each relevant Party who shall be invited to attend. The number of representatives entitled to vote shall in all cases be equal between on the one hand the Commissioners and on the other hand the Provider. The Co- ordinating Commissioner’s representative shall chair each Clinical Quality Review Meeting and shall hold the casting vote. The Co-ordinating Commissioner, the Provider and any Associates present shall use reasonable endeavours in each Clinical Quality Review Meeting to hold open and honest discussions to reach mutually agreed conclusions. If agreement cannot be reached, decisions of the Clinical Quality Review Meeting shall be taken by voting by a show of hands, with the Co-ordinating Commissioner’s representative holding the casting vote.

33.6Any dispute arising from a decision of the Clinical Quality Review Meeting may be referred to dispute resolution under clause 28 (Dispute Resolution), provided that pending the outcome of any such referral any procedures or processes contemplated in this clause 33 (Clinical Quality Review) that are underway shall continue as if no such referral had been made.

33.7The Clinical Quality Review Meeting shall consider and discuss, without limitation:

33.7.1 the Clinical Quality Performance Report;

33.7.2 any Serious Untoward Incidents or reports or investigations of Serious Untoward Incidents;

33.7.3 any Patient Safety Incidents or reports or investigations of Patient Safety Incidents;

33.7.4 any Patient deaths;

33.7.5 any information, notification or advice received from Monitor or any Regulator which relates to or has a bearing upon the Provider’s provision of the Services;

33.7.6 any JCI Report;

33.7.7 any progress report relating to a Remedial Clinical Action Plan; and

33.7.8 any RCAP Report;

26 and the Clinical Quality Review Meeting shall in addition take such decisions as are specified by this clause 33 (Clinical Quality Review), and may further take such other decisions regarding the matters contemplated by this clause 33 (Clinical Quality Review) as are appropriate to ensure the clinical quality of the Services having regard always to the best interests of Patients.

33.8Having regard to any relevant Clinical Quality Performance Report, the Clinical Quality Review Meeting shall determine whether the Provider has failed to meet any of the Clinical Quality Performance Indicators.

33.9If the Clinical Quality Review Meeting determines that the Provider has failed to meet any of the Clinical Quality Performance Indicators, then it shall consider and determine whether either:

33.9.1 the Provider has resolved the failure and its causes, such that it is not likely to re- occur; or

33.9.2 the failure was due to exceptional circumstances or circumstances beyond the Provider’s reasonable control, such that the Provider cannot reasonably be held to be responsible for it, and that it is not likely to re-occur;

and if either or both of these criteria apply, the consideration of the relevant failure shall be closed.

33.10 Unless consideration of a Provider failure to meet a Clinical Quality Performance Indicator is closed by the Clinical Quality Review Meeting in accordance with clause 33.9, the Co- ordinating Commissioner and the Provider shall conduct a joint investigation into the relevant failure (a “Joint Clinical Investigation”), and the Clinical Quality Review Meeting shall proceed to agree the terms of reference and the timescale for such Joint Clinical Investigation.

33.11 Following the conclusion of any Joint Clinical Investigation, the Provider and the Co-ordinating Commissioner shall produce and agree a report detailing its outcome, to be tabled for consideration at the next Clinical Quality Review Meeting (a “JCI Report”), and which shall either:

33.11.1 recommend that the consideration and investigation of the Provider’s failure to meet the Clinical Quality Performance Indicator should be closed; or

33.11.2 recommend that a Remedial Clinical Action Plan should be implemented, and describe the key aspects of such Plan.

33.12 Where a JCI Report is tabled for consideration at a Clinical Quality Review Meeting, the Clinical Quality Review Meeting shall consider the recommendations of the JCI Report, and shall decide whether:

33.12.1 to close the investigation of the Provider’s failure to meet the relevant Clinical Quality Performance Indicator; or

33.12.2 to implement a Remedial Clinical Action Plan

and if the Clinical Quality Review Meeting decides to implement a Remedial Clinical Action Plan, it shall proceed to agree the details for the implementation of such Plan, including without limitation its timeframes and who shall be responsible for its implementation.

33.13 If a Remedial Clinical Action Plan is implemented in accordance with clause 33.12, the Provider shall unless otherwise agreed prepare and table for consideration at each Clinical Quality Review Meeting whilst the Remedial Clinical Action Plan remains in effect a progress report describing progress made under the Plan since the previous Clinical Quality Review Meeting.

27 33.14 At the end of the agreed timeframe for any Remedial Clinical Action Plan, the parties responsible for its implementation shall produce and agree a report detailing the implementation and success of the Remedial Clinical Action Plan to be tabled for consideration at the next Clinical Quality Review Meeting (an “RCAP Report”) which shall either:

33.14.1 conclude that the Remedial Clinical Action Plan has been implemented; or

33.14.2 conclude that the Remedial Clinical Action Plan has not been implemented, and identify the reasons for this.

33.15 Where an RCAP Report is tabled for consideration at a Clinical Quality Review Meeting, the Meeting shall consider the conclusions of the RCAP Report, and shall either:

33.15.1 decide that the Remedial Clinical Action Plan has been implemented, such that the investigation of the failure to meet the relevant Clinical Quality Performance Indicator should be closed, in which case the investigation shall be closed forthwith; or

33.15.2 decide that the Remedial Clinical Action Plan has not been implemented, and that the failure to implement the Remedial Clinical Action Plan is due to a failure or omission on the part of any Commissioner to fulfil its obligations under the Remedial Clinical Action Plan, or is otherwise not due to any failure or omission on the part of the Provider; or

33.15.3 decide that the Remedial Clinical Action Plan has not been implemented, and that the failure to implement the Remedial Clinical Action Plan is due to a failure or omission on the part of the Provider to fulfil its obligations under the Remedial Clinical Action Plan; or

33.15.4 decide that the Remedial Clinical Action Plan has been implemented, but the relevant Clinical Quality Performance Indicator remains in breach.

33.16 If the Clinical Quality Review Meeting decides either:

33.16.1 that a Remedial Clinical Action Plan has not been implemented due to a failure or omission on the part of a Commissioner to fulfil its obligations under the Remedial Clinical Action Plan, or is otherwise not due to any failure or omission on the part of the Provider; or

33.16.2 that the Remedial Clinical Action Plan has been implemented, but the relevant Clinical Quality Performance Indicator remains in breach

then the Clinical Quality Review Meeting shall decide what if any further steps should be taken to remedy the Provider’s breach of the relevant Clinical Quality Performance Indicator, and may, for example and without limitation, decide to close the investigation of the relevant failure; or to require a further Joint Clinical Investigation to be conducted, in which case the relevant provisions of clauses 33.10 to 33.18 shall apply; or to require an amended or a further Remedial Clinical Action Plan to be implemented, in which case the relevant provisions of clauses 33.12 to 33.18 shall apply.

33.17 If the Clinical Quality Review Meeting decides that the Remedial Clinical Action Plan has not been implemented and that this is due to a failure or omission on the part of the Provider to fulfil its obligations under the Remedial Clinical Action Plan, then the Co-ordinating Commissioner may in respect of each such failed Remedial Clinical Action Plan:

33.17.1 instruct the relevant Commissioner(s) where specified in Schedule 3 Part 4A to withhold for the period identified in Schedule 3 Part 4A, and where applicable retain as liquidated damages and not pay to the Provider, such percentage of all the monthly sums payable by them under clause 7.4, or such other amounts, as set out in Schedule 3 Part 4A, and the relevant Commissioner(s) shall withhold any sums to be withheld until the Clinical Quality Review Meeting is satisfied, whether on the basis of

28 a further RCAP Report or otherwise, that the relevant Remedial Clinical Action Plan has been implemented or the Provider’s breach of the relevant Clinical Quality Performance Indicator has been otherwise resolved; and/or

33.17.2 issue an Exception Report in the form set out in Schedule 15 (Performance Monitoring Forms) to the Provider’s Board of Directors and/or any relevant Strategic Health Authority and/or any appropriate Regulator and/or Monitor, each of which may take such steps as it thinks fit, having regard to its functions and those of the Co- ordinating Commissioner and the Provider, and the Parties acknowledge that such steps may include publishing the Exception Report, provided this accords with the public interest disclosure requirement.

33.18 Where under clause 33.17 a Commissioner withholds any sum identified in Schedule 3 Part 4A, it shall pay the sum withheld (less any sum specified in Schedule 3 Part 4A as to be retained as liquidated damages) to the Provider within 5 Operational Days of the Clinical Quality Review Meeting’s confirmation of (i) the implementation of the Remedial Clinical Action Plan or (ii) the resolution of the breach of the relevant Clinical Quality Performance Indicator, and subject to clause 33.19 no interest shall be payable by any Commissioner to the Provider on any sum withheld under clause 33.17.

33.19 Where within 20 Operational Days of the date of payment by a Commissioner to the Provider of a sum withheld under clause 33.17 the Provider produces evidence satisfactory to the Co- ordinating Commissioner that the relevant sum was withheld unjustifiably, then the relevant Commissioner shall pay interest on the sum withheld at the Default Interest Rate for the period of its withholding. If the Co-ordinating Commissioner does not accept the Provider’s evidence, the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

33.20 Where a Commissioner retains as liquidated damages under clause 33.17 a sum otherwise payable to the Provider, and within 20 Operational Days of the date of its retention the Provider produces evidence satisfactory to the Co-ordinating Commissioner that the sum was retained unjustifiably, then the relevant Commissioner shall pay the retained sum to the Provider within 5 Operational Days of the date of the Co-ordinating Commissioner’s acceptance of the Provider’s evidence, together with interest on the retained sum at the Default Interest Rate for the period of its retention. If the Co-ordinating Commissioner does not accept the Provider’s evidence, the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

34 SUSPENSION

34.1This clause shall apply if:

34.1.1 the Co-ordinating Commissioner reasonably considers that a breach by the Provider of any obligation under this Agreement:

34.1.1.1 may create an immediate and serious threat to the health or safety of any Patient; or

34.1.1.2 may result in a material interruption in the provision of one or more of the Services;

or

34.1.2 the Provider has received any Performance Notice in respect of a Service or Services within 12 months of having agreed to take remedial action in accordance with clause 32.10 in respect of the same issue with such Service or Services as is identified in the Performance Notice; or

34.1.3 the Provider has received any Performance Notice in respect of any part of a Service or Services that may be defined by physical location or by the ability to isolate the Service(s); or

29 34.1.4 clauses 34.1.1, 34.1.2 and 34.1.3 do not apply, but the Co-ordinating Commissioner justifiably considers that the circumstances constitute an emergency, including an Event of Force Majeure affecting provision of a Service or any part of a Service; or

34.1.5 an Exception Report has been issued under clause 32 and the Provider’s Board of Directors has either failed to agree a Remedial Action Plan or failed to rectify a breached Remedial Action Plan within the timescales indicated in the Exception Report (which shall not be less than 5 Operational Days); or

34.1.6 an Exception Report has been issued under clause 33.17 and the Provider’s Board of Directors has failed to take the necessary steps to ensure the implementation of the relevant Remedial Clinical Action Plan; or

34.1.7 the Provider’s ability to provide a Service is or will be interrupted by the suspension or loss of any Consent.

34.2Where clause 34.1 applies, the Co-ordinating Commissioner may partially or totally suspend the affected Service or part of it and the Provider’s right to receive payment for it, until the Provider demonstrates to the reasonable satisfaction of the Co-ordinating Commissioner that it is able to and will perform the relevant Service to the required standard.

34.3Each Commissioner may recover from the Provider its costs resulting from suspension or partial suspension under this clause 34 (Suspension) (except where suspension or partial suspension is by reason only of an Event of Force Majeure).

34.4As and when the Co-ordinating Commissioner becomes reasonably satisfied as to future performance by the Provider of a suspended Service, it may require the Provider to restore that Service under the terms of this Agreement. This shall not affect any Commissioner’s right to recover its costs under clause 34.3, or the continuation of suspension of any other Services.

34.5If the Co-ordinating Commissioner acts unreasonably in suspending any Service or Services, the relevant Commissioner(s) shall indemnify the Provider in respect of any Losses directly and reasonably incurred by the Provider, and the Provider shall take all reasonable steps to minimise and mitigate such Losses. The Provider shall continue to implement such steps as the Co-ordinating Commissioner may specify as being necessary to demonstrate to the Co- ordinating Commissioner’s reasonable satisfaction that the Provider is and will be able to perform the relevant Service to the required standard notwithstanding that the Provider may have referred the relevant suspension to dispute resolution under clause 28 (Dispute Resolution).

34.6The suspension or partial suspension of any Service or part of it under clause 34.2 shall be exercised by the issue by the Co-ordinating Commissioner to the Provider of a Suspension Notice.

34.7Any requirement under clause 34.4 to restore a Service which has been suspended shall be exercised by the issue by the Co-ordinating Commissioner of a Restoration Notice.

35 TERMINATION

35.1 Except as provided in clauses 35.4 to 35.10 inclusive and subject to clauses 35.2 and 35.3, this Agreement may not be terminated before the first anniversary of the Service Commencement Date.

35.2 Subject to any obligation to continue to provide Mandatory Goods and Services and/or Essential Services, the Provider may terminate this Agreement voluntarily as to all or any part of the Services by giving the Co-ordinating Commissioner not less than 12 months’ written notice at any time after the Service Commencement Date.

30 35.3 The Co-ordinating Commissioner may terminate this Agreement voluntarily as to all or any part of the Services by giving the Provider not less than 12 months’ notice at any time after the Service Commencement Date.

35.4 Subject to clauses 29.14, 29.15, 32.16, 32.17, 33.17, paragraphs 6.3, 8.2 and 9 of Schedule 3 Part 1 and the provisions of Schedule 3 Part 4, and provided that the Provider has complied with its obligations under clause 7.4, if at any time the aggregate undisputed amount due to the Provider from the Co-ordinating Commissioner and/or any one or more of its Associates exceeds:

35.4.1 25% of all of the Annual Contract Values; or

35.4.2 where there is no applicable Annual Contract Value, the equivalent to the Provider of 3 months’ average income under this Agreement

and if full payment is not made by the relevant Commissioner(s) within 28 calendar days of receipt of written notice from the Provider requiring payment to be made, the Provider may terminate this Agreement in respect of the whole (but not part only) of the relevant Services by serving written notice to take effect immediately.

35.5 Either the Co-ordinating Commissioner or the Provider may terminate this Agreement in its entirety by written notice to take effect immediately if an Event of Force Majeure persists for more than 28 calendar days without the Parties agreeing alternative arrangements.

35.6 If the Provider is an NHS Foundation Trust the Co-ordinating Commissioner may terminate this Agreement in its entirety by written notice to take effect immediately, if:

35.6.1 an Order is made pursuant to section 54 of the 2006 Act to dissolve the Provider; or

35.6.2 Monitor exercises any one or more of the powers in sections 52(3) or 52(4) of the 2006 Act or requires action under section 53 of the 2006 Act; or

35.6.3 Monitor transfers the Provider’s responsibility for Mandatory Goods and Services, and/or Essential Services and/or Protected Assets, and such transfer materially affects the Provider’s ability to perform its obligations under this Agreement; or

35.6.4 the Provider’s Terms of Authorisation are amended such that the Provider is no longer able to provide (whether temporarily or permanently) any or all of the Services; or

35.6.5 the Provider applies to Monitor for its dissolution and transfer of its property and liabilities to another body corporate pursuant to section 56 of the 2006 Act

and for the avoidance of doubt this clause 35.6 shall not limit the application of clause 35.9 of this Agreement to the Provider if the Provider is an NHS Foundation Trust.

35.7 Clause 35.6 shall not apply when the Secretary of State indicates to the Co-ordinating Commissioner in writing his intention to make an Order, or Monitor indicates to the Co- ordinating Commissioner in writing its intention to issue an Authorisation, for an NHS Body or NHS Foundation Trust, as successor to the Provider, to offer a complete novation of this Agreement in place of the Provider. In this case the Co-ordinating Commissioner shall not terminate, but shall wait for up to 3 months for the Order to be made or the Authorisation to be issued.

35.8 Pursuant to clause 35.7, when the Order is made or the Authorisation is issued (and the successor is able and willing) the Commissioners shall enter into a novation agreement with that successor. If the Order is not made or the Authorisation is not issued within 3 months, or the successor is not willing to enter into a novation within a further month, the Co-ordinating Commissioner may terminate this Agreement in its entirety by written notice to the Provider to take effect immediately.

31 35.9 The Co-ordinating Commissioner may terminate this Agreement in its entirety by written notice to the Provider to take effect immediately if:

35.9.1 the Provider ceases to carry on its business or substantially the whole of its business; or

35.9.2 a Provider Insolvency Event of Default occurs; or

35.9.3 the Provider is in persistent or repetitive breach of the Quality Standards after exhaustion of the provisions in clauses 32 (Performance), 33 (Clinical Quality Review) and 34 (Suspension); or

35.9.4 the Provider is in persistent or repetitive breach or other material breach of any obligations under Schedule 3 (Managing Activity and Referrals, Care and Resource Utilisation Techniques and Retention of Payment Scheme) and such breach has not been remedied within the time period specified in any relevant Remedial Action Plan; or

35.9.5 2 Exception Reports or more are issued to the Provider within any rolling 6-month period which are not disputed by the Provider, or if disputed are upheld under the procedure for dispute resolution under clause 28 (Dispute Resolution); or

35.9.6 an Exception Report has been issued and the relevant Board of Directors has either failed to agree to implement or failed to implement any of the required remedial actions; or

35.9.7 the Provider fails to comply with the provisions of clause 49 (Change in Control); or

35.9.8 there is a Change in Control of the Provider or any of its holding companies or subsidiaries (each as defined in the Companies Act 1985 and the Companies Act 2006) (other than a Public Company), without the prior written consent of the Co- ordinating Commissioner (such consent not to be unreasonably withheld or delayed); or

35.9.9 there is a Change in Control of any Material Sub-contractor to the Provider, or a Change in Control of any holding company or any subsidiary of a Material Sub- contractor to the Provider (each as defined in the Companies Act 1985 and the Companies Act 2006) (other than a Public Company), without the prior written consent of the Co-ordinating Commissioner (such consent not to be unreasonably withheld or delayed); or

35.9.10 the Conditions Precedent are not met by the Longstop Date; or

35.9.11 the Provider fails to obtain, or loses any Consent, or any Consent is varied, restricted or suspended, the effect of which might reasonably be considered to have a material adverse effect on the provision of the Services; or

35.9.12 the Provider materially fails to comply with the requirements of clause 24 (NHS Branding, Marketing and Promotion) and/or Schedule 8 (NHS Branding, Marketing and Promotion); or

35.9.13 the Provider has breached of any of its obligations under this Agreement and such breach materially and adversely affects the performance of the Provider’s obligations under this Agreement, and the Provider has failed to remedy such breach(es) within 60 calendar days of receipt of notice from the Co-ordinating Commissioner identifying the breach(es); or

35.9.14 the Provider or its employees have offered or have given any Commissioner any inducement to purchase, unless the Provider has subsequently dismissed the employee concerned.

32 35.10 The Provider may terminate this Agreement in its entirety by written notice to the Co- ordinating Commissioner to take effect immediately if any Commissioner is in persistent material breach of its obligations under this Agreement which has a material and adverse effect on the ability of the Provider to provide the Services, and the Commissioner fails to remedy such breach within 60 calendar days of the Co-ordinating Commissioner’s receipt of the Provider’s notice identifying the breach.

35.11 If the Co-ordinating Commissioner becomes entitled to terminate this Agreement in its entirety under clause 35.5, clause 35.6, clause 35.8, or clause 35.9, then without prejudice to any other right or remedy, it may equally by written notice to the Provider having immediate effect terminate this Agreement in respect of part only of the Services set out in Schedule 2.

35.12 In the event of any termination of this Agreement by the Co-ordinating Commissioner under this clause 35 (Termination), whether partially or in its entirety, each of the relevant Commissioners may itself provide or procure the provision of its terminated Services.

35.13 In exercising their rights under clauses 35.11 and 35.12, the Commissioners shall have due regard for other Services provided by the Provider, and in particular for the effect on the Provider’s ability to maintain the provision of relevant Mandatory Goods and Services and Essential Services.

35.14 If, as a result of termination, partial termination, suspension or partial suspension of this Agreement by the Co-ordinating Commissioner, any Commissioner either procures the Services or part of them from an alternative provider or executes the Services or part of them itself, and the reasonable cost of doing so exceeds the amount that would have been payable to the Provider for providing the same Services, then that Commissioner acting reasonably shall be entitled to recover the excess cost from the Provider for the shorter of:

13.1 a period of 6 months; or

13.2 the period of suspension;

together with all reasonable administration costs, in addition to any other sums payable by the Provider to the Co-ordinating Commissioner in respect of any termination.

35.15 Expiry of this Agreement or its termination for any reason shall not affect any rights or liabilities that have accrued prior to the date of termination.

36 CONSEQUENCES OF EXPIRY, TERMINATION OR SUSPENSION

36.1 On termination of this Agreement for any reason, whether partially or in its entirety, and where reasonable and appropriate on its expiry, the Provider shall for a reasonable period both before and after any such termination or expiry:

36.1.1 co-operate fully with the Co-ordinating Commissioner and any successor provider of the Services or any part of the Services in order to ensure continuity and a smooth transfer of the Services, and to avoid any inconvenience or any risk to the health and safety of patients or employees of any Commissioner or members of the public, and to that end the Provider may agree with the Co-ordinating Commissioner, and where appropriate with the successor provider, a transition plan;

36.1.2 at the reasonable cost and reasonable request of the Co-ordinating Commissioner, promptly render all reasonable assistance and provide all reasonable information to the extent necessary to effect an orderly assumption of the Services by another provider of the Services;

36.1.3 at the reasonable cost of the Co-ordinating Commissioner, deliver to the Co- ordinating Commissioner all materials, papers, documents and operating manuals owned by the Commissioners and utilised by the Provider in the provision of the Services;

33 36.1.4 insofar as it is in the power of the Provider to do so and at the reasonable cost of the Co-ordinating Commissioner, use all reasonable efforts to obtain the consent of third parties to the assignment, novation or termination of existing contracts between the Provider or any third party which relate to or are associated with the Services; and

36.1.5 comply with its obligations pursuant to the Transfer of Undertakings (Protection of Employees) Regulations 2006 as amended, in relation to employees employed in the provision of the Service or Services;

and the Parties shall use all reasonable endeavours to minimise any inconvenience caused to or likely to be caused to Patients or prospective Patients as a result of the expiry or termination of this Agreement.

36.2 The provisions of clauses 15 (Serious Untoward Incident and Patient Safety Incident Reporting), 21 (Patient Health Records), 22 (Confidential Information of the Parties), 26 (Liability and Insurance), 29 (Information Requirements), 35 (Termination), 36 (Consequences of Expiry, Termination or Suspension) and 37 (Inducements to Purchase) shall survive the expiry of this Agreement or its termination for any reason.

36.3 On expiry or termination of this Agreement or during any period of suspension (but, in the case of partial termination or suspension, only as regards the Services affected):

36.3.1 the Commissioners shall use reasonable efforts to ensure that no further Patients are referred to the Provider other than for Non-elective Care;

36.3.2 the Provider shall cease to accept any referrals other than for Non-elective Care; and

36.3.3 subject to any appropriate arrangements made under clause 36.1.1, the Provider shall immediately cease its treatment of Patients or arrange for their transfer or discharge as soon as is practicable in accordance with Good Clinical Practice and Good Healthcare Practice.

36.4 Each Commissioner shall pay the Provider pro rata for any activity delivered by the Provider following termination of this Agreement until the Provider ceases to provide the Services.

36.5 Where any termination or partial termination of this Agreement or any suspension of a Service or Services takes place forthwith (for example where clause 34.1.7 or clause 35.9.11 applies), such that the Provider is not able or is not permitted to continue to provide Services and cannot implement arrangements for the transition to a successor of their provision to the Commissioners, then the Provider shall implement its Essential Services Continuity Plan and shall co-operate fully with the Co-ordinating Commissioner and any relevant Commissioners to ensure that:

36.5.1 the relevant Services are commissioned without delay from an alternative provider; and

36.5.2 there is no interruption in the availability to the relevant Commissioners of the Mandatory Goods and Services and the Essential Services.

36.6 On expiry or termination of this Agreement the Receiving Party shall comply with the Disclosing Party’s reasonable instructions in relation to Confidential Information disclosed by the Disclosing Party to the Receiving Party under clause 22 (Confidential Information of the Parties).

37 INDUCEMENTS TO PURCHASE

34 37.1 The Provider shall not offer to any Commissioner or its officers, employees or agents (and none of them shall seek) any cash discount or similar benefit against the Prices, and the Parties shall comply with the Law in respect of all such matters.

38 VARIATIONS

38.1 This Agreement may not be amended other than in accordance with this clause 38 (Variations).

38.2 The Parties:

38.2.1 may agree to vary the provisions of this Agreement and its Schedules that are set out in Schedule 21 (Provisions that may be varied);

38.2.2 shall not vary any provision of this Agreement or its Schedules that is not set out in Schedule 21 without the approval of the Secretary of State.

38.3 Subject to clause 38.2, the provisions of this Agreement and its Schedules may only be varied by:

38.3.1 agreement in writing, signed by the Co-ordinating Commissioner’s representative on behalf of the Commissioners, and by the Provider’s representative on behalf of the Provider; or

38.3.2 agreement between the Parties arising as a result of a Review, and recorded in the relevant Review Record, provided that the terms of the Variation are appropriately recorded in writing; or

38.3.3 agreement between the Parties arising as a result of the operation of the dispute resolution procedure under clause 28 (Dispute Resolution), provided that the terms of the Variation are appropriately recorded in writing.

38.4 The provisions of Schedule 6 Part 1 shall apply to the negotiation and agreement of all Service Variations by the Co-ordinating Commissioner (on behalf of each Commissioner) and the Provider, except those Service Variations that are agreed during a Review and recorded in the relevant Review Record and those that are agreed through dispute resolution under clause 28 (Dispute Resolution).

38.5 All Variations shall be recorded in Schedule 6 Part 2.

39 REPRESENTATIONS AND WARRANTIES

39.1The Provider warrants to the Commissioners that:

39.1.1 it has full power and authority to enter into this Agreement and all governmental or official approvals and consents and all necessary Consents have been obtained and are in full force and effect;

39.1.2 its execution of this Agreement does not and will not contravene or conflict with its constitution, Terms of Authorisation, any Law, or any agreement to which it is a party or which is binding on it or any of its assets;

39.1.3 the copies of all documents supplied to the Commissioners or any of their advisers by or on its behalf and listed in Schedule 14 (Documents Relied On) from time to time are complete and their contents are true;

39.1.4 it has the right to permit disclosure and use of Confidential Information for the purpose of this Agreement;

39.1.5 to the best of its knowledge, nothing will have, or is likely to have, a material adverse effect on its ability to perform its obligations under this Agreement; and

35 39.1.6 all information supplied by it to the Commissioners during the award procedure leading to the execution of this Agreement is, to its reasonable knowledge and belief, true and accurate and it is not aware of any material facts or circumstances which have not been disclosed to the Commissioners which would, if disclosed, be likely to have an adverse effect on a reasonable public sector entity’s decision whether or not to contract with the Provider substantially on the terms of this Agreement.

39.2Each Commissioner warrants to the Provider that:

39.2.1 it has full power and authority to enter into this Agreement and all necessary governmental or official approvals and consents have been obtained and are in full force and effect;

39.2.2 its execution of this Agreement does not and will not contravene or conflict with its constitution, any Law, or any agreement to which it is a party or which is binding on it or any of its assets;

39.2.3 the copies of all documents supplied to the Provider or any of its advisers by it or on its behalf and listed in Schedule 14 (Documents Relied On) from time to time are complete and their contents are true;

39.2.4 it has the right to permit disclosure and use of Confidential Information for the purpose of this Agreement; and

39.2.5 to the best of its knowledge, nothing will have, or is likely to have, a material adverse effect on its ability to perform its obligations under this Agreement.

