Health Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Health Bill

Health Bill
Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
40

44
Production of documents
(1)
This section applies where a notice has been served under section 43.
(2)
An authorised officer may—
(a)
take away any documents produced in compliance with the notice;
(b)
take copies of or extracts from any documents so produced;
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(c)
require the person producing any such documents to provide an
explanation of any of them.
(3)
If—
(a)
the officer takes away any such document, and
(b)
the person producing it requests the officer to provide him with a copy
10
of it, and
(c)
the request appears to the officer to be reasonable in the circumstances,

the officer must, as soon as is reasonably practicable, provide that person with
a copy of the document (in such form as the officer considers appropriate).
(4)
Documents produced in compliance with a notice under section 43 may be
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retained for so long as the appropriate national authority considers that it is
necessary to retain them (rather than copies of them) in connection with the
exercise of any function of the authority to which this Chapter applies.
(5)
If the appropriate national authority has reasonable grounds for believing—
(a)
that any such documents may have to be produced for the purposes of
20
any legal proceedings, and
(b)
that they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.
(6)
If a person who is required by a notice under section 43 to produce any
documents does not produce the documents in compliance with the notice, an
25
authorised officer may require that person to state, to the best of his knowledge
and belief, where they are.
(7)
A person is not bound to comply with any requirement imposed by a notice
under section 43 or any requirement under subsection (6) unless evidence of
authority is given—
30
(a)
at the time when the notice is served, or
(b)
at the time when the requirement is imposed under subsection (6),

as the case may be.
(8)
In addition, a person may not be required under section 43 or subsection (6) to
produce any document or disclose any information which he would be entitled
35
to refuse to produce or disclose in proceedings in the High Court on grounds
of legal professional privilege.
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Delegation of functions
(1)
The appropriate national authority may direct a Special Health Authority to
exercise so much of the appropriate national authority’s functions under
40
sections 43 and 44 as is specified in the directions (“the delegated functions”).
(2)
The appropriate national authority may give directions providing for senior
officers of the Authority to exercise the delegated functions on behalf of the
Authority.

“Senior officer” means an officer of or above a level specified in the directions.
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Health Bill
Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
41

(3)
Any directions under subsection (1) or (2) must be given in regulations.
(4)
The appropriate national authority may by regulations make such provision as
the authority considers appropriate in connection with the exercise of the
delegated functions.
(5)
The regulations may, in particular, make provision—
5
(a)
specifying conditions as to training that must be satisfied in relation to
officers of the Authority involved in the exercise of the delegated
functions;
(b)
for requiring officers to obtain specific authorisation before the
delegated functions are exercised in relation to personal records;
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(c)
providing for the designation of officers for the purpose of giving such
authorisations;
(d)
otherwise prescribing the manner in which the delegated functions
may be exercised.
(6)
If the appropriate national authority gives a direction under subsection (1), the
15
1977 Act has effect as if—
(a)
the direction is a direction of the authority under section 16D of that
Act; and
(b)
the delegated functions are exercisable by the Special Health Authority
under section 16D.
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46
Code of practice relating to delegated functions
(1)
The appropriate national authority may issue a code of practice relating to the
exercise of functions by or on behalf of a Special Health Authority by virtue of
directions under section 45.
(2)
The appropriate national authority must keep the code under review and may
25
from time to time—
(a)
revise the whole or any part of the code, and
(b)
issue a revised code.
(3)
Where the appropriate national authority proposes to issue a code of practice
under this section, the authority must—
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(a)
prepare a draft of the code, and
(b)
consult such persons as the authority considers appropriate about the
draft.
(4)
Where the appropriate national authority proposes to issue a revised code
under this section which in the opinion of the authority would result in a
35
substantial change in the code, the authority must—
(a)
prepare a draft of the revised code, and
(b)
consult such persons as that authority considers appropriate about the
change.
(5)
Where, following consultation under subsection (3) or (4), the appropriate
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national authority issues the code or revised code (whether in the form of the
draft or with such modifications as the authority thinks fit), it comes into force
at the time when it is issued by the authority.
(6)
A failure to observe any provision of a code or revised code issued under this
section does not of itself make a person liable to any criminal or civil
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proceedings.

