Part 4 The Office of the Health Professions Adjudicator

Miscellaneous amendments

64 In the Schedule to the Public Bodies (Admission to Meetings) Act 1960, omit
5paragraphs 1(bcb) and 2(cb).

65 (1) Omit the entry for the Office of the Health Professions Adjudicator in each
of the following—

(a) Part 2 of Schedule 1 to the House of Commons Disqualification Act
1975,

(b) 10Part 2 of Schedule 1 to the Northern Ireland Assembly
Disqualification Act 1975,

(c) Part 6 of Schedule 1 to the Freedom of Information Act 2000, and

(d) the table in Article 2 of the Administrative Justice and Tribunals
Council (Listed Tribunals) Order 2007 (S.I. 2007/2951S.I. 2007/2951).

(2) 15In consequence of those repeals, omit paragraphs 4(b), 5(b) and 13(b) of
Schedule 10 to the Health and Social Care Act 2008 and the preceding “and”
in each case.

(3) Omit paragraph 26(b) of Schedule 10 to the Health and Social Care Act 2008
(which inserts a reference to the OHPA in the National Assembly for Wales
20(Disqualification) Order 2006, which has itself been revoked).

(4) Omit paragraph 27 of that Schedule (which inserts a reference to the OHPA
in the Pharmacists and Pharmacy Technicians Order 2007, which has itself
been revoked).

Amendments to the Health Act 1999 (c. 8)Health Act 1999 (c. 8)

66 (1) 25The Health Act 1999 is amended as follows.

(2) Omit section 60(1)(f) (power to modify constitution or functions of OHPA).

(3) In consequence of that repeal, omit paragraph 1(2) of Schedule 8 to the
Health and Social Care Act 2008.

(4) In paragraph 8(2A) of Schedule 3 (provision under section 60 as to functions
30relating to unfitness to practise must provide for functions to be exercised by
relevant regulatory body or OHPA), omit “or the Office of the Health
Professions Adjudicator”.

(5) In section 60A(2) (standard of proof in fitness to practise proceedings before
OHPA or regulatory bodies), omit paragraph (a) and the “or” following it.

35Amendments to the National Health Service Reform and Health Care Professions Act 2002
(c. 17)National Health Service Reform and Health Care Professions Act 2002
(c. 17)

67 (1) In section 29 of the National Health Service Reform and Health Care
Professions Act 2002 (reference of disciplinary cases by the Council for
Healthcare Regulatory Excellence to the court), in subsection (1)—

(a) 40in paragraph (c), omit “otherwise than by reason of his physical or
mental health”, and

(b) in paragraph (f), omit the words from “, other than a direction” to the
end.

(2) In consequence of those repeals, omit section 118(2)(b) and (d), (5) and (6) of
the Health and Social Care Act 2008.

5Amendments to the Health Act 2006 (c. 28)Health Act 2006 (c. 28)

68 (1) Omit section 60(3)(b) of the Health Act 2006 (Appointments Commission to
exercise functions of Privy Council relating to appointment of members of
OHPA) and the “or” immediately preceding it.

(2) Omit section 63(6A) and (6B) of that Act (Appointments Commission to
10assist OHPA with exercise of appointment functions).

(3) In consequence of those repeals, omit paragraph 22 of Schedule 10 to the
Health and Social Care Act 2008.

Amendments to the Health and Social Care Act 2008 (c. 14)2008 (c. 14)

69 (1) The Health and Social Care Act 2008 is amended as follows.

(2) 15In section 128 (interpretation), omit the definition of “the OHPA”.

(3) In section 162 (orders and regulations), omit subsections (1)(b) and (c)
and (4).

(4) In Schedule 10 (amendments relating to Part 2 of that Act), omit paragraphs
7, 9, 14, 15 and 18.

20Savings

70 (1) If abolition is to occur at a time other than immediately after the end of a
financial year within the meaning of paragraphs 19 and 20 of Schedule 6 to
the Health and Social Care Act 2008 (annual reports), the period that begins
with the 1 April before abolition and ends with abolition is to be treated as a
25financial year for the purposes of those paragraphs.

