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Health Bill [H.L.] - continued        House of Commons
SCHEDULE 12A, EXPENDITURE OF HEALTH AUTHORITIES AND PRIMARY CARE TRUSTS - continued
PART II, THE NATIONAL HEALTH SERVICE: SCOTLAND - continued
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Remuneration
Remuneration for Part II services.     57. - (1) For sections 28A and 28B of the 1978 Act (regulations as to remuneration) there is substituted-
 
 
"Remuneration for Part II services.     28A. - (1) The remuneration to be paid to persons who provide general medical services, general dental services, general ophthalmic services or pharmaceutical services under this Part of this Act shall be determined by determining authorities (and they may also determine the remuneration to be paid to persons providing those services in respect of the instruction of any person in matters relating to those services).
 
    (2) For the purposes of this section and section 28B, determining authorities are-
 
 
    (a) the Secretary of State; and
 
    (b) so far as authorised by him to exercise the functions of determining authorities, any Health Board or other person appointed by him in an instrument (referred to in this section and section 28B as an instrument of appointment).
      (3) An instrument of appointment-
 
 
    (a) may contain requirements with which a determining authority appointed by that instrument must comply in making determinations; and
 
    (b) may be contained in regulations.
      (4) Subject to this section and section 28B, regulations may make provision about determining remuneration under subsection (1) and may in particular impose requirements with which determining authorities must comply in making, or in connection with, determinations (including requirements as to consultation and publication).
 
      (5) Regulations may provide-
 
 
    (a) that determinations may be made by reference to any of the following-
 
      (i) rates or conditions of remuneration of any persons or any descriptions of persons which are fixed or determined, or to be fixed or determined, otherwise than by way of a determination under subsection (1);
 
      (ii) scales, indices or other data of any description specified in the regulations;
 
    (b) that any determination which in accordance with regulations made by virtue of paragraph (a)(ii) falls to be made by reference to a scale or an index or to any other data may be made not only by reference to that scale or index or those data in the form current at the time of the determination but also by reference to the scale, index or data in any subsequent form attributable to amendment or revision taking effect after that time or to any other cause.
      (6) Regulations may-
 
 
    (a) provide that determining authorities may make determinations which have effect in relation to remuneration in respect of a period beginning on or after a date specified in the determination, which may be the date of the determination or an earlier or later date, but may be an earlier date only if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates;
 
    (b) provide that any such determination which does not specify such a date shall have effect in relation to remuneration in respect of a period beginning-
 
      (i) if it is required to be published, on the date of publication;
 
      (ii) if it is not so required, on the date on which it is made.
      (7) A reference in this section or section 28B to a determination is a reference to a determination of remuneration under subsection (1) of this section.
 
Part II remuneration: supplementary.     28B. - (1) Before a determination is made by the Secretary of State which relates to all persons who provide services of, or of a category falling within, one of the descriptions of services mentioned in section 28A(1), he shall consult at least one of the following bodies-
 
 
    (a) a body one of whose functions is to provide advice in connection with the matters to be determined; or
 
    (b) a body appearing to him to be representative of persons to whose remuneration the determination would relate.
      (2) Determinations may make different provision for different cases including different provision for any particular case, class of case or area.
 
      (3) Determinations may-
 
 
    (a) be made in more than one stage;
 
    (b) be made by more than one determining authority;
 
    (c) be varied or revoked by subsequent determinations.
      (4) A determination may be revised-
 
 
    (a) to correct an error; or
 
    (b) where it appears to the determining authority that it was made in ignorance of or under a mistake as to a relevant fact.
      (5) Determinations may, in particular, provide that the whole or any part of the remuneration-
 
 
    (a) is payable only if the determining authority is satisfied as to certain conditions; or
 
    (b) is to be applied for certain purposes or is otherwise subject to certain conditions.
      (6) Subject to sections 19(3) and 25(3), remuneration under section 28A may consist of payments by way of-
 
 
    (a) salary;
 
    (b) fees;
 
    (c) allowances;
 
    (d) reimbursement (in full or in part) of expenses incurred or expected to be incurred in connection with the provision of the services or instruction,
  and may be determined from time to time.
 
      (7) At the time a determination is made or varied, certain matters which require determining may be reserved to be decided at a later date.
 