Health Bill
Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
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(7)
A code or revised code issued under this section is admissible in evidence in
any criminal or civil proceedings.
(8)
Consultation undertaken by the appropriate national authority before the
commencement of this section is as effective for the purposes of this section as
consultation undertaken after that time.
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Disclosure of information
(1)
This section applies to information which—
(a)
is held by or on behalf of the appropriate national authority, and
(b)
was obtained by virtue of section 43 or 44.
(2)
The information must not be disclosed except in accordance with subsection
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(3).
(3)
A disclosure is made in accordance with this subsection if it is made—
(a)
for the purposes of the exercise of any of the appropriate national
authority’s functions in relation to the health service in England or (as
the case may be) Wales,
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(b)
for the purposes of any civil proceedings brought in the exercise of any
of those functions,
(c)
for the purposes of any criminal investigation or proceedings,
(d)
for the purposes of any relevant disciplinary proceedings, or
(e)
in accordance with an enactment or order of a court.
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(4)
In subsection (3)—
(a)
paragraphs (a) and (b) apply whether or not the appropriate national
authority concerned is the one mentioned in subsection (1), and
(b)
“relevant disciplinary proceedings” means disciplinary proceedings
conducted in relation to an individual by—
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(i)
an NHS body, statutory health body or health service provider,
or
(ii)
any of the regulatory bodies mentioned in section 25(3) of the
National Health Service Reform and Health Care Professions
Act 2002 (c. 17) (bodies within remit of Council for the
30
Regulation of Health Care Professionals).
(5)
Where information to which this section applies is disclosed to any person in
accordance with subsection (3), the information must not be used or further
disclosed by that person except for a purpose connected with—
(a)
the functions or proceedings for the purposes of which it was disclosed,
35
or
(b)
the purposes of the enactment or order in accordance with which it was
disclosed,

as the case may be.
(6)
Information to which this section applies may be disclosed in accordance with
40
subsection (3) despite any obligation of confidence that would otherwise
prohibit or restrict the disclosure.
(7)
This section does not prohibit any disclosure or use of information relating to
a particular person if it is made with the consent of that person.

Health Bill
Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
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48
Special protection for personal records
(1)
This section applies to information—
(a)
which is obtained from personal records produced in compliance with
a notice under section 43, and
(b)
from which the identity of the individual in question can be
5
ascertained.
(2)
Subsection (1)(b) is satisfied if the identity of the individual can be ascertained
either—
(a)
from the information itself, or
(b)
from that information taken with other information obtained by virtue
10
of section 43 or 44 and disclosed by or on behalf of the appropriate
national authority.
(3)
Any person who, in accordance with section 47(3), discloses the information
for the purposes of any proceedings must take such measures as are necessary
to ensure that the information is not disclosed to any member of the public
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except in accordance with an order of the court under subsection (5).
(4)
A party to the proceedings may apply to the court for permission to adduce the
information as evidence in the proceedings.
(5)
If the court is satisfied on such an application that it is necessary in the interests
of justice for the information to be so adduced, it may grant permission on such
20
terms as it thinks fit.
(6)
Those terms may include a direction requiring the whole or part of the
proceedings to be held otherwise than in open court.
Offences
49
Offences in connection with production of documents
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(1)
A person commits an offence if, without reasonable excuse, he fails to comply
with any requirement imposed on him under section 43 or 44.
(2)
A person guilty of an offence under subsection (1) is liable on summary
conviction—
(a)
to imprisonment for a term not exceeding 51 weeks, or
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(b)
to a fine not exceeding level 3 on the standard scale,

or to both.
(3)
If a person is convicted of an offence under subsection (1) in respect of a failure
to produce a document and the failure continues after the date of his
conviction, the person—
35
(a)
commits a further offence, and
(b)
is liable on summary conviction to a fine not exceeding 2% of level 3 on
the standard scale for each day on which the failure so continues.
(4)
A person commits an offence if, in purported compliance with any
requirement imposed on him under section 44—
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(a)
he makes a statement which is false or misleading, and
(b)
he either knows that it is false or misleading or is reckless as to whether
it is false or misleading.

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Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
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“False or misleading” means false or misleading in a material particular.
(5)
A person guilty of an offence under subsection (4) is liable—
(a)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine, or to both;
(b)
on summary conviction, to imprisonment for a term not exceeding 12
5
months or to a fine not exceeding the statutory maximum, or to both.
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Offences relating to disclosure or use of information
(1)
A person commits an offence if he fails to comply with section 47(2) or (5) or
section 48(3).
(2)
A person guilty of an offence under subsection (1) is liable—
10
(a)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine, or to both;
(b)
on summary conviction to imprisonment for a term not exceeding 51
weeks or to a fine not exceeding the statutory maximum, or to both.
(3)
It is a defence for a person charged with an offence under subsection (1) in
15
respect of a disclosure of information to prove that at the time of the alleged
offence—
(a)
any of the circumstances in subsection (4) applied, or
(b)
he reasonably believed that they applied.
(4)
The circumstances referred to in subsection (3) are—
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(a)
that the disclosure was lawful,
(b)
that the information had already been lawfully made available to the
public,
(c)
that the disclosure was necessary or expedient for the purpose of
protecting the welfare of any individual,
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(d)
that the disclosure was made in a form in which no person to whom the
information relates is identified.
(5)
Subsection (4)(d) is not satisfied if the identity of any such person can be
ascertained either—
(a)
from the information itself, or
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(b)
from that information taken with other information obtained by virtue
of section 43 or 44 and disclosed by or on behalf of the appropriate
national authority.
Supplementary
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Manner in which disclosure notice may be served
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(1)
This section provides for the manner in which a notice may be served under
section 43.
(2)
The notice may be served on a person by—
(a)
delivering it to him;
(b)
leaving it at his proper address;
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(c)
sending it by post to him at that address.