39.3 The warranties set out in this clause 39 (Representations and Warranties) are continuous throughout the term of this Agreement.

40 NOTICES

40.1 Any notices shall be in writing and shall be served by hand, post, electronic mail or facsimile by sending the same to the address for the relevant party set out in Schedule 17 (Notices).

40.2 Notices:

40.2.1 by post shall be effective upon the earlier of actual receipt, or five calendar days after mailing;

40.2.2 by hand shall be effective upon delivery;

40.2.3 by e-mail shall be effective when sent in legible form, but only if, following transmission, the sender does not receive a non-delivery message.

41 FORCE MAJEURE

41.1 Where a Party is (or claims to be) affected by an Event of Force Majeure, it shall take all reasonable steps to mitigate the consequences of it, resume performance of its obligations as soon as practicable and use all reasonable efforts to remedy its failure to perform.

41.2 Subject to clause 41.1, the Party claiming relief shall be relieved from liability under this Agreement to the extent that because of the Event of Force Majeure it is not able to perform its obligations under this Agreement.

41.3 The Co-ordinating Commissioner shall not be entitled to exercise its rights under clauses 29.14, 29.15, 32.16, 32.17, 33.17, paragraphs 6.3 and 8.2 of Schedule 3 Part 1 or Schedule 3 Part 4, and the Commissioners may not exercise their rights under clause 34.3, to the extent that the circumstances giving rise to such rights arise as a result of an Event of Force Majeure.

36 41.4 The Party claiming relief shall serve initial written notice on the other Party immediately it becomes aware of the Event of Force Majeure. This initial notice shall give sufficient details to identify the particular event. Detailed written notice shall be served within a further 5 Operational Days. This detailed notice shall contain all relevant available information relating to the failure to perform as is available, including the effect of the Event of Force Majeure, the mitigating action being taken and an estimate of the period of time required to overcome it and resume full delivery of Services.

42 EMERGENCY RESPONSE AND MAJOR INCIDENTS

42.1 The Parties shall attach their Emergency Response Plan at Schedule 2 Part 3 and shall comply with the Emergency Response Plan in the event of an emergency situation that places a strain on the capacity of the NHS to respond.

42.2 In the event of a Major Incident the Provider shall comply with the Major Incident Plan at Schedule 2 Part 3.

43 NHS COUNTER-FRAUD AND SECURITY MANAGEMENT

43.1 Where the Provider is neither an NHS Trust, nor an NHS Foundation Trust or an NHS Body, it shall comply with Schedule 13 Part 1 (NHS Counter-fraud and Security Management for non- NHS Providers).

43.2 Where the Provider is either an NHS Trust, or an NHS Foundation Trust or is otherwise an NHS Body, it shall comply with Schedule 13 Part 2 (NHS Counter-fraud and Security Management for NHS Providers).

44 THIRD PARTY RIGHTS

44.1 A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of this Agreement, provided that:

44.1.1 to the extent that this Agreement applies in their favour, it may be enforced by the Secretary of State, any relevant Strategic Health Authority, any Regulator, Monitor, the Counter Fraud and Security Management Service, the National Audit Office, and the Audit Commission; and

44.1.2 any NHS Body may enforce such of the provisions of this Agreement as required to give full effect to Patient Choice, including without limitation clause 55 (Non- commissioned activity) and Schedule 3 Part 2 (Patient Booking and Patient Choice).

44.2 The rights of the Parties to terminate, rescind or agree any Variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a Party to this Agreement.

45 WAIVER

45.1 Any relaxation or delay of any Party in exercising any right under this Agreement shall not be taken as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right.

46 ENTIRE AGREEMENT

46.1 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this Agreement, except for any contract entered into between the Commissioners and the Provider to the extent that it relates to the same or similar services and is designed to remain effective until the Services Commencement Date under this Agreement.

46.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement, representation, warranty or

37 understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty or in any document agreed by the Parties to be contractually binding and listed in Schedule 14 (Documents Relied On).

46.3 Nothing in this clause 46 (Entire Agreement) shall exclude any liability for fraud or any fraudulent misrepresentation.

47 SEVERABILITY

47.1 If any part of this Agreement is declared invalid or otherwise unenforceable, it shall be severed from this Agreement and this shall not affect the validity and/or enforceability of the remaining provisions.

48. ASSIGNMENT AND SUB-CONTRACTING

48.1 The Provider shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights or obligations under this Agreement without the prior written consent of the Co-ordinating Commissioner.

48.2 No Commissioner shall assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights or obligations under this Agreement without the prior written consent of the Provider.

48.3 The Provider is permitted to provide the Services using, or using the assistance of, the Sub- contractors specified in Schedule 10 (Provider’s Sub-contractors).

48.4 The Provider shall be responsible for the acts and omissions of:

48.4.1 its Sub-contractors; and

48.4.2 any other party to which it may assign, delegate, sub-contract, transfer, charge or dispose of any obligation under this Agreement

as if they were the acts or omissions of the Provider, and neither the Provider’s Sub- contractors nor any party referred to in clause 48.4.2 shall be parties to this Agreement.

48.5 This Agreement shall be binding on and shall be to the benefit of the Provider and each Commissioner and their respective successors and permitted transferees and assigns.

49. CHANGE IN CONTROL

49.1 The Provider shall not at any time permit or procure a Change in Control to occur in respect of the Provider, the Provider’s holding companies (if any) or any subsidiary of the Provider (each as defined in the Companies Act 1985 and the Companies Act 2006) (other than a Public Company) without the prior written consent of the Co-ordinating Commissioner (such consent not to be unreasonably withheld or delayed).

49.2 The Provider shall procure that there is no Change in Control of a Material Sub-contractor or any Change in Control of a Material Sub-contractor’s holding companies (if any) or any subsidiary of a Material Sub-contractor (as defined in the Companies Act 1985 and the Companies Act 2006) (other than a Public Company) without the prior written consent of the Co-ordinating Commissioner (such consent not to be unreasonably withheld or delayed).

49.3 The Provider shall procure that there is no sale or other disposal of the legal, beneficial or equitable interest in the Provider’s Premises without the prior written consent of the Co- ordinating Commissioner (such consent not to be unreasonably withheld or delayed).

49.4 Notwithstanding any other provision of this Agreement, the Provider shall not at any time permit a Restricted Person to hold five (5) per cent or more of the total value of any Security:

38 49.4.1 in it or in its holding company or any of its subsidiaries (as defined in the Companies Act 1985 and the Companies Act 2006); or

49.4.2 in a Material Sub-contractor or in any holding company or any of the subsidiaries (as defined in the Companies Act 1985 and the Companies Act 2006) of a Material Sub-contractor.

50. EXCLUSION OF PARTNERSHIP

50.1 Nothing in this Agreement shall create a partnership or joint venture or relationship of employer and employee or principal and agent between any Commissioner and the Provider.

51. NON-SOLICITATION

51.1During the life of this Agreement neither the Provider nor any Commissioner shall solicit any medical, clinical or nursing staff engaged or employed by the other without the other’s prior written consent.

51.2Subject to Department of Health guidance from time to time, it shall not be considered to be a breach of any obligation under clause 51.1 where an individual becomes an employee of a Party as a result of a response by that individual to an advertisement placed by or on behalf of the relevant Party for the recruitment of clinical or nursing staff or consultants and where it is apparent from the wording of the advertisement, the manner of its publication or otherwise that the advertisement was equally likely to attract applications from individuals who were not employees of the relevant Party.

52. PROVISIONS SURVIVING TERMINATION

Any rights, duties or obligations of any of the Parties which are expressed to survive, or which otherwise by necessary implication survive the expiry or termination for any reason of this Agreement, together with all indemnities, shall continue after such expiry or termination, subject to such limitations of time as are expressed in this Agreement.

53. CONFLICTS OF INTEREST

If a Party becomes aware of any conflict of interest which has or is likely to have an adverse effect on another Party’s decision (acting reasonably) to determine whether or not to contract with it or continue to contract with it substantially on the terms of this Agreement, it shall immediately declare such conflict to the other and the other Party shall take such action under this Agreement as it deems necessary without prejudice to any other right it may have under Law.

54. EQUALITY OF ACCESS AND NO DISCRIMINATION

54.1The Provider shall not discriminate between Patients on the grounds of gender, age, ethnicity, disability, religion, sexual orientation or any other non-medical characteristics.

54.2The Provider shall provide appropriate assistance for Patients who do not speak, read or write English or who have communication difficulties (including without limitation hearing, oral or learning impairments).

54.3The Provider shall provide to the Commissioners such information in addition to that required under clause 29 (Information Requirements) and Schedule 5 (Information Requirements) as they may reasonably require:

54.3.1 to monitor the equality of access to the Services; and

54.3.2 to fulfil their obligations under the Law.

55. NON-COMMISSIONED ACTIVITY

39 55.1 Without prejudice to the other provisions of this Agreement, the Provider shall where authorised or required to do so by the Co-ordinating Commissioner be obliged to accept and manage the treatment of any patient referred to it by any NHS Body (whether through Choose and Book or otherwise) on the same basis as if that patient was referred to it by a Commissioner, provided that such patient’s referring PCT (not being a Commissioner) has provided an assurance satisfactory to the Provider that it shall within 30 calendar days of receipt pay the Provider’s appropriate invoice for the provision of any Services to such patient.

56. COMPLIANCE WITH THE LAW

56.1 The Parties shall comply with the Law in performing their obligations under this Agreement, provided that, where an obligation under this Agreement to comply with the Law would oblige a Party to comply with Guidance where in exceptional individual circumstances to do so:

56.1.1 would not be consistent with Good Clinical Practice; or

56.1.2 would not be consistent with Good Healthcare Practice; or

56.1.3 would not be in the best interests of a Patient; or

56.1.4 would otherwise be substantially inconsistent with the aims of this Agreement,

such Party may in its reasonable discretion elect not to follow the relevant Guidance, without taking a substantially different course to it.

57. COUNTERPARTS

57.1 This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, but all of which together shall constitute one agreement binding on all of the Parties, notwithstanding that all of the Parties are not signatories to the same counterpart.

58. REMEDIES

58.1 Save as may be expressly set out in this Agreement, no remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or existing at law or in equity, by statute or otherwise.

58.2 Neither the expiry nor the termination of this Agreement shall prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to any Commissioner or to the Provider.

59. COSTS AND EXPENSES

59.1 Each Party shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.

60. GOVERNING LAW AND JURISDICTION

60.1 This Agreement shall be considered as a contract made in England and Wales and shall be subject to the laws of England and Wales.

60.2 Subject to the provisions of clause 28 (Dispute Resolution) of this Agreement, the Parties agree that that the courts of England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Agreement.

40 IN WITNESS WHEREOF the Parties have signed this Agreement on the date first above written.

1 SIGNED by ...... for and on behalf

of the CO-ORDINATING

COMMISSIONER

For itself and on

behalf of each of

its Associates

2 SIGNED by ......

for and on behalf of

PROVIDER

41 Schedule 1

SCHEDULE 1

DEFINITIONS AND INTERPRETATION

1. The headings in this Agreement shall not affect its interpretation.

2. References to any statute or statutory provision include a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

3. References to a statutory provision shall include any subordinate legislation made from time to time under that provision.

4. In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail over the Schedules.

5. References to clauses and Schedules are to clauses and Schedules of this Agreement unless otherwise stated.

6. The following terms shall have the following meanings:

“18 Weeks Referral-to- means the NHS’s commitment that by, by December 2008 no-one Treatment Target” should have to wait more than 18 weeks from the time they are referred to the start of their treatment unless its clinically appropriate to do so or they choose to wait longer;

“18 Week Clock” and “18 means the pathways and rules governing 18-week clock starts, Week Pathway” pauses and stops which are detailed in the 18 Week Guidance;

“18 Week Guidance” means the Department of Health guidance “Tackling hospital waiting: the 18 week patient pathway – an implementation framework”, published in May 2006, and in relation to the 18 Week Clock rules means the "updated clock rules" (December 2006) published as part of the "18-week rules suite" on 28 November 2007 (available at www.18weeks.nhs.uk), and which includes details of how clinical exceptions and patients choosing to wait longer will be handled through an operational tolerance;

“2006 Act” means the National Health Service Act 2006;

“A&E department” means a hospital department or other facility dedicated to reception and treatment of patients in need of Emergency Care or other Unscheduled Care as a result of accident or other emergency;

“Activity Management Plan” has the meaning given to it in paragraph 5 of Schedule 3 Part 1;

“Activity Plan” means the activity plan annexed to this Agreement as Annex 1 to Schedule 3 Part 1;

"Annual Contract Value" means the figure set out in Annex 3 to Schedule 3 Part 1 appropriate to, and identified by the name of the relevant Commissioner as the expected annual contract value of the Services for that Commissioner;

“Associates” means the NHS Bodies set out in the schedule to the Consortium Agreement or set out in the Establishment Agreement included in Schedule 11 (Consortium Agreement and Commissioning Intentions);

42 Schedule 1

“Audit Commission” means the independent public body established under the Audit Commission Act 1998 which is responsible for ensuring that public money is spent economically, efficiently and effectively in the areas of local government, housing, health, criminal justice and the fire and rescue services;

“Auditor” has the meaning given to it in clause 19.6;

“Authorised NHS Person” means the Co-ordinating Commissioner and each of its Associates and any body or person concerned with the treatment or care of a Patient approved by the Co-ordinating Commissioner;

“Authorisation” means an authorisation by Monitor issued pursuant to section 56 of the 2006 Act;

“Baseline Year” has the meaning given to it in paragraph 9 of Schedule 3 Part 1;

“Best Practice IPR” means any IPR developed by the Provider (including Improvements) in connection with or as a result of the Services that a Commissioner might reasonably be able to use within its organisation for teaching and training of NHS best practice;

“Business Continuity Plan” means the Provider’s plan referred to in Schedule 4 Part 1 and clause 4.10 relating to continuity of all of the Services, as agreed with the Co-ordinating Commissioner and as may be amended from time to time, which for the avoidance of doubt shall include a plan in relation to the ongoing provision of the Services Environment and the Equipment or equivalent replacements thereof;

“Caldicott Guardian” means the senior health professional responsible for safeguarding the confidentiality of patient information pursuant to recommendation 3 of the Caldicott Report 1997;

“Capacity Review” means a review carried out in accordance with Schedule 3 Part 1;

“Capacity Review Criteria” means the criteria to be satisfied for a Capacity Review to be performed, and set out in Annex 2 to Schedule 3 Part 1;

“CEDR” means the Centre for Effective Dispute Resolution;

“Change in Control” means:

(i) any sale or other disposal of any legal, beneficial or equitable interest in any or all of the equity share capital of a corporation (including the control over the exercise of voting rights conferred on that equity share capital or the control over the right to appoint or remove directors) provided that a Change in Control shall be deemed not to have occurred if after any such sale or disposal the same entities directly or indirectly exercise the same degree of control over the relevant corporation; and

(ii) any change in the ability to control an NHS Foundation Trust, NHS Trust or NHS Body which is not covered by part (i) of this definition of Change in Control, whether by virtue of the sale or other disposal of any legal, beneficial or equitable interest of any kind, by contract or otherwise.

“Choice Services” means those of the Services subject to Patient Choice;

43 Schedule 1

“Choose and Book” means the NPfIT electronic referral service which gives patients a choice of place, date and time for their first outpatient appointment in a hospital or clinic;

“Clinical Coding Audit” means the annual audit conducted by a Commissioner in relation to the Provider’s clinical coding of Services provided under this Agreement, and performed in accordance with the PbR Guidance;

“Clinical Negligence Scheme means the Clinical Negligence Scheme for Trusts established by the for Trusts” or “CNST” National Health Service (Clinical Negligence Scheme) Regulations 1996 (SI 1996 No. 251) (as amended by the National Health Service (Clinical Negligence Scheme) (Amendment) Regulations 1997 (SI 1997 No. 527), the National Health Service (Clinical Negligence Scheme) (Amendment) Regulations 1999 (SI 1999 No. 1274), the National Health Service (Clinical Negligence Scheme) (Amendment) Regulations 2000 (SI 2000 No. 2341), the National Health Service (Clinical Negligence Scheme) (Amendment) Regulations 2002 (SI 2002 No. 1073)) the National Health Service Reform and Health Care Professions Act 2002 (Supplementary Consequential etc Provisions) Regulations 2002 (SI 2002 No. 2469), the Health and Social Care (Community Health and Standards) Act 2003 (Supplementary and Consequential Provisions) (NHS Foundation Trusts) Order 2004 (SI 2004 No. 696), the National Health Service Liabilities Scheme Amendment Regulations 2005 (SI 2005 No. 604)), as further amended from time to time;

“Clinical Networks” means groups of commissioners and providers of healthcare concerned with the planning and delivery of integrated healthcare over organisational boundaries;

“Clinical Quality means an indicator or a measure of the Provider’s clinical quality Performance Indicator” performance under this Agreement, as may be set out in Schedule 3 Part 4A;

“Clinical Quality has the meaning given to it in clause 33.1; Performance Report”

“Clinical Quality Review has the meaning given to it in clause 33.3; Meeting”

“Code of Conduct for means the Code of Conduct for Payment by Results, Gateway Payment by Results” Reference 8047, as amended, revised, re-issued or replaced from time to time by the Department Health;

“Commission for Social Care means the body corporate established by the Health and Social Care Inspection” (Community Health and Standards) Act 2003 to be the independent inspectorate for social care services in England;

“Commissioners” means the Co-ordinating Commissioner and its Associates, or such of them as the context requires, and “Commissioner” means any one of them;

44 Schedule 1

“Commissioning Intentions” means the document detailing the intentions of the Co-ordinating Commissioner to commission Services which is prepared in accordance with the guiding principles published in the NHS Operating Framework and the LDP and is set out in Schedule 11 (Consortium Agreement and Commissioning Intentions);

“Conditions Precedent” means the conditions precedent to service delivery referred to in clause 2.2 and set out in Schedule 4 Part 1;

"Confidential Information" means any information or data in whatever form disclosed, which by its nature is confidential or which the Disclosing Party acting reasonably states in writing to the Receiving Party is to be regarded as confidential, or which the Disclosing Party acting reasonably has marked ‘confidential’ (including, without limitation, financial information, or marketing or development or work force plans and information, and information relating to services or products) but which is not Patient Health Records or information relating to a particular Patient, or Personal Data, or information to which the FOIA would apply;

“Consent” means:

(i) any permission, consent, approval, certificate, permit, licence, statutory agreement, authorisation, exception or declaration required by Law for or in connection with the performance of Services; and

(ii) any necessary consent or agreement from any third party needed either for the performance of the Provider’s obligations under this Agreement or for the provision by the Provider of the Services in accordance with this Agreement,

including any registration with Monitor or any Regulator;

“Consent Policy” has the meaning given to it in clause 9.1;

"Consultant" means a person employed or engaged by the Provider of equivalent standing and skill as a person appointed by an NHS Body in accordance with the Law governing the appointment of consultants;

“Consortium Agreement” means the agreement between the Co-ordinating Commissioner and its Associates included within Schedule 11 (Consortium Agreement and Commissioning Intentions);

“Contract Quarter Elective has the meaning given to it in paragraph 8 of Schedule 3 Part 1; Care Revenue”

"Contract Query" means a query in writing issued under clause 32 (Performance);

“Contract Year” means each period of 12 months beginning on 1 April whilst this Agreement remains in effect, provided that:

()i the first Contract Year shall be the period begininning on the Service Commencement Date and ending on the following 31 March; and

()ii the last Contract Year shall be the period between the 1 April preceding the expiry or termination of this Agreement and the earlier of the date of its expiry and the date of its termination.

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Management Service “ or Division established and maintained by the NHS Business Services “CFSMS” Authority pursuant to the NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Directions issued by the Secretary of State under the National Health Service Act 1977;

“Counter Fraud Professional means the training organisation having that name or any successor Accreditation Board” organisation;

“Critical Care” means healthcare or treatment at a higher level or more intensive level than is normally provided in an acute ward (often to support one or more of a patient’s organs) and normally forming part of a comprehensive acute care pathway, but which may be required in other circumstances alone or together with Emergency Care;

“Critical Care Facility” means a hospital having facilities capable of providing Critical Care;

“Critical Care Transfer Group” means a designated group of Critical Care Facilities within a geographically defined area relevant to the Provider within which Patients needing Critical Care will normally be moved;

“Debt Securities” means debentures, debenture or loan stock, bonds and notes, whether secured or unsecured;

"Default Interest Rate" means 2% per annum over the Barclays Bank plc offered rate for 6 months sterling deposits in the London market;

“Directly Bookable Services” means Services in respect of which the Provider’s PAS is compliant with and communicates with Choose and Book enabling available time slots to show on Choose and Book, thereby enabling a referrer to book a patient appointment directly into the Provider’s PAS;

“Discharge Protocols” means the protocols described at Schedule 2, Part 2 (Discharge Protocols);

“Discharge Letter” means a document issued to the Patient by the senior clinician of the ward or department responsible for the Patient’s treatment for the Patient to use in the event of any query or concern immediately following discharge, containing basic clinical information about the Patient’s treatment, including without limitation:

(i) the Patient’s demographics

(ii) the dates of the Patient’s admission and discharge

(iii) details of any clinical procedure undertaken

(iv) the name of the Patient’s responsible lead clinician or Consultant at the time of the Patient’s discharge

(v) details of any medication prescribed at the time of discharge

(vi) any other relevant or necessary information or instructions

(vii) contact details for the Provider’s facility;

“Discharge Summary” means a summary of information relevant to each Patient to be produced by the Provider, which shall be easily legible and shall without limitation contain:

46 Schedule 1

()iii the date of the Patient’s admission by the Provider

()iv the date of the Patient’s discharge by the Provider

()v details of any Services provided to the Patient, including any operation(s) and diagnostic procedures performed and their outcomes

()vi a summary of the key diagnosis made during the Patient’s admission

()vii details of any medication prescribed at the time of the Patient’s discharge

()viii any adverse reactions or allergies to medications or treatments observed in the Patient during admission

()ix the name of the responsible Consultant at the time of the Patient’s discharge

()x any immediate post-discharge requirement from the primary healthcare team

()xi any planned follow-up arrangements

()xii whether the Patient has any relevant infection, for example MRSA

()xiii the name and position of the person to whom questions about the contents of the Discharge Summary may be addressed, and complete and accurate contact details (including a telephone number) for that person

and which shall where required be accompanied by a certification of sickness;

“Disclosing Party” has the meaning given to it in clause 22.1;

“Dispute” means a dispute between the Parties in Dispute arising out of or in connection with this Agreement;

"DPA" means the Data Protection Act 1998;

“Effective Date” has the meaning given to it in clause 2.1;

“Elective Care” means healthcare or treatment that is not Non-elective Care;

“Elective Care Services” means Services involving Elective Care;

“Emergency and Critical Care means the Emergency and Critical Care Procedure set out in Procedure” Schedule 3 Part 3;

“Emergency Care” means healthcare or treatment for which a Patient has an urgent clinical need (assessed in accordance with Good Clinical Practice and Good Healthcare Practice) and which is in the Patient’s best interests;

“Emergency Response means the plan agreed by the Parties to deal with any Plan” emergency situation that may put additional strain on the capacity of the NHS to respond and set out in Schedule 2 Part 3;

47 Schedule 1

"Equipment" means anything save for the Provider’s Premises, the Services Environment and the Staff that the Provider may use in the delivery of the Services;

“Escrow Arrangement” means an agreement between the Provider and the National Computing Centre (“NCC”) for the benefit of the Commissioners for the current version of the source code of software, on the basis of the appropriate NCC standard terms approved by the Co-ordinating Commissioner;

“Essential Services” means those Services, not being Mandatory Goods and Services, which are identified by the Commissioners as being required as essential in their respective local health economies and set out in Schedule 2 Part 4;

“Essential Services has the meaning given to it in clause 4.9; Continuity Plan”

“Establishment Agreement” means the agreement between NHS Bodies establishing a Specialised Commissioning Group and allocating certain functions and responsibilities to it relating to the procurement of specialised services;

“Event of Force Majeure” means an event or circumstance which is beyond the reasonable control of the Party claiming relief under clause 41 (Force Majeure), including without limitation war, civil war, armed conflict or terrorism, strikes or lock outs, riot, fire, flood or earthquake, and which directly causes that Party to be unable to comply with all or a material part of its obligations under this Agreement, but excluding Major Incidents;

“Exception Report” means a report in writing made under clause 32 (Performance), a pro-forma example of which is set out in Schedule 15 (Performance Monitoring Forms);

“Excusing Notice” means a notice in writing made under clause 32.7 or 32.8 (Performance), a pro-forma example of which is set out in Schedule 15 (Performance Monitoring Forms);

“Expiry Date” has the meaning given to it in clause 2.3;

“First Contract Year Elective has the meaning given to it in paragraph 8 of Schedule 3 Part 1; Care Revenue”

“First Extension” has the meaning given to it in clause 2.5;

“First Extension Request” has the meaning given to it in clause 2.5;

“First Year Target Month” has the meaning given to it in paragraph 8 of Schedule 3 Part 1;

"FOIA" means the Freedom of Information Act 2000;

“Good Clinical Practice” means that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, efficient and experienced clinical services provider and a person providing services the same or similar to the Services at the time the Services are provided, including assigning a consultant to each Patient who will be clinically responsible for that Patient at all times during the Patient’s care by the Provider;

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conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would be expected from a skilled, efficient and experienced provider and a person engaged in the provision of services the same or similar to the Services at the time the Services are provided;

"GP" means a general medical practitioner or general dental practitioner registered on a Performers List of a Primary Care Trust in England;

“Guidance” means any applicable guidance, direction or determination which the Co-ordinating Commissioner and/or any of its Associates and/or the Provider has a duty to have regard to, to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Provider by the Co-ordinating Commissioner and/or the Department of Health;

“HCAI” means “health care associated infection”, as that term is defined in section 47A of the Health and Social Care (Community Health and Standards) Act 2003;

"Healthcare Commission" means the Commission for Healthcare Audit and Inspection established under the Health and Social Care (Community Health and Standards) Act 2003;

“Healthcare Professional” means a person qualified in a healthcare-related profession including without limitation doctors, dentists, opticians, osteopaths, chiropractors, nurses, pharmacists, physiotherapists and clinical coders;

“Hospital Charges” means prescription charges and other statutory charges payable by Patients;

“HRG” means “healthcare resource group” as further defined from time to time by the NHS Information Authority;

“IM&T” means information management and technology, and is used to describe any system or process used in connection with informatics, whether electronic or not;

“Improvement” means any improvement, enhancement or modification to the Provider IPR which cannot be used independently of the Provider IPR or any improvement, enhancement or modification to the PCT IPR which can not be used independently of the PCT IPR;

"Indirect Losses" means loss of profits (other than profits directly and solely attributable to provision of the Services), loss of use, loss of production, increased operating costs, loss of business, loss of business opportunity, loss of reputation or goodwill or any other consequential or indirect loss of any nature, whether arising in tort or on any other basis;

“Information Standards means the body established in 2001 to provide an independent Board” mechanism for the assurance and sign-off process for information standards in the NHS in England and those required by the NHS in liaising with other agencies including social services, whose website is www.isb.nhs.uk;

