NHS South Gloucestershire Clinical Commissioning Group

and

Community Pharmacy

Memorandum of Agreement relating to the provision of NHS Service for Emergency Supply of

Prescription only Medicines (POMs) 2015/16

From 1st April 2015 until 31st March 2016

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Para Number

Heading

1 Definitions

2 Interpretation

3 Contract Period

4 Representations and Warranties

5 Services

6 Equipment, materials and Consumables

7 Records

8 Staff

9 Assignment and Subcontracting

10 Service Variations

11 Authorised Officers

12 Meetings and Monitoring

13 Prices and Payment

14 Indemnity

15 Insurance

16 Termination

17 Force Majeure

18 Proceedings

19 Complaints

20 Incidents

21 Dispute Resolution Procedure

22 Confidentiality

23 Notices

24 Rights of third Parties

25 Waiver

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26 Severability

27 Prevention of Corruption

28 Partnership and Agency

29 Right to Set Off

30 Entire Agreement

31 Reliance

32 Continuing Effect

33 Human Rights Act 1998

34 Non Discrimination

35 Freedom of Information Act

36 Mitigation

37 Counterparts

38 Governing Law

39 External Accreditation

40 Signatures

Schedule 1:-Service SpecificationSchedule 2:-Payment Arrangements

THIS MEMORANDUM OF AGREEMENT is made on ___________________________________

BETWEEN:

(1) South Gloucestershire Clinical Commissioning Group, whose Headquarters is at Corum 2, Corum Office Park, Crown Way, Warmley, South Gloucestershire, BS30 8FJ(the "CCG");

and

(2) ________________________________________________whose registered office is at

________________________________________________________________________(the "Provider")

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BACKGROUND:

(A) The CCG is the commissioner of health services for the South Gloucestershire area. The CCG wishes to purchase an NHS Service for Emergency Supply of Prescription-only-Medicines (POMs) for 2015/16

(B) These services will be delivered by the provider at_______________________________________________________________________

IT IS AGREED AS FOLLOWS:

1 Definitions

1.1 In this Service Level Agreement, save where the context requires otherwise, the following words, terms and expressions shall have the meanings given to them below:

"1998 DPA Act"means the Data Protection Act 1998 and includes reference to all related legislation

"Agreement"means this Memorandum of Agreement

"CCG's Authorised Officer"means the person nominated by the CCG in accordance with Clause 11.3

"CEDR"means the centre for Effective Dispute Resolution, as described in Clause 21.4

"Clinician"means a clinician employed or engaged by or through the Provider in the provision of the Services or in connection with this Agreement, whether such clinician is a partner, director, sub contractor, member of agency staff or is in any manner employed or engaged by the Provider or is employed on his own account as an independent contractor to the Provider

"Commencement Date"means 1st April 2015.

"Contract Meeting"means the meeting between the CCG’s Authorised Officer and the Provider's Authorised Officer to be held in accordance with Clause 12.1

"Contract Period"means the period that this Agreement remains in force, commencing on the Commencement Date for one year.

"CRB "means the Criminal Records Bureau

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"Directive"means EC Council Directive 2001/23/EC

"Dispute Resolution Procedure"means the procedure set out in Clause 22

"Force Majeure Event"means any of the following:

(a) war, civil war, armed conflict or terrorism;

(b) nuclear contamination, unless the Provider is the source or cause of the contamination;

(c) chemical or biological contamination of the Premises/Hospital from any of the events set out in (a);

(d) fire, explosion, lightning, storm, tempest, flood, ionising radiation, earthquake, riot or civil commotion;

(e) blockade or embargo; and

(f) pressure waves caused by devices travelling at supersonic speeds

in each case where such event is beyond the reasonable control of the Party claiming relief and directly causes the affected Party to be unable to comply with all or a material part of its obligations under this Agreement

"Good Industry Practice"means the exercise of that degree of skill, diligence and foresight which would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in the provision of services similar to the Services under the same or similar circumstances

"Month"means a calendar month

"Party"means the CCG or the Provider individually and "Parties" refers to the CCG and the Provider together. A Party shall include all permitted assigns of the Party in question

“POMs”means prescription only medicines that are not available to purchase over the counter

“Premises”means the facilities where the provider carries out the activity.

"Provider's Authorised Officer"means the person nominated by the Provider in accordance with Clause 11.1

"Proceedings"means:

(a) any legal or quasi-legal inquiry (including enquiries and/or proceedings conducted by the Health Service Commissioner or the Ombudsman), arbitration or court

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proceedings in which the CCG may become involved (save in respect of disputes only between the Provider and the CCG); and

(b) any disciplinary hearing of the employees of the CCG arising out of or in connection with the Services

"Prohibited Acts"has the meaning given in Clause 27.1

"Relevant Transfer" means a relevant transfer for the purposes of TUPE

"Records"means the records described at Clause 7.2

"Services"

means the provision of NHS Service for Emergency Supply of Prescription-only-Medications(POMS) for 2015/16 for the population of South Gloucestershire by the Provider as set out in the Specification

"Specification"means the specification of services at Schedule 1

"Staff"means all personnel employed or engaged by or through the Provider in the provision of the Services or in connection with this Agreement, whether such personnel are partners, directors, subcontractors, agency staff or in any manner employed or engaged by the Provider or are employed on their own account as independent contractors to the Provider

2 Interpretation

2.1 In this Agreement, all references to any statute or statutory provision shall be deemed to include references to any statute or statutory provision which amends, extends, consolidates or replaces the same and shall include any orders, regulations, codes of practice, instruments or other subordinate legislation made thereunder and any conditions attaching thereto. Moreover, where relevant, references to English statutes and statutory provisions shall be construed as references also to equivalent statutes, statutory provisions and rules of law in other jurisdictions.

