National Health Service (Wales) Bill [HL]

House of Commons

Session 2005 - 06
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National Health Service (Wales) Bill [HL]

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
71

106
Further provision about regulations under section 105
(1)
Regulations under section 105 may require a person (“A”) included in—
(a)
an ophthalmic list,
(b)
a pharmaceutical list, or
(c)
a list under section 86(3) (provision of drugs, medicines or listed
5
appliances),

not to employ or engage a person (“B”) to assist him in the provision of the
service to which the list relates unless B is included in a list mentioned in
subsection (2).
(2)
The lists are—
10
(a)
a list referred to in subsection (1),
(b)
a supplementary list,
(c)
a list under section 49 or 63,
(d)
a list corresponding to a list under section 49 or section 63 and prepared
by a Local Health Board by virtue of regulations made under section
15
103,
(e)
a list corresponding to a list mentioned in any of paragraphs (a) to (d)
prepared by a Primary Care Trust under or by virtue of the National
Health Service Act 2006 (c. 00),

or, in any of the cases in paragraphs (a) to (e), such a list of a prescribed
20
description.
(3)
If regulations do so require, they—
(a)
need not require both A and B to be included in lists prepared by the
same Local Health Board, but
(b)
may, in particular, require that both A and B be included in lists
25
prepared by Local Health Boards.
Chapter 2
Disqualification
107
Disqualification of practitioners
(1)
If it appears to a Local Health Board that any of the conditions set out in
30
subsections (2) to (4) is established in relation to a person included in an
ophthalmic list or a pharmaceutical list it may (or, in cases falling within
subsection (5), must) decide to remove him from that list.
(2)
The first condition is that the continued inclusion of the practitioner in the list
would be prejudicial to the efficiency of the services which those included in
35
the list undertake to provide (and such a case is referred to in this Chapter as
an “efficiency case”).
(3)
The second condition is that the practitioner—
(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
40
securing or trying to secure for himself or another any financial or other
benefit, and
(b)
knew that he or the other was not entitled to the benefit,

(and such a case is referred to in this Chapter as a “fraud case”).

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
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(4)
The third condition is that the practitioner is unsuitable to be included in the
list (and such a case is referred to in this Chapter as an “unsuitability case”).
(5)
In unsuitability cases, the Local Health Board must remove the practitioner
from the list in prescribed circumstances.
(6)
The Local Health Board must state which condition (or conditions) it is relying
5
on when removing a practitioner from a list.
(7)
“Health scheme” means—
(a)
any of the health services under section 1(1) of this Act, section 1(1) of
the National Health Service Act 2006 (c. 00) or any enactment
corresponding to section 1(1) of this Act and extending to Scotland or
10
Northern Ireland, and
(b)
any prescribed scheme,

and regulations may prescribe any scheme for the purposes of this subsection
which appears to the Welsh Ministers to be a health or medical scheme paid for
out of public funds.
15
(8)
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.
(9)
In this Chapter a “practitioner” means a person included in a pharmaceutical
list.
20
108
Contingent removal
(1)
In an efficiency case or a fraud case, the Local Health Board may, instead of
deciding to remove a practitioner from its list, decide to remove him
contingently.
(2)
If it so decides, it must impose such conditions as it may decide on his inclusion
25
in the list with a view to—
(a)
removing any prejudice to the efficiency of the services in question
(in an efficiency case), or
(b)
preventing further acts or omissions within section 107(3)(a) (in a fraud
case).
30
(3)
If the Local Health Board determines that the practitioner has failed to comply
with a condition, it may decide to—
(a)
vary the conditions, or impose different conditions, or
(b)
remove him from its list.
(4)
The Local Health Board may decide to vary the terms of service of the person
35
concerned for the purpose of or in connection with the imposition of any
conditions by virtue of this section.
109
Fraud and unsuitability cases: supplementary
(1)
Where the practitioner is a body corporate, the body corporate must be treated
for the purposes of this Chapter as meeting a condition referred to in section
40
107(3) or (4)—
(a)
in the case of an optometrist not referred to in paragraph (b), if any
director meets that condition (whether or not he first did so when he
was a director), and