“IPR” means inventions, copyright, patents, database right, trade marks, designs and confidential know-how and any similar rights anywhere in the world whether registered or not, including applications and the right to apply for all such rights;

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“Institutional Investor” means an organisation whose primary purpose is to invest its own assets or those held in trust by it for others, including banks, mutual funds, pension funds, private equity firms, venture capitalists, insurance companies and investment trusts;

“JCI Report” has the meaning given to it in clause 33.11;

“Joint Clinical Investigation” has the meaning given to it in clause 33.10;

“Law” means:

(i) any applicable statute or proclamation or any delegated or subordinate legislation or regulation;

(ii) any enforceable community right within the meaning of section 2(1) European Communities Act 1972;

(iii) any applicable judgment of a relevant court of law which is a binding precedent in England and Wales;

(iv) Guidance; and

(v) Standards for Better Health

in each case in force in England and Wales or in England;

“LDP” means the local delivery plan relating to key deliverables between the Department of Health and the NHS;

“Local Counter Fraud means a local counter-fraud specialist appointed by the Provider in Specialist” or “LCFS” accordance with Schedule 13;

“Local Involvement Network” means an entity established pursuant to contractual arrangements made by a local authority under section 221(1) of the Local Government and Public Involvement in Health Act 2007, the function of which is to carry on in such local authority’s area the activities specified in section 221(2) of the Local Government and Public Involvement in Health Act 2007;

“Local Security Management means a local security management specialist appointed by the Specialist” or “LSMS” Provider in accordance with Schedule 13;

“Longstop Date” has the meaning set out in Schedule 4 Part 2;

" Losses" means all damage, loss, liabilities, claims, actions, costs, expenses (including the cost of legal or professional services), proceedings, demands and charges whether arising under statute, contract or at common law but, to avoid doubt, excluding Indirect Losses;

"Major Incident" means any occurrence designated as a major incident to which the Provider is designated as a recipient or supporter hospital, where in both cases the designation is by an ambulance service or trust within the NHS;

“Major Incident Plan” means the Major Incident Plan set out in Schedule 2 Part 3;

“Mandatory Goods and means goods and/or services classified as protected or mandatory Services” under the Provider’s Terms of Authorisation;

Material Sub-contract has the meaning set out in Schedule 10 Part 1;

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Material Sub-contractor means a Sub-contractor who has entered into a Material Sub- contract, and identified in Schedule 10 Part 2;

“Mental Health Act means the special health authority responsible for monitoring and Commission” advising on the operation of the Mental Health Act 1983, and whose functions are described in s.121 of the Mental Health Act 1983;

“Monitor” means the public office established under the Health and Social Care (Community Health and Standards) Act 2003 with responsibility for authorising NHS Foundation Trusts and accountable to Parliament, and continuing under section 31 of the 2006 Act, and any successor body or bodies from time to time, as appropriate;

“NHS” means the National Health Service in England;

"NHS Body" means a health service body as defined in section 9 of the 2006 Act;

“NHS Business Services means the Special Health Authority established pursuant to the NHS Authority” Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) (Establishment and Constitution Order) 2005 SI 2414/2005, and any successor or replacement body carrying out its functions;

“NHS Care Records Service” means the electronic patient record management service introduced by NPfIT to enable authorised healthcare professionals to access an individual patient’s integrated electronic care record at any time from any relevant healthcare premises;

“NHS Classifications Service” means the NHS resource responsible for the delivery of national clinical classifications standards and guidance for the NHS clinical coding profession;

“NHS Connecting for Health” means the Department of Health agency responsible for the delivery of NPfIT;

“NHS Core Principles” means the published statement of NHS core principles set out in the preface to the NHS Plan, as may be revised from time to time by the Secretary of State;

“NHS Data Model and means the reference source for information standards to support Dictionary” healthcare activities within the NHS in England;

“NHS Foundation Trust” means an NHS foundation trust as defined in section 30 of the 2006 Act;

“NHS Information Authority” means the Special Health Authority established in April 1999 which is responsible for the provision of national products, standards and services to support the sharing and best possible use of information throughout the NHS, or such other body or bodies that may supersede or replace the NHS Information Authority from time to time;

“NHSLA” means the National Health Service Litigation Authority;

“NHS Operating Framework” means the national operating framework for the NHS published annually by the Department of Health which details key targets and priorities for the NHS;

“NHS Plan” means the Department of Health command paper “The NHS Plan” with Gateway reference 2000 presented to Parliament by the

51 Schedule 1

Secretary of State in July 2000 and which outlines the vision of a health service designed around the patient;

“NHS Plan Cancelled means the requirement set out in the NHS Plan that from 2002 where Operations Guarantee” an NHS patient’s Elective Care procedure is cancelled by an NHS provider for non-clinical reasons following the patient’s admission, the provider must either offer another binding date for such procedure within 28 calendar days or fund the patient’s treatment by such alternative provider and at such a time as the patient may choose;

“NHS Security Management means the training and accreditation board of that name or any Professional Accreditation successor organisation; Board”

“NHS Trust” means a body established under section 25 of the 2006 Act;

“NACS” means the National Administrative Codes Service of NHS Connecting for Health, which is responsible for the national policy and standards relating to organisation and practitioner codes;’

“NPfIT” means NHS Connecting for Health’s “National Programme for Information Technology” approved by the Department of Health on 12 June 2002 which is the procurement and implementation programme that will deliver the NHS IM&T strategy called “Delivering 21st Century IT Support for the NHS - National Strategic Programme”;

“National Audit Office” means the independent office established under the National Audit Act 1983 which conducts financial audits and reports to Parliament on the spending of public money;

“National Institute for Health means the special health authority responsible for providing national and Clinical Excellence” or guidance on the promotion of good health and the prevention of ill “NICE” health;

“National Commissioning means the NHS organisation that oversees the commissioning of Group” specialised healthcare services;

"National Tariff" means the list of prices published from time to time by the Department of Health and applied in line with:

(i) Department of Health guidance from time to time in issue;

(ii) all Law underpinning National Tariff construction and coding, charging and recording methodologies,

in particular the Code of Conduct for Payment by Results, the Implementation Support Guide for Payment by Results and the Operation of Secondary Uses Services (SUS) to support Payment by Results, each as amended from time to time;

“Negotiation Period” has the meaning given to it in clause 28.1;

“Non-elective Care” (a) Critical Care, whether or not provided with Emergency Care;

(b) Emergency Care; and

(c) Unscheduled Care, whether or not it is also Emergency

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Care;

“Non-Tariff Prices” has the meaning given to it in clause 7.2;

“Operational Day” means a day other than a Saturday, Sunday or bank holiday in England;

“Order” means an order made by the Secretary of State for Health pursuant to section 53 or section 54 of the 2006 Act;

"Package of Care" means any diagnostics, intervention, treatment, nutrition, accommodation or other elements of care to be provided under the Service and relating to a referral or emergency presentation;

“Parties” means the Commissioners and the Provider, or such of them as the context requires, and “Party” means any one of them;

“Parties in Dispute” means the Co-ordinating Commissioner and/or those of its Associates directly concerned in the Dispute, as one Party in Dispute, and the Provider, as the other;

“PAS” means patient administration system;

"Patient" means a patient of a Commissioner who is referred or presents to the Provider as part of the provision of the Services;

“Patient Booking” means the procedures for patient booking set out in Schedule 3 Part 2;

“Patient Choice” means the commitment to free choice in Elective Care which requires that all patients who require a referral for Elective Care from their GP or primary care professional for a first consultant-led outpatient appointment shall be able:

(i) to choose to be treated by any provider that meets relevant eligibility criteria; and

(ii) to choose the time and date for their booked appointment, at the time they are referred;

"Patient Health Record" means a record which consists of information relating to the particular physical or mental health or condition of a Patient;

"Patient Safety Incident" means any unintended or unexpected incident which could have or did lead to harm to one or more Patients receiving NHS-funded healthcare;

“Payment by Results” or “PbR” means the NHS financial system, the rules and core principles of which are set out in the Code of Conduct for Payment by Results;

“PbR Data Assurance means the Audit Commission’s independent, targeted, external data Framework Audit” quality audit programme covering the data quality underpinning the payments made by all Primary Care Trusts to NHS Trusts and NHS Foundation Trusts;

“PbR Guidance” means the Department of Health guidance on the operation of Payment by Results as may be set out from time to time in the NHS Operating Framework;

“PCT IPR” means any IPR owned by or licensed to a Commissioner which is relevant and necessary to the performance of the Services by the

53 Schedule 1

Provider, including without limitation the IPR set out in Schedule 16 Part 2, including Improvements;

“Performance Indicator” means an indicator or a measure of the Provider’s performance under this Agreement, as may be set out in Schedule 3 Part 4B;

"Performance Notice" means a notice in writing given under clause 32 (Performance), a pro-forma example of which is set out in Schedule 15 (Performance Monitoring Forms);

"Personal Data" has the meaning set out in the DPA;

“Prices” has the meaning given to it in clause 7.5;

“Primary Care Trust” or “PCT” means a primary care trust established by the Secretary of State in accordance with section 16A of the National Health Service Act 1977 and continuing in existence under section 18 of the 2006 Act;

“Prior Approval” means the prior approval by the relevant Commissioner of care or treatment, including diagnostics, of an individual Patient or a group of Patients as set out in Schedule 3 Part 1;

“Prior Approval Scheme” means any scheme for the giving of Prior Approval by the relevant Commissioner;

“Protected Asset” means an asset classified as protected under the Provider's Terms of Authorisation;

“Provider Insolvency Event of Default” (i) the Provider is, or is deemed for the purposes of any law to be, unable to pay its debts or insolvent;

(ii) the Provider admits its inability to pay its debts as they fall due;

(iii) the value of the Provider’s assets is less than its liabilities (taking into account contingent and prospective liabilities);

(iv) the Provider suspends making payments on any of its debts or announces an intention to do so;

(v) by reason of actual or anticipated financial difficulties, the Provider commences negotiations with creditors generally with a view to rescheduling any of its indebtedness;

(vi) a moratorium is declared in respect of any of the Provider’s indebtedness;

(vii) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Provider;

(viii) a composition, assignment or arrangement with any creditor of any member of the Provider;

(ix) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver,

54 Schedule 1

administrative receiver, administrator or similar officer (in each case, whether out of court or otherwise) in respect of the Provider or any of its assets;

(x) a resolution of the Provider or its directors is passed to petition or apply for the Provider’s winding up or administration;

(xi) the Provider’s directors giving written notice of their intention to appoint a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, or administrator (whether out of court or otherwise);

(xii) if the Provider suffers any event analogous to the events set out in (i) to to (xi) of this definition in any jurisdiction in which it is incorporated or resident.

“Provider IPR” means any IPR owned by or licensed to the Provider (other than by any Commissioner) that will be used by the Provider in the delivery of the Services, as set out in Schedule 16 Part 1, including Improvements;

"Provider's Premises" means premises controlled or used by the Provider for any purposes connected with the provision of the Services;

“Public Company” means a company which:

()i has shares that can be purchased by the public;

()ii has an authorised share capital of at least £50,000 with each of the company’s shares being paid up at least as to one quarter of the nominal value of the share and the whole of any premium on it; and

()iii has securities listed on a stock exchange in any jurisidiction.

“Quality Standards“ means the standards referred to in clause 16 (Quality) and set out as Clinical Quality Performance Indicators and Performance Indicators in Schedule 3 Parts 4A and 4B;

“Quarter” means each 3-month period commencing 1 April, 1July, 1 October and 1 January;

“RCAP Report” has the meaning given to it in clause 33.14;

“Receiving Party” has the meaning given to it in clause 22.1;

“Reconciliation Point” means the date 30 calendar days after the end of each calendar month during the term of this Agreement, on which the data for such calendar month is considered final;

“Records” has the meaning given to it in clause 19.5;

“Regulator” means the Healthcare Commission, the Mental Health Act Commission, or the Commission for Social Care Inspection, and any successor body or bodies from time to time, as appropriate;

“Remedial Action Plan” means a plan to rectify a breach of or performance failure under this Agreement, including any breach of the Activity Plan, specifying

55 Schedule 1

targets and timescales within which such targets shall be achieved;

“Remedial Clinical Action means a plan to rectify a failure to meet a Clinical Quality Plan” Performance Indicator under this Agreement, specifying targets and timescales within which such targets shall be achieved;

“Restoration Notice” means a notice in writing to restore a Service or Services given under clause 34.7;

“Restricted Person” means any person:

(i) other than an Institutional Investor who has a material interest in the production of tobacco products or alcoholic beverages; or

(ii) who the Co-ordinating Commissioner otherwise reasonably believes is inappropriate for public policy reasons to have a controlling interest in the Provider or in a Material Sub-contractor.

"Review" means a review carried out under clause 8 (Review);

“Review Record” has the meaning given to it in clause 8.4;

“Schedule” means a schedule to this Agreement;

“Screening Programmes” means co-ordinated NHS activity that aims to identify early indications of particular conditions in patients;

“Secretary of State” means the Secretary of State for Health;

“Security” means Shares, Debt Securities, units in a collective investment scheme (as defined in the Financial Services and Markets Act 2000), miscellaneous warrants, certificates representing debt securities, warrants or options to subscribe or purchase securities, other securities of any description and any other type of proprietary or beneficial interest in a limited company;

“Serious Untoward Incident" means an incident or accident or near-miss where a patient (whether or not a Patient), member of staff, or member of the public suffers serious injury, major permanent harm or unexpected death on the Provider’s Premises and where the actions of the Provider, the Staff or the Co-ordinating Commissioner are likely to be of significant public concern;

“Service Commencement has the meaning given to it in clause 2.2; Date”

"Services Environment" means the rooms, theatres, wards, treatment bays, clinics or other physical location, space, area, accommodation or such other place as may be used or controlled by the Provider from time to time in which the Services are provided, excluding Patients’ private residences, Local Authority premises, schools and premises controlled by the Co-ordinating Commissioner;

"Services" means the services as set out in each of, or, as the context admits, all of the Service Specifications, provided or to be provided by the Provider pursuant to and in accordance with this Agreement;

"Service Specifications" means the service specifications defined by the Commissioners in accordance with the Code of Conduct for Payment by Results, each

56 Schedule 1

set out in a separate Schedule 2 (The Services);

"Service Variation" means a Variation relating to the Services or in any provision of this Agreement which relates to the provision of the Services;

“Service Variation Notice” has the meaning given to it in Schedule 6 Part 1;

“Shares” has the meaning given to the term in section 540 of the Companies Act 2006, including preference shares;

“Specialised Commissioning means the group established to co-ordinate the commissioning of Group” specialised healthcare services on behalf of the PCTs located within the boundaries of an SHA;

"Staff" means all persons (whether clinical or non-clinical) employed or engaged by the Provider (including volunteers, agency, locums casual or seconded personnel) in the provision of the Services or any activity related to, or connected with the provision of the Services, including Consultants;

“Standards for Better means both the core standards and any developmental Health” or “SfBH” standards that may be agreed for the Provider during the term of this Agreement as set out in the “National Standards, Local Action – Health and Social Care Standards and Planning Framework 2005/06-2007/08 (DoH, 2005)” as replaced, re- issued, amended or updated from time to time;

“Strategic Health Authority” means an authority established under section 8 of the National or “SHA” Health Service Act 1977 and continuing in existence under section 13 of the 2006 Act;

"Sub-contractor" means any NHS Body or other body corporate or person or consortium of persons engaged by the Provider as its permitted sub- contractor for or to assist in the provision of the Services;

“Subsequent Extension” has the meaning given to it in clause 2.7;

“Subsequent Extension has the meaning given to it in clause 2.7; Request”

“SUS” means the “Secondary Uses Services”, being the management and information reporting service of the NHS Care Records Service;

“Suspension Notice” means a notice in writing to suspend or restore a Service or Services given under clause 34.6;

"Terms of Authorisation" means, where the Provider is an NHS Foundation Trust, the terms under which the Provider is authorised to operate as an NHS Foundation Trust by Monitor, as amended from time to time;

“Total Contract Year has the meaning given to it in paragraph 9 of Schedule 3 Part 1; Revenue”

“Transition Arrangements” means the agreed transition arrangements set out in Schedule 4 Part 3 that the Parties may implement during the Transition Period;

“Transition Period” has the meaning given to it in clause 2.4;

“Type 1 A&E Department” means a consultant-led A&E department providing 24 hour service with full resuscitation facilities and designated accommodation for the

57 Schedule 1

reception of a Patient needing Emergency or other Unscheduled Care, where Critical Care facilities exist on the same site;

“Type 2 A&E Department” means a consultant-led specialty or facility with designated accommodation for the reception of a Patient needing Emergency or other Unscheduled Care in that specialty or facility;

“Type 3 A&E Department” means a GP or nurse-led A&E department with designated accommodation for reception of a Patients needing Emergency or other Unscheduled Care for minor injuries or illness (alongside or independently of a Type 1 A&E Department or a Type 2 A&E Department);

“ UK National Screening means the committee of healthcare professionals which advises on Committee” all aspects of screening policy;

“UNIFY” means the Department of Health electronic system for collecting, storing and retrieving activity reports and performance data;

“Unscheduled Care” means healthcare or treatment provided to a Patient without prior schedule or referral;

“Utilisation Management means a scheme established to ensure the correct use of resources Scheme” in relation to the treatment of an individual or group of patients as may be agreed by the Co-ordinating Commissioner and the Provider in accordance with Schedule 3 (Managing Activity and Referrals, Care and Resource Utilisation Techniques and Retention of Payment Scheme);

"Variation" means an addition, deletion or amendment in the clauses of or Schedules to this Agreement agreed to be made by the Parties in accordance with clause 38 (Variations);

“VAT” means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act 1994; and

"Warning Notice" means a notice in writing given under clause 32 (Performance), a pro-forma example of which is set out in Schedule 15 (Performance Monitoring Forms).

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Schedule 2 Part 1

SCHEDULE 2

THE SERVICES

Part 1: Service Specifications

Code Speciality 100 General Surgery 101 Urology 110 Trauma and Orthopaedics 120 Ear Nose and Throat (ENT) 130 Ophthalmology 140 Oral Surgery 143 Orthodontics 160 Plastic Surgery 180 Accident & Emergency (A&E) 190 Anaesthetics 300 General Medicine 301 Gastroenterology 303 Clinical Haematology 314 Rehabilitation 320 Cardiology 330 Dermatology 340 Thoracic Medicine 360 Genito-urinary Medicine 370 Medical Oncology 400 Neurology 410 Rheumatology 420 Paediatrics 430 Geriatric Medicine 501 Obstetrics 502 Gynaecology 560 Midwife Episode 800 Clinical Oncology (previously Radiotherapy) 810 Radiology 820 General Pathology

Critical Care Services Speciality Special Care Baby Unit (SCBU) (Bed Days) Intensive Care Unit (ICU) (Bed Days) Coronary Care Unit (CCU) (Bed Days)

Speciality A&E Attendances Physiotherapy & Occupational Therapy (Contacts) Community Midwifery (Visits) Elderly Day Care (Patient Days)

Changes to service specifications may occur during the course of this agreement. If they do occur they will be handled as contract variations.

The services provided under this agreement are included in the service information published on the Provider’s website. These are a general guide to services, and will always be subject to any provisions contained in this Contract.

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Schedule 2 Part 2

Part 2: Discharge Protocols

The Provider and the Commissioner recognise the importance of providing timely, accurate, legible and appropriate discharge information, and agree to work jointly to improve this aspect of service during 2008/09 in line with the discharge obligations detailed in clause 18 of the contract.

For all patient discharge and clinical letter communication the commissioner and provider have agreed the following principles;

 All letters must include a clear indication of major diagnoses and procedures undertaken (avoiding acronyms) including any conditions that have been excluded, clear indication of any major events that occurred during the inpatient episode, clear follow up plans and instructions for the GP regarding the care plan agreed with patient;

 Discharge letters must be typed and should be written by a doctor. Any medication changes should be explained with indications and duration of treatment;

 A copy of the INR chart must be faxed to the GP surgery on the day of discharge for all patients who are discharged on Warfarin. This consultant responsible should audit this on a quarterly basis to ensure this is being achieved;

 If a sickness certificate has been issued to a patient this information should be recorded in the discharge summary;

 The provider should telephone ahead of discharge if there are any potential social problems

 All letters should include patients discharge address if this is not the same as the patients home.

The provider and commissioner will agree plans to audit and record the current percentage of GP discharge summaries being provided in 72 hours during Q1 of 2008/09, following the provider Trust administration process reviews. Milestones for performance during 2008/09 will be agreed at monitored quarterly to ensure 98% compliance by March 2009

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Schedule 2 Part 4

Part 3: Major Incident Plan and Emergency Response Plan

Major Incident Plan

1. If the impact of a Major Incident is that the demand for Non-elective Care increases, so that the Provider’s ability to provide Elective Care is reduced and the Provider can satisfy the Co- ordinating Commissioner that its ability to provide Elective Care is reduced, Elective Care shall be suspended for so long as the Provider’s ability is so reduced. The Provider shall give the Co-ordinating Commissioner written confirmation of this every 2 calendar days whilst its ability to provide Elective Care is reduced. The Co-ordinating Commissioner shall not be entitled to exercise its rights under clauses 29.14, 29.15, 32.16, 32.17, 33.17.1, paragraphs 6.3, 8.2 and 9 of Schedule 3 Part 1 or Schedule 3 Part 4, and the Commissioners may not exercise their rights under clause 34.3, during a Major Incident.

2 The Provider shall use reasonable efforts to minimise the extent of the Major Incident and continue the provision of Elective Care, as well as Non-elective Care. If a Patient is already receiving treatment when the Major Incident occurs, or is admitted after the date it occurs, the Provider shall not:

(a) discharge the Patient, unless clinically appropriate to do so in accordance with Good Healthcare Practice and Good Clinical Practice; or

(b) transfer the Patient, unless it is clinically appropriate to do so in accordance with Good Healthcare Practice and Good Clinical Practice, and then only as if paragraphs 1.7, 1.9, 1.11, 1.12, 1.13, 1.14 and 1.15 of Schedule 3 Part 3 (Emergency and Critical Care Procedure), as appropriate, applied to the transfer.

3 During any suspension of Elective Care provision in accordance with paragraph 1 of this Plan, and where requested by the Provider, the Commissioners shall use their reasonable efforts to avoid any new referrals for Elective Care and the Provider may if necessary change its waiting lists for Elective Care.

4 If there are transfers, postponements and cancellations despite the Provider complying fully with this Plan, the Provider shall give the Commissioners notice of:

4.1 the identity of each Patient who has been transferred and the alternative provider;

4.2 the identity of each Patient who has not been, but is likely to be transferred, the probable date of transfer and the identity of the intended alternative provider;

4.3 cancellations and postponements of admission dates;

4.4 cancellations and postponements of out-patient appointments; and

4.5 other changes in the Provider’s list.

5 To avoid doubt, during, or as a result of any such suspension of Elective Care provision:

5.1 clause 34 (Suspension) shall not apply to any suspension of Elective Care under this Plan;

5.2 the Provider shall be entitled to payment for the Elective Care it continues to provide; and

5.3 subject to paragraph 6 below, the Provider shall continue to provide, and shall be entitled to payment for, provision of Non-elective Care begun (and any interrelated Elective Care) after the date of the Provider’s first confirmation of suspension under paragraph 1 above, whether resulting from the Major Incident or otherwise.

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6 The provision of Non-elective Care under paragraph 5.3 shall be subject to the Provider’s discretion to transfer or divert a Patient if the Provider considers that to be in the best interests of all the patients to whom the Provider is providing Non-elective Care whether or not as a result of the Major Incident, (using that discretion in accordance with Good Clinical Practice and Good Healthcare Practice).

7. Immediately after the Provider gives written notice to the Co-ordinating Commissioner that the effects of the Major Incident have ceased, the Provider shall fully restore the availability of Elective Care.

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Schedule 2 Part 4

Emergency Response Plan

The Provider will act according to the Somerset Major Incident Plan, or jointly agreed successor documents.

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Schedule 2 Part 4

Part 4: Essential Services

Musgrove Park Hospital has 651 beds, excluding cots in the Maternity Unit and private beds.

The services and facilities currently offered by the Trust include the following:

 Accident and Emergency services

 448 acute beds for medical & surgical patients

 22 bed Medical Admissions Unit

 10 critical care beds (combined high dependency unit / intensive treatment beds);

 15 Theatres (5 general; 3 Trauma & Orthopaedic; 3 Head & Neck; 3 Day Surgery;

1 Maternity)

 Diagnostic Imaging services. A full range of imaging tests including CT, MRI, Ultrasound,

Barium studies and other screening examinations. Also, a wide range of interventional radiological techniques is provided, along with the Breast Screening Service and imaging services for patients with symptomatic breast problems.

 Maternity services

 Neonatal services including 18 cots (4 Intensive care; 4 high dependency care; 10 special care)

 Paediatric services (including 30 beds, a 6 bed Childrens’ Emergency Assessment

Unit and Outpatient clinics);

 A full range of outpatient services provided both on the main Hospital site (seeing around 238,000 outpatients pa) and at local community hospitals;

 Private patient unit including 12 ensuite bed rooms and 2 outpatient consulting rooms.

The following clinical services, detailed in table 1 are provided by Taunton & Somerset NHS Foundation Trust either by its own staff or, as indicated by visiting Consultants from other Trusts:

Table 1. Range of Clinical Services Provided by Taunton & Somerset NHS Trust

Clinical Specialties Accident & Emergency * General Surgery * Paediatrics * Anaesthetics Genitourinary Medicine Plastic Surgery (outpatients-visiting consultant) Bariatric Surgery * Gynaecology * Renal Medicine (outpatients –visiting consultant) Breast & Endocrine Surgery * Haematology * (S) Respiratory Medicine * Cardiology * Neonatal Care Rehabilitation Care of the Elderly * Neurology * Rheumatology * Coronary Care Obstetrics * Restorative Dentistry(visiting consultant)

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Schedule 2 Part 4

Critical Care Oncology Spinal Surgery Dermatology * Ophthalmology * Stroke Service Ear Nose & Throat Surgery * Oral & Maxillofacial Trauma & Orthopaedics * Surgery* (S) Gastroenterology * Orthodontics (S) Urology * Gastrointestinal Surgery * Pain Relief * Vascular Surgery * (S) General (Acute) Medicine * Palliative Care Clinical Support Services Audiology * Genetics Physiotherapy * Dental Laboratory Medical Photography Somerset Pathology Service (S) Dietetics * Occupational Therapy Diagnostic Imaging * Pharmacy

Notes : * Indicates services provided both within Musgrove Park Hospital and on an outpatient basis within community hospitals by Trust staff. (S) Somerset-wide services provided by the Trust

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SCHEDULE 3

MANAGING ACTIVITY AND REFERRALS, CARE AND RESOURCE UTILISATION TECHNIQUES AND RETENTION OF PAYMENT SCHEME

Part 1 : Managing Activity and Referrals

Activity Plan

1 General 1.1 The Parties have a mutual responsibility to respond to the health needs of their populations. They shall co-operate to ensure that the Activity Plan is constructed, regularly monitored and reviewed to reflect the changing health needs of their populations, changes in the distribution profile of activity and case mix, the capacity requirements of national and local targets and standards, and any innovative treatment or clinical practice recommended by a Clinical Network. 1.2 The Commissioners shall manage external demand for all the Services. 1.3 The Provider shall manage internal demand so as to achieve the targets and performance standards identified in the Commissioners’ Commissioning Intentions, and the Provider shall assess capacity to respond to such demand so as to ensure that all Services are provided to Patients within the time limits set out in this Agreement, subject to any relevant Prior Approval Scheme. 1.4 The Co-ordinating Commissioner and the Provider shall monitor actual demand against forecast levels in accordance with this Schedule 3, and shall act in accordance with such responsibilities. 1.5 The Parties acknowledge that the Activity Plan is essential to the effective operation of the Agreement and shall reflect key national and local priorities and national and local performance standards. 1.6 The Provider shall manage the provision of the Services in accordance with the Activity Plan so as to meet the 18 Weeks Referral-to-Treatment Target, and shall comply with the 18 Week Clock and the 18 Week Pathway, having due regard to the 18 Week Guidance. The Provider shall in addition comply with any applicable targets relating to the reduction of cases of MRSA bacteraemia or Clostridium difficile.