      (8) The matters which may be reserved include in particular-
 
 
    (a) the amount of remuneration to be paid in particular cases;
 
    (b) whether any remuneration is to be paid in particular cases.
      (9) Any determination shall be made after taking into account all the matters which are considered to be relevant by the determining authority and such matters may include in particular-
 
 
    (a) the amount or estimated amount of expenses (taking into account any discounts) incurred in the past or likely to be incurred in the future (whether or not by persons to whose remuneration the determination will relate) in connection with the provision of services of the description in section 28A(1) to which the determination will relate or of any category falling within that description;
 
    (b) the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services;
 
    (c) the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by any such persons;
 
    (d) the extent to which it is desirable to encourage the provision, either generally or in particular places, of the description or category of services to which the determination will relate;
 
    (e) the desirability of promoting services which are-
 
      (i) economic and efficient; and
 
      (ii) of an appropriate standard.
      (10) If the determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 28A(1), the reference in subsection (9)(a) to a category of services is a reference to the same category of services or to any other category of services falling within the same description."
 
      (2) Sections 28A and 28B of the 1978 Act as substituted by this section have effect in relation to-
 
 
    (a) the making of determinations on or after the commencement of this section; and
 
    (b) the variation, revocation or revision on or after the commencement of this section of determinations whenever made,
  and in this subsection "determinations" means determinations under Part II of the 1978 Act of the remuneration to be paid to persons who provide services mentioned in section 28A(1).
 
      (3) Section 7(4) of the Health and Social Security Act 1984 and section 15(3) of the Health and Medicines Act 1988 (determinations of remuneration for services under Part II of the 1978 Act deemed to be valid) have effect in relation to Scotland as if-
 
 
    (a) after "inserted by this section" in section 7(4)(b) of the 1984 Act; and
 
    (b) after "section 7 of the Health and Social Security Act 1984" in section 15(3) of the 1988 Act,
  there were inserted "and before the coming into force of section 57 of the Health Act 1999".
 
      (4) The reference in section 28B(6) of the 1978 Act (as substituted by this section) to section 19(3) of that Act is to be read on and after the commencement of section 10 of the National Health Service Act 1966 as a reference to that section.
 
 
Fraud
Disqualification etc. of Part II practitioners.     58. - (1) For section 29 of the 1978 Act (disqualification of persons providing services) there is substituted-
 
 
"The NHS tribunal.     29. - (1) The tribunal constituted in accordance with Schedule 8 shall continue under the name of "the NHS Tribunal" and that Schedule shall continue to have effect in relation to the Tribunal.
 
    (2) If the Tribunal receive from a Health Board representations that-
 
 
    (a) a person who is included in any list meets either of the conditions for disqualification, or
 
    (b) a person who has applied to be included in any list meets the second condition for disqualification,
  the Tribunal shall inquire into the case.
 
      (3) If the Tribunal receive such representations from any other person, they may inquire into the case.
 
      (4) Representations under this section shall be made-
 
 
    (a) in the prescribed manner; and
 
    (b) where the representations are that the second condition for disqualification is met and regulations prescribe the time within which such representations are to be made, within that time.
      (5) Subsections (6) to (11) apply for the purposes of this group of sections.
 
      (6) The first condition for disqualification is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide.
 
      (7) The second condition for disqualification is that the person concerned-
 
 
    (a) has (whether on his own or together with another) by an act or omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for himself or another any financial or other benefit; and
 
    (b) knew that he or (as the case may be) the other was not entitled to the benefit.
      (8) A "list" means-
 
 
    (a) a list of medical practitioners undertaking to provide general medical services;
 
    (b) a list of medical practitioners undertaking to provide general ophthalmic services;
 
    (c) a list of dental practitioners undertaking to provide general dental services;
 
    (d) a list of ophthalmic opticians undertaking to provide general ophthalmic services; or
 
    (e) a list of persons undertaking to provide pharmaceutical services,
  prepared (in each case) under this Part.
 
      (9) "Health scheme" means-
 
 
    (a) any of the health services under section 1(1) or any corresponding enactment extending to England and Wales or Northern Ireland; and
 
    (b) any prescribed scheme,
  and regulations may prescribe any scheme for the purposes of this subsection which appears to the Secretary of State to be a health or medical scheme paid for out of public funds.
 