2.2 Any headings to Clauses, together with the front cover and the index are for convenience only and shall not affect the meaning of this Agreement. Unless the contrary is stated, references to Clauses shall mean the Clauses of this Agreement.

2.3 In the event of a conflict, the conditions set out in this Agreement shall take priority over the Schedules.

2.4 Where a term of this Agreement provides for a list of items following the word "including" or "includes", then such list is not to be interpreted as being an exhaustive list.

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2.5 In this Agreement, words importing any particular gender include all other genders, and the term "person" includes any individual, partnership, firm, CCG, body corporate, government, governmental body, agency, unincorporated body of persons or association and a reference to a person includes a reference to that person's successors and permitted assigns.

2.6 In this Agreement, words importing the singular only shall include the plural and vice versa.

2.7 In this Agreement, subject to the definition of Staff in Clause 1, "staff" and "employees" shall have the same meaning and shall include reference to any full or part time employee or officer, director, manager and agent.

2.8 Subject to the contrary being stated expressly or implied from the context in these terms and conditions, all communication between the Parties shall be in writing.

2.9 Except where an express provision of this Agreement states the contrary, each and every obligation of a Party under this Agreement is to be performed at that Party's cost.

2.10 All references to the Agreement include (subject to all relevant approvals) a reference to the Agreement as amended, supplemented, substituted, novated or assigned from time to time.

3 Contract Period

3.1 The Parties are entering into this Agreement for an initial period of 1 year to ascertain best practice standards, specifications and costs for the Services.

3.2 One months’ notice of termination can be served by either party.

4 Representations and Warranties

4.1 The Provider warrants and represents that:

it has full capacity and authority to enter into this Agreement and to provide the Services;

it is not aware as at the date of this Agreement of any matters within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement; and

it is not insolvent or unable to pay its debts, no order has been made or petition presented or resolution passed for its winding up or for an administration order and no receiver, administrative receiver or manager has been appointed by any person of the whole or any part of its business or assets nor has any equivalent event taken place.

5 Services

5.1 Subject to the terms of this Agreement, the Provider agrees to provide the Services with all due skill, care and diligence, and in accordance with:

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the terms of this Agreement, including the Specification within Schedule 1;

all applicable UK and European laws and regulations;

Care Quality Commission guidelines;

Good Industry Practice; and

5.1.5 South Gloucestershire CCG Policy for Safe Guarding of Vulnerable Adults, Safeguarding of Children

as are in force throughout the contract.

5.2 Without prejudice to Clause 5.1, the Provider shall conform with all reasonable instructions and directions of the CCG relating to the performance of the Services. Where there is a change in the contractual performance obligations on the provider then the parties will discuss any required adjustment to contract pricing.

5.3 The Parties shall co-operate with each other in good faith and take all reasonable action as is necessary for the efficient transmission of information and instructions and to enable the CCG to derive the full benefit of the Agreement.

5.4 The Provider shall co-operate with the CCG to enable the CCG to comply with its duties towards patient care and to undertake such practice and procedure to ensure that the minimum of interference occurs in the execution of this Agreement.

5.5 The Provider shall ensure that all Staff take all such precautions as are necessary to protect the health and safety of employees of the CCG and patients, visitors and the general public.

5.6 The Provider will inform the CCG as soon as possible of any actual or potential problems concerning the provision of the Services and any instances which may preclude the Provider from meeting its contractual obligations. If, at any time, the Provider becomes aware of any act or omission or proposed act or omission by the CCG which may prevent or hinder the Provider from providing the Services in accordance with the terms of this Agreement, the Provider's Authorised Officer shall forthwith inform the CCG of that fact. The provision of such information under this Clause shall not, though, in any way release or excuse the Provider from any of its obligations under this Agreement.

5.7 The Provider will be responsible for providing and maintaining the Services at all times and will ensure continuity of service in accordance with the Specification. The Provider must have in place contingency plans and arrangements to ensure the continuity of the Services in all circumstances.

6 Equipment, Materials and Consumables

6.1 The Provider shall provide all staff, equipment, tools, appliances, materials or items required for the provision of the Services. The Provider shall keep and maintain all equipment provided and/or used by the Provider in the provision of the Services in good repair and condition as necessary for the proper and satisfactory provisions of the Services as set out in Schedule 1.