1.7 Prior to the start of each Contract Year each Commissioner and the Provider shall agree the Activity Plan for that Contract Year in accordance with the NHS Operating Framework.

2 Contents and Thresholds

2.1 The Activity Plan shall comprise:

2.1.1 monthly forecast levels of activity necessary for the Provider to meet the forecast levels of demand, including where appropriate (and without limitation) monthly levels of activity required for the Provider to achieve the 18 Week Referral-to- Treatment Target;

2.1.2 each type of activity forecast at specialty level;

2.1.3 activity forecasts at HRG level or equivalent for the largest specialties individually;

2.1.4 activity forecasts for groups of specialties, where specialties are not specified individually;

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2.1.5 all commissioned activity; and

2.1.6 where necessary, such additional pages as are required to cover activity which is outside the scope of Payment by Results.

2.2 The Activity Plan will specify each type of activity being commissioned, including without limitation:

2.2.1 emergency spells;

2.2.2 A&E attendances;

2.2.3 elective spells;

2.2.4 excess bed days;

2.2.5 other spells;

2.2.6 first outpatient attendances, consultant-led;

2.2.7 first outpatient attendances following GP referral, consultant-led;

2.2.8 first outpatient attendances, non-consultant-led;

2.2.9 subsequent outpatient attendances, consultant-led;

2.2.10 subsequent outpatient attendances, non-consultant-led;

2.2.11 procedures in outpatients; and

2.2.12 diagnostics tests and procedures.

2.3 The Activity Plan will additionally, and without limitation, specify forecast monthly levels of:

2.3.1 GP referrals to outpatients;

2.3.2 consultant-to-consultant referrals;

2.3.3 other referrals to outpatients;

2.3.4 outpatient conversion rates; and

2.3.5 the ratio of subsequent to first outpatient attendances

and any other such levels as may be reasonably required by the relevant Commissioner(s).

2.4 The Activity Plan will additionally specify planned levels of performance on referral to treatment times each month.

2.5 The agreed Activity Plan shall specify a forecast threshold for each activity to function as an early warning of where the actual level of demand exceeds the forecast threshold, with the intent that any breach of the forecast threshold will be reviewed by the relevant Parties without delay.

2.6 The Activity Plan shall comprise the aggregated Activity Plan of all of the Commissioners and also each individual Commissioner’s Activity Plan.

3 Care and Resource Utilisation

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3.1 The Commissioners shall:

3.1.1 manage demand for all the Services to the forecast thresholds set out in the Activity Plan and will use reasonable endeavours to notify the Provider within 10 Operational Days of receiving any confirmed information demonstrating any anticipated changes in such numbers of referrals; and

3.1.2 require their agents and practitioners to adhere to any referral and treatment protocols as may be agreed with the Provider.

3.2 The Provider shall manage demand and associated costs for all the Services in accordance with the Activity Plan, the Commissioning Intentions and the provisions of this Schedule, and shall in particular, but without limitation:

3.2.1 manage conversion rates and follow-ups by specialty to the levels set out in the Activity Plan;

3.2.2 keep internal consultant-to-consultant referrals to such levels as may be set out in the Activity Plan;

3.2.3 comply with the reasonable requests of the Commissioners to assist the Commissioners in understanding and managing referrals; and

3.2.4 require its agents, Sub-contractors and employees to adhere to any referral and treatment protocols that may be agreed between the Parties.

Prior Approval 3.3 The Co-ordinating Commissioner and the Provider shall agree the terms of the Prior Approval Scheme for each Commissioner, and when the terms of a Prior Approval Scheme have been agreed the Co-ordinating Commissioner shall give to the Provider one month’s notice in writing of the date on which the Prior Approval Scheme is to be implemented by the Provider.

3.4 The Provider shall manage Patients in accordance with the terms of any relevant Prior Approval Scheme.

3.5 The Co-ordinating Commissioner shall, where the 18 Week Referral-to-Treatment Target is at risk for any activity that is the subject of a Prior Approval Scheme, require the Provider to specify a revised pathway to mitigate any risk of failure to meet the 18 Week Referral-to- Treatment Target.

3.6 Each Commissioner shall respond in accordance with its Prior Approval Scheme to any Provider request for Prior Approval that complies with the terms of such Prior Approval Scheme. Failure by the Commissioner to respond to a request for Prior Approval within the appropriate time period specified in such Prior Approval Scheme shall be deemed to be an approval for the purposes of that Prior Approval Scheme.

3.7 In the event of urgent clinical need or risk to patient safety, the relevant Commissioner shall grant retrospective approval for activity performed on a Patient by the Provider which would otherwise have required Prior Approval, subject to approval by the medical director of the Commissioner, such approval not to be unreasonably withheld or delayed.

3.8 If the Commissioner requires any amendment to be made to a Prior Approval Scheme, then the Co-ordinating Commissioner shall consult with the Provider on the proposed amendment, and when the amendment has been agreed by the Co-ordinating Commissioner and the Provider, the Co-ordinating Commissioner will give the Provider one month’s notice in writing

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of the date on which the amendment to the Prior Approval Scheme is to be implemented by the Provider.

Utilisation Management 3.9 The Co-ordinating Commissioner and the Provider shall agree the terms of a Utilisation Management Scheme, and when the terms of the Utilisation Management Scheme have been agreed the Co-ordinating Commissioner shall give to the Provider one month’s notice in writing of the date on which the Utilisation Management Scheme is to be implemented by the Provider.

3.10 The Provider shall comply and co-operate with the agreed Utilisation Management Scheme, in particular (but without limitation) in sharing data, and allowing access for review teams and access to Patient Records.

3.11 If the Co-ordinating Commissioner requires any amendment to be made to the Utilisation Management Scheme, it shall consult with the Provider on the proposed amendment, and when the amendment has been agreed by the Co-ordinating Commissioner and the Provider, the Co-ordinating Commissioner will give the Provider one month’s notice in writing of the date on which the amendment to the Utilisation Management Scheme is to be implemented by the Provider.

4 Monitoring and Reporting of Activity

4.1 The Provider shall submit to the Co-ordinating Commissioner an agreed monthly activity report which shall without limitation include details of actual activity; GP, consultant-to consultant, and other referrals; conversion rates; Patients waiting against the Activity Plan; average length of Patient stay; and levels of admission and discharge; and shall, immediately the Provider becomes aware:

4.1.1 notify the Co-ordinating Commissioner if the Provider forecasts that there will be over-performance of Non-elective Care activity in any of the Services compared to the levels set out in the Activity Plan;

4.1.2 notify the Co-ordinating Commissioner if the Provider forecasts that there will be over-performance of Elective Care activity in any of the Services against any maximum waiting time targets specified under the Activity Plan, or against forecast activity specified under the Activity Plan; and

4.1.3 notify the Co-ordinating Commissioner’s representative of any increase or decrease in Choice Services activity against any indicative levels as may be specified in the Activity Plan.

5 Activity management following activity variations

5.1 Without prejudice to paragraphs 4 and 7 of this Schedule 3 Part 1, if the Provider breaches:

5.1.1 the forecast threshold set out in the Activity Plan for any activity; or

5.1.2 a Prior Approval Scheme; or

5.1.3 a Utilisation Management Scheme

then the Provider shall notify the Co-ordinating Commissioner of such breach, and the Co- ordinating Commissioner and the Provider shall agree an Activity Management Plan comprising without limitation the matters set out in paragraphs 5.2, 5.5, and 5.6.

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5.2 The Activity Management Plan may, without limitation, include an analysis of the following matters for the period in which a forecast threshold has been breached:

5.2.1 primary, secondary and tertiary referrals; 5.2.2 conversion rates; 5.2.3 activity levels; 5.2.4 waiting list volumes for patients within the category of the breached forecast threshold; 5.2.5 right-coding; 5.2.6 unit cost.

5.3 The Co-ordinating Commissioner shall monitor primary care capacity where care has been shifted to a primary care-delivered pathway and shall make such Variations to the Activity Plan as are consistent with the change in capacity. Any Variation shall be made in accordance with the terms of clause 38 (Variations) of this Agreement.

5.4 The Provider undertakes to work collaboratively with the Co-ordinating Commissioner on the development, implementation and operation of service redesign programmes, and actively to engage with, support and cooperate with redesign, recording and coding policies, and demand management activities as deemed necessary in the Activity Management Plan.

5.5 The Activity Management Plan shall specify any thresholds which have been breached, and the Party in breach shall make proposals to remedy the relevant breach, including the findings of any Review insofar as they relate to the breach.

5.6 The Activity Management Plan will include specific locally agreed targets and timescales within which targets shall be achieved.

5.7 Within 5 Operational Days of:

5.7.1 any breach by the Provider of an Activity Management Plan; or

5.7.2 a failure by the Provider to implement an Activity Management Plan

and provided that the Provider has not referred the matter to dispute resolution under clause 28 (Dispute Resolution), the Co-ordinating Commissioner may, without prejudice to any other rights that it may have under this Agreement, in its absolute discretion and acting reasonably, require the Provider by written notice to take such steps as the Co-ordinating Commissioner considers necessary or expedient to mitigate or rectify the breach or implement the Activity Management Plan, and the Provider shall use its best endeavours to comply with the Co- ordinating Commissioner’s requirements as soon as practicable.

6 Financial Adjustment for variations in activity

6.1 No later than 30 Operational Days after the end of each Contract Year, the Co-ordinating Commissioner may initiate a joint process with the Provider to determine whether any financial adjustment should be applied in relation to any activity which has in the Contract Year breached:

6.1.1 the terms of a Prior Approval Scheme; or

6.1.2 forecast thresholds set out in the Activity Plan, where no relevant Activity Management Plan has been implemented owing to an omission by the Provider to notify the Co-ordinating Commissioner under paragraph 5.1.1; or

6.1.3 forecast thresholds set out in the Activity Plan, and an Activity Management Plan has been implemented and breached,

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and such joint process shall take account of any relevant matters identified in the Reviews and the Clinical Quality Review Meetings conducted in that Contract Year, or in any clinical quality review relating to that Contract Year published by the Provider under clause 16.3 of this Agreement.

6.2 Initiation of the joint process under paragraph 6.1 is at the discretion of the Co-ordinating Commissioner, and may, for example and without limitation, relate to excess activity arising from:

6.2.1 waiting list volumes being reduced below agreed levels;

6.2.2 conversion rates exceeding agreed upper limits;

6.2.3 ratios of subsequent to first outpatient attendances exceeding agreed specialty upper limits; and

6.2.4 rates of consultant-to-consultant referrals exceeding agreed upper limits.

6.3 If, as a result of the joint process under paragraph 6.1, the Co-ordinating Commissioner determines that the Provider is responsible for having provided activity which has in the Contract Year breached:

6.3.1 a Prior Approval Scheme; or

6.3.2 forecast thresholds set out in the Activity Plan, where no relevant Activity Management Plan has been implemented owing to an omission by the Provider to notify the Co-ordinating Commissioner under paragraph 5.1.1; or

6.3.3 forecast thresholds set out in the Activity Plan, and an Activity Management Plan has been implemented and breached

then, notwithstanding the provisions of clause 7 (Prices and Payment) of this Agreement, the relevant Commissioner may in its reasonable discretion choose not to pay the Provider in respect of the activity or (as the case may be) part of the activity that caused the breach or to which the breach relates.

7 Capacity Review

7.1 Where:

7.1.1 the Capacity Review Criteria set out in Annex 2 are satisfied; and

7.1.2 it is not practically feasible for the Provider to take such action as is required for it to increase its capacity so as to meet an increase in demand for the relevant Service(s); and

7.1.3 the Provider acting reasonably considers that it will be unable to meet the 18 Week Referral-to-Treatment Target in respect of the relevant Service(s)

the Provider shall by notice in writing require the Co-ordinating Commissioner to participate in a Capacity Review of the activity specified in the notice in order to determine whether the Provider should be exempted from any financial adjustment which the Co-ordinating Commissioner may otherwise be entitled to apply under paragraph 8.2 of this Schedule.

7.2 The Co-ordinating Commissioner shall commence the Capacity Review within 10 Operational Days of receipt of the said notice.

7.3 The Capacity Review shall consider:

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7.3.1 any constraints on the physical capacity or resources, including Staff of the Provider; and

7.3.2 whether the Provider is delivering the most efficient care pathways for the activity the subject of the Capacity Review as informed by Good Healthcare Practice.

7.4 The Co-ordinating Commissioner shall, upon conclusion of the Capacity Review, report its findings and any recommendations to the Provider.

7.5 If the findings of the Capacity Review are that there is a limit on the activity in excess of the levels set out in the Activity Plan that the Provider can reasonably undertake so as to achieve the 18 Week Referral-to-Treatment Target, and the Provider has taken all reasonable steps to increase capacity, then the Provider shall not be made the subject of any financial adjustment pursuant to paragraph 8.2 of this Schedule in respect of any activity which is over and above the levels set out in the relevant Activity Plan, or any higher level set by the Capacity Review. In such circumstances, the Provider and the Co-ordinating Commissioner shall agree and submit a report to the relevant SHA, to the appropriate Regulator and where appropriate to Monitor detailing the reasons why the Provider shall not be made the subject of any financial adjustment pursuant to paragraph 8.2 of this Schedule 3 Part 1 and describing any action agreed to be taken.

7.6 Where the findings of the Capacity Review are that there is a limit on the activity in excess of the levels set out in the Activity Plan that the Provider can reasonably undertake so as to achieve the 18 Week Referral-to-Treatment Target, the Provider and the Co-ordinating Commissioner shall agree a plan to enable the Provider to comply with the 18 Week Referral- to-Treatment Target in respect of all such activity as soon as is reasonably practicable.

7.7 The Provider and the Co-ordinating Commissioner shall keep under review at every Review held under clause 8 (Review) of this Agreement the findings and recommendations of any Capacity Review, and the progress of any capacity expansion plan implemented under paragraph 7.6.

7.8 The Provider and the Co-ordinating Commissioner shall at all times act reasonably and in good faith in relation to any Capacity Review.

8 Delivery of the 18 Weeks Referral-to-Treatment Target

8.1 The patient pathways implemented under this Agreement shall be agreed by each Commissioner based on the level of risk to delivery of the 18 Week Referral-to-Treatment Target. Each pathway may be categorized and specified by the Commissioners at one of the three levels set out below:

8.1.1 Detailed pathways will include:

8.1.1.1 an agreed patient pathway of each significant step from initial patient presentation to GP through to diagnosis (including direct access and straight to test) to treatment and/or discharge;

8.1.1.2 detailed definitions of each provider's responsibilities for multi- provider pathways; and

8.1.1.3 clinical protocols and timings for each stage of the pathway;

8.1.2 Outline pathways will include:

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8.1.2.1 an agreed pathway covering most significant steps of the pathway;

8.1.2.2 outline definitions of each provider's responsibilities for multi-provider pathways; and

8.1.2.3 outline clinical protocols for the pathway.

8.1.3 Basic pathways will be included in an agreed list of multi-provider pathways that have not been specified at a detailed or an outline level.

Financial adjustments for 18 weeks performance

8.2 The Co-ordinating Commissioner may make financial adjustments to payments due to the Provider based on performance against the 18 Weeks Referral-to-Treatment Target.

8.3 Without prejudice to any requirement to submit data or information relating to performance against the 18 Weeks Referral-to-Treatment Target to SUS, the Co-ordinating Commissioner and the Provider shall monitor performance against the 18 Weeks Referral-to-Treatment Target:

8.3.1 between the Service Commencement Date and 31 December 2008, at such points as they shall agree; and

8.3.2 monthly in January, February and March 2009; and

8.3.3 from 31 March 2009, in each Quarter whilst this Agreement remains in force.

8.4 Where the Provider fails in any of the months of January, February or March 2009 (each, a “First Year Target Month”) to meet the 18 Weeks Referral-to-Treatment Target, then at the end of the first Contract Year the Provider’s total revenue derived in the first Contract Year from the provision of Elective Care Services under this Agreement (“First Contract Year Elective Care Revenue”) will be adjusted by a deduction of 0.5% for each 1% by which the Provider underachieved the 18 Week Referral-to-Treatment Target in the First Year Target Month in which the Provider’s percentage underachievement of the 18 Weeks Referral-to- Treatment was highest, as follows:

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Highest Percenta percent ge age by deductio which n in First Provide Contract r Year undera Elective chieves Care the 18 Revenue Week Referra l-to- Treatm ent Target in the First Year Target Months Up to 0.5% 1% 1% to 1% 2% 2%to 1.5% 3% 3% to 2% 4% 4% to 2.5% 5% 5% to 3% 6% 6% to 3.5% 7% 7% to 4% 8% 8% to 4.5% 9% 9% to 5% 10%

and if the Provider underachieves the 18 Week Referral-to-Treatment Target by 10% or more in any of the First Year Target Months the adjustment will be capped at a maximum of 5% of the First Contract Year Elective Care Revenue.

8.5 From the start of the second Contract Year, at the end of each Quarter the Provider’s total revenue in that Quarter derived from the provision of Elective Care Services under this Agreement (“Contract Quarter Elective Care Revenue”) will be adjusted by a deduction of 0.5% for each 1% by which the Provider has underachieved the 18 Week Referral-to- Treatment Target in that Quarter, as follows:

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Percent Percenta age by ge which deductio Provide n in r Contract undera Quarter chieves Elective the 18 Care Week Revenue Referra l-to- Treatm ent Target Up to 0.5% 1% 1% to 1% 2% 2%to 1.5% 3% 3% to 2% 4% 4% to 2.5% 5% 5% to 3% 6% 6% to 3.5% 7% 7% to 4% 8% 8% to 4.5% 9% 9% to 5% 10%

and if the Provider underachieves the 18 Week Referral-to-Treatment Target by 10% or more in that Quarter the adjustment will be capped at a maximum of 5% of the Contract Quarter Elective Care Revenue.

8.6 The financial adjustments under paragraphs 8.4 and 8.5 will be weighted based on performance against the separate 18 Week Referral-to-Treatment Targets for admitted and non-admitted patients, as follows:

8.6.1 adjustments under paragraph 8.4 relating to performance for admitted care will apply to 75% of First Contract Year Elective Care Revenue;

8.6.2 adjustments under paragraph 8.4 relating to performance for non-admitted care will apply to 25% of First Contract Year Elective Care Revenue;

8.6.3 adjustments under paragraph 8.5 relating to performance for admitted care will apply to 75% of Contract Quarter Elective Care Revenue; and

8.6.4 adjustments under paragraph 8.5 relating to performance for non-admitted care will apply to 25% of Contract Quarter Elective Care Revenue.

8.7 The overall adjustment under paragraph 8.4 will be capped at 2% of the Provider’s total revenue in the first Contract Year derived from the provision of Services under this Agreement, if this is less than 5% of the First Contract Year Elective Care Revenue.

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8.8 The overall adjustment under paragraph 8.5 will be capped at 2% of the Provider’s total revenue in the relevant Quarter derived from the provision of Services under this Agreement, if this is less than 5% of the relevant Contract Quarter Elective Care Revenue

8.9 Financial adjustments under this paragraph 8 shall not apply to the Provider's performance in relation to pathways that include referrals to the Provider’s tertiary care clinical team from a different provider's secondary clinical team, provided that the Provider's tertiary care clinical team has at all times acted reasonably and in accordance with the 18 Weeks Referral-to- Treatment Target and the 18 Week Guidance.

8.10 The Co-ordinating Commissioner will be able to reduce or waive financial adjustments in relation to performance against the 18 Week Referral-to-Treatment Target where the Co- ordinating Commissioner does not consider the financial adjustments are appropriate in the context of the overall performance of the relevant health communities.

9 Financial adjustments for performance in reducing Clostridium difficile

9.1 At the end of each Contract Year, the Co-ordinating Commissioner may make financial adjustments in accordance with this paragraph 9 based on the Provider’s performance in relation to the reduction of cases of Clostridium difficile.

9.2 In this paragraph 9:

9.2.1 the “Baseline Year” means the year ending on 31 March which immediately precedes the applicable Contract Year (and which may be a previous Contract Year); and

9.2.2 “ Total Contract Year Revenue” means the Provider’s total revenue in the applicable Contract Year derived from the provision of Services under this Agreement.

9.3 Where: 9.3.1 in the applicable Baseline Year there have occurred at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) 200 or more cases of Clostridium difficile; and

9.3.2 in the applicable Contract Year the Provider fails to achieve its applicable target set by the Secretary of State for cases of Clostridium difficile by 1% or more

then at the end of such Contract Year the Total Contract Year Revenue will be adjusted by a deduction of 0.2% for each 1% by which the Provider has underachieved its Clostridium difficile target applicable in such Contract Year, as follows:

Percent Percenta age by ge which deductio Provide n in Total r Contract undera Year chieves Revenue its Contra ct Year Clostri dium difficile target Up to 0%

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Percent Percenta age by ge which deductio Provide n in Total r Contract undera Year chieves Revenue its Contra ct Year Clostri dium difficile target 1% 1% to 0.2% 2% 2%to 0.4% 3% 3% to 0.6% 4% 4% to 0.8% 5% 5% to 1% 6% 6% to 1.2% 7% 7% to 1.4% 8% 8% to 1.6% 9% 9% to 1.8% 10% 10% or 2% more

and for the avoidance of doubt the adjustment will be capped at a maximum of 2% of the Total Contract Year Revenue.

9.4 Where:

9.4.1 in the applicable Baseline Year there have occurred at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) between 50 and 199 cases of Clostridium difficile; and

9.4.2 in the applicable Contract Year the number of cases of Clostridium difficile at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) exceeds 200

then at the end of such Contract Year the Total Contract Year Revenue will be adjusted by a deduction of 0.2% for each 1% by which the Provider has underachieved its Clostridium difficile target applicable in such Contract Year, as follows:

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Percent Percenta age by ge which deductio Provide n in Total r Contract undera Year chieves Revenue its Contra ct Year Clostri dium difficile target Up to 0% 1% 1% to 0.2% 2% 2%to 0.4% 3% 3% to 0.6% 4% 4% to 0.8% 5% 5% to 1% 6% 6% to 1.2% 7% 7% to 1.4% 8% 8% to 1.6% 9% 9% to 1.8% 10% 10% or 2% more

and for the avoidance of doubt the adjustment will be capped at a maximum of 2% of the Total Contract Year Revenue.

9.5 Where:

9.5.1 in the applicable Baseline Year there have occurred at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) between 50 and 199 cases of Clostridium difficile; and

9.5.2 in the applicable Contract Year the number of cases of Clostridium difficile at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) does not exceed 200 but exceeds by 2 or more the number of cases that occurred in the Baseline Year

then at the end of such Contract Year the Total Contract Year Revenue will be adjusted by a deduction of 0.1% for each 1% by which the number of cases of Clostridium difficile in such Contract Year exceeds the number of cases of Clostridium difficile in the applicable Baseline Year, as follows:

78 Schedule 3 Part 1

Percent Percenta age by ge which deductio the n in Total number Contract of Year Contra Revenue ct Year cases of Clostri dium difficile exceed s the number of Baselin e Year cases Up to 0% 1% 1% to 0.1% 2% 2% to 0.2% 3% 3% to 0.3% 4% 4% to 0.4% 5% 5% to 0.5% 6% 6% to 0.6% 7% 7% to 0.7% 8% 8% to 0.8% 9% 9% to 0.9% 10% 10% to 1% 11% 11% to 1.1% 12% 12% to 1.2% 13% 13% to 1.3% 14% 14% to 1.4% 15% 15% to 1.5% 16% 16% to 1.6% 17% 17% to 1.7% 18% 18% to 1.8% 19% 19% to 1.9% 20%

79 Schedule 3 Part 1

Percent Percenta age by ge which deductio the n in Total number Contract of Year Contra Revenue ct Year cases of Clostri dium difficile exceed s the number of Baselin e Year cases 20% or 2% more

and for the avoidance of doubt the adjustment will be capped at a maximum of 2% of the Total Contract Year Revenue.

9.6 Where: 9.6.1 in the applicable Baseline Year there have occurred at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) less than 50 cases of Clostridium difficile; and

9.6.2 in the applicable Contract Year the number of cases of Clostridium difficile that occur at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) exceeds by 2 or more the number of cases that occurred in the Baseline Year; and

9.6.3 in the applicable Contract Year there occur more than 50 cases of Clostridium difficile at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises)

then at the end of such Contract Year the Total Contract Year Revenue will be adjusted by a deduction of 0.05% for each 1% by which the number of cases of Clostridium difficile in such Contract Year exceeds the number of cases of Clostridium difficile in the applicable Baseline Year, as follows:

80 Schedule 3 Part 1

Percent Percenta age by ge which deductio the n in Total number Contract of Year Contra Revenue ct Year cases of Clostri dium difficile exceed s the number of Baselin e Year cases Up to 0% 1% 1% to 0.05% 2% 2% to 0.1% 3% 3% to 0.15% 4% 4% to 0.2% 5% 5% to 0.25% 6% 6% to 0.3% 7% 7% to 0.35% 8% 8% to 0.4% 9% 9% to 0.45% 10% 10% to 0.5% 11% 11% to 0.55% 12% 12% to 0.6% 13% 13% to 0.65% 14% 14% to 0.7% 15% 15% to 0.75% 16% 16% to 0.8% 17% 17% to 0.85% 18% 18% to 0.9% 19% 19% to 0.95% 20%

81 Schedule 3 Part 1

Percent Percenta age by ge which deductio the n in Total number Contract of Year Contra Revenue ct Year cases of Clostri dium difficile exceed s the number of Baselin e Year cases 20% to 1% 21% 21% to 1.05% 22% 22% to 1.1% 23% 23% to 1.15% 24% 24% to 1.2% 25% 25% to 1.25% 26% 26% to 1.3% 27% 27% to 1.35% 28% 28% to 1.4% 29% 29% to 1.45% 30% 30% to 1.5% 31% 31% to 1.55% 32% 32% to 1.6% 33% 33% to 1.65% 34% 34% to 1.7% 35% 35% to 1.75% 36% 36% to 1.8% 37% 37% to 1.85% 38% 38% to 1.9% 39% 39% to 1.95% 40%

82 Schedule 3 Part 1

Percent Percenta age by ge which deductio the n in Total number Contract of Year Contra Revenue ct Year cases of Clostri dium difficile exceed s the number of Baselin e Year cases 40% or 2% more

and for the avoidance of doubt the adjustment will be capped at a maximum of 2% of the Total Contract Year Revenue.

9.7 Where:

9.7.1 in the applicable Baseline Year there have occurred at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises) less than 50 cases of Clostridium difficile; and

9.7.2 in the applicable Contract Year there occur less than 50 cases of Clostridium difficile at the Provider’s Premises specified in Schedule 19 (Location of Provider’s Premises)

then no financial adjustment shall apply under this paragraph 9.

9.8 The Co-ordinating Commissioner will be able to reduce or waive financial adjustments in relation to Provider performance in relation to the reduction of cases of Clostridium difficile where the Co-ordinating Commissioner does not consider the financial adjustments are appropriate in the context of the overall performance of the relevant health communities.