Health Bill
Part 4 — The National Health Service
Chapter 3 — Protection of NHS from fraud and other unlawful activities
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(3)
For the purposes of this section and section 7 of the Interpretation Act 1978
(c. 30) (service of documents by post) in its application to this section, the
proper address of a person is his usual or last-known address (whether
residential or otherwise), except that—
(a)
in the case of a notice to be served on the secretary, clerk or similar
5
officer of a body corporate, it is the address of the registered office of
that body or its principal office in the United Kingdom,
(b)
in the case of a notice to be served on a partner or a person having the
control or management of a partnership business, it is the address of the
principal office of the partnership in the United Kingdom, and
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(c)
in the case of a notice to be served on an officer of an unincorporated
association (other than a partnership), it is the address of the principal
office of the association in the United Kingdom.
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Interpretation
(1)
In this Chapter—
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“authorised officer”, in relation to any function, means (subject to
subsection (5)) an officer of the appropriate national authority
authorised by the authority to act in exercise of the function;
“document” means anything in which information of any description is
recorded;
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“employed” means employed whether under a contract of service or a
contract for services or otherwise, and whether for remuneration or not;
“functions to which this Chapter applies” has the meaning given by
section 41(4);
“health service provider”, “NHS body” and “NHS contractor” have the
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meanings given by section 42;
“personal records” has the meaning given by section 12 of the Police and
Criminal Evidence Act 1984 (c. 60);
“statutory health body” has the meaning given by section 42.
(2)
Other expressions used in this Chapter which are also used in the 1977 Act
30
have the same meanings as in that Act.
(3)
References in this Chapter to the provision of services—
(a)
in relation to statutory health bodies, health service providers or NHS
contractors, include references to the provision of goods or facilities,
and
35
(b)
include references to the provision of services (or goods or facilities)
wherever that takes place.
(4)
In relation to information recorded otherwise than in legible form, any
reference in this Chapter to the production of documents is a reference to the
production of a copy of the information in legible form.
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(5)
Where functions of the appropriate national authority are exercisable by a
Special Health Authority by virtue of directions under section 45—
(a)
references in this Chapter to authorised officers include officers of the
Special Health Authority authorised by or on behalf of the Authority to
act in exercise of the functions, and
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(b)
references in this Chapter to information held or disclosed by or on
behalf of the appropriate national authority include information held
or disclosed by or on behalf of the Special Health Authority.

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Part 5 — Appointments Commission
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Chapter 4
Audit
53
Accounts and audit
(1)
For section 98 of the 1977 Act substitute—
“98
Accounts and audit
5

Schedule 12B to this Act makes provision about the accounts of certain
health service bodies and the auditing of such accounts.”
(2)
After Schedule 12A to that Act insert, as Schedule 12B, the Schedule set out in
Schedule 3 to this Act.
Part 5
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Appointments Commission
The Appointments Commission
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The Appointments Commission
(1)
There is to be a body corporate known as the Appointments Commission.
(2)
The Commission is to have the functions conferred on it by or under this or any
15
other Act.
(3)
Schedule 4 makes further provision about the Commission.
(4)
The National Health Service Appointments Commission is abolished on the
appointed day.
(5)
“The appointed day” means the day appointed under section 79 for the coming
20
into force of subsection (4).
Delegation of appointment functions
55
Commission to exercise Secretary of State’s appointment functions
(1)
The Commission is to exercise so much of any function of the Secretary of State
relating to the appointment of any persons within subsection (2), (3) or (4) as
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may be specified in a direction given by the Secretary of State.
(2)
The persons within this subsection are—
(a)
chairmen and non-executive members of Strategic Health Authorities,
Primary Care Trusts, NHS trusts or Special Health Authorities;
(b)
trustees for NHS trusts or Primary Care Trusts; and
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(c)
special trustees to which section 95 of the 1977 Act applies (special
trustees for university and teaching hospitals).
(3)
The persons within this subsection are chairmen and non-executive members
of any of the statutory bodies listed in Schedule 5.