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7 Records

7.1 The Staff must complete the patient /information documentation for each patient seen by the service

7.2 The Provider must keep records which contain all information reasonably requested by the CCG, including the following as a minimum:

details of any patients seen by the Staff at the Premises, including the date(s) the patient is seen and the details of any treatment received by the patient;

details to be provided as specified in Schedule 1;

details of any complaints of whatever nature regarding the provision of the Services as defined in Schedule 1;

details of any incidents or accidents arising out of or in the course of the provision of the Services as defined in Schedule 3, including:

the person who notified the Provider of the incident or accident (the Provider shall ensure that all its Staff report to it all incidents or accidents);

the name and address (if known) of each and every person involved in the incident or accident;

the nature and extent of the incident or accident including details of any personal injury or death suffered;

the date and time of the incident or accident.

7.3 A copy of the Records shall be:

provided to the CCG’s Authorised Officer within 10 working days of each month end, other than for serious incidents, accidents or deaths which will be notified within 24 hours;

open to inspection by the CCG's Authorised Officer or nominee at any time on giving reasonable notice to the Provider; and

kept by the Provider for a minimum of six (6) years.

7.4 The Records shall be treated as confidential between the Parties. No copy, extract or summary of the Records, any part of them or any comment on them shall be supplied to any third party (other than in compliance with law or for the purposes of obtaining legal advice) without the prior written approval of the Parties. The Provider shall abide by the provisions of Schedule 1.

8 Staff

8.1 The Provider shall provide all Staff as are required to carry out the Services under this Agreement.

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8.2 The Provider shall assign to the Services at all times sufficient adequately qualified and trained Staff to provide the Services who shall have the skills, competence and expertise necessary and appropriate for the proper performance of the Services.

8.3 The Provider shall ensure that the Staff engaged in the provision of the Services are properly managed to perform their required duties in accordance with the Specification and other provisions of this Agreement.

8.4 Clause 8.4 has been removed.

8.5 The Provider shall ensure that all Staff shall at all times be properly attired and presentable.

8.6 The Provider shall ensure its Staff have a means of identification in a form approved by the CCG’s Authorised Officer which shall be worn and kept visible at all times when carrying out work on behalf of the CCG.

8.7 shall provide evidence of registration at any time if requested by the CCG.

8.8 The Provider warrants that all Staff undertaking the service are registered with the GPhC.

8.9 The Provider shall ensure that all current and prospective Staff are screened, checked and inoculated against such infections and conditions as the CCG may reasonably specify from time to time.

8.10 The Provider shall ensure that all Staff work in compliance with all policies and procedures and all relevant Provider protocols and, in the event of any conflict, the CCG's policies and procedures will prevail unless otherwise agreed between the Parties.

8.11 The CCG may (but not unreasonably) request the Provider to take disciplinary action against or to remove from work in or about the provision of the Services any person employed or engaged by the Provider (including, for the avoidance of doubt, all Staff). Following such request, the Provider, acting reasonably, shall take appropriate action, including disciplinary action, proportionate to the circumstances.

8.12 The Provider shall abide by the provisions defined in Schedule 1.

9 Assignment and Subcontracting

Assignment

9.1 Subject to Clause 9.2, no Party shall assign the whole or any part of the Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).

9.2 The benefit or burden of this Agreement may be assigned or transferred by the CCG to any successor of all or part of its functions, property, rights and liabilities including a National Health Service CCG or other health service body as defined

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by Section 9(4) of the National Health Service Act 2006 or a Foundation CCG established under the National Health Service Act 2006.

Subcontracting

9.3 The Provider shall not use subcontractors for the execution of any part of the Services without the written agreement of the CCG Commissioners.

10 Service Variations

10.1 Subject to clause 3.2, any variations to the Services or any provisions of this Agreement must be agreed by both Parties and shall be recorded in writing and signed by both Parties.

11 Authorised Officers

The Provider's Authorised Officer

11.1 The Provider will nominate an employee or officer from time to time to be the Provider's Authorised Officer, who shall be a suitably qualified and senior member of the Provider's staff, (such nomination to be notified to the CCG in writing without delay) and the Provider's Authorised Officer shall be empowered to act on behalf of the Provider under this Agreement. The Provider's Authorised Officer may in turn nominate a deputy or deputies empowered to act on behalf of the Provider and shall notify the CCG accordingly in writing.

11.2 The Provider's Authorised Officer at the Commencement Date will be:Name: Job Title: Address: Contact number: E-mail address:

11.3 Any notice, information or communication given or made by or to the Provider's Authorised Officer or his nominated deputy shall be deemed to have been given or made by or to the Provider.

The CCG's Authorised Officer

11.4 The CCG will nominate an employee or officer from time to time to be the CCG’s Authorised Officer, who shall be a suitably qualified and senior member of the CCG's staff, (such nomination to be notified to the Provider in writing without delay) and the CCG’s Authorised Officer will be empowered to act on behalf of the CCG under this Agreement. The CCG’s Authorised Officer may in turn nominate a deputy or deputies empowered to act on behalf of the CCG and shall notify the Provider accordingly in writing.