10 Dispute Resolution

10.1 In relation to any dispute touching and concerning the matters set out in this Schedule 3 Part 1 the Parties shall follow the dispute resolution procedure set out in clause 28 (Dispute Resolution) and Schedule 9 (Dispute Resolution Procedure) of this Agreement.

83 Schedule 3 Part 1

Annex 1: Activity Plans

See annex 1 attached

84 Schedule 3 Part 1

Annex 2: Capacity Review Criteria

The Provider and Commissioner agree to develop a draft capacity criteria and triggers for review by 31 May 2008 and look to phase the implementation during 2008/09.

85 Schedule 3 Part 1

Annex 3: Expected Annual Contract Values

SOMERSET PRIMARY CARE TRUST £151,132,447

DEVON PRIMARY CARE TRUST £5,169,971

DORSET PRIMARY CARE TRUST £803,041

NORTH SOMERSET PRIMARY CARE TRUST £346,820

BRISTOL PRIMARY CARE TRUST £124,428

SOUTH GLOUCESTERTSHIRE PRIMARY CARE TRUST £19,727

£157,596,434

The above values exclude the services held by the South West Specialist Commissioning Team

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SCHEDULE 3

Part 2 : Patient Booking and Patient Choice

Patient Choice and Referrals

1. The Provider shall set out all relevant Services in Choose and Book, through a “Directory of Service”.

2. The Provider shall agree its “Directory of Service” entries with the appropriate Commissioner(s) in line with the national naming conventions and with regard to best practice as described at: http://www.chooseandbook.nhs.uk/staff/dos.

3. The Provider shall make specified information available to prospective NHS patients through the NHS Choices website, and shall in particular use NHS Choices to promote awareness of the Services among the communities its serves, ensuring the information provided is accurate and up-to-date, in accordance with the provider profile policy which can be found at www.nhschoices.nhs.uk

4. The Commissioners shall use their best endeavours to ensure that all referrals to the Provider for Elective Care are made through the Choose and Book system.

5. The Provider shall offer clinical advice and guidance to GPs on potential referrals through Choose and Book, whether this leads to a referral being made or not.

6. The Provider shall receive referrals from the following sources:

6.1 referring clinicians in primary care (including general dental practitioners, GPs, GPs with special interests, optometrists, and other primary care clinicians as specifically authorised by the PCT for the purposes of making referrals to consultant-led secondary care services);

6.2 clinicians working in an “interface” service such as an Integrated Clinical Assessment and Treatment Service, or referral management service;

6.3 other secondary care providers;

6.4 any other body (NHS or independent sector) that provides diagnostics and assessment centres for NHS patients.

7. The Provider shall accept all clinically appropriate referrals whether made through Choose and Book or by other means.

8. The Provider:

8.1 may not turn down referrals on the grounds of the location of the relevant PCT;

8.2 may not turn down referrals on the grounds that it has insufficient capacity at the time of booking to treat the patient in accordance with the 18 Weeks Referral-to-Treatment Target;

8.3 may refuse a referral on the grounds that the referral was not clinically appropriate; and

8.4 may refuse a referral on safety grounds.

9. Further information and guidance relating to Patient Choice can be found at: http://www.dh.gov.uk/en/Policyandguidance/PatientChoice/index.htm

Patient Booking

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10. The Provider and the Commissioners shall adhere to current policy and guidance on booking and the use of Choose and Book, which can be found at: http://www.chooseandbook.nhs.uk/staff/implementation.

11. The Provider shall:

11.1ensure that it has the necessary structures in place to support the implementation and maintenance of Choose and Book;

11.2ensure that it has the appropriate IT infrastructure to support the efficient use of Choose and Book;

11.3ensure that all Staff involved in receiving referrals have access to Choose and Book;

11.4ensure that all Staff involved in the referrals and booking process are appropriately trained in the use of Choose and Book;

11.5ensure all Services that it lists on Choose and Book which are subject to Patient Choice are Directly Bookable Services, unless an exemption for technical reasons has been granted by NHS Connecting for Health or is set out in applicable national guidance;

11.6regularly review the availability of bookable appointments available on Choose and Book to ensure that patients can book appointments with their chosen provider;

11.7ensure that there are contingency plans in place to deal with patient bookings should the Choose and Book system be temporarily unavailable for any reason;

11.8have in place a system to accept referrals from the NHS Direct Appointments line where patients have attempted to book an appointment but there were no slots showing on Choose and Book at the time;

11.9ensure that there are contingency plans in place for the receipt of referrals in the event that the Choose and Book system is temporarily unavailable for any reason; and

11.10 provide clear information on Choose and Book when referrals are rejected as clinically inappropriate or on grounds of safety.

12. The Commissioners shall:

12.1ensure that all GP practices have the necessary IT infrastructure to support the current release of Choose and Book software;

12.2ensure that all staff are appropriately trained in the use of Choose and Book and new software releases in a timely manner;

12.3ensure there are robust arrangements in place with the Provider (in accordance with Schedule 3 and the Prior Approval process) to deal with inappropriate referrals; and

12.4work with the Provider in order to facilitate referrals to appropriate Services.

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Schedule 3 Part 3

SCHEDULE 3

Part 3 : Emergency and Critical Care Procedure

1.1 If and to the extent that the Commissioners do not procure sufficient Unscheduled Care, Emergency Care and Critical Care resulting in unplanned additional demand, the Provider’s obligations (other than under paragraphs 1.4, 1.5, 1.6 and 1.8 below) will be reduced so that the Provider shall be obliged use only its reasonable endeavours to meet this Part 3 of Schedule 3. To avoid doubt, wherever this paragraph applies and the Provider, acting reasonably, arranges to transfer or divert any Patient for Critical Care or from its A&E department there shall be no material breach of this Agreement.

1.2 The Provider shall comply with the provisions of Part 1 of this Schedule 3 (Managing Activity and Referrals) in relation to any changes in actual levels of demand for Unscheduled Care, Emergency Care and Critical Care against any planned levels specified by the Commissioners. Any such changes during a Contract Year shall be taken into account during a Capacity Review and reflected in revised service levels for the subsequent Contract Year.

1.3 The Provider shall use its best endeavours to ensure that each Patient for Unscheduled Care or other Emergency Care is registered upon arrival and assessed and treated (if required), and is then admitted to the Provider’s Premises, or transferred as appropriate, or discharged within 4 hours or less of arrival (or any shorter period specified in the Service Specification).

1.4 Subject to paragraph 1.1 above, if the Service Specification does not include A&E services, but the Provider has A&E facilities and provides A&E services to the patients of any other commissioner, the Provider shall provide equivalent A&E services and other Unscheduled Care or other Emergency Care to any Patient who is referred or presents to its A&E department, as if they were part of the Services and the Provider shall receive payment for them.

1.5 If the Provider has a Type 1 A&E Department, the Provider shall use its best endeavours to keep it available 24 hours a day and 365 days a year. Transfer or diversion from it (except for reasons clinically appropriate to the Patient, or due to an Event of Force Majeure) shall be a breach of this Agreement.

1.6 If the Provider has a Type 2 A&E Department or a Type 3 A&E Department the Provider shall use its best endeavours to keep it available during its normal working hours. Transfer or diversion from it (except for reasons clinically appropriate to the Patient or due to an Event of Force Majeure) shall be a breach of this Agreement.

1.7 If one of the exceptions to paragraphs 1.5 or 1.6 above applies or if the Provider has no A&E Department, the Provider shall use its best endeavours to transfer or divert the Patient to a receiving provider in accordance with any protocols relating to such transfer or diversion as may be agreed from time to time between the Co-ordinating Commissioner and the Provider.

1.8 If the Provider has a Critical Care Facility, it shall use its best endeavours to ensure that each referred or presenting or transferred or diverted Patient for Critical Care is admitted and treated in that Critical Care Facility. Transfer or diversion of the Patient (except for reasons clinically appropriate to the Patient or due to an Event of Force Majeure) shall be a breach of this Agreement.

1.9 If one of the exceptions to paragraph 1.8 above applies or if the Provider has no Critical Care Facility, the Provider shall use its best endeavours to ensure that each Patient referred or presenting for Critical Care is diverted or transferred only in accordance with paragraphs 1.11 to 1.14 inclusive.

1.10 If the Provider has a Critical Care Facility, paragraph 1.8 shall apply whether or not the Patient’s need for Critical Care forms part of a comprehensive acute care pathway or is

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otherwise part of the Services within the Service Specification and the Provider shall receive payment for it.

1.11 Whether or not the Provider has a Critical Care Facility, it shall prepare, from time to time review, and agree with the Co-ordinating Commissioner their joint contingency policy for Critical Care, including protocols covering the transfer of critically ill patients. This will incorporate, where clinically appropriate, recommendations contained in guidance of the Department of Health such as Comprehensive Critical Care (DH 2000) and Paediatric Intensive Care and any extensions or revisions from time to time in issue and those made by authoritative relevant professional organisations. To avoid doubt, failure to comply with this paragraph 1.11 and/or paragraphs 1.12 to 1.14 inclusive shall be a breach of this Agreement.

1.12 All transfers and diversions for Critical Care shall be carried out in accordance with the joint contingency policy described in paragraph 1.11 and with the procedures and protocols mentioned in clause 17 (Procedures and Protocols) or otherwise agreed by the Parties.

1.13 If the Provider is unable to find a Critical Care Facility within its Critical Care Transfer Group, it shall make the transfer or arrange the diversion of the Patient to a facility capable of providing the required level of Critical Care outside the Critical Care Transfer Group, and notify the Co- ordinating Commissioner that it has done so within a maximum of 2 calendar days after the transfer or diversion.

1.14 Before making any transfer or arranging any diversion for Critical Care, the Provider shall use its best endeavours to ensure that the receiving provider has agreed to accept, (and, in the case of a child or neonate, to retrieve) and provide the Critical Care needed by the Patient, and there has been clinically appropriate discussion between consultants of the Provider and of that provider or their respective responsible officers.

1.15 The provision of Unscheduled Care, Emergency Care or Critical Care by the Provider shall always be subject to the Provider’s discretion not to transfer or divert a Patient if the Provider considers that to be in the best interests of the Patient in accordance with Good Clinical Practice and Good Healthcare Practice.

1.16 Compliance with the provisions of this Part 3 of Schedule 3 shall be deemed to be an integral part of the provision of the Services. To avoid doubt, it shall not be a material breach of this Agreement by the Provider if it does not comply in a single instance with its obligations set out here unless breach becomes repetitive or persistent.

1.17 Clauses 4.2, 4.3, 4.4, 4.5 and 4.6 of this Agreement shall apply to the provision of Unscheduled Care, Emergency Care and Critical Care.

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Schedule 3 Part 4

Part 4 : Quality Standards

Part 4A: Clinical Quality Performance Indicators and Consequences

The Provider and Commissioner agree to review and amend clinical quality and performance indicators on an annual basis, including threshold, measurement and consequences of breaches.

Reference Clinical Quality Threshold Method of Consequence per Grouping National target Local target Performance Measurement breach - where Indicator relevant

Q001 - MRSA - number of 12 cases Cases of hospital Failure to inform as set No increase in current VSA01 infections acquired infection out or submit the levels (measured in action plans in the actual numbers, rather given time-scale will than rates), provided result in the issuing of that the existing target a performance notice. has been met, e.g each

I of the next three years n should be less than half f

e the 2003-4 figure of c MRSA bacteraemia’s t i o

n

Q002 MRSA - Proportion of 100% of elective Number of patients Failure to inform as set No information yet. C admissions screened patients to be screened. out or submit the Operating Framework o

for MRSA screened by action plans in the n says: introducing MRSA

March 2009. given time-scale will t screening for all elective r

Plans to be result in the issuing of o admissions from

developed during a performance notice. l 2008/09, and for all 08/09 for emergency admissions trajectory for non- as soon as practicable elective and within the next three emergency years, and implementing admissions. the forthcoming HCAI and Cleanliness Strategy.

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Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant

T

Q003 - 85% patients seen Nil - sustained Monthly report. Failure to inform as r T VSA04 within 13 weeks for each month set out or submit the e i a admitted pathways action plans in the m t m given time-scale will e l e

result in the issuing y

of a performance n notice. t

Q004 85% patients seen Nil - sustained Monthly report Failure to inform as within 13 weeks for each month set out or submit the non-admitted pathways action plans in the given time-scale will result in the issuing of a performance notice.

Q005 Proportion of patients 95% Monthly report Failure to inform as VSA13 with suspected cancer set out or submit the detected through action plans in the national screening given time-scale will programmes, or by result in the issuing hospital specialist, who of a performance wait less than 62 days notice. from referral to treatment.

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Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q006 % of consultant to NIL Monthly report. Failure to inform as consultant referrals, set out or submit the sent to the Somerset action plans in the RMC for approval (see given time-scale will attached procedure result in the issuing Annex A) of a performance notice. Q007 Safe Guarding NIL Please see Failure to inform as Children (see attached attached Safe set out or submit the procedure Annex B). Guarding Children action plans in the Additional Quality given time-scale will Standards result in the issuing of a performance notice. Q008 Prior Approvals (please NIL Failure to inform as see attached High Cost set out or submit the Low action plans in the Volume/Exceptional given time-scale will Treatments Annex C) result in the issuing of a performance notice. Q009 Patient and Public NIL Please see Failure to inform as Involvement to be attached Patient set out or submit the agreed during Q1 in and Public action plans in the 08/09 and subject to Involvement given time-scale will contract variation. Contract Clause result in the issuing of a performance notice. Q010 Prison Access NIL Please see Failure to inform as Protocols (please see attached Protocol set out or submit the attached (Annex E) Agreement action plans in the given time-scale will result in the issuing of a performance notice.

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Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q011- Implementation of Quarterly report Failure to inform as Expected position by the VSA14 stroke strategy - 70% set out or submit the end of 2010/11: 80% of of Stroke patients action plans in the patients spend at least should be admitted to a given time-scale will 90% of their time on a stroke unit for 90% of result in the issuing stroke unit. Milestones = their hospital of a performance in 2008/09 - 70%, in admission notice. 2009/10 -70%, in 2010/11 -80% Q012 - Implementation of Quarterly report Failure to inform as Expected position by the VSA14 stroke strategy - % of set out or submit the end of 2010/11: 60% of higher risk TIA cases action plans in the higher risk TIA cases who are treated within given time-scale will are treated within 24 24 hours result in the issuing hours by 2010/11. of a performance Milestones = in 2008/09 notice. - 25%, in 2009/10 -45%, in 2010/11 -60% Q013 – Delayed transfers of 2% Quarterly report Failure to inform as VSC10 care to be maintained set out or submit the at a minimum level action plans in the given time-scale will result in the issuing of a performance notice. Q014 2 week maximum wait NIL Monthly report Failure to inform as for rapid access chest set out or submit the pain clinic action plans in the given time-scale will result in the issuing of a performance notice.

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Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q015 All patients who have NIL Monthly report Failure to inform as cancelled operations set out or submit the for non-clinical reasons action plans in the to be offered another given time-scale will binding date within 28 result in the issuing days of a performance notice. Q016 – Emergency TBC Number of patients Failure to inform as QIPS 4 readmission rates readmitted within set out or submit the following discharge. 48 hours of action plans in the discharge given time-scale will % readmissions within 10% result in the issuing 28 days of a performance notice. Q017 % of GP discharge 98% Quarterly report Failure to inform as summaries provided set out or submit the within 72 hrs. action plans in the given time-scale will See Schedule 2 Part 2. result in the issuing of a performance notice. Q018 % pts discharged to 98% Pts on medication Failure to inform as community hospitals discharged to set out or submit the with 3 days worth of all community action plans in the medication hospitals from date given time-scale will of discharge- spot result in the issuing records audit of a performance notice.

Q019 Reporting & Monitoring Monthly report to of any Serious QIPS, from STEIS Untoward Incident & database lessons learned

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Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q020 - 98% of patients waiting 98% National Cancer Failure to inform as 100% by Q4 08/09 VSA11 no more than 31 days Register – Open set out or submit the for second or Exeter action plans in the subsequent cancer given time-scale will treatment (surgery and result in the issuing drug treatment). of a performance Extension to existing notice. 31 day target. Q021 - Proportion of patients 100% National Cancer Failure to inform as Part A (62-Day Standard VSA12 waiting no more than Register – Open set out or submit the for patients treated for 31 days for second or Exeter action plans in the cancer following the subsequent cancer given time-scale will detection of an treatment (radiotherapy result in the issuing abnormality by an NHS treatments) of a performance Cancer Screening notice. Programme. This is for patients treated for cancer who were not originally referred via an urgent GP/GDP referral for suspected cancer, but who were directly referred by an NHS Cancer Screening Programme) = 100% by Q4 08/10 Q022 - 95% of patients with 95% National Cancer Failure to inform as Part B (62-Day standard VSA13 suspected cancer Register – Open set out or submit the for patients treated for detected through Exeter action plans in the cancer who were not national screening given time-scale will originally referred via an programmes or by result in the issuing urgent GP/GDP referral hospital specialists of a performance for suspected cancer, who wait less than 62 notice. but have been seen by a days from referral to clinician who suspects treatment cancer, who has upgraded their priority status) = TBC 96

Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant

Q023 Self reported TBC Taking a baseline of experience of patients 2007-08 or the most and users (each acute recent preceding survey trust would have 3 if no survey was carried scores (adult inpatient, out in 2007-08, success outpatient, A&E)) is defined as an increase in the index score for each survey

Q024 Improvement in TBC Reported quarterly QIPS1 hospital standardised rate from Hospital mortality rates

Q025 the availability of stroke NIL Quarterly report Failure to inform as Coronary units set up to deliver set out or submit the Heart thrombolysis to eligible action plans in the Disease patients, in accordance given time-scale will and Stoke with the National result in the issuing Clinical Guidelines for of a performance Stroke notice.

Failure to inform as Q026 the percentage of 68% within 60 set out or submit the eligible patients minutes action plans in the receiving thrombolysis given time-scale will result in the issuing of a performance notice.

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Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q027 Cancer Registry Analysis Year 2007 Failure to inform as - One annual set out or submit the offload to be action plans in the submitted in April given time-scale will 2008 result in the issuing of a performance Analysis Year 2008 notice. - One annual offload to be submitted with 25 Operational days of the end of the year (I.e. by 5th February 2009)

Analysis Year 2009 - January 2009 to March 2009 - Submissions on a monthly basis within 25 Operational days of the end of the month

Analysis Year 2009 - April 2009 to December 2009 - Submissions on a monthly basis within 20 Operational days of the end of the month

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Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q028 - rate of hospital TBC Quarterly report Failure to inform as VSC21 admissions for set out or submit the ambulatory care action plans in the sensitive conditions. given time-scale will result in the issuing Numerator: Total of a performance number of notice. hospital admissions for ACS conditions Denominator: 2001 Census based mid-year population estimates for the respective calendar years (See Vital Signs Technical Guidance Tier 3, page 45)

Q029 Percentage of patients Maintained at Quarterly report Failure to inform as -VSC24 following myocardial NSF standard set out or submit the infarction discharged levels of between action plans in the on all three of the 80% and 90% of given time-scale will following drugs: patients being result in the issuing aspirin, beta-blockers prescribed these of a performance and statins drugs upon notice discharge. Q030 - Patient and user TBC Quarterly report Failure to inform as VSC28 reported measure of set out or submit the respect and dignity in action plans in the their treatment. given time-scale will result in the issuing 99

Schedule 3 Part 4

of a performance notice

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Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q031 - Patients waiting longer 0 Quarterly report Failure to inform as AHENT than three months for set out or submit the revascularisation. action plans in the given time-scale will result in the issuing of a performance notice Q032 - Access to genito 100% Quarterly report Failure to inform as AHNNT urinary medicine clinics set out or submit the - percentage of first action plans in the attendances whose given time-scale will first offer was within 48 result in the issuing hours of contacting the of a performance clinic. notice Q033 Acute hospitals have a NIL Bi-annual report Failure to inform as Learning Following system in place to set out or submit the Disability publication of ?? ensure patients with action plans in the report, Trust to learning disabilities are given time-scale will provide identified and result in the issuing assurances that appropriate support of a performance systems in place. provided notice Q034 Direct Booking Slot 90% Weekly report Failure to inform as availability - by set out or submit the specialty action plans in the given time-scale will result in the issuing of a performance notice Q035 Discharged to the To be agreed in Community with Q1 2008/09 Pressure Sores

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Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant Q036 Down's Syndrome To be agreed in Screening Q1 2008/09 Q037- 4 hour maximum wait 98% in any one Weekly report Provider sends Daily OF (SW) in A&E from arrival to week Breach Report at admission, transfer or patient level to PCT. discharge (operating Joint Written Report standard of 98% over stating remedial month) action plan and progress against plan – updated each week that performance is below 97% Q038 - Increase % of patients To be agreed in Weekly report TBC OF (SW) with a 2 hour maximum Q1 2008/09 wait in A&E from arrival to admission, transfer or discharge Q039 – Elimination of To be agreed Weekly report Failure to inform as NHS South West OF (SW) ambulance handover during Q1 of set out or submit the Operating delays to ensure that 2008/09 action plans in the Framework all patients are given time-scale will “Working towards transferred within 15 result in the issuing 100%”. minutes of arrival of a performance notice Q040 Data quality on ethnic 90% Monthly report Failure to inform as group – 90% of FCEs set out or submit the on Hospital Episode action plans in the Statistics with valid given time-scale will 2001 census coding for result in the issuing ethnic category of a performance notice

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Schedule 3 Part 4

Reference Clinical Quality Threshold Method of Consequence per Grouping - National target Local target Performance Measurement breach where Indicator relevant

Q041 Processes in place to NIL Quarterly review of Failure to inform as ensure compliance new NICE guidance set out or submit the with National Institute action plans in the for Health and Clinical given time-scale will Excellence (NICE) result in the issuing guidelines on the of a performance treatment and notice management of self harm in emergency departments. Q042 Stroke - Length of Stay TBC Monthly Histogram showing monthly ALoS and % Length of Stay < 10 days Q043 % compliance with 1 SABs quarterly -QUIPS24 safety alert broadcasts report due for completion in the quarter Q044 % of women who have TBA Records Audit – Failure to inform as QUIPS29 - seen midwife or Quarterly review set out or submit the VSB06 maternity healthcare action plans in the professional for given time-scale will assessment of health result in the issuing and social care needs, of a performance risks & choices, 12 notice completed weeks of pregnancy

103 Schedule 4

ANNEX A

SOMERSET REFERRAL MANAGEMENT CENTRE PROCEDURE FOR ACUTE TRUSTS ON THE SENDING OF CONSULTANT TO CONSULTANT REFERRALS

1. WHAT TO SEND

From 1 April 2007, all Consultant to Consultant (CTC) referrals for patients from GP practices within Somerset Primary Care Trust, whether internally within the Trust or to another Provider should be sent through the Referral Management Centre (RMC) in Bridgwater.

The RMC would not expect to receive referrals that are:

 Within the same care pathway as the original referral (although we would always expect to receive Tertiary referrals to other Trusts).

 Urgent (suspected cancer)

 That would otherwise be dealt with as a rejection through Choose and Book.

The referral needs to clearly state the consultant making the referral and the referral destination requested by the consultant. All referrals should be sent by paper.

2. WHERE AND HOW TO SEND

CTC referrals should be sent to the following address:

CTC Referral Team F.a.o. Beckie Bolton Ground Floor, Mallard Court Express Park Bristol Road Bridgwater TA6 6BN

Address labels are available from the RMC.

Referrals from Taunton and Somerset and from Yeovil District Hospital should be sent via Hospital Internal Mail. Referrals from other Trusts should be sent by Royal Mail.

3. TRACKING REFERRALS

In order to ensure the appropriate tracking arrangements are in place, each department within the Trust will be responsible for sending their own referrals.

A Batch Sticker should be placed on each envelope that gives a unique reference to the envelope, records the date sent and the quantity of referrals within the envelope.

The “unique reference” should be in the form “Provider / Specialty / Envelope Number”. Hence the first envelope from ENT in T&S should be recorded as “T&S / ENT / 001” etc.. If there is more than one source of referral dispatch within the Specialty Dept then the Trust should make arrangements to co-ordinate the batch reference.

Batch Stickers are available from the RMC.

104 Schedule 4

Tracking mechanisms for sending referrals from the RMC to Trusts will be the same as currently used for paper GP Referrals.

4. PROCESSING TIMES AT THE RMC

The RMC will process CTC referrals according to the following timescales: a) RMC receipt, logging of referrals and notification to GPs : within 24 hours of receipt of referral b) Turnaround response times from GP Practices: within 48 hours of receipt of notification from RMC.

5. CONTACTS AT THE RMC

Administrative Contacts:

Beckie Bolton: 01278 727 400 / email: [email protected] Charlotte Stone: 01278 727 424 / email: [email protected]

CTC Team Fax No: 01278 727 431

Lead Manager at the RMC:

Kevin Hudson 01278 727 401 / 07717 530 220 Email: [email protected]

105 Schedule 4

ANNEX B

Safe Guarding Children Additional Quality Standards

Policy Framework

Standards:-

. Local Action: Health and Social Care Standards and Planning Framework 2005/06-2007/08 and any subsequent related guidance. . The Mental Health Act, 1983 Code of Practice . Mental Health Act Commission – Guidance and Notes . Better Standards for Health DH 2004 Core standard C2 for Child Protection . Standard 5 of the National Service Framework for Children, Young People and Families.

 The Provider will have an Executive Board lead for Safeguarding Children and Young People

 The Provider will have in place a Child Protection Policy and Procedures that comply with the Somerset Local Safeguarding Children Board Child Protection Procedures and the Provider will comply with this policy in full, and ensure that it is available to all staff. This policy will include arrangements for reporting concerns regarding safeguarding children and young people, and will include all reporting mechanisms to the Local Safeguarding Children Board.

 In addition to the Provider’s obligations under the Child Protection policy any serious child protection incidents that arise will be reported through the Trust Incident Reporting Policy and through the Trust Serious Untoward Incident Reporting Process, will be reported as part of monthly performance reporting.

 The Provider will report any life threatening child protection incidents on to STEIS.

 The Provider will have in place a policy for Child Protection Training that meets the requirements set out in Working Together to Safeguard Children DH 2006. This policy will ensure that all staff who work with patient and the public have child protection training. The provider will comply with this policy in full, and evidence will be available of the number of staff trained at the appropriate level for their role.

 Numbers of staff receiving Child Protection Training will be included in the monthly performance report.

 The Provider will have in place a policy for Clinical Supervision for Child Protection for all staff who work with children and families as part of their main role and the Provider will comply with this policy in full. This policy will be audited on an annual basis.

 The Provider will have in place a policy for guidance in dealing with domestic abuse and will comply with this policy in full for patients, clients and Trust Staff.

 The Provider will have in place a Named Nurse for Safeguarding Children and a Named Doctor for Safeguarding Children who both have sufficient time in their job plan to undertake these roles.

 The Provider will ensure that the Trust is represented at the Somerset Local Safeguarding Children Board by an member of staff with appropriate background and authority to act.

 The Provider will name a designated officer for managing allegations made against staff of abuse of children and young people.

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 The Provider will have in place a Policy for Managing Allegations of Abuse Against Staff, and will comply with this in full.

 The Provider will have in place and implement a Safe Recruitment Policy, and ensure full compliance with this policy through quarterly audit of recruitment procedures that will reported in quarterly performance reports.

 The Provider will need to ensure that all children and young people who are cared for as in patients are accommodated in wards /units that are for children and young people and not on adult wards. If any child or young person aged under 18 years is accommodated on an adult ward, this must be reported as a serious untoward incident and reported in the monthly performance report.