      (10) Detriment to a health scheme includes detriment to any patient of, or person working in, that scheme or any person liable to pay charges for services provided under that scheme.
 
      (11) Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; and cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases.
 
      (12) In this section and sections 29A to 29C-
 
 
    (a) "this group of sections" means this and those sections and Schedule 8; and
 
    (b) the NHS Tribunal is referred to as the Tribunal.
The NHS Tribunal: supplementary.     29A. - (1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).
 
      (2) Where a body corporate carries on a retail pharmacy business, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any one of the body of persons controlling the body corporate meets that condition (whether or not he first met that condition when he was one of them).
 
      (3) A person who is included in any list ("the practitioner") is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if-
 
 
    (a) another person, because of an act or omission of his occurring in the course of providing any services mentioned in section 29(8) on the practitioner's behalf, meets that condition; and
 
    (b) the practitioner failed to take all such steps as were reasonable to prevent acts or omissions within section 29(7)(a) occurring in the course of the provision of those services on his behalf.
      (4) The Tribunal is not required to inquire into a fraud case if they have previously inquired into representations in respect of the person concerned and the same acts or omissions.
 
      (5) In a fraud case, regulations may make provision (including provision modifying the effect of this Part) for the purpose of securing that the person subject to the inquiry is not added to any list until proceedings in that case are finally concluded.
 
      (6) For the purposes of this group of sections, in a fraud or efficiency case proceedings are finally concluded-
 
 
    (a) if the Tribunal determine not to disqualify or conditionally disqualify him when they make that determination;
 
    (b) if they determine to disqualify or conditionally disqualify him and no appeal is brought against the determination, at the end of the period for bringing an appeal;
 
    (c) if they determine to disqualify or conditionally disqualify him and an appeal is brought against the determination, when the appeal process is exhausted.
      (7) An inquiry under section 29 is not affected by the person subject to the inquiry withdrawing from, withdrawing any application to be included in or being removed from the list to which the case relates.
 
Powers of NHS Tribunal.     29B. - (1) Subsection (2) applies where the Tribunal are of the opinion-
 
 
    (a) on inquiring into an efficiency case, that the person meets the first condition for disqualification;
 
    (b) on inquiring into a fraud case, that the person meets the second condition for disqualification.
      (2) The Tribunal-
 
 
    (a) shall make a local disqualification, that is disqualify him for inclusion in the list to which the case relates; and
 
    (b) may also make a national disqualification, that is disqualify him for inclusion in all lists within the same paragraph of section 29(8) as that list.
      (3) If the Tribunal make a national disqualification they may also declare that the person is not fit to be engaged in any capacity in the provision of the services to which the lists in question relate (referred to in this group of sections as a declaration of unfitness).
 
      (4) The Tribunal shall not make any disqualification or declaration under this section if they are of the opinion that it would be unjust to do so.
 
      (5) A disqualification under this section shall have effect when the case is finally concluded.
 
      (6) If a person is disqualified for inclusion in any list prepared by a Health Board, the Board must not enter him in the list and (if he is already included in the list) must remove him from the list.
 
Conditional disqualification etc.     29C. - (1) The functions of making disqualifications under section 29B include making a conditional disqualification, that is, a disqualification which is to come into effect only if the Tribunal determine (on a review under section 30) that the person subject to the inquiry has failed to comply with any conditions imposed by them.
 
      (2) Conditions may be imposed by virtue of subsection (1) with a view to-
 
 
    (a) removing any prejudice to the efficiency of the services in question; or
 
    (b) preventing any acts or omissions within section 29(7)(a),
  (as the case may be).
 
      (3) Conditions so imposed shall have effect when proceedings in the case are finally concluded.
 
      (4) Section 29B(4) applies to a conditional disqualification as it applies to a disqualification.
 
      (5) The Tribunal may by directions-
 
 
    (a) vary the terms of service of the person subject to the inquiry (including terms imposed by regulations under this Part);
 
    (b) confer functions on any Health Board,
  for the purpose of or in connection with the imposition of any conditions by virtue of this section.
 
      (6) References in any enactment to a disqualification by the Tribunal do not include a conditional disqualification."
 