11.5 The CCG’s Authorised Officer at the Commencement Date will be:Name: Melanie GreenJob Title: Head of Medicines ManagementAddress: NHS South Gloucestershire CCG, Corum 2, Corum Office Park, Crown Way, Warmley, South Gloucestershire, BS30 8FJ

11.6 All day to day operational issues should go via:Name: Helen Wilkinson

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Job Title: Professional Lead for Medicines OptimisationAddress: NHS South Gloucestershire CCG, Corum 2, Corum Office Park, Crown Way, Warmley, South Gloucestershire, BS30 8FJhelen.wilkinson@southgloucestershireccg.nhs.uk

11.7 Any notice, information or communication given or made by or to the CCG’s Authorised Officer or nominated deputy shall be deemed to have been given or made by or to the CCG.

12 Monitoring

12.1 The Provider shall abide by the provisions defined in Schedule 1.

12.2 The CCG's Authorised Officer (or any person authorised by the CCG's Authorised Officer) may, acting reasonably at any reasonable time inspect, measure, monitor or test the Services or any part of them, and the Provider shall ensure that reasonable time and opportunity is allowed for such inspection, measurement, monitoring and testing.

12.3 The Parties shall develop and implement arrangements for access and involvement by the local Health Watch in accordance with Clauses 12.8 – 12.9.

12.4 Subject to the following conditions, the Provider shall allow the local Health Watch to enter and inspect the Premises in accordance with the CCG's statutory powers

12.5 the request to enter and inspect the Premises from the local Health Watch is in writing;

12.6 the person to enter and inspect the Premises is authorised to do so in writing by the local Health Watch; and

12.7 the entry and inspection of the Premises is carried out at a reasonable time.

13 Prices and Payment

13.1 The CCG shall pay the Provider for the provision of the Services in accordance with the mechanism and prices detailed in Schedule 2 No additional charges shall be levied by the Provider in respect of the Services.

13.2 The Provider will invoice the CCG on a calendar month basis in arrears.

13.3 Payment of undisputed sums is to be made within thirty (30) Calendar Days of receipt of the relevant invoice, and payment of disputed sums is to be made within thirty (30) Working Days of such sums being agreed or determined in accordance with the Dispute Resolution Procedure.

13.4 The CCG shall notify the Provider in writing within thirty (30) Calendar Days of receipt of the relevant invoice if it disputes any of the charges payable under such invoice. On the Provider receiving such notice of dispute, the Parties shall instigate the Dispute Resolution Procedure.

Accounts

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13.5 The Provider shall keep full, accurate and separate written accounts of the Services detailing the costs and activity (see Schedule 2) and any income relating to the Services. Such records and accounts shall be:

13.6 kept in accordance with good accountancy practice and shall be audited by qualified auditors at least once a year during the Contract Period; and

14 Indemnity

14.1 The Provider shall be liable for and shall indemnify the CCG, its officers, employees and agents against any liability, losses, costs, expenses, claims or proceedings whatsoever arising in respect of:

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

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

any other loss incurred by the CCG

to the extent such loss, damage or injury arises indirectly or directly from any act or omission of the Provider, its employees (including the Staff), agents or subcontractors.

14.2 Subject to any express provision of this Agreement, no Party shall be liable to any other for any loss of profits (whether direct or indirect), loss of use, loss of production, loss of business, loss of business opportunity, loss of business revenue, loss of goodwill or any claim for consequential loss or for indirect loss of any nature.

15 Insurance

15.1 For the Contract Period and for twelve (12) months thereafter, the Provider shall maintain at all times in full force and effect such insurance policies which are required by applicable law, including but not limited to:

public liability insurance with a minimum limit of indemnity of £5,000,000 (five million pounds) for each claim;

employers' liability insurance with a minimum limit of indemnity of £5,000,000 (five million pounds) for each claim; and

15.2 All insurance policies required in accordance with Clause 15.1 shall be:

with a US or EEA insurer of repute on normal commercial terms;

endorsed to preclude any rights of subrogation against the CCG or any officer, employee or agent of the CCG; and

endorsed designating the CCG as an additional named insured.

15.3 The Provider shall procure that nothing is done which would entitle any insurer to cancel, rescind or suspend any insurance cover, or to treat any insurance cover or claim as avoided in whole or part, and shall forthwith notify the CCG on becoming aware of any fact, circumstance or matter which has caused, or is

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reasonably likely to cause, any insurer to give notice to cancel, rescind, suspend or avoid any insurance, or any cover or claim under any insurance in whole or in part.

15.4 The Provider shall prior to the Commencement Date and at such other times as the CCG’s Authorised Officer may reasonably require:

provide sight of all original insurance documentation (including policies, cover notes, premium receipts and any other documents) to the CCG; and

supply copies of such insurance policies (and all relevant cover notes) and evidence that the premiums have been paid.

15.5 The Provider will deal speedily and efficiently with all claims submitted to it by third parties which shall be dealt with either by its own staff or by referring such claims to its insurers.