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ANNEX C

HIGH COST LOW VOLUME PROCEDURES

Bone Marrow Transplants

Brachytherapy

Brain Injury Rehabilitation

Cochlear Implants (including assessment and upgrades)

Cryotherapy

Deep Brain Stimulation

Epilepsy Surgery

Haemophilia Treatments / Blood Products

Hyperbaric Oxygen Therapy / Decompression Treatments

Ilizarov Frames

Spinal Cord Stimulator

Stereotactic Radiotherapy

In addition, the High Cost Low Volume budget will cover the excess costs of individual treatments over £40,000.

HIGH COST LOW VOLUME DRUGS (to be reviewed in 2008/09)

Anti-TNF inhibitors

Avonex

Bosentan Therapy

Copaxon

Forteo

Growth Hormone Therapy

Rebif

Rituximab

Temozolomide

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EXCEPTIONAL TREATMENTS

Abdominoplasty / Apronectomy

Blepharoplasty (eyelid reduction)

Brow lift or other cosmetic surgery to the face

Botox treatment

Breast asymmetry correction

Breast augmentation

Breast implant revision

Breast reduction (bilateral or unilateral, including gynaecomastia and mastopexy)

Buttock, Thigh or Arm lift or reduction

Circumcision for non-clinical reasons

Correction of inverted nipples

Cosmetic surgery

Depilation of hair

Complementary therapies

Dermabrasion

Gender Reassignment Surgery

Dental implants

Lipomas (removal of)

Penile implants/prosthesis

Pinnaplasty

Reversal of sterilisation (including reversal of vasectomy)

Scar revision

Skin Lesions, benign (removal of for non clinical reasons)

Split earlobes

Tattoo removal

Varicose Vein surgery and telangectasia/thread veins

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Port wine stains / other birthmarks – laser treatment

Fertility treatment

Fertility Treatment (IVF) – separate policy

This list of exceptional treatments is not exhaustive and the provider should contact the department of Secondary Care Development at Somerset Primary Care Trust if clarification is required on any planned treatments.

Process for High Cost Low Volume Drugs and Procedures

Trusts requesting funding for a high cost drug or procedure must provide a written request to Secondary Care Development detailing patient history, previous treatments and evidence of effectiveness in drugs that are not NICE approved.

Process for an Exceptional Treatment Request

Clinicians requesting an exceptional treatment on behalf of their patient, must provide a written request to Secondary Care Development enclosed the relevant completed forms. Requests are considered at a monthly Committee meeting although urgent requests can be considered outside of the Committee. The Exceptional Treatments Committee Terms of Reference are available on request

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ANNEX D

SOMERSET PRIMARY CARE TRUST

PATIENT AND PUBLIC INVOLVEMENT CONTACT CLAUSE

Patient and Public Involvement to be agreed during Q1 in 08/09 and subject to contract variation.

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ANNEX E

PROTOCOL AGREEMENT BETWEEN SOMERSET PRIMARY CARE TRUST; TAUNTON AND SOMERSET NHS FOUNDATION TRUST AND YEOVIL DISTRICT HOSPITAL NHS FOUNDATION TRUST

Prisoners are entitled to the same range and quality of care as the general public receives from the NHS. Where this entails hospital attendance as an outpatient or inpatient, it is important that both hospital and prison staff know what is expected from each other and why.

1. Security 1.1 Risk Assessments

Before a prisoner is allowed outside the prison for a hospital attendance, a risk assessment will have been carried out regarding:-

 Security of premises – ie. The physical security of the area within the hospital where the prisoner will be seen. Risk assessments have been performed on all areas and the most secure areas have been identified – see appendix 1

 Likelihood of Escape – This will be based on the prisoner’s offence, previous history and conduct, and the medical condition for which they are being treated

 Risk to the Hospital Staff and Public – this will be based on the prisoner’s offence, previous history and conduct.

Although the prison will make hospital staff aware of the prisoner’s security risk, details about their offence will not normally be given to hospital staff.

1.2 Escort Strength and Restraints The Prison Governor is ultimately responsible for the prisoner’s security, and will make a decision regarding escort strength from the risk assessment. The options are:

 two officers with restraints applied (NB the prison officers will carry a closeting or long chain as well as handcuffs)  two officers without restraints  one officer without restraints  temporary release ie on license  an application to the courts for bail (if the prisoner is unconvicted)

Prisoners will never be chained to beds or other furnishings.

There will be times when the need for security conflicts with the prisoner’s entitlement for dignity and privacy or the ability to treat the prisoner adequately. The prisoner’s medical assessment or physical ability to escape may not always have been adequately communicated. Options in these circumstances include

 accepting the decision, with the prisoner’s consent (recognizing that prison officers are bound by the same requirement for confidentiality as hospital staff)  appealing to the Prison Governor  accommodating the prisoner in an alternative, more secure area  requesting the use of a closeting chain

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2. Outpatient Appointments 2.1 Arranging appointments

Giving prisoners their appointment time and date poses a serious security risk, due to the possibility of them seeking outside assistance for an escape attempt.

 Appointments should always be sent to the prison Healthcare Centre rather than directly to the prisoner

 Prisoners must not be informed of the timing of any follow-up appointments. These should either be given to the escorting prison officer in an envelope, or sent by post to the prison Healthcare Centre.

2.2 Timing of appointments

 The best time for appointments can vary, depending on prison staffing and shift times

 It is best to confirm an appointment time with the Healthcare Centre at each prison, to reduce cancellations.

2.3 Cancellation of appointments

 The provision of medical escorts places enormous difficulties on the staffing of prisons. Non urgent appointments may have to be cancelled due to staffing shortages or prison security alerts, and providing essential escorts may result in closing down an entire wing of the prison (ie locking the remaining prisoners in their cells.

 Prison Healthcare staff will liaise with the Detail Managers regarding the availability of escorts, and will give as much notice as possible of cancellations.

2.4 Posting appointments

Correspondence to the prisons should be sent by external post addressed to The Healthcare Centre.

2.5 Radiology appointments

 Due to the difficulties caused by cancellations, prisoners will not be given a specified time for an appointment for plain x-rays. The Healthcare Centre will be asked to send them at a convenient time on a specific session, and they may have to wait for their investigation to be fitted in.

 Where possible HMP Shepton Mallet will use SMTC. Appointments are usually made over the phone with the healthcare department.

 Examinations requiring radiologist input, et CT, Ultrasound, Fluoroscopy, nuclear medicine, are performed at RUH. Prisoners will be given an appointment within a designated morning or afternoon session.

It is best to confirm an appointment time with the Healthcare Centre at each prison, to reduce cancellations.

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3. Day Surgery Appointments 3.1 Timing of appointments

Wherever possible, appointments for Day Surgery should be given for a morning list as:-

 This will make escort provision easier

 It will allow longer for the prisoner to recover (there are no facilities for prisoners to be monitored overnight and they will usually remain unattended in their cells.

It is best to confirm an appointment time with the Healthcare Centre at each prison, to reduce cancellations.

3.2 Transport to the prison following Day Surgery

Escorting prison officers may be concerned about the risk of haemorrhage following a prisoner’s surgical procedure. They should be aware that all taxis carry a First Aid Kit, and that gloves are freely available from the prison Healthcare Centres.

3.3 Follow-up

Day Surgery staff should ensure that adequate information and instructions regarding monitoring, wound care and follow-up are given to the escorting prison officers, to be passed on to the prison Healthcare staff, or patient if staff are not available.

4. Medicines 4.1 TTOs and prescriptions

 Prisoners should be given the medication as TTOs as there is no pharmacy at HMP Shepton Mallet. These should be handed to the Healthcare Centre on return to the prison as some medication will only be allowed in possession in small quantities.

 Prisoners are exempt from payment.

4.2 Choice of drugs

 Hospital staff should be aware that many commonly prescribed drugs are subject to misuse by prison inmates. In particular, opiate-based analgesics should not be prescribed; they should be replaced by NSAIDS such as ibuprofen or diclofenac.

 Healthcare staff within the prison cluster are aware of the hospital formulary. Prescribing is therefore normally limited to drugs included on the hospital formulary (with the additional cautions regarding drugs which are liable to misuse).

 The PCT Prison Pharmaceutical Advisor can be contacted for advice.

5. Inpatients 5.1 Security

See above. Prisoners should be accommodated in side wards wherever possible. Certain circumstances may require a request by the doctor or ward sister treating the prisoner for the immediate removal of restraints in an unsecured area:-

 An immediate and serious risk to the prisoner’s health  The prisoner suffering severe pain or discomfort  The restraints impeding treatment

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If possible, the Prison Governor should be contacted prior to removal of restraints. If this is not possible there is a high risk of compromising patient care.

 The restraints will be removed for the shortest possible time  Exits will be covered  The circumstances of the request including the name and position of the person making it, must be documented in the escort occurrence book  The escorting staff must notify the duty Prison Governor as soon as possible.

5.2 Conduct of hospital staff and prison officers on detail escort (bedwatch)

 An attitude of mutual respect between all staff will benefit all; while the hospital staff’s prime concern will be the care of the patient, they must also realise that the prison officers are responsible for their security and safety.

 Staff are encouraged to communicate if they have a problem; if difficulties cannot be resolved they should contact the Prison Practice Manager/or Healthcare Centre Team.

 Telephones; prison officers carry mobile phones for use outside the hospital buildings. At the discretion of the hospital staff, wards phones may be used for necessary short calls.

 Refreshments: prison officers should use the hospital canteen and cafes.

 Noise: prison officers are asked to show consideration to other patients on the ward, particularly at night.

5.3 Visitors

Visitors to prisoners who are inpatients within the hospital should comply with the normal prison procedure ie they should contact the prison requesting a visit. Unauthorised visits will not be permitted.

5.4 Fitness for discharge

 Hospital staff should be aware that there are no facilities for prisoners to be monitored overnight, and they will usually remain unattended in their cells.

 Hospital staff should liase with a member of the Prison Healthcare staff regarding a prisoner’s condition and fitness for discharge. Information should only be given over the telephone to a member of the Healthcare team, having checked their identity by telephoning back on a known number.

5.5 Follow-up

 Routine follow-up appointments should be avoided if possible, if they can be reviewed by the GP.

 Hospital staff should ensure that discharge letters contain adequate information and instructions regarding the prisoner’s condition and follow-up. If immediate care is required, this should be given to the escorting officers in a sealed envelope, to be handed promptly to the Prison Healthcare Centre.

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5.6 Sharing Information Protocol Healthcare staff at HMP Shepton Mallet and secondary care providers

To aid communication and start purposeful discharge planning Healthcare staff at HMP Shepton Mallet need to be given accurate medical information on their patients while they are in-patients at any secondary care provider. To aid this process First Level Registered Nurses on the ward should disclose medical information, over the phone to, First Level Registered Nurses within the prison, when they have established the authenticity of the call. Patients are aware the information between the two medical departments will be shared, on a need to know basis only.

6. Contacts 6.1 Acute Trust

6.2 Somerset Primary Care Trust

Healthcare Manager Lucy Hornshaw Tel: 01749 823314

Prison Pharmacy Advisor Hilary Hunt Tel: 01035 368056

6.3 Prison Healthcare Centres

HMP Shepton Mallet Tel: 01749 823300

6.4 Prison Duty Governors

Telephone the prison, ask for the control room and ask to speak to the Duty Governor.

HMP Shepton Mallet Tel: 01749 823300

Key to tables:

= responsibility of hospital staff = responsibility of prison staff

116 Schedule 4

SCHEDULE 4

TRANSITION

Part 1

Conditions Precedent

1. It shall be a condition precedent to commencement of the delivery of the Services that the Provider is fit and appropriately authorised to deliver the Services, and as evidence of this the Provider shall deliver to the Co-ordinating Commissioner on or prior to the Service Commencement Date the following Conditions Precedent documents, or where appropriate copies of them:

 Where the Provider is an NHS Foundation Trust, the Provider’s Terms of Authorisation  Regulator’s registration of the Provider  Any Consents required for the provision of the Services by the Provider  Essential Services Continuity Plan  Business Continuity Plan  Emergency Response Plan  Confirmation of CNST cover from the NHSLA  Confirmation that all insurance cover required under clause 26 is in place.

2. It shall be a condition precedent to commencement of the delivery of the Services that the Co-ordinating Commissioner shall have delivered to the Provider on or prior to the Service Commencement Date the following documents, or where appropriate copies of them:

 Executed Consortium Agreement OR executed Establishment Agreement  Commissioning Intentions

Part 2: Longstop Date

“Longstop Date” means the 3 months after the Effective Date

Part 3

Transition Arrangements

No transition arrangements are required.

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Schedule 5

SCHEDULE 5

INFORMATION REQUIREMENTS

Part 1: Mandatory national requirements

.1 The Provider shall comply with the reporting requirements of SUS and UNIFY.

.2 The Provider shall ensure that the following datasets are submitted to the Commissioners on a monthly basis within 5 Operational Days of the end of the month to which the datasets relate, so that the datasets are completed by the applicable Reconciliation Point:

Admitted Patient Care General Episode Commissioning Data Set (CDS);

Out-patient Attendance CDS;

Accident and Emergency Attendance CDS ;

Elective Admission List CDS – End of Period Census (Standard); from April 2007

Admitted Patient Care Delivery Episode CDS;

Admitted Patient Care Birth Episode CDS;

Admitted Patient Care Detained and – or Long Term Psychiatric Census CDS;

Admitted Patient Care Other Delivery CDS;

Admitted Patient Care Other Birth Event CDS;

National Clostridium Difficile Datasets in accordance with national guidance;

National Cancer Waiting Times Dataset;

Cancer Registration Dataset (where the Provider provides cancer-related Services).

.3 The Provider shall ensure that each dataset that it provides under this Agreement (including without limitation the datasets set out in this Schedule 5 Part 1) contains the NACS organisation code for the relevant Commissioner, and where the Commissioner to which a dataset relates is a Specialised Commissioning Group, or for the purposes of this Agreement hosts, represents or acts on behalf of a Specialised Commissioning Group, the Provider shall ensure that the dataset contains the NACS organisation code for such Specialised Commissioning Group.

Part 2: National requirements for local definition

Monthly Clinical Quality Performance Report, as described in clause 33.1.

Monthly report detailing Provider performance against the Performance Indicators set out in Schedule 3 Part 4B, and including without limitation details of all Performance Indicators satisfied, and details of and reasons for any failure to meet the Performance Indicators.

Monthly equality monitoring report.

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From 1 April 2009, patient-reported outcomes measures reporting, in accordance with applicable Department of Health guidance.

National Reporting Requirements – format, method and timeframe

This Appendix outlines the requirements for information returns and data flows to be provided to the Commissioner to meet national reporting requirements.

Report Type Frequency Deadline Provided to UNIFY SITREP reporting Weekly Tuesday (following reporting period) DH & PCTs QM08R part 1 &2 Quarterly 20th working day after quarter end DH & PCTs QM0P/QMAE/QMCO Quarterly 20th working day after quarter end DH & PCTs KH07aR Quarterly 20th working day after quarter end DH & PCTs QF01 Quarterly 10th working day of month following DH & PCTs reporting period MMI activity and Waiting List Monthly 10th working day of the month following DH & PCTs data1 (for Inpatients and reporting period Outpatients) Diagnostics Waiting Times and Monthly 10th working day of month following DH & PCTs Activity return 1 reporting period Diagnostic Census Quarterly 6 weeks after period end DH & PCTs KH06R Quarterly 20 working day after quarter end DH & PCTs Local Delivery Plan return Quarterly 10 working days after quarter end DH & PCTs (LDPR) (possibly inc estimate for most recent month). 18 weeks Referral to Monthly 20th working day of month DH & PCTs Treatment (RTT) times monthly monitoring Outturn/Outturn Forward Monthly 20thworking day of month PCTs GUMAMM Monthly 10th working day of month following PCTs and DH reporting period Outpatient CDS Monthly 10th working day SUS Admitted patient care CDS Monthly 10th working day SUS A&E CDS Monthly 10th working day SUS Critical Care CDS Monthly 10th Working day once systems in SUS place Equality and Diversity Quarterly 20th Working day after quarter end PCT information

Notes:

1. There are specific stages of treatment milestones for inpatient, diagnostic and outpatient waiting times through 2008 to 2011 in the run up to the 8 week RTT target. DH will require data from the NHS on outpatient, diagnostic and inpatient waiting times to monitor progress towards and assess achievement of these milestones. Existing outpatient, diagnostic and inpatient waiting times central returns will continue through central returns to support the monitoring and performance management of existing waiting times standards will be derived from Secondary Uses Service (SUS). The requirement for the NHS to send returns directly to the DH will be removed once confidence in the data flow through the SUS is established.

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Schedule 5

Part 3: Local requirements

Taunton and Somerset NHS Foundation Trust will provide Somerset Primary Care Trust on a monthly basis with any additional information required by either Somerset Primary Care Trust or the Strategic Health Authority in line with the requirements of Acute Trust performance management subject only to this information already being collected as part of Foundation Trust internal / external business and data collection exercises. This information will be shared with Associate Commissioners on request. The information will include:

. 18 Week PTL reporting . Daily SITREP . De-hosted GUM Activity . Baseline to be developed in year for all non PbR activity . A&E Exceptions . Daily Long Waiters Report from Provider PTL . Weekly Long Waiters Report from Provider PTL

Local Agreement – Commissioner Data Sets

Format of Contract Monitoring Reports

 The format and content of routine monthly reporting will be agreed locally and will comply with the national template as far as possible.

 It is envisaged that the 2008/09 routine monthly monitoring will build on the formats and reporting mechanisms that have been put in place during 2007/08.

 The final version will be appended and enacted through this agreement.

 Monthly high level performance meetings will take place to supplement routine monitoring and will focus on the delivery of key targets.

This Appendix outlines the requirements for patient level data sets to be provided to the Commissioner under local agreement.

Description Breakdown With Frequency Due Date Method of target Transmission Inpatient Episode (PCT, No Weekly and TBC Email until SUS waiting list specialty) Monthly enabled then changing format to CDS Outpatient Episode (PCT, No Weekly and TBC Email until SUS waiting list specialty) Monthly enabled then changing format to CDS Email until SUS enabled then changing format to CDS GP Referrals by Number of No Monthly TBC Email until SUS Practice referrals (PCT, enabled then changing specialty) format to CDS National Cancer Provider, type, No Monthly 12 operational working Via web-based tool waiting times PCT days after month end A&E Data Patient level No TBC TBC TBC

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Schedule 5

OTHER MONITORING:

The Provider will provide other monitoring returns as requested by the Department of Health and/or Strategic Health Authority. These include:-

 Information to support Programme Budgeting

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Schedule 6

SCHEDULE 6

VARIATION PROCEDURE

Part 1: Variation Procedure

1. Where a proposed Service Variation involves a change to any volume of activity set out in the Activity Plan, the Provider and the Co-ordinating Commissioner may agree the Service Variation and record it in Part 2 without the need to comply with provisions of this Variation Procedure. This Variation Procedure shall apply to all other proposed Service Variations.

2. Where a Commissioner wishes to propose a Service Variation under this Agreement such request shall be made in writing by the Co-ordinating Commissioner to the Provider, and where the Provider wishes to propose a Service Variation under this Agreement such request shall be made in writing to the Co-ordinating Commissioner, and in each case giving unless otherwise agreed:

2.1. at least 6 months notice to the other where the request or proposal arises out of circumstances within the control of the Party requesting or proposing the Service Variation; or

2.2. as much notice as possible where the circumstances leading to the request or proposal for a Service Variation are outside the control of the Party requesting or proposing the Service Variation

(a written request made in accordance with this paragraph being a “Service Variation Notice”).

3. Upon receipt of a Service Variation Notice the Provider and the Co-ordinating Commissioner shall discuss the proposal where appropriate and in any event the receiving Party shall respond to the Service Variation Notice in writing within 10 Operational Days from the date of such notice. Where the Service Variation is marked ‘urgent’, the receiving Party shall respond in writing to the Service Variation Notice as soon as possible and in any event within 5 Operational Days.

4. Subject to paragraph 3 of this Schedule, where either Party requires further discussion as to the proposed Service Variation the Parties shall meet to discuss the matter as soon as is reasonably practicable and in any event not later than 20 Operational Days after the date of the Service Variation notice or where such Service Variation Notice is marked ‘urgent’ then not later than 10 Operational Days from the date of the Service Variation Notice.

5. Subject to paragraphs 3 & 4 of this Schedule, in the event that further consideration is still required by either Party, the Parties shall use all reasonable endeavours to agree the Service Variation within a further 5 Operational Days or one Party shall give notice in writing to the other that the Service Variation is refused and setting out reasonable grounds for such refusal. The other Party may then refer the refusal to dispute resolution under clause 28 (Dispute Resolution).

6. Where a Commissioner-proposed Service Variation would have the effect of increasing the Annual Contract Value, then subject to paragraphs 2, 3, and 4 of this Schedule, that increase shall be in line with the National Tariff and any other rates agreed under clause 7 (Prices and Payment). In all other circumstances, agreement over such Service Variation must include agreement on the costs associated with implementing the proposed Service Variation and an appropriate amendment/addition to this Agreement or its Schedules.

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7. Unless the Parties agree otherwise and subject to paragraph 8 of this Variation Procedure, the Party requesting or proposing a Service Variation shall be responsible for the reasonable costs of the other Party directly attributable to the Service Variation.

8. Where the Provider requests or proposes a Service Variation, including for the avoidance of doubt additional activity, new treatments, drugs or technologies, that would have a cost implication for any Commissioner then:

8.1 the Provider shall provide to the Co-ordinating Commissioner a full and detailed cost and benefit analysis of the requested or proposed Service Variation;

8.2 the Co-ordinating Commissioner shall, after consultation with the Provider, in its absolute discretion have the right to decline the requested or proposed Service Variation; and

8.3 the Co-ordinating Commissioner shall have no liability to the Provider whatsoever for the costs in any way arising from the requested or proposed Service Variation should the Provider decide to implement the requested or proposed Service Variation following the decision of the Co-ordinating Commissioner to decline the requested or proposed Service Variation under paragraph 8.2.

9. Where the Provider requests or proposes a Service Variation that involves the withdrawal of a Service or Services:

9.1 the consultation referred to in paragraphs 3, 4 and 5 of this Schedule shall commence as soon as is possible;

9.2 if after consultation, the requested or proposed Service Variation is agreed:

9.2.1 the Provider shall give all reasonable assistance to the Co-ordinating Commissioner and its Associates in the planning, implementation and execution of any service exit plans proposed by the Co-ordinating Commissioner;

9.2.2 where the Provider has given less than 6 months’ notice under paragraph 2 of the Service Variation, the Provider shall be liable to the Co-ordinating Commissioner and its Associates, unless otherwise agreed in writing, for all reasonable losses and costs directly attributable to replacing the Service or Services being withdrawn; and

9.2.3 if the requested or proposed Service Variation is not agreed the Provider may refer the matter to dispute resolution under clause 28 (Dispute Resolution).

10 Any Service Variation made under this Schedule or the Agreement must be made having due regard to the impact of the Service Variation on the other Services and in particular the Mandatory Goods and Services and the Essential Services.

11 Following agreement of a Service Variation in accordance with the provisions of this Schedule 6 Part 1, the Service Variation shall be given effect as a Variation to this Agreement in accordance with clause 38 (Variations).

Part 2: Recorded Variations and Dispute Resolutions

123 Schedule 7

SCHEDULE 7

ADDITIONAL USE OF PERSONAL DATA

Both parties agree to share information for the purposes of patient care, the planning and organization of health and social care services, the improvement of health, the advancement of social policy and other goals set for them, and other related purposes to the maximum extent permissible by data protection legislation and medical confidentiality. This may be in support of work to develop services in the community.

Where patients are managed under the single assessment process, patient data will be shared in line with agreed protocols.

Data on patients who are case managed in the community will be shared with the relevant staff involved in that case management. This will include notification of admission and discharge.

Medical confidentiality and data protection are distinct codes and each must be separately satisfied.

Both parties will take appropriate measures towards compliance with Data Protection Act 1998, Caldicott Report, BS7799/ISO 17799, Information Security code of practice and national guidance and rules around holding and destroying health/social services records and other relevant legislation

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Schedule 8

SCHEDULE 8

NHS BRANDING, MARKETING AND PROMOTION

The Code of Practice for Promotion of NHS Funded Services, as issued by the Department of Health.

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Schedule 9

SCHEDULE 9

DISPUTE RESOLUTION PROCEDURE

Model Mediation Procedure and Agreement

Mediation Agreement

1 The parties ("the Parties") to the dispute in question ("the Dispute"), the Mediator and the Centre for Effective Dispute Resolution ("CEDR Solve") will enter into an agreement ("the Mediation Agreement") based on the CEDR Model Mediation Agreement in relation to the conduct of the Mediation. This procedure ("the Model Procedure") will be incorporated into, form part of, and may be varied by, the Mediation Agreement.

The Mediator

2 CEDR Solve will, subject to the agreement of the Parties or any court order, nominate an independent third party(ies) ("the Mediator"). The Mediator, after consultation with the Parties where appropriate, will:  attend any meetings with any or all of the Parties preceding the mediation, if requested or if the Mediator decides this is appropriate and the Parties agree;  read before the Mediation each Case Summary and all the Documents sent to him/her (see paragraph 7 below);  chair, and determine the procedure for, the Mediation;  facilitate the drawing up of any settlement agreement; and  abide by the terms of the Model Procedure and the Mediation Agreement.

3 The Mediator (and any member of the Mediator's firm or company) will not act for any of the Parties individually in connection with the Dispute in any capacity either during the currency of this agreement or at any time thereafter. The Parties accept that in relation to the Dispute neither the Mediator nor CEDR Solve is an agent of, or acting in any capacity for, any of the Parties. The Parties and the Mediator accept that the Mediator (unless an employee of CEDR Solve) is acting as an independent contractor and not as an agent or employee of CEDR Solve.

Optional / additional wording

4 CEDR Solve, in conjunction with the Mediator, will make the necessary arrangements for the Mediation including, as necessary:

 nominating, and obtaining the agreement of the Parties to, the Mediator;  drawing up the Mediation Agreement;  organising a suitable venue and dates;  organising exchange of the Case Summaries and Documents;  meeting with any or all of the Parties (and the Mediator if appointed), either together or separately, to discuss any matters or concerns relating to the Mediation; and  general administration in relation to the Mediation.

5 If there is any issue about the conduct of the Mediation (including as to the nomination of the Mediator) upon which the Parties cannot agree within a reasonable time, CEDR Solve will, at the request of any Party, decide the issue for the Parties, having consulted with them.

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Schedule 9

Participants

6 The Lead Negotiators must be sufficiently senior and have the full authority of their respective Parties to settle the Dispute, without having to refer to anybody else. If there is any restriction on that authority, this should be discussed with CEDR Solve and/or the Mediator before the Mediation. Parties should inform CEDR Solve prior to the date of Mediation of all persons attending the mediation on behalf of each Party.

Exchange of information

7 Each Party will prepare for the other Party(ies), the Mediator and Assistant Mediator sufficient copies of:  a concise summary ("the Case Summary") of its case in the Dispute; and  all the documents to which the Summary refers and any others to which it may want to refer in the Mediation ("the Documents").

The Parties will exchange the Case Summary and Documents with each other at least two weeks before the Mediation, or such other date as may be agreed between the Parties and CEDR Solve, and send copies directly to the Mediator and Assistant Mediator on the same date. Each Party will send a copy of the Case Summary to CEDR Solve.

In addition, each Party may send to the Mediator (through CEDR Solve) and/or bring to the Mediation further documentation which it wishes to disclose in confidence to the Mediator but not to any other Party, clearly stating in writing that such documentation is confidential to the Mediator and CEDR Solve.