      (2) For section 30 of the 1978 Act (removal of disqualification) there is substituted-
 
 
"Review etc. of disqualification.     30. - (1) The Tribunal may review any disqualification, conditional disqualification or declaration of unfitness-
 
    (a) if the disqualified or conditionally disqualified person requests a review; or
 
    (b) in any other circumstances in which they consider it appropriate.
      (2) On a review under subsection (1), the Tribunal may-
 
 
    (a) remove a disqualification or provide that a declaration of unfitness is to cease to have effect;
 
    (b) make a disqualification conditional;
 
    (c) in the case of a conditional disqualification, remove it, vary the conditions or make it unconditional,
  and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.
 
      (3) If any Health Board request a review of a conditional disqualification on the ground that-
 
 
    (a) there has been a change in the circumstances by reference to which the conditions were imposed;
 
    (b) the person concerned has failed to comply with the conditions; or
 
    (c) in a fraud case, the person concerned has since the Tribunal imposed the conditions (or made the disqualification conditional) again satisfied the second condition for disqualification,
  the Tribunal shall review the conditional disqualification.
 
      (4) In the case of a person who is providing services in England and Wales or Northern Ireland, the reference in subsection (3) to a Health Board includes any corresponding authority under the provisions in force in England and Wales or Northern Ireland corresponding to this Part.
 
      (5) On a review under subsection (3) of a conditional disqualification, the Tribunal may remove it, vary the conditions or make it unconditional and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.
 
      (6) If, on a review under this section of a fraud case-
 
 
    (a) there is a national disqualification which the Tribunal do not remove or make conditional;
 
    (b) there is a national disqualification which is conditional and which the Tribunal make unconditional; or
 
    (c) the Tribunal make a national disqualification,
  they may also make a declaration of unfitness.
 
      (7) The Tribunal shall not under this section-
 
 
    (a) in the case of a conditional disqualification, make it unconditional or vary the conditions; or
 
    (b) make any further disqualification or conditional disqualification;
 
    (c) make a declaration of unfitness,
  if they are of the opinion that it would be unjust to do so.
 
      (8) A determination by the Tribunal under this section shall have effect-
 
 
    (a) if no appeal is brought against it, at the end of the period for bringing an appeal;
 
    (b) if an appeal is brought against it, when the appeal process is exhausted.
      (9) The Tribunal may hold an inquiry for the purposes of any review under this section."
 
Recovery of charges and payments.     59. - (1) After section 99 of the 1978 Act there is inserted-
 
 
"Recovery of charges and payments.     99ZA. - (1) Where goods or services to which this section applies are provided and either-
 
    (a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or
 
    (b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,
  the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.
 
      (2) That amount-
 
 
    (a) in a case within subsection (1)(a), is the amount of the charge or (where it has been reduced) reduction;
 
    (b) in a case within subsection (1)(b), is the amount of the payment.
      (3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.
 
      (4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)-
 
 
    (a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;
 
    (b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it;
 
    (c) on the ground that he or another has made a particular statement, when the person in question has not made such a statement or the statement made by him is false.
      (5) In this section and section 99ZB, "responsible authority" means-
 
 
    (a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;
 
    (b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable;
 
    (c) in a case within subsection (1)(b), the person who made the payment.
      (6) But the Secretary of State may by directions provide for-
 
 
    (a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;
 
    (b) the functions of any responsible authority under this section and section 99ZB,
  to be exercised on behalf of the authority by another health service body.
 
      (7) This section applies to the following goods and services-
 
 
    (a) dental treatment and appliances provided in pursuance of this Act;
 
    (b) drugs and medicines provided in pursuance of this Act;
 
    (c) the testing of sight;
 
    (d) optical appliances;
 
    (e) any other appliances provided in pursuance of this Act.
  99ZB.- (1) Regulations may provide that, where a person fails to pay-
 
 
    (a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or
 
    (b) any amount recoverable from him under section 99ZA,
  a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.
 
      (2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of-
 
 
    (a) £100;
 
    (b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.
      (3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.
 
      (4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.
 
      (5) The further sum must not exceed 50 per cent. of the amount of the penalty charge.
 
      (6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.
 
      (7) But a person is not liable by virtue of a penalty notice-
 
 
    (a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or
 
    (b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.
      (8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act).".
 
      (2) In section 105(3) of the 1978 Act (Parliamentary procedure for certain regulations) after "endowments)" there is inserted "or orders under section 99ZB(3)".
 
 
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