(2) Despite section 234(2), paragraphs 19 and 20 of that Schedule are to continue
to have effect for the purpose of imposing the duties under paragraphs 19(2),
(3)(b) and (4) to (6) and 20(1), (2)(b) and (3) and for the purpose of conferring
the power under paragraph 20(4); and for those purposes—

(a) 30the duties under paragraphs 19(2) and 20(1), in so far as they have
not been discharged by the OHPA, must be discharged by the
Secretary of State,

(b) the duties under paragraphs 19(3)(b) and (4) and 20(2)(b) must be
discharged by the Secretary of State, and

(c) 35the power conferred by paragraph 20(4) may be exercised by giving
directions of the description in question to the Secretary of State.

(3) Subject to that, anything which the OHPA is required to do under an
enactment before abolition may, in so far as it has not been done by the
OHPA, be done by the Secretary of State after abolition.

71 40A reference in any document to the OHPA is, so far as necessary or
appropriate in consequence of section 234(1), to be read after abolition as a
reference to the Secretary of State.

72 In paragraphs 72 and 73—

• “abolition” means the commencement of section 234(1);

• “enactment” includes an enactment contained in subordinate
  legislation (within the meaning of the Interpretation Act 1978);

• 5“the OHPA” means the Office of the Health Professions Adjudicator.

Section 235

SCHEDULE 17 The National Institute for Health and Care Excellence

Membership, appointment, etc.

1 (1) NICE consists of—

(a) 10at least six members appointed by the Secretary of State (referred to
in this Schedule as the “non-executive members”), and

(b) at least three but not more than five other members appointed by the
non-executive members (referred to in this Schedule as the
“executive members”).

(2) 15One of the non-executive members must be appointed as the chair.

(3) One of the executive members must be appointed as the chief executive; but
the appointment may not be made without the approval of the Secretary of
State.

(4) The executive members are employees of NICE.

(5) 20Regulations may—

(a) prescribe the number of executive members (subject to paragraph
(1)(b)), and

(b) provide that all or any of the executive members (other than the chief
executive) must hold posts of descriptions specified in the
25regulations.

Tenure of non-executive office

2 (1) The chair and other non-executive members—

(a) hold and vacate office in accordance with the terms of their
appointments, but

(b) 30may resign office by giving notice to the Secretary of State.

(2) The Secretary of State may remove a person from office as the chair or other
non-executive member on any of the following grounds—

(a) incapacity,

(b) misbehaviour, or

(c) 35failure to carry out his or her duties as a non-executive member.

(3) The Secretary of State may suspend a person from office as the chair or other
non-executive member if it appears to the Secretary of State that there are or
may be grounds to remove the person from office under sub-paragraph (2).

(4) A non-executive member may not be appointed for a period of more than
40four years.

(5) A person who ceases to be the chair or another non-executive member is
eligible for re-appointment.

Suspension from non-executive office

3 (1) This paragraph applies where a person is suspended under paragraph 2(3).

(2) 5The Secretary of State must give notice of the decision to the person; and the
suspension takes effect on receipt by the person of the notice.

(3) The notice may be—

(a) delivered in person (in which case, the person is taken to receive it
when it is delivered), or

(b) 10sent by first class post to the person’s last known address (in which
case, the person is taken to receive it on the third day after the day on
which it is posted).

(4) The initial period of suspension must not exceed six months.

(5) The Secretary of State may at any time review the suspension.

(6) 15The Secretary of State—

(a) must review the suspension if requested in writing by the person to
do so, but

(b) need not review the suspension less than three months after the
beginning of the initial period of suspension.

(7) 20Following a review during a period of suspension, the Secretary of State
may—

(a) revoke the suspension, or

(b) suspend the person for another period of not more than six months
from the expiry of the current period.

(8) 25The Secretary of State must revoke the suspension if the Secretary of State—

(a) decides that there are no grounds to remove the person from office
under paragraph 2(2), or

(b) decides that there are grounds to do so but does not remove the
person from office under that provision.