8 The Parties should try to agree:  the maximum number of pages of each Case Summary; and  a joint set of Documents or the maximum length of each set of Documents.

The Mediation

9 The Mediation will take place at the arranged place and time stated in the Mediation Agreement. 10 The Mediator will chair, and determine the procedure at, the Mediation. 11 No recording or transcript of the Mediation will be made. 12 If the Parties are unable to reach a settlement in the negotiations at the Mediation, and only if all the Parties so request and the Mediator agrees, the Mediator will produce for the Parties a non-binding recommendation on terms of settlement. This will not attempt to anticipate what a court might order but will set out what the Mediator suggests are appropriate settlement terms in all of the circumstances.

Settlement agreement

13 Any settlement reached in the Mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the Parties.

Termination

14 Any of the Parties may withdraw from the Mediation at any time and shall immediately inform the Mediator and the other representatives in writing. The Mediation will terminate when:  a Party withdraws from the Mediation; or  the Mediator , at his/her discretion, withdraws from the mediation; or

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 a written settlement agreement is concluded.

The mediator may also adjourn the mediation in order to allow parties to consider specific proposals, get further information or for any other reason, which the mediator considers helpful in furthering the mediation process. The mediation will then reconvene with the agreement of the parties.

Stay of proceedings

15 Any litigation or arbitration in relation to the Dispute may be commenced or continued notwithstanding the Mediation unless the Parties agree otherwise or a court so orders.

Confidentiality etc.

16 Every person involved in the Mediation will keep confidential and not use for any collateral or ulterior purpose all information (whether given orally, in writing or otherwise) arising out of, or in connection with, the Mediation, including the fact of any settlement and its terms, save for the fact that the mediation is to take place or has taken place.

17 All information (whether oral, in writing or otherwise) arising out of, or in connection with, the Mediation will be without prejudice, privileged and not admissible as evidence or disclosable in any current or subsequent litigation or other proceedings whatsoever. This does not apply to any information, which would in any event have been admissible or disclosable in any such proceedings.

18 The Mediator will not disclose to any other Party any information given to him by a Party in confidence without the express consent of that Party.

19 Paragraphs 16 -18 shall not apply if, and to the extent that:  all Parties consent to the disclosure; or

 the Mediator is required under the general law to make disclosure; or

 the Mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or  the Mediator reasonably considers that there is a serious risk of his/her being subject to criminal proceedings unless the information in question is disclosed.

20 None of the Parties to the Mediation Agreement will call the Mediator or CEDR Solve (or any employee, consultant, officer or representative of CEDR Solve) as a witness, consultant, arbitrator or expert in any litigation or other proceedings whatsoever arising from, or in connection with, the matters in issue in the Mediation. The Mediator and CEDR Solve will not voluntarily act in any such capacity without the written agreement of all the Parties.

Fees, expenses and costs

21 CEDR Solve's fees (which include the Mediator's fees) and the other expenses of the Mediation will be borne equally by the Parties. Payment of these fees and expenses will be made to CEDR Solve in accordance with its fee schedule and terms and conditions of business.

22 Each Party will bear its own costs and expenses of its participation in the Mediation.

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Exclusion of liability

23 Neither the Mediator nor CEDR Solve shall be liable to the Parties for any act or omission in connection with the services provided by them in, or in relation to, the Mediation, unless the act or omission is shown to have been in bad faith.

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Model Mediation Agreement

Parties

______("Party A")

______("Party B")

[______("Party C") etc.] (jointly "the Parties") Add full names and addresses

______("the Mediator")

("the Mediator")

Centre for Effective Dispute Resolution Limited, Exchange Tower, 70 Fleet Street, London EC4Y 1EU ("CEDR Solve")

Dispute ("the Dispute")

Add brief description of the Dispute.

Participation in the Mediation

1 The Parties will attempt to settle the Dispute by mediation ("the Mediation"). The CEDR Model Mediation Procedure ("the Model Procedure") [as varied by this agreement] will determine the conduct of the Mediation and is incorporated into, and forms part of, this agreement. The definitions in the Model Procedure are used in this agreement.

The Mediator

2 The Mediator[s] will be ______

If an Assistant Mediator is appointed by CEDR Solve, he/she will be bound by the terms of this agreement. The Mediator and Assistant Mediator will be referred to individually and jointly as “the Mediator”.

Participants

3 At least one attendee on behalf of each Party at the Mediation will have full authority to settle at the Mediation as set out in paragraph 6 of the Model Procedure (“the Lead Negotiator”).

4 Each representative in signing this agreement is deemed to be agreeing to the provisions of this agreement on behalf of the Party he/she represents and all other persons present on that Party’s behalf at the Mediation.

Place and time

5 The Mediation will take place on ______

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Confidentiality

6 Each Party to the Mediation and all persons attending the Mediation will be bound by the confidentiality provisions of the Model Procedure (paragraphs 16-20).

Mediation fee

7 The person signing this agreement on behalf of the Party he/she represents is agreeing on behalf of that Party, to proceed on the basis of CEDR Solve’s standard terms and conditions including the mediation fee as previously agreed by the Parties and CEDR Solve.

Law and jurisdiction

8 This agreement shall be governed by, construed and take effect in accordance with, English law. The courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the Mediation.

Human Rights

9 The referral of the Dispute to mediation does not affect any rights that may exist under Article 6 of the European Convention on Human Rights. If the Dispute is not settled by the Mediation, the Parties' rights to a fair trial remain unaffected.

Model Procedure amendments

10 Set out amendments (if any) to the Model Procedure - see introduction to Model Procedure guidance notes.

If any litigation or arbitration is to be stayed, paragraph 15 of the Model Procedure should be excluded/deleted and wording along the following lines should be added in the agreement: "No litigation or arbitration in relation to the Dispute is to be commenced [Any existing litigation or arbitration in relation to the Dispute is to be stayed] from the date of this agreement until the termination of the Mediation".

Signed

On behalf of Party A ______Date______

On behalf of Party B ______Date______

On behalf of Party C ______Date______

On behalf of the Mediator ______Date______

On behalf of CEDR Solve______Date______

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SCHEDULE 10

PROVIDER’S SUB-CONTRACTORS

Part 1: Definition of “Material Sub-contract”

“Material Sub-contract” means any sub-contract entered into between the Provider and a Sub-contractor under which such Sub-contractor is obliged to provide:

Any services included in this Contract. The Provider will seek the approval of the Co- ordinating Commissioner before entering into any Material Sub-contract.

Part 2: Material Sub-contractors

Not specified

Part 3: Other Sub-contractors

Not specified

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SCHEDULE 11

CONSORTIUM AGREEMENT AND COMMISSIONING INTENTIONS

Part 1: Consortium Agreement OR Establishment Agreement:-

DATED 2008

Between

THE ASSOCIATE COMMISSIONERS

CONSORTIUM AGREEMENT IN RELATION TO THE PROVISION OF HEALTHCARE SERVICES BY TAUNTON AND SOMERSET NHS FOUNDATION TRUST

PROVIDER: Taunton and Somerset NHS Foundation Trust

CONTRACT: Somerset Primary Care Trust

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THIS AGREEMENT is made between THE ASSOCIATE COMMISSIONERS (defined below)

WHEREAS

(a) The Associate Commissioners wish to form a consortium (as described in this Agreement).

(b) The Associate Commissioners wish to appoint one of their number as the Co-ordinating Commissioner to enter into the Main Contract with the Provider, and wish to become parties to the Main Contract by enabling the Co-ordinating Commissioner to sign the Main Contract on their behalf.

(c) The Associate Commissioner appointed under this Agreement as the Co-ordinating Commissioner is prepared to sign the Main Contract on behalf of The Associate Commissioners, and all of the Associate Commissioners are prepared to perform their obligations set out in this Agreement.

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Unless expressly stated otherwise in this Agreement, any terms defined in the Main Contract shall bear the same meaning when used in this Agreement.

1.2 “The Associate Commissioners” means the parties whose names and signatures appear in Part 2 of the Schedule to this Agreement, including the Co-ordinating Commissioner, and any other parties who choose to become bound by this Agreement in accordance with clause 4.3.

1.3 “Authority” means The Secretary of State for Health of Richmond House, 79 Whitehall, London SW1A 2NS.

1.4 “Constitution of the Consortium” means the principles and rules according to which the consortium shall function as agreed between The Associate Commissioners from time to time, and which shall meet the requirements set out in the Guidance Notes.

1.5 “Co-ordinating Commissioner” means the Associate Commissioner appointed under the terms of this Agreement to enter into the Main Contract for itself and as agent for and on behalf of The Associate Commissioners, and identified in Part 1 of the Schedule.

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1.6 “Guidance Notes” means the Guidance Notes relating to this Agreement and the Main Contract and issued by the Authority.

1.7 “Main Contract” means the contract to be entered into by the Provider and the Co-ordinating Commissioner (for itself and as agent for and on behalf of The Associate Commissioners) for the provision of the Services and referred to on the front of this Agreement.

1.8 “Provider” means the provider of the Services identified on the front of this Agreement.

1.9 Without prejudice to clause 2.1 below, if the Main Contract is varied (pursuant to clause 38 of the Main Contract) to include revised provisions, this Agreement shall, to the extent necessary, be interpreted as including such variation as may be necessary to make this Agreement consistent with the Main Contract.

2. PRIORITY OF DOCUMENTS

2.1 If there is any conflict between the terms of this Agreement and the terms of the Main Contract, the terms of this Agreement shall prevail.

3. MAIN CONTRACT

3.1 Each of The Associate Commissioners hereby appoints the Co-ordinating Commissioner and authorises the Co-ordinating Commissioner to execute the Main Contract as agent for and on behalf of The Associate Commissioner.

3.2 The Associate Commissioners further authorise the Co-ordinating Commissioner to manage the Main Contract on their behalf in accordance with the provisions of the Main Contract and the Constitution of the Consortium. For the avoidance of doubt, The Associate Commissioners agree that the Co-ordinating Commissioner shall be entitled to make decisions and to exercise discretion on their behalf to such extent as is required to enable the Co-ordinating Commissioner to comply with its obligations under the Main Contract or as otherwise contemplated by the Main Contract.

4. CONSORTIUM

4.1 The Associate Commissioners, including the Co-ordinating Commissioner, shall form a consortium for the purpose of commissioning the Services and which shall function in accordance with the Constitution of the Consortium.

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4.2 Notwithstanding the effect of clause 4.1 above, The Associate Commissioners agree as between themselves to exercise their rights and to discharge their obligations under the Main Contract in accordance with the terms of the Main Contract and the Constitution of the Consortium.

4.3 The Associate Commissioners acknowledge and agree that third parties may become additional parties to this Agreement as a result of the Co-ordinating Commissioner executing a side letter with the third party, provided that the Provider agrees to the accession of such third party and agrees to the variation of the Main Contract as appropriate to give effect to it.

4.4 The Co-ordinating Commissioner shall provide each of The Associate Commissioners with any information received by it from the Provider and required to enable The Associate Commissioners to comply with their obligations or to exercise their rights under the Main Contract.

4.5 It is expressly agreed that each of The Associate Commissioners shall itself be liable to make payment or reimbursement (as the case may be), whether to the Co-ordinating Commissioner or directly to the Provider, for all Services provided to it by the Provider (including, without limitation, as required by clause 7 of the Main Contract) or otherwise as required by the Main Contract.

4.6 Each of The Associate Commissioners shall indemnify each other against any liabilities, damages, costs, claims or proceedings to the extent arising out of or in connection with any negligence on the part of the indemnifying party or any breach by the indemnifying party of any express provision of this Agreement, the Main Contract or the Constitution of the Consortium.

4.7 Any Associate Commissioner who signs this Agreement as the representative of a Specialised Commissioning Group (whether or not the Associate Commissioner has also signed this Agreement on its own behalf) hereby warrants that the Associate Commissioner and the other members of the Specialised Commissioning Group have entered into an appropriate Establishment Agreement.

4.8 Clause 4.6 above shall survive any termination of this Agreement in accordance with the Main Contract or the Constitution of the Consortium.

5. EXPIRY AND TERMINATION

5.1 This Agreement shall (as the case may be):

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5.1.1 expire automatically upon the expiry of the Main Contract under clause 2.3 of the Main Contract;

5.1.2 be extended for the same term as the term of any extension of the Main Contract under clause 2.3 of the Main Contract; or

5.1.3 terminate in accordance with any termination of the Main Contract.

5.2 An Associate Commissioner shall cease to be a party to this Agreement on the date on which the termination of the relevant part of the Services takes effect in accordance with any termination of such part of the Services under the Constitution of the Consortium. For the avoidance of doubt, this Agreement shall continue in full force and effect as between the remaining parties notwithstanding any Associate Commissioner ceasing to be a party to this Agreement in accordance with this clause.

6. COUNTERPARTS

6.1 This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, but all of which together shall constitute one agreement binding on all the parties, notwithstanding that all parties are not signatories to the same counterpart.

7. GOVERNING LAW

7.1 The formation, interpretation and operation of this Agreement shall be subject to English law, and the parties agree that any dispute arising out of any aspect of this Agreement shall be resolved in accordance with the provisions of clause 28 of the Main Contract, which provisions are deemed to be incorporated (mutatis mutandis) into this Agreement.

AS WITNESS in the Schedule the hands of the duly authorised representatives of the parties listed therein

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SCHEDULE

THE ASSOCIATE COMMISSIONERS

Part 1: The Associate Commissioner appointed as Co-ordinating Commissioner

NAME OF ASSOCIATE SIGNATURE NAME OF SIGNATORY DATE COMMISSIONER APPOINTED AS CO-ORDINATING COMMISSIONER Somerset Primary Care Trust

Part 2: The Associate Commissioners

NAME OF ASSOCIATE SIGNATURE NAME OF SIGNATORY DATE COMMISSIONER Dorset Primary Care Trust Devon Primary Care Trust Gloucestershire Primary Care Trust Bristol Primary Care Trust North Somerset Primary Care Trust

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DATED 2008

Between

THE ASSOCIATE COMMISSIONER

CONSTITUTION IN RELATION TO THE PROVISION OF HEALTHCARE SERVICES BY TAUNTON AND SOMERSET NHS FOUNDATION TRUST

PROVIDER: Taunton and Somerset NHS Foundation Trust

CONTRACT: Somerset Primary Care Trust

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1. CONSORTIUM STRUCTURE

1.1 The Consortium is made up of the following Associate Commissioners:-

1.1.1 Somerset Primary Care Trust 1.1.2 Devon Primary Care Trust 1.1.3 Dorset Primary Care Trust 1.1.4 Gloucestershire Primary Care Trust 1.1.5 Bristol Primary Care Trust 1.1.6 North Somerset Primary Care Trust

2. APPOINTMENT OF CO-ORDINATING COMMISSIONER

2.1 The Somerset Primary Care Trust is appointed as the Co-ordinating Commissioner for Taunton and Somerset NHS Foundation Trust.

3. KEY CONTACTS

3.1 The key contacts at the Somerset Primary Care Trust are:-

3.1.1 Director of Secondary Care Development 3.1.2 Deputy Director of Secondary Care Development 3.1.3 Commissioning Manager – Acute and Community

4. COMMITTEE

4.1 The Committee will perform the following functions:-

4.1.1 To approve the final draft of the contract and authorise the Co-ordinating Commissioner to sign the contract.

4.1.2 To approve contract variations that affect more than one Associate Commissioner (whether directly or indirectly).

4.2 The Committee will meet prior to the quarterly performance review meetings.

4.2.1 The Quorum will be deemed to be the Co-ordinating Commissioner if the Associate Commissioners do not attend the committee meetings.

4.3 Decisions of the Committee are to be taken by simple majority voting based on the financial value of each Commissioners element of the total contract.

5. TERMS OF REFERENCE

5.1 Purpose - The purpose of the group is to performance manage the contract with Taunton and Somerset NHS Foundation Trust.

5.2 Role  To performance manage activity, waiting lists and other key targets together with performance issues relating to the contract between Taunton and Somerset NHS Foundation Trust and Somerset Primary Care Trust.

 To monitor the performance and progress against the Referral to Treatment trajectories and to agree remedial actions.

 To discuss and agree issues relating to Payment by Results and the contractual clauses of the agreement.

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 To review proposals for use of resources, for new services and for service redesign options that may impact on future commissioning requirements.

 To monitor progress against productivity metrics data and to agree actions to support service improvement.

 To ensure that governance and accountability arrangements are suitably robust.

 To ensure that risks to the contract performance are identified and monitored.

 To annually review the terms of reference.

 To identify specific workstreams required to deliver identified service improvements.

5.3 Frequency of Meetings - The Committee shall meet at regular quarterly intervals.

5.4 Accountability - The accountability of the Committee is to those organisations represented.

5.5 Reporting - Minutes of the meeting will be circulated to Chief Executive Officers of represented organisations or a nominated deputy together with members of the Committee.

5.6 Authority - The authority of the Committee is extended to that of individuals within the Committee as identified in the Standing Orders and Standing Financial instructions of the represented organisations.

5.7 Time Frame - The Committee is established for the duration of the agreement. The terms of reference will be reviewed annually.

6. PROVISION OF INFORMATION

6.1 The Constitution will provide any information pursuant to clause 29 (Information Requirements) and schedule 5 (Information Requirements) of the Contract.

7. PERFORMANCE MONITORING AND REPORTING

7.1 The Co-ordinating Commissioner will hold monthly performance meetings.

7.2 There will be quarterly contract performance meetings held at which the Co-ordinating Commissioner and the Associate Commissioners will be present.

7.3 Monthly performance reports will be sent directly to the Associate Commissioners and copied to the Co-ordinating Commissioner.

7.4 Each Associate Commissioner is responsible for the management of the activity, targets and finances associated with their element of the Contract.

8. PAYMENT

8.1 All Associate Commissioners are responsible for making payments for their share of the contract.

9. NOTICES

9.1 The Constitution should deal with the service of notices (the addresses to be served and the timescales for service). The timescales set out in the main contract (in clause 40.2) for the service of notices to be adopted.

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10. SUSPENSION AND TERMINATION

10.1 It is only the Co-ordinating Commissioner who, under the Main Contract, can exercise any rights relating to suspension or termination.

10.2 Each Associate Commissioner is granted the right to instruct the Co-ordinating Commissioner (as their agent) to suspend or terminate the main contract insofar as the services provided to the individual Associate (and set out in the relevant Service Specification) are concerned.

10.3 A notice of suspension or termination will be sent in writing to the Co-ordinating Commissioner’s representative and a special committee meeting called to take place within two weeks of the date of receipt of such a notice.

10.4 Agreement of the committee to suspension or termination is not required.

10.5 The Associates (or any number of them) may negotiate with a replacement service provider after a valid notice of termination in respect of the whole of the services has been served under the Main Contract.

11. CONSEQUENCES OF TERMINATION

11.1 All Associate Commissioners will be bound by the clauses relating to suspension and termination of the Main Contract and be liable for their element of the contract as laid out in the Standard Contract.

12. THE ROLE OF THE CO-ORDINATING COMMISSIONER

12.1 The specific responsibilities of the Co-ordinating Commissioner will include the following principles;

 The Co-ordinating Commissioner will take account of local health needs which may vary between Primary Care Trusts

 The Co-ordinating Commissioner will act in the best interests of all parties

 Any potential conflict of interest will be signalled in an open and transparent way to the Associate Commissioners

 Associate Commissioners will remain involved in key decisions that have the ability to affect the configuration or quality of services particularly where this has a financial impact

 The Co-ordinating Commissioner will ensure robust communication throughout the contracting and performance management process

 The Associate Commissioners further authorise the Co-ordinating Commissioner to manage the Main Contract on their behalf in accordance with the provisions of the Main Contract and the Constitution of the Consortium. For the avoidance of doubt, The Associate Commissioners agree that the Co-ordinating Commissioner shall be entitled to make decisions and to exercise discretion on their behalf to such extent as is required to enable the Co-ordinating Commissioner to comply with its obligations under the Main Contract or as otherwise contemplated by the Main Contract. The Co-ordinating Commissioner will not commit resource on behalf of the Associate Commissioner without prior agreement from the Associates.

13. DISPUTE RESOLUTION

13.1 Dispute Resolution will be addressed as outlined in the clause 28 of the Standard Contract.

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Part 2: Commissioning Intentions

The Somerset Primary Care Trust Commissioning Strategy for 2006/07 to 2008/09 sets out the aims, objectives and strategic priorities for the processes associated with the commissioning healthcare services for the population of the Primary Care Trust.

The strategy provides an overview of key national and local factors influencing the commissioning agenda, and the commissioning intentions of the Primary Care Trust, in response to these priorities and other drivers of change.

In addition to considering the current commissioning arrangements of the Somerset Primary Care Trust, the strategy considers the development of an increasingly inclusive and holistic approach to the commissioning of local healthcare services, in the context of greater levels of patient and public involvement, the expansion of Practice Based Commissioning, and the universal application of Payment by Results.

The Somerset Primary Care Trust Commissioning Strategy outlines the strategic direction for the commissioning of health services and developments to ensure that local people have timely and equitable access to a full range of high quality health services designed around, and responsive to, their needs.

The Somerset Primary Care Trust is committed to commissioning high quality comprehensive health services which meet the needs of the population it serves, whilst ensuring value for money is achieved within the resources available.

This will be delivered through a collaborative approach by engaging all stakeholders, including patients, the public, local clinicians, and partner organisations.

In commissioning these services, the Somerset Primary Care Trust will ensure adherence to the fundamental principles of the National Health Service:

 the NHS will provide a universal service for all based on clinical need, not ability to pay;

 the NHS will provide a comprehensive range of services;

 the NHS will shape its services around the needs and preferences of individual patients, their families and their carers;

 the NHS will seek to offer patients choice of services that are appropriate to their needs;

 the NHS will respond to the different needs of different populations;

 the NHS will work continuously to improve quality services and to minimise errors;

 the NHS will use contestability, plurality of provision and choice to drive up the quality of services;

 the NHS will support and value its staff;

 public funds for healthcare will be devoted solely to NHS patients;

 the NHS will use the outcome of research and medical evidence to determine the most effective services to commission;

 the NHS will work together with others to ensure a seamless service for patients;

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 the NHS will help to keep people healthy and work to reduce health inequalities;

 the NHS will respect the confidentiality of individual patients and provide open access to information about services, treatment and performance.

The strategy sets out the foundations required for a strong commissioning function to deliver its objectives and achieve the strategic direction of the Somerset Primary Care Trust.

The Somerset Primary Care Trust Commissioning Strategy should be read in conjunction with the Somerset Primary Care Trust Local Delivery Plan for 2006/07 and key strategy documents, particularly the Primary Care Trust’s Patient and Public Involvement Strategy.

The document ‘Health Reform in England: Update and Commissioning Framework’ defines commissioning as:

“the means by which we secure the best value for patients and taxpayers. By ‘best value’ we mean:

 the best possible health outcomes, including reduced health inequalities;

 the best possible healthcare;

 within the resources made available by the taxpayer.”

The Somerset Primary Care Trust Commissioning Strategy provides a comprehensive mechanism to ensure that local health needs shape service provision, whilst obtaining the best value for money and delivering required outcomes for service quality.

The Somerset Primary Care Trust’s Commissioning Strategy aims to provide a clear strategic direction to ensure the Primary Care Trust commissions services both effectively and appropriately.

This strategy sets out our objectives with regards the future commissioning of health services. It provides a model for the future that takes into account national and local policy drivers and the needs of the people of Somerset.

Locally, the strategic direction is shaped by the Public Health needs for Somerset, the need to address health inequalities and take into account existing plans and priorities of the local health and social care community. Ultimately this strategy seeks to optimise the value of investment in health care for the benefit of patients.

The Somerset Primary Care Trust Commissioning Strategy should be read in conjunction with the Somerset Primary Care Trust Local Delivery Plan and key strategy documents, particularly the Primary Care Trust’s Patient and Public Involvement Strategy and the Somerset Primary Care Trust Medical Care Commissioning Plan.

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Part 3: Notices to aggregate / disaggregate payments

None planned

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SCHEDULE 12

SERIOUS UNTOWARD INCIDENTS AND PATIENT SAFETY INCIDENTS

Arrangements of reporting serious untoward incidents.

The Provider shall report any Serious Untoward Incident to the Commissioner through the Joint Clinical Governance and Risk Management Committee and shall provide all reasonable assistance in investigating, handling the incident and reporting outcomes to the commissioner.

The Commissioner may use all or any part or parts of the information provided by the Provider under this schedule 12 in any report which the Commissioner makes to any NHS Body or any department, office or agency of the Crown, or any other body in connection with the such Serious Untoward Incident or Adverse Patient Incident or in relation to the prevention and handling of such incidents to patients generally.

For the purpose of this agreement, Serious Untoward Incidents related to Clostridium Difficile shall be taken as when two or more laboratory confirmed related cases of Clostridium Difficile are identified in the same ward or clinical area within 48 to 96 hours.

We will use this approach during 2008/09, which when combined with the 2007/08 data will establish the basis for future reporting arrangements.”

This schedule 12 shall survive the termination or expiry of this Agreement.

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SCHEDULE 13

NHS COUNTER-FRAUD AND SECURITY MANAGEMENT

Part 1 : NHS Counter-fraud and Security Management for non-NHS Providers

Counter-Fraud and Security Management Provisions

1.1 The Provider shall:

(a) from the date of this Agreement, put in place appropriate arrangements:

(i) for the security of Staff providing NHS-funded care, for Patients receiving NHS- funded care and for NHS resources and shall do so with reference to the NHS Security Management Service strategy and the NHS Security Management Service national framework; and

(ii) to prevent and detect fraud by the Staff, by or in relation to, Patients and/or in relation to public funds with reference to the CFSMS strategy and the CFSMS national framework;

(b) on request by the Co-ordinating Commissioner permit any of:

(i) the Local Counter Fraud Specialist nominated by each Commissioner from time to time;

(ii) a person duly authorised to act on a Local Counter Fraud Specialist’s behalf;

(iii) the Local Security Management Specialist nominated by each Commissioner from time to time;

(iv) a person duly authorised to act on a Local Security Management Specialist’s behalf;

(v) a person duly authorised to act on behalf of the NHS Counter Fraud And Security Management Service;

to review the arrangements put in place by the Provider pursuant to paragraphs 1 (a)(i) and 1(a)(ii) of this Schedule 13 and the Provider shall make such changes as a person described in paragraphs 1(b)(i) to 1(b)(v) of this Schedule 13 may reasonably require;

(c) promptly, upon becoming aware of any suspected fraud or corruption involving Patients or public funds, report such matter to the Local Counter Fraud Specialist of the relevant NHS Body; and

(d) promptly upon becoming aware of any security incident or security breach involving Staff who deliver NHS-funded services or involving NHS resources, report such matters to the Local Security Management Specialist of the relevant NHS Body (with a copy of such report being sent by the Provider to the Local Security Management Specialist of the Co-ordinating Commissioner).

Access

1.2 Upon the request of the Secretary of State for Health, or the Co-ordinating Commissioner or the NHS Counter Fraud And Security Management Service, the Provider shall ensure that the NHS Counter Fraud And Security Management Service is given access as soon as is reasonably practicable, and in any event not later than five (5) Operational Days from the date of the request, to:

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(a) all property, premises, information (including records and data) owned or controlled by the Provider relevant to the detection and investigation of cases of fraud and/or corruption; security incidents; and/or security breaches directly or indirectly connected to this Agreement;

(b) all members of the Staff who may have information to provide that is relevant to the detection and investigation of cases of fraud and/or corruption; security incidents; and/or security breaches directly or indirectly in connection with this Agreement.