16 Termination

16.1 Either party can serve notice on the other by providing one month’s notice in writing.

Termination on CCG Default

16.2 Without prejudice to any other right or remedy it may possess, the Provider shall be entitled upon the happening of any of the following events to immediately terminate this Agreement by written notice:

the CCG without reasonable excuse failing to pay the price as detailed in Clause 13 and Schedule 2 for a period of three (3) consecutive Months from the date payment is due (subject to the Provider serving no less than two (2) written notices of non payment on the CCG's Authorised Officer, the last such notice to be served no later than one (1) Month prior to termination); or

the CCG otherwise committing a serious and fundamental breach of this Agreement which is not remedied within thirty (30) days of the Provider serving notice of such breach on the CCG or such longer period as is agreed between the Parties.

Termination on Provider Default

16.3 Without prejudice to any other right or remedy it may possess the CCG shall be entitled upon the happening of any of the following events to immediately terminate this Agreement by written notice:

the Provider convening a meeting of its creditors, or a proposal being made for a voluntary arrangement within Part 1 of the Insolvency Act 1986, or a proposal being made for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors, or the Provider being unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or a receiver, administrative receiver or similar officer being appointed in respect of all or any part of the business or assets of the Provider, or a

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petition being presented, or a meeting being convened for the purpose of considering a resolution, or any other steps being taken for the winding up of the Provider or for the making of an administrative order (otherwise than for the purpose of a solvent amalgamation or reconstruction);

breach of any warranty or undertaking made by the Provider in connection with this Agreement;

subject to Clause 16.4.4, the Provider committing a breach of this Agreement which is not remedied within thirty (30) days of the CCG serving notice of such breach on the Provider or such longer period as is agreed between the Parties;

the Provider committing a serious and fundamental breach of this Agreement;

the Provider purporting to assign the Agreement in breach of Clause 9.1;

the Provider committing a breach of Clause 22 in respect of patient confidentiality; or

the Provider committing a Prohibited Act or any offence under the Prevention of Corruption Acts 1889-1916 under Clause 27.

Effect of Termination and Expiry

16.4 In the event that following the occurrence of an event entitling a Party to terminate this Agreement pursuant to this Clause, the non-defaulting Party wishes to terminate this Agreement, then without prejudice to any other rights or remedies of that Party:

the Party will notify the other Party in writing of its intention to terminate this Agreement specifying the date upon which this Agreement will terminate (the "Termination Date"); and

the Provider shall continue to provide the Services until the Termination Date, save where any breach of this Agreement by the CCG substantially frustrates or renders it impossible for the Provider to perform its obligations under this Agreement.

16.5 Upon expiry of this Agreement through effluxion of time or on earlier termination, and without prejudice to any other provisions of the Agreement:

the Parties shall co-operate in achieving an orderly and efficient handover of the Services to the CCG or to any Replacement Provider; and

the Provider shall deliver to the CCG all documents, records (including patient records) and other relevant data relating to the provision of the Services.

16.6 Expiry or termination of this Agreement shall be without prejudice to the rights, obligations and duties of the Parties accrued prior to expiry or termination taking effect.

16.7 The contract will be suspended pending the outcome of any investigation

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into alleged fraud.

17 Force Majeure

17.1 Neither Party shall be in breach of this Agreement if there is a total or partial failure of performance by it of its duties and obligations under this Agreement occasioned by any Force Majeure Event.

17.2 The Parties’ obligations under this Agreement shall be suspended for the period (and only during the period) during which the Force Majeure Event continues. If the Force Majeure Event continues for a period of more than sixty (60) days, either Party shall have the right to terminate this Agreement by giving fourteen (14) days notice of termination to the other Party.

18 Proceedings

18.1 On written request from the CCG’s Authorised Officer, the Provider shall provide to the CCG all relevant information (including, but not limited to, documentation and statements from Staff) in connection with any Proceedings.

18.2 The Provider shall, and shall procure that its Staff shall, co-operate and give and provide evidence in respect of such Proceedings.

19 Complaints

19.1 The Provider shall abide by process defined within Schedule 1.

19.2 All complaints received by the Provider in relation to the provision of the Services shall be notified to the CCG as soon as reasonably practicable but in any event within two (2) Working Days of receipt.

19.3 The Provider and the Staff shall co-operate fully with the CCG in investigating and resolving complaints made (including the provision of statements by the Staff where required) and every endeavour shall be made to improve the Services in the light of valid complaints received and to minimise complaints so far as possible.

19.4 In respect of any complaints arising out of this Agreement which fall within the terms of the CCG's complaints procedure, the Provider shall also comply with such complaints procedure to the extent it applies to the relevant complaint.

20 Incidents

20.1 Where there is an Incident, the Provider shall:

comply with any guidance detailed in Schedule 1 provided by the CCG as to the form in which any notifications are to be made and provide any further information which the CCG may reasonably require in relation to the Incident;

immediately notify the CCG of such Incident and, where relevant, outline what action has been taken by the Provider as a result of the Incident; and

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at the discretion of the CCG, carry out an investigation into the Incident and its causes and make the results available to the CCG or permit the CCG to carry out such investigation and fully co-operate with such investigation.

21 Dispute Resolution Procedure

21.1 In the event of a dispute between the Parties arising out of this Agreement, either Party may serve on the other written notice of the dispute, setting out full details of the dispute.