4 (1) 30This paragraph applies where a person is suspended from office as the chair
under paragraph 2(3).

(2) The Secretary of State may appoint a non-executive member as the interim
chair to exercise the chair’s functions.

(3) The interim chair—

(a) 35holds and vacates office in accordance with the terms of the
appointment, but

(b) may resign office by giving notice in writing to the Secretary of State.

(4) Appointment as interim chair is for a term not exceeding the shorter of—

(a) the period ending with either—

(i) 40the appointment of a new chair, or

(ii) the revocation or expiry of the existing chair’s suspension,
and

(b) the remainder of the interim chair’s term as a non-executive member.

(5) A person who ceases to be the interim chair is eligible for re-appointment.

Remuneration etc. of non-executive members

5 (1) NICE must pay to the non-executive members such remuneration and
allowances as the Secretary of State may determine.

(2) 5NICE must pay or make provision for the payment of such pensions,
allowances or gratuities as the Secretary of State may determine to or in
respect of any person who is or has been a non-executive member.

(3) If a person ceases to be a non-executive member and the Secretary of State
decides that there are exceptional circumstances which mean that the person
10should be compensated, NICE must pay compensation to the person of such
amount as the Secretary of State may determine.

Staff

6 (1) NICE may appoint such persons to be employees of NICE as it considers
appropriate.

(2) 15Employees of NICE are to be paid such remuneration and allowances as
NICE may determine.

(3) Employees of NICE are to be appointed on such other terms and conditions
as NICE may determine.

(4) NICE may pay or make provision for the payment of such pensions,
20allowances or gratuities as it may determine to or in respect of any person
who is or has been an employee of NICE.

(5) Before making a determination as to remuneration, pensions, allowances or
gratuities for the purposes of sub-paragraph (2) or (4), NICE must obtain the
approval of the Secretary of State to its policy on that matter.

25Committees

7 (1) NICE may appoint such committees and sub-committees as it considers
appropriate.

(2) A committee or sub-committee may consist of or include persons who are
not members or employees of NICE.

(3) 30NICE may pay such remuneration and allowances as it may determine to
any person who—

(a) is a member of a committee or sub-committee, but

(b) is not an employee of NICE,

whether or not that person is a non-executive member of NICE.

35Procedure

8 (1) NICE may regulate its own procedure.

(2) But regulations may make provision about procedures to be adopted by
NICE for dealing with conflicts of interest of members of NICE or members
of a committee or sub-committee.

(3) The validity of any act of NICE is not affected by any vacancy among the
members or by any defect in the appointment of a member.

Exercise of functions

9 NICE may arrange for the exercise of its functions on its behalf by—

(a) 5a non-executive member;

(b) an employee (including an executive member);

(c) a committee or sub-committee.

General powers

10 (1) NICE may do anything which appears to it to be necessary or expedient for
10the purposes of, or in connection with, the exercise of its functions.

(2) But, except as provided by paragraph 11(3), NICE has no power to borrow
money.

(3) NICE may do any of the following only with the approval of the Secretary
of State—

(a) 15form, or participate in the forming of, companies,

(b) invest in companies (whether by acquiring assets, securities or rights
or otherwise), and

(c) provide loans and guarantees and make other kinds of financial
provision to or in respect of companies.

(4) 20The approval of the Secretary of State may be given for the purposes of sub-
paragraph (3) subject to such conditions as the Secretary of State thinks
appropriate.

(5) In this paragraph “company” has the same meaning as in the Companies
Acts (see section 1(1) of the Companies Act 2006).

25Finance

11 (1) The Secretary of State may make payments to NICE out of money provided
by Parliament of such amounts as the Secretary of State thinks appropriate.

(2) Payments made under sub-paragraph (1) may be made at such times and on
such conditions (if any) as the Secretary of State thinks appropriate.

(3) 30The Secretary of State may lend money to NICE on such terms (including as
to repayment and interest) as the Secretary of State may determine.

Reports

12 (1) As soon as practicable after the end of each financial year, NICE must
prepare an annual report on how it has exercised its functions during the
35year.