Part 2 : NHS Counter-fraud and Security Management for NHS Providers

1. For the purposes of this Schedule 13 Part 2, all references in the NHS Fraud and Corruption Manual to “NHS Body” shall be read as “the Provider”, and “Secretary of State directions” shall be read as “provisions of, and matters to be done pursuant to this Agreement”.

2. For the purposes of this Schedule 13 Part 2, all references in the NHS Security Management Manual to “NHS Body” shall be read as “the Provider”, and “Secretary of State directions” shall be read as “provisions of, and matters to be done pursuant to this Agreement”.

3. The Provider shall:

3.1 take all necessary steps to counter fraud relating to all functions in connection with the provision of healthcare to NHS patients (including Patients); and

3.2 promote and protect the security of its staff and patients (including Staff and Patients), NHS property, assets and information in connection with the provision of healthcare to NHS patients (including Patients)

in accordance with this Schedule 13 Part 2.

4. The Provider shall co-operate with the CFSMS at all times to enable the CFSMS efficiently and effectively to carry out its functions in relation to countering fraud and security management and for those purposes shall (subject to paragraph 7, below):

4.1 enable CFSMS to have reasonable access to the Provider’s Premises;

4.2 put in place arrangements which will enable CFSMS to have reasonable access to, and to interview Staff; and

4.3 supply such information, including files and other data (whether in electronic or manual form) as the CFSMS may require.

5. In the case of information required under paragraph 4.3 relating to CFSMS’s responsibility for quality inspection, fraud measurement, national proactive exercises in fraud prevention, reviews and inspections, or relating to quality assurance (including inspection) and risk assessment for security measures, the Provider shall respond to any reasonable request from CFSMS as soon as practicable.

6. In the case of information required under paragraph 4.3 relating to CFSMS’s counter fraud or security investigation functions, the Provider shall respond to any request from CFSMS, as soon as practicable, and in any event within 7 days after the date on which the request was made.

7. Nothing in Paragraph 4.2 shall contravene any right any Staff may have to refuse to be interviewed and nothing in paragraph 4.3 obliges or permits the Provider to supply any information, disclosure of which is prohibited by law, contract or obligation of confidentiality.

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8. The Provider shall act in accordance with:

8.1 the NHS Counter Fraud and Corruption Manual;

8.2 the NHS Security Management Manual:

8.3 “A Professional Approach to Managing Security in the NHS” – NHS CFSMS 2003;

8.4 “Tackling Violence Against NHS staff” – NHS CFSMS 2007;

8.5 the policy statement “Applying appropriate sanctions consistently” published by the CFSMS; and

8.6 all other reasonable guidance or manuals of CFSMS,

as they may from time to time be amended or issued.

9. Without prejudice to the generality of paragraph 8 (but subject to paragraph 7), the Provider shall comply with the requirements specified in the NHS Counter Fraud and Corruption Manual concerning:

9.1 the arrangements for reporting fraud cases to its LCFS and to its audit committee and its auditors;

9.2 the arrangements for agreeing to undertake a criminal prosecution and to refer the matter to the police;

9.3 the confidentiality of information relevant to the investigation of suspected fraud;

9.4 the arrangements for its LCFS to report weaknesses in fraud vulnerable systems to CFSMS and the Provider’s audit committee and auditors; and

9.5 the arrangements for gathering information to enable the Provider’s Director of Finance to seek recovery of money lost through fraud.

10 Without prejudice to the generality of paragraph 8 (but subject to paragraph 7), the Provider shall comply with the requirements specified in the NHS Security Management Manual concerning:

10.1 the arrangements for reporting security breaches to its LSMS;

10.2 the arrangements for agreeing to undertake a criminal prosecution and to refer the matter to the police;

10.3 the confidentiality of information relevant to the investigation of suspected security breaches;

10.4 the arrangements for its LSMS to report weaknesses in security management measures; and

10.5 the arrangements for gathering information to enable the Provider’s Security Management Director to seek, where appropriate, recovery of money lost through security breaches.

11 The Provider shall ensure that its Chief Executive, Director of Finance and Security Management Executive Director shall monitor and ensure compliance with the Provider’s obligations under paragraphs 3 to 10 inclusive.

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12 The Provider shall (if it has not previously done so) within 6 weeks after the Effective Date, designate:

12.1 one of its non-Executive Directors to promote security management measures; and

12.2 one of its Executive Directors to undertake specific responsibility for security management measures.

13 A further designation shall be made within 3 months of the date on which the Provider first anticipates that there is to be a vacancy for any person referred to in paragraph 12.

14 The Provider shall ensure that each person so designated receives appropriate training initially and from time to time, as appropriate, in connection with security management and countering fraud, as provided by the CFSMS.

15 The relevant information regarding details of the persons designated under paragraphs 12 and 13 shall be notified to CFSMS within 7 days after each designation.

16 The Provider shall nominate at least one person whom it proposes to appoint as its LCFS within 6 weeks after the Effective Date, and:

16.1 the person so nominated may be either employed by the Provider or a person whose services are provided to it by an outside organisation; and

16.2 the name of the nominee shall be notified to the CFSMS together with the information specified in the NHS Counter Fraud and Corruption Manual, within 7 days after the nomination; and

16.3before making a nomination, the Provider shall take into account any guidance issued by the CFSMS relating to:

16.3.1 the suitability criteria for an LCFS;

16.3.2 where an LCFS is to be employed by the Provider, the terms on which an LCFS is to be employed; and

16.3.3 where the services of an LCFS are to be provided to the Provider by an outside organization, the terms on which those services are to be provided.

17 The Provider shall nominate at least one person that it proposes to appoint as its LSMS within 6 weeks after the Effective Date, and

17.1 the name of the nominee shall be notified to the CFSMS within 7 days of that nomination; and

17.2 before making any such nomination, the Provider shall take into account any guidance issued by CFSMS on the suitability criteria for a LSMS.

18 After a person nominated by the Provider has:

18.1 been approved by the CFSMS as a person suitable for appointment as LCFS or LSMS;

18.2 successfully completed any training required by the CFSMS; and

18.3 has been appropriately accredited by the Counter Fraud Professional Accreditation Board or the NHS Security Management Accreditation Board,

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Schedule 13

the Provider may appoint the person as its LCFS or LSMS in accordance with such approval.

19 If the Provider nominates a person as its LCFS whose services are provided by an outside organisation, it shall comply with the requirements of CFSMS as to the suitability of the nominee, and satisfy itself and the CFSMS that the terms for the provision of the services will enable the nominee to carry out LCFS or LSMS functions effectively (and in particular that the nominee will devote sufficient time to these functions), and give to the CFSMS a copy of the contract under which the services of the LCFS or LSMS are provided to it.

20 Further nomination shall be made within 3 months of the date on which the Provider first anticipates that there is to be a vacancy for its LCFS or its LSMS and the provisions of paragraphs 16 to 19 inclusive shall apply to any such nomination and subsequent appointment.

21 The Provider shall specify a job description for its LCFS which includes the operational and liaison responsibilities specified by the CFSMS, and an LCFS:

21.1shall report directly to the Provider’s Director of Finance; and

21.2shall not undertake responsibility for, or be in any way engaged in, the management of security.

22 The Provider shall specify a job description for its LSMS which includes the operational and liaison responsibilities specified by the CFSMS (a generic job description may be found on the CFSMS website), and an LSMS:

22.1shall report directly to the Provider’s Executive Director designated under paragraph 12.2 and have the responsibilities set out in his work plan completed under paragraph 23.2; and

22.2shall not undertake responsibility for, or in any way be engaged in any counter fraud activities.

23 The Provider shall put effective arrangements in place to:

23.1 ensure that in addition to the job description mentioned in paragraph 21 the LCFS and the Director of Finance agree a written work plan which outlines the LCFS’s projected work for that Contract Year, and within 1 month after the beginning of each Contract Year, by reference to the seven generic areas of counter fraud activity set out in the NHS Counter Fraud and Corruption Manual;

23.2 ensure that its LSMS and its Executive Director designated under Paragraph 12.2 agree a written work plan for the LSMS projected work for that Contract Year, and within 1 month after the beginning of each Contract Year; by reference to the seven generic areas of security management activity set out in the NHS Security Management Manual;

23.3 enable its LCFS to attend the Provider’s audit committee meetings and its LSMS to attend its risk management and audit committee meetings;

23.4 ensure that its LCFS provides a written report, at least once in each Contract Year, summarising the LCFS’s counter fraud work by reference to the seven generic areas of activity set out in the NHS Counter Fraud and Corruption Manual;

23.5 ensure that its LSMS provides a written report to the Provider’s Executive Director, designated under paragraph 12.2 at least once in each Contract Year, summarising the LSMS’s security management work for that Contract Year by reference to the seven generic areas of activity set out in the NHS Security Management Manual;

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Schedule 13

23.6 ensure that full and accurate records are kept, by the LCFS, of any instances of fraud and suspected fraud;

23.7 ensure that full and accurate records are kept by the LSMS of any security breaches or adverse security-related incidents;

23.8 ensure that any weaknesses in fraud-related systems and any other matters which may have fraud-related implications for the Provider are reported to its LCFS and that its LCFS reports them to CFSMS;

23.9 ensure that any weaknesses in security-related systems of the Provider or other matters which may have implications for security management are reported to its LSMS and that its LSMS reports them to CFSMS;

23.10 ensure that breaches in security and weaknesses in security-related systems are reported to:

23.10.1 the Provider’s LSMS; and

23.10.2 where appropriate, and having regard to CFSMS guidance, to CFSMS and to the Provider’s audit committee, auditors and risk management committee;

23.11 ensure that, where cost effective, it seeks to recover money lost by the Provider through breaches of security;

23.12 ensure that its LCFS and its LSMS have all necessary support, including access to the CFSMS secure intranet site to enable them efficiently and effectively to carry out their responsibilities;

23.13 subject to paragraph 7, ensure that all its Staff co-operate with the LCFS and the LSMS and, in particular, that those responsible for human resources disclose information which arises in connection with any matters (including disciplinary matters) which may have implications in relation to the investigation, prevention or detection of fraud or breaches of security;

23.14 enable its LCFS and its LSMS to receive training recommended by the CFSMS;

23.15 ensure that its LCFS, its LSMS and its Staff or any person whose services are provided to the Provider in connection with counter fraud or security management work, has regard to guidance and advice on media handling of counter fraud matters or security management matters which may be issued by the CFSMS;

23.16 participate in activities in which the CFSMS is engaged, including national anti-fraud measures and security management matters, where requested;

23.17 enable its LCFS and its LSMS to work in conditions of sufficient security and privacy to protect the confidentiality of their work; and

23.18 enable its LCFS and its LSMS generally to perform their functions effectively, efficiently and promptly.

24 This paragraph applies where a provider has appointed as its LCFS a person whose services are provided to it by an outside organisation.

24.1 The Provider must ensure that the terms on which those services are provided to it continue to be such as to enable its LCFS to carry out the LCFS’s functions effectively and efficiently and in particular that the LCFS is to devote sufficient time to that provider.

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Schedule 13

24.2The Provider must notify CFSMS if:

24.2.1 it considers that its LCFS has failed to carry out the LCFS’s functions effectively and efficiently, or

24.2.2 if there is a material change in the terms on which the services of its LCFS are provided to it.

25 In the event of physical or non-physical assault on a member of Staff, as described in the Security Management Manual and guidance on tackling physical and non-physical assault issued by the CFSMS, the Provider’s Executive Director designated under paragraph 11 and 12.2 shall ensure that the instructions contained in the Manual are complied with, that is to say he shall put in place effective arrangements to ensure that:

25.1in all cases, he and the LSMS are informed of the incident;

25.2 in all cases of physical assault, the police are contacted immediately, where appropriate, either by the person assaulted or by an appropriate manager or colleague and that full co-operation is given to the police in any investigation;

25.3 in cases of physical assault, CFSMS is informed of the incident and that full co- operation is given to it in any investigation or subsequent action which it considers appropriate;

25.4 in appropriate cases of non-physical assault, the police are contacted as soon as reasonably practicable and that full co-operation is given to the police in any subsequent investigation;

25.5in any case of physical or non-physical assault, where the police decide not to prosecute, the Provider considers what action, if any, it should take and in particular considers whether private prosecution or civil proceedings would be appropriate, in conference with the NHS Security Management Service Legal Protection Unit (LPU);

25.6 in all cases, the details are recorded in accordance with the Provider’s incident reporting system; and

25.7 in all cases, the victim of the assault is informed of the investigation’s progress and offered any necessary support.

153

Schedule 14

SCHEDULE 14

DOCUMENTS RELIED ON

The Provider and Associate Commissioners have applied Department of Health published guidance particularly in relation to;

. NHS Operating Framework . Payment by Results guidance

154 Schedule 15

SCHEDULE 15

PERFORMANCE MONITORING FORMS

Annex 1A Pro-forma Performance Notice from the Co-ordinating Commissioner to the Provider

Annex 1B Pro-forma Performance Notice from the Provider to the Co-ordinating Commissioner

Annex 2A Pro-forma Warning Notice from the Co-ordinating Commissioner to the Provider

Annex 2B Pro-forma Warning Notice from the Provider to the Co-ordinating Commissioner

Annex 3A Pro-forma Exception Report from the Co-ordinating Commissioner to the Provider

Annex 3B Pro-forma Exception Report from the Provider to the relevant Commissioner

Annex 4A Pro-forma Excusing Notice from the Co-ordinating Commissioner to the Provider

Annex 4B Pro-forma Excusing Notice from the Provider to the Co-ordinating Commissioner

155 Schedule 15

Annex 1A – Pro-forma Performance Notice For Issue from the Co-ordinating Commissioner to the Provider

[ON THE HEADED PAPER OF THE CO-ORDINATING COMMISSIONER]

[Covering letter to be issued with this notice]

PERFORMANCE NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Performance Notice dated [insert date] is issued by the Co-ordinating Commissioner to [name of Provider] (the “Provider”) under clause 32 (Performance) of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Performance Notice is being issued because:

[detail:  the exact reasons for the notice in accordance with clause 32.3  refer to any previous correspondence  refer to any contractual Performance Indicator(s) breached  reference the source documentation / report(s) used to make the decision to issue the Performance Notice.  the time period within which the Provider is required to resolve the performance deficiency (not more than 3 months)  Note that this Notice may relate to one or all of the Commissioners]

The Co-ordinating Commissioner considers that the above demonstrates a material failure by the Provider to meet the requirements of the Contract.

The Provider is reminded that under clause 32.6 (Performance) of the Contract, failure to rectify the performance to which this notice relates within the time period specified in this Performance Notice, and/or the accrual of not less than 4 unresolved Performance Notices, may result in the issuance of a Warning Notice.

156 Schedule 15

Annex 1B - Pro-forma Performance Notice For Issue from the Provider to the Co-ordinating Commissioner

[ON THE HEADED PAPER OF THE PROVIDER]

[Covering letter to be issued with this notice]

PERFORMANCE NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Performance Notice dated [insert date] is issued by [ ] (the “Provider”) to the Co-ordinating Commissioner under clause 32 (Performance) of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Performance Notice is being issued because:

[detail:  the exact reasons for the notice in accordance with clause 32.4  refer to any previous correspondence  reference the source documentation / report(s) used to make the decision to issue the Performance Notice.  the time period within which the performance deficiency should be resolved (not more than 3 months)  the Commissioner(s) to whom this relates ]

The Provider considers that the above demonstrates a material failure by [insert name] to meet the requirements of the Contract.

The Co-ordinating Commissioner is reminded that under clause 32.6 (Performance) of the Contract, failure to rectify the performance to which this notice relates within the time period specified in this Performance Notice, and/or the accrual of not less than 4 unresolved Performance Notices, may result in the issuance of a Warning Notice.

157 Schedule 15

Annex 2A – Pro-forma Warning Notice

For Issue from the Co-ordinating Commissioner to the Provider

[ON THE HEADED PAPER OF THE CO-ORDINATING COMMISSIONER] [Covering letter to be issued with this notice]

WARNING NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Warning Notice dated [insert date] is issued by the Co-ordinating Commissioner to [ ] (the “Provider”) under clause 32 (Performance) of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Warning Notice has been issued under sub-clause: [DN: delete from the following and edit the remaining as necessary]

[32.6.1] where the Provider has committed a material breach of its obligations under the Contract (and where it is capable of remedy has not remedied that breach within the period allowed in the written notice to remedy)] / [32.6.2] where the Provider has accrued not less than 4 unresolved Performance Notices. The Performance Notice reference numbers are: / [32.6.3] failure to resolve the performance deficiency identified in Performance Notice reference [ ] dated [ ] [amend appropriately] within [specify time period] of its issue.]

The Provider is reminded that, under clause 32.9 of the Contract, it must meet with the Co-ordinating Commissioner and is therefore required to attend a meeting at [time, date, location specify within 4 Operational Days of the date of this notice] to discuss the subject matter of this Warning Notice and any Excusing Notice issued.

The Provider is further reminded that, unless an Excusing Notice is agreed to be valid, under clause 32.12 of the Contract failure to agree a Remedial Action Plan within 5 Operational Days of the date of this meeting may result in the issuance of an Exception Report and, under clause 32 of the Contract may result in the Co-ordinating Commissioner [detail the consequence and the clause / Schedule reference].

158 Schedule 15

Annex 2B – Pro-forma Warning Notice

For Issue from the Provider to the Co-ordinating Commissioner

[ON THE HEADED PAPER OF THE PROVIDER] [Covering letter to be issued with this notice]

WARNING NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Warning Notice dated [insert date] is issued by [ ] (the “Provider”) to the Co-ordinating Commissioner under clause 32 (Performance) of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Warning Notice has been issued under sub-clause: [DN: delete from the following and edit the remaining as necessary]

[32.6.1] where a Commissioner has committed a material breach of its obligations under the Contract (and where it is capable of remedy has not remedied that breach within the period allowed in the written notice to remedy)] / [32.6.2] where the Commissioners have accrued not less than 4 unresolved Performance Notices. The Performance Notice reference numbers are: / [32.6.3] failure to resolve the performance deficiency identified in Performance Notice reference [ ] dated [ ] [amend appropriately] within [specify time period] of its issue.]

The Co-ordinating Commissioner is reminded that, under clause 32.9 of the Contract, it must meet with the Provider and is therefore required to attend a meeting at [time, date, location specify within 4 Operational Days of the date of this notice] to discuss the subject matter of this Warning Notice and any Excusing Notice issued.

The Co-ordinating Commissioner is further reminded that, unless an Excusing Notice is agreed to be valid, under clause 32.12 of the Contract failure to agree a Remedial Action Plan within 5 Operational Days of the date of this meeting may result in the issuance of an Exception Report.

159 Schedule 15

Annex 3 A – Pro-forma Exception Report

For Issue from the Co-ordinating Commissioner to the Provider

[ON THE HEADED PAPER OF THE CO-ORDINATING COMMISSIONER]

[Covering letter to be issued with this notice – if to Monitor or a Regulator this should specify when the issuer wants to meet them]

EXCEPTION REPORT

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Exception Report dated [insert date] is issued by the Co-ordinating Commissioner to [ ] (the “Provider”) under clause [32 (Performance)] [33 (Clinical Quality Review)] of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Exception Report has been issued because:

[detail:  the exact reasons for the notice  refer to any previous  attach all correspondence, Performance and Warning Notices  refer to the Remedial Clinical Action Plan that has not been implemented / the Remedial Action Plan that has not been agreed or that has been breached  reference the source documentation / report(s) used to make the decision  the consequences of this performance failure in clear and concise terms from a Patient, Clinical and Financial point of view as necessary  any specific remedial actions required  any time period within which the Remedial Action Plan must be agreed or rectified (not less than 5 Operational Days / any steps that the Provider’s Board of Directors must take to ensure implementation of the Remedial Clinical Action Plan]

If Exception Report issued to Board of Directors: The Co-ordinating Commissioner considers that the issuance of this Exception Report relates to a serious failure by the Provider under the Contract and requires that the Board of Directors, or its representatives, of the Provider attend a meeting to discuss this Exception Report at [time, date, location specify].

The Board of Directors of the Provider is reminded that under clause [32 (Performance)] / [33 (Clinical Quality Review)] of the Contract the Co-ordinating Commissioner may [insert the consequence and specify the clause / Schedule reference].

The Board of Directors is further reminded that under clauses 34 (Suspension) and 35 (Termination) of the Contract failure to rectify the issues dealt with in the Exception Report may result in the suspension or termination of part or all of the Services.

If the Exception Report is issued to the SHA, Monitor or the Healthcare Commission The Co-ordinating Commissioner considers that the issuance of this Exception Report relates to a serious failure by the Provider under the Contract and requests an urgent meeting with [the SHA / Monitor / the relevant Regulator delete as necessary] to discuss appropriate actions to mitigate the causes of this report.

Attach all supporting documentation (correspondence, Performance and Warning Notices etc.)

160 Schedule 15

Annex 3B – Pro-forma Exception Report

For Issue from the Provider to the relevant Commissioner

[ON THE HEADED PAPER OF THE PROVIDER]

[Covering letter to be issued with this notice – if to Monitor or a Regulator this should specify when the issuer wants to meet them]

EXCEPTION REPORT

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Exception Report dated [insert date] is issued by [ ] (the “Provider”) to [ ] (the “Commissioner”) under clause 32 (Performance) of the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Exception Report has been issued because:

[detail:  the exact reasons for the notice  refer to any previous  Attach all correspondence, Performance and Warning Notices  refer to the Remedial Action Plan that has been breached  reference the source documentation / report(s) used to make the decision  the consequences of this performance failure in clear and concise terms from a Patient, Clinical and Financial point of view as necessary  any specific remedial actions required]

If Exception Report issued to Board of Directors: The Provider considers that the issuance of this Exception Report relates to a serious failure under the Contract and requires that the Board of Directors, or its representatives of the Commissioner attend a meeting to discuss this Exception Report at [time, date, location specify].

If the Exception Report is issued to the SHA, Monitor or the Healthcare Commission The Provider considers that the issuance of this Exception Report relates to a serious failure under the Contract and requests an urgent meeting with [the SHA / Monitor / the relevant Regulator delete as necessary] to discuss appropriate actions to mitigate the causes of this report.

Attach all supporting documentation (correspondence, Performance and Warning Notices etc.)

161 Schedule 15

Annex 4A – Pro-forma Excusing Notice

For Issue from the Co-ordinating Commissioner to the Provider

[ON THE HEADED PAPER OF THE CO-ORDINATING COMMISSIONER]

[Covering letter to be issued with this notice]

EXCUSING NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Excusing Notice dated [insert date] is issued by the Co-ordinating Commissioner to [ ] (the “Provider") in accordance with the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Excusing Notice is issued in accordance with clause 32 (Performance) of the Contract with reference to the receipt of a Warning Notice reference [reference the warning notice] and is issued within 4 Operational Days of the Warning Notice in compliance with clause 32 of the Contract.

The Co-ordinating Commissioner considers the following circumstances to be excusing grounds within the scope of clause 32.8 and as such will attend the meeting specified in the Warning Notice [reference the Warning Notice] to discuss the below.

Excuse

Detail the excusing circumstances providing supporting information where possible so that the other Party can make a fair decision with regard to the acceptance of the Excusing Notice

162 Schedule 15

Annex 4B – Pro-forma Excusing Notice

For Issue from the Provider to the Co-ordinating Commissioner

[ON THE HEADED PAPER OF THE PROVIDER]

[Covering letter to be issued with this notice]

EXCUSING NOTICE

Reference: [Insert the date reference (YearMonthDay) add .1 or .2 etc if more than one issued on the same day]

This Excusing Notice dated [insert date] is issued by [ ](the “Provider") to the Co-ordinating Commissioner in accordance with the Contract for the Provision of Health Services between the Provider and the Co-ordinating Commissioner and its Associates ("the Contract").

This Excusing Notice is issued in accordance with clause 32 (Performance) of the Contract with reference to the receipt of a Warning Notice reference [reference the warning notice] and is issued within 4 Operational Days of the Warning Notice in compliance with clause 32 of the Contract

The Provider considers the following circumstances to be excusing grounds within the scope of clause 32.7 and as such will attend the meeting specified in the Warning Notice [reference the Warning Notice] to discuss the below.]

Excuse

Detail the excusing circumstances providing supporting information where possible so that the other Party can make a fair decision with regard to the acceptance of the Excusing Notice

163

Schedule 16

SCHEDULE 16

INTELLECTUAL PROPERTY

Part 1: Provider IPR

The Provider and the Commissioner will comply with guidance and codes of practice as issued by the Department of Health.

Part 2: PCT IPR

The Provider and the Commissioner will comply with guidance and codes of practice as issued by the Department of Health.

164

Schedule 17

SCHEDULE 17

NOTICES

1. For the purposes of clause 40, the address for the service of notices on the Co- ordinating Commissioner is:

Co-ordinating Commissioner:

Co-ordinating Commissioner:- Judith Newman (Director of Secondary Care Development)

Contact Person:- Shane Lord (Commissioning Manager)

Somerset Primary Care Trust Wynford House Lufton Way Yeovil Somerset BA22 8HR

2. For the purposes of clause 40, the address for the service of notices on the Provider is:

Provider:

Taunton and Somerset NHS Foundation Trust

Contact Person:- Peter Lewis (Director of Finance and Performance)

Musgrove Park Hospital Taunton Somerset TA1 5DA

165

Schedule 18

SCHEDULE 18

PERFORMANCE INCENTIVE SCHEMES

Part 1: Nationally Mandated Incentive Schemes

Part 2: Locally Agreed Incentive Schemes

None agreed

166 Schedule 19

SCHEDULE 19

LOCATION OF PROVIDER’S PREMISES

The Provider’s Premises from which the Provider shall provide the Services to the Commissioners are located at:

Taunton and Somerset NHS Foundation Trust Musgrove Park Hospital Taunton Somerset TA1 5DA

167

Schedule 20

SCHEDULE 20

CLINICAL NETWORKS AND SCREENING PROGRAMMES

The list of commissioned screening and clinical networks in which the provider is expected to participate, in addition to those listed in part 4A of the Clinical Quality Performance Indicators will be agreed during quarter 1 of 2008/09.

168 Schedule 21

SCHEDULE 21

PROVISIONS THAT MAY BE VARIED

The provisions of this Agreement and its Schedules that may be varied by the Parties in accordance with clause 38 (Variation) are set out below:

Schedule 2, Part 1 (Service Specifications)

Schedule 2, Part 2 (Discharge Protocols)

Schedule 2 Part 3 – Emergency Response Plan only

Schedule 2 Part 4 (Essential Services)

Schedule 3, Part 1, Annex 1 (Activity Plans)

Schedule 3, Part 1, Annex 2 (Capacity Review Criteria) – percentages only

Schedule 3, Part 1, Annex 3 (Expected Annual Contract Values)

Schedule 3, Part 4 (Quality Standards) – locally agreed insertions only

Schedule 4, Part 2 (Longstop Date)

Schedule 4, Part 3 (Transition Arrangements)

Schedule 5, Part 2 (National requirements for local definition) – locally defined elements only

Schedule 5, Part 3 (Local requirements)

Schedule 7 (Additional Use of Personal Data)

Schedule 10 (Provider’s Sub-contractors)

Schedule 11 (Consortium Agreement and Commissioning Intentions)

Schedule 12 (Serious Untoward Incidents and Patient Safety Incidents)

Schedule 14 (Documents relied on)

Schedule 15 (Performance Monitoring Forms)

Schedule 16 (Intellectual Property)

Schedule 17 (Notices)

Schedule 18 Part 2 (Locally Agreed Incentive Schemes)

Schedule 19 (Location of Provider’s Premises)

Schedule 20 (Clinical Networks and Screening Programmes)

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