21.2 The CCG’s Authorised Officer and the Provider's Authorised Officer shall meet in good faith as soon as possible and in any event within seven (7) days of notice of the dispute being served, for the purpose of resolving the dispute.

21.3 If the dispute remains after the meeting detailed in Clause 21.2 has taken place, the Parties' respective chief executives or nominees shall meet in good faith as soon as possible.

21.4 If the dispute still remains after the meeting detailed in Clause 21.3 has taken place, then the Parties will attempt to settle such dispute by mediation in accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure or any other model mediation procedure as agreed by the Parties. To initiate mediation, the Parties may give notice in writing (a "Mediation Notice") to the other requesting mediation of the dispute and shall send a copy thereof to CEDR or an equivalent mediation organisation as agreed by the Parties asking them to nominate a mediator. The mediation shall commence within twenty eight (28) days of the Mediation Notice being served. Neither Party will terminate such mediation until each of them has made its opening presentation and the mediator has met each of them separately for at least one (1) hour. Thereafter, paragraph 14 of the Model Mediation Procedure will apply (or the equivalent paragraph of any other model mediation procedure agreed by the Parties). The Parties will co-operate with any person appointed as mediator, providing him with such information and other assistance as he shall require and will pay his costs as he shall determine or in the absence of such determination such costs will be shared equally.

21.5 Nothing in this Clause shall in any way affect either Party’s right to terminate this Agreement in accordance with any of its terms or take immediate legal action.

22 Confidentiality

22.1 Save as required to be disclosed by law, both Parties and their staff and agents shall at all times keep confidential and secret and shall not disclose to any person, other than a person so authorised by the other Party, any information, materials or documents acquired in connection with this Agreement which concern such other Party, its staff, business or procedure. These obligations shall continue without limit in point of time save that they shall cease to apply to any information coming into the public domain other than by breach of these obligations.

22.2 The Provider shall not disclose to any person, other than a person so authorised by the CCG, the identity, medical condition, treatment received or other personal data within the meaning of the Data Protection Act 1998 (the "1998 Act") of any

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patient information, ensuring that the person identifiable is governed by clear and transparent protocols.

22.3 All of the Parties shall comply with the 1998 Act and any other applicable data protection legislation and must ensure that all personal data processed by its staff on behalf of and/or in the course of this Agreement, is processed in accordance with the provisions and principles of the 1998 Act.

22.4 The Provider shall not advertise or publicly announce that it is supplying the Services to the CCG without the prior written consent of the CCG, and the Provider shall ensure that all press enquiries regarding any matters relating to the CCG or the Services are referred to the appropriate officer at the CCG’s press unit.

23 Notices

23.1 Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left or sent:

by hand; or

by registered post

to the CCG's Authorised Officer or the Provider's Authorised Officer (as appropriate), or such other person as each Party may from time to time designate by written notice to the other Party for such purpose.

23.2 Any notice or other document shall be deemed to have been received by the addressee two (2) Working Days following the date of despatch of the notice or other document by post, or where the notice or other document is delivered by hand, simultaneously with the delivery. To prove the giving of a notice or other document it shall be sufficient to show that it was despatched or delivered (as appropriate).

24 Rights of Third Parties

24.1 A person who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.

25 Waiver

25.1 No failure or delay by any Party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right or remedy.

26 Severability

26.1 If any provision of this Agreement, not being of a fundamental nature, shall be held to be illegal or unenforceable, the enforceability of the remainder of this Agreement shall not thereby be affected.

27 Prevention of Corruption

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27.1 The Provider shall not do, and warrants that by signing this Agreement it has not done any of the following (hereafter referred to as "Prohibited Acts"):

offered, given or agreed to give to any Crown servant or any Health Purchaser Representative (which term shall include any sub contractor) any gift or consideration of any kind as an inducement or reward;

for doing or not doing (or for having done or not having done) any act in relation to the obtaining or execution of this or any other contract with the Crown;

for showing or not showing favour or disfavour to any person in relation to this or any other contract with the Crown; or

entered into this or any other contract with the Crown in connection with which commission has been paid or has been agreed to be paid by it or on its behalf, or to its knowledge, unless before the contract is made particulars of any such commission and of the terms and conditions of any such agreement for the payment thereof have been disclosed in writing to the other Party and to the Crown.

27.2 If the Provider (or any of its employees, agents or subcontractors) does any of the Prohibited Acts or commits any offence under the Prevention of Corruption Acts 1889 -1916 in relation to this Agreement, the CCG shall be entitled:

to terminate this Agreement and recover from the Provider the amount of any loss resulting from such termination;

to recover from the Provider the amount or value of any such gift, consideration or commission; and

to recover from the Provider any other loss sustained in consequence of any breach of this Clause, where this Agreement has not been terminated.

28 Partnership and Agency

28.1 At all times in connection with the Agreement, the Provider shall be an independent contractor and nothing in this Agreement shall create a relationship of agency or partnership or a joint venture as between the Parties, and accordingly the Provider shall not be authorised to bind the CCG. For the avoidance of doubt, unless expressly stated to the contrary, nothing in this Agreement will be construed as, or have effect as, construing any relationship of employer and employee between the Provider and the CCG.