(2) NICE must—

(a) lay a copy of the report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State.

(3) NICE must provide the Secretary of State with such other reports and
information relating to the exercise of NICE’s functions as the Secretary of
State may require.

(4) In this paragraph and paragraph 14 “financial year” means—

(a) 5the period beginning on the day on which section 235 comes into
force and ending on the following 31 March;

(b) each successive period of 12 months.

Accounts

13 (1) NICE must keep proper accounts and proper records in relation to the
10accounts.

(2) The Secretary of State may, with the approval of the Treasury, give
directions to NICE as to—

(a) the content and form of its accounts, and

(b) the methods and principles to be applied in the preparation of its
15accounts.

(3) In sub-paragraph (2) a reference to accounts includes NICE’s annual
accounts prepared under paragraph 14 and any interim accounts prepared
by virtue of paragraph 15.

14 (1) NICE must prepare annual accounts in respect of each financial year.

(2) 20NICE must send copies of the annual accounts to the Secretary of State and
the Comptroller and Auditor General within such period after the end of the
financial year to which the accounts relate as the Secretary of State may
direct.

(3) The Comptroller and Auditor General must—

(a) 25examine, certify and report on the annual accounts, and

(b) lay copies of them and the report before Parliament.

15 (1) The Secretary of State may, with the approval of the Treasury, direct NICE
to prepare accounts in respect of such period or periods as may be specified
in the direction (“interim accounts”).

(2) 30NICE must send copies of any interim accounts to the Secretary of State and
the Comptroller and Auditor General within such period as the Secretary of
State may direct.

(3) The Comptroller and Auditor General must—

(a) examine, certify and report on any interim accounts sent by virtue of
35sub-paragraph (2), and

(b) if the Secretary of State so directs—

(i) send a copy of the report on the accounts to the Secretary of
State, and

(ii) lay copies of them and the report before Parliament.

40Seal and evidence

16 (1) The application of NICE’s seal must be authenticated by the signature of the
chair or of any employee who has been authorised (generally or specifically)
for that purpose.

(2) A document purporting to be duly executed under NICE’s seal or to be
signed on its behalf must be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.

Status

17 (1) 5NICE must not be regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown.

(2) NICE’s property must not be regarded as property of, or property held on
behalf of, the Crown.

Section 252

SCHEDULE 18 10Part 8: consequential amendments

Public Bodies (Admission to Meetings) Act 1960 (c. 67)Public Bodies (Admission to Meetings) Act 1960 (c. 67)

1 In the Schedule to the Public Bodies (Admission to Meetings) Act 1960
(bodies to which that Act applies) in paragraph 1, after paragraph (m)
insert—

“(n) 15the National Institute for Health and Care Excellence;”.

Parliamentary Commissioner Act 1967 (c. 13)Parliamentary Commissioner Act 1967 (c. 13)

2 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
subject to investigation) at the appropriate place insert—

• “National Institute for Health and Care Excellence.”

20Local Government Act 1972 (c. 70)Local Government Act 1972 (c. 70)

3 In section 113 of the Local Government Act 1972 (placing of staff of local
authorities at disposal of other local authorities and health bodies) in
subsection (1A)—

(a) after “agreement with” insert “the National Institute for Health and
25Care Excellence,”,

(b) in paragraph (a), after “disposal of” insert “the National Institute for
Health and Care Excellence,”, and

(c) in paragraph (b), after “employed by” insert “the National Institute
for Health and Care Excellence,”.

30House of Commons Disqualification Act 1975 (c. 24)House of Commons Disqualification Act 1975 (c. 24)

4 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
(bodies of which all members are disqualified) at the appropriate place
insert—

• “The National Institute for Health and Care Excellence.”

35Northern Ireland Assembly Disqualification Act 1975 (c. 25)Northern Ireland Assembly Disqualification Act 1975 (c. 25)

5 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification

Act 1975 (bodies of which all members are disqualified) at the appropriate
place insert—

• “The National Institute for Health and Care Excellence.”

Employment Rights Act 1996 (c. 18)Employment Rights Act 1996 (c. 18)

6 5In section 218 of the Employment Rights Act 1996 (change of employer) in
subsection (10), after paragraph (cb) insert—

“(cc) the National Institute for Health and Care Excellence,”.

Freedom of Information Act 2000 (c. 36)Freedom of Information Act 2000 (c. 36)

7 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public
10bodies and offices: general) at the appropriate place insert—

• “The National Institute for Health and Care Excellence.”

International Development Act 2002 (c. 1)International Development Act 2002 (c. 1)

8 In Schedule 1 to the International Development Act 2002 (bodies which may
enter agreements to provide international development assistance etc.) after
15the entry for an NHS foundation trust insert—

• “The National Institute for Health and Care Excellence.”

National Health Service Act 2006 (c. 41)National Health Service Act 2006 (c. 41)

9 (1) The National Health Service Act 2006 is amended as follows.

(2) In section 9 (NHS contracts) in subsection (4), after paragraph (k) insert—

“(ka) 20NICE,”.

(3) In section 71 (schemes for losses and liabilities of certain health service
bodies) in subsection (2), after paragraph (d) insert—

“(da) NICE,”.

(4) In section 72 (co-operation between NHS bodies)—

(a) 25the existing text becomes subsection (1), and

(b) after that subsection insert—

“(2) For the purposes of this section, NICE is an NHS body.”

(5) In section 275 (interpretation) in subsection (1), after the definition of “NHS
trust” insert—

• 30“NICE” means the National Institute for Health and Care
  Excellence;”.

National Health Service (Wales) Act 2006 (c. 42)National Health Service (Wales) Act 2006 (c. 42)

10 In section 7 of the National Health Service (Wales) Act 2006 (NHS contracts)
in subsection (4), after paragraph (k) insert—

“(ka) 35the National Institute for Health and Care Excellence,”.

Health and Social Care Act 2008 (c. 14)Health and Social Care Act 2008 (c. 14)

11 (1) The Health and Social Care Act 2008 is amended as follows.

(2) Omit section 45 (standards set by the Secretary of State) and the preceding
cross-heading.

(3) In section 53 (information and advice given by Care Quality Commission to
Secretary of State) in subsection (3)—

(a) 5at the end of paragraph (a) insert “or”, and

(b) omit paragraph (c) and the word “or” immediately preceding it.

Health Act 2009 (c. 21)Health Act 2009 (c. 21)

12 In section 2 of the Health Act 2009 (duty to have regard to the NHS
Constitution) in subsection (2), after paragraph (d) insert—

“(da) 10the National Institute for Health and Care Excellence;”.

Equality Act 2010 (c. 15)Equality Act 2010 (c. 15)

13 In Part 1 of Schedule 19 to the Equality Act 2010 (bodies subject to public
sector equality duty) at the end of the group of entries for bodies whose
functions relate to the health service add—

• 15“The National Institute for Health and Care Excellence.”

National Assembly for Wales (Disqualification) Order 2010 (S.I. 2010/2969S.I. 2010/2969)

14 In Part 1 of the Schedule to the National Assembly for Wales
(Disqualification) Order 2010 (bodies of which the members are
disqualified), at the appropriate place insert—

• 20“National Institute for Health and Care Excellence;”.

Section 255

SCHEDULE 19 The Health and Social Care Information Centre

Membership, appointment, etc.

1 (1) The Information Centre consists of—

(a) 25at least six members appointed by the Secretary of State (referred to
in this Schedule as the “non-executive members”), and

(b) not more than five other members appointed by the non-executive
members (referred to in this Schedule as the “executive members”).

(2) One of the non-executive members must be appointed as the chair.

(3) 30One of the executive members must be appointed as the chief executive; but
the appointment may not be made without the approval of the Secretary of
State.

(4) The first chief executive is to be appointed by the Secretary of State.

(5) The executive members are employees of the Information Centre.

35Tenure of non-executive office

2 (1) The chair and other non-executive members—