29 Right to Set Off

29.1 Each Party reserves its right to set-off any debt owed to it by the other Party under this Agreement and any liability, damage, loss, charge or expense which it has incurred in consequence of any breach by the other of this Agreement.

30 Entire Agreement

30.1 Except where expressly provided otherwise in this Agreement, this Agreement (including the documents referred to in this Agreement) supersedes all prior

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representations and agreements between the Parties (whether written or oral) relating to the subject matter of the Agreement, and sets forth the entire agreement and understanding between the Parties.

30.2 Each Party warrants to the other that it has not relied on any representation or agreement (whether written or oral) not expressly set out or referred to in the Agreement.

31 Reliance

31.1 Each of the Parties acknowledge that it does not enter into this Agreement on the basis of, and does not rely, and has not relied, upon any statement or representation (whether negligent or innocent) or warranty or other provision (in any case whether oral, written, express or implied) made or agreed to by any person (whether a Party to this Agreement or not) except those expressly repeated or referred to in this Agreement and the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be any remedy available under this Agreement.

31.2 Clause 31.1 shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Agreement which was induced by fraud, for which the remedies available shall be all those available under the law governing this Agreement.

32 Human Rights Act 1998

32.1 The Parties shall and shall ensure that their respective officers, employees, agents and subcontractors shall act at all times in a way which is compatible with the Convention Rights within the meaning of the Human Rights Act 1998.

33 Non-Discrimination

33.1 The Provider shall not:

discriminate directly or indirectly, or by way of victimisation or harassment, against any person on grounds of colour, race, nationality, or ethnic or national origins contrary to any part of the Race Relations Act 1976 or otherwise contravene any part of that Act;

discriminate directly or indirectly, or by way of victimisation or harassment, against any person on grounds of sex, sexual orientation, or religion or belief;

discriminate directly or indirectly, or by way of victimisation or harassment, against any person on grounds of disability; nor

discriminate directly or indirectly, or by way of victimisation or harassment, against any person on grounds of age.

34 Freedom of Information Act

34.1 The Provider shall cooperate with the CCG (including, but not exclusively, providing assistance in retrieving information held) to enable the CCG to comply with its duties under the Freedom of Information Act 2000.

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34.2 The CCG shall consult with the Provider in relation to any disclosure of confidential information in accordance with the Freedom of Information Act 2000.

35 Mitigation

35.1 Each Party shall at all times take reasonable steps to minimise and mitigate any loss for which the relevant Party is entitled to bring a claim against any other pursuant to this Agreement.

36 Governing Law

36.1 The Parties agree to submit to the jurisdiction of the English courts and agree that the Agreement is to be governed and construed according to English law.

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EXECUTED by South Gloucestershire Clinical Commissioning Group by:

Signed (Authorised Officer) ________________

Name/Position Melanie GreenHead of Medicines Management South Gloucestershire Clinical Commissioning Group

Date ______________

EXECUTED by ____________________________________________________

Signed (Authorised Officer) ___________________________________

Name/Position ___________________________________

___________________________________

Date ____________________

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Schedule 1

NHS South Gloucestershire Clinical Commissioning Group

1. Introduction1.1 Background

GP Out-of-Hours (OOH) services have historically experienced very high levels of demand which lead to lengthy waits for GP consultations. It is estimated that 10-15% of OOH GP consultations are taken up dealing with requests for emergency supplies of repeat medication, because patients had not ordered sufficient supplies to cover the holiday period.

Anecdotally, despite OOH call handlers suggesting that patients visit a community pharmacy to obtain an emergency supply of their medicine, most patients insist on a prescription from the OOH GP.

Anecdotally it seems that the fact that Emergency Supply of POMs is not an NHS service and that patients have to pay for their supply is a deterrent.

The service is not intended to supplant the current legal supply of POMs that all Community Pharmacists do out of normal surgery opening times.

1.2 Aims and Intended Service Outcomes

To improve access for patients, both residents and non-residents of South Gloucestershire to, and continuity of supply of, repeat POMs who meet the legal and ethical criteria for repeat supply of POMs, when GP practices are closed.

To delegate the provision of repeat POMs to select pharmacies which are open outside of normal surgery hours, so reducing waiting times in OOH for patients and allowing OOH GPs to focus on those patients who specifically need a GP appointment.

This service should benefit patients when: The patient meets all the legal criteria for an emergency supply The patient is unable to pay for this supply, and intends to contact

NHS111

Pharmacists can only offer this service once a signed contract has been returned to South Gloucestershire CCG and acknowledged.

2. Scope of Service2.1 This service facilitates the appropriate emergency supply of medication by

enabling the pharmacy contractor to charge South Gloucestershire CCG for the trade cost of the POM supplied, plus a set fee for supplying them providing all

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legal and ethical considerations are valid.

Both the Royal Pharmaceutical Society (RPS) and the General Pharmaceutical Council (GPhC) provide guidance for pharmacists which must be adhered to.

2.2 Note that only regular ‘repeat’ POMs may be supplied under this scheme. Other items such as Controlled drugs, appliances, borderline substances, and medicines classified as General Sales List (GSL) or Pharmacy-only (P) are not covered.

2.3 Patients who present directly to a pharmacy contractor should be offered a standard private emergency supply as per RPS and GPhC guidance.

However, if patients present directly to a pharmacy contractor and the emergency supply of a repeat POM is in line with GPhC requirements and is clinically appropriate but the patient is unable to pay the private charge, the pharmacist can offer this service.

2.4 If a pharmacy contractor agrees to provide this service, they must ensure that all staff working in the pharmacy, including locum pharmacists are aware that they will be participating, how to participate and the restrictions on the service.

2.5 Those pharmacies that agree to provide this service should be aware that telephone calls may be received from patients who have been advised by NHS111 to contact them to request an emergency supply of a repeat POM, or the pharmacy may be contacted by NHS111 directly to discuss a potential supply.

The pharmacist on duty must handle this call and either accept or decline the referral. When accepting the request the pharmacist must tell the caller that the patient must attend themselves and provide evidence of the repeat prescription, and evidence of exemption from payment of prescription charges (if relevant). If the referral is declined the pharmacist must give the reason why it is not legal or clinically appropriate e.g. controlled drugs.

2.6 Any patient that is not exempt from prescription charges must be charged for each medicine that is supplied in an emergency at the same rate as the NHS prescription charge.

Any patient that is exempt from NHS prescription charges must be asked for proof of their exemption, and sign the relevant form (printed from PharmOutcomes) to state that they are exempt from charges. Proof of exemption is not mandatory, but it must be requested.

2.7 Supply should be the minimum required until the patient can obtain supplies from their own GP. This must not exceed 28 days unless the item is insulin, an ointment or a cream or an inhaler (i.e. pack cannot be split)

2.8 Pharmacy staff will keep a record of all supplies in the POM register and Patient Medication Record as usual. They will additionally keep a record of the patient’s declaration of exemption from prescription charges.

Date of supply Details of supply (name, strength, form, quantity of medicine supplied) Patient name and address Details of costs (including charges to patient, NHS prescription

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charge(s) paid per item and reason for exemption if no monies paid)

Usual labelling requirements apply plus “Emergency Supply”

2.9 Pharmacies must complete a PharmOutcomes Emergency Supply Service template for each supply. A monthly invoice will be generated automatically and submitted to SG CCG each calendar month (in arrears), checked then submitted for payment.

3. Quality Indicators

3.1 Pharmacists must be aware of the current legal requirements for Emergency Supplies. For members of the RPS information can be found on the RPS website.

The pharmacy reviews its standard operating procedures for emergency supply of medicines and signposting information on an annual basis.

3.2 The pharmacy is happy to liaise with South Gloucestershire CCG to audit the service if requested so that informed decisions can be made about how to improve it.

3.3 This service must not be abused by patients. Any patients who try to use this service repeatedly should be flagged to the patient’s GP.

3.4 This service is not intended for use by local residents when their GP surgery is open.

4 Clinical incident reporting4.1 To ensure that the information contained in the agreements for this enhanced

service are sufficient we would encourage contractors to feedback any adverse incidents that occur to South Gloucestershire CCG. Contact Helen Wilkinson Helen.wilkinson@southgloucestershireccg.nhs.uk

4.2 Any incidents involving controlled drugs are legally required to be reported to the CD Accountable Officer in the NHS England BNSSSG Area Team responsible for South Gloucestershire.

5 Complaints procedure5.1 Any complaints from patients should be dealt with via the pharmacy’s own

standard complaints procedure in the first instance. If the complaint is not resolved, the patient should direct their complaint to the PALS team at South Gloucestershire CCG, who can be contacted on 0117 947 4477 or 0800 073 0907.

6 Service Specification Review6.1 This service specification shall be reviewed throughout the duration of the

contract.

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A. Essential Services Continuity Plan

Essential Services Continuity Plan

The pharmacy must remain compliant with all the essential services underthe Community Pharmacy Contractual Framework as part of this agreement

B. Exit Arrangements

Exit Arrangements

This contract expires on 31st March 2016. It may be decommissioned earlier if South Gloucestershire CCG gives providers one month’s notice in writing.

SCHEDULE 2

- PAYMENT SCHEDULE

Charges / Payments

For patients who are exempt from prescription charges South Gloucestershire CCG will reimburse the pharmacy at the trade price of the medication(s) supplied PLUS a consultation fee of £10 for the first item and £1 for each subsequent item per patient

For patients who normally pay prescription charges, the pharmacist would normally make a private supply (not as part of this agreement) unless the patient is unable to pay, in which case pharmacy staff will take a fee equivalent to the NHS prescription charges (currently £8.05 per item) and South Gloucestershire CCG will reimburse the pharmacy at the trade price of the medication(s)plus a consultation fee of £10 for the first item and £1 for each subsequent item per patient, minus any NHS prescription charges paid.

Invoicing

Pharmacies must complete a PharmOutcomes Emergency Supply Service template for each supply. A monthly invoice will be generated automatically and submitted to

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SG CCG each calendar month (in arrears), checked and then submitted for payment.

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