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
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(b)
in the case of a body corporate providing pharmaceutical services or an
optometrist which is a limited liability partnership, if any one of the
body of persons controlling the body meets that condition (whether or
not he first did so when he was such a person).
(2)
A practitioner must be treated for the purposes of this Chapter as meeting the
5
condition referred to in section 107(3) if—
(a)
another person, because of an act or omission of his occurring in the
course of providing any services mentioned in section 107(1) on the
practitioner’s behalf, meets that condition, and
(b)
the practitioner failed to take all such steps as were reasonable to
10
prevent acts or omissions within section 107(3)(a) occurring in the
course of the provision of those services on his behalf.
110
Suspension
(1)
If the Local Health Board is satisfied that it is necessary to do so for the
protection of members of the public or is otherwise in the public interest, it may
15
suspend a practitioner from its list—
(a)
while it decides whether or not to exercise its powers under section 107
or 108 (other than in circumstances falling within paragraph (b)), or
(b)
while it waits for a decision affecting the practitioner of a court or of a
body which regulates—
20
(i)
the practitioner’s profession,
(ii)
the profession of a person providing any of the services
mentioned in section 107(1) on the practitioner’s behalf, or
(iii)
if the practitioner is a body corporate, the profession of one of
its directors, or one of the body of persons controlling it or (if it
25
is a limited liability partnership) one of its members,

or one of that regulatory body’s committees.
(2)
The references in subsection (1)(b) to a court or regulatory body are to a court
or such a body anywhere in the world.
(3)
In a case falling within subsection (1)(a), the Local Health Board must specify
30
the length of the period of suspension.
(4)
In a case falling within subsection (1)(b), the Local Health Board may specify
that the practitioner remains suspended after the decision referred to there for
an additional period which the Local Health Board must specify.
(5)
In either case—
35
(a)
before that period expires it may extend, or further extend, the
suspension for a further specified period, or
(b)
if that period has expired, it may impose a further suspension, for a
period which it must specify.
(6)
The period of suspension (in a subsection (1)(a) case) or the additional period
40
(in a subsection (1)(b) case), including in both cases the period of any further
suspension imposed under subsection (5)(b), may not exceed six months in
aggregate, except—
(a)
in prescribed circumstances, when it may not extend beyond any
prescribed event (which may be the expiry of a prescribed period),
45
(b)
if, on the application of the Local Health Board, the FHSAA orders
accordingly before the expiry of the period of suspension, or

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
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(c)
if the Local Health Board has applied under paragraph (b) before the
expiry of the period of suspension, but the FHSAA has not made an
order by the time it expires, in which case it continues until the FHSAA
has made an order.
(7)
If the FHSAA does so order, it must specify—
5
(a)
the date on which the period of suspension will end, or
(b)
an event beyond which it will not continue.
(8)
The FHSAA may, on the application of the Local Health Board, make a further
order (complying with subsection (7)) at any time while the period of
suspension pursuant to the earlier order is still continuing.
10
(9)
The Welsh Ministers may make regulations providing for payments to
practitioners who are suspended.
(10)
Those regulations may include provision for the amount of the payments, or
the method of calculating the amount, to be determined by the Welsh Ministers
or by another person appointed for the purpose by them.
15
111
Suspension pending appeal
(1)
This section applies if the Local Health Board decides to remove a practitioner
from a list under section 107.
(2)
In such a case it may also decide to suspend the practitioner from the list
pending any appeal by him, if it is satisfied that it is necessary to do so for the
20
protection of members of the public or is otherwise in the public interest.
(3)
If it does suspend the practitioner under this section, the suspension has effect
from the date when the Local Health Board gave him notice of the suspension.
(4)
The suspension has effect until its revocation under subsection (5) or (6) or, if
later, until the expiry of the period of 28 days referred to in section 114(1), or,
25
if the practitioner appeals under section 114, until the FHSAA has disposed of
the appeal.
(5)
The Local Health Board may revoke a suspension imposed under this section.
(6)
If the practitioner appeals under section 114 against the decision of the Local
Health Board to remove him from the list, the FHSAA may also revoke a
30
suspension imposed on him under this section.
(7)
Subsections (9) and (10) of section 110 apply for the purposes of this section as
they apply for the purposes of that.
112
Effect of suspension
While a practitioner is suspended (whether under section 110 or under section
35
111) he must be treated as not being included in the list from which he has been
suspended even though his name appears in it.
113
Review of decisions
(1)
The Local Health Board may, and (except in prescribed cases) if requested in
writing to do so by the practitioner must, review a contingent removal or a
40
suspension (other than a contingent removal or a suspension imposed by, or a

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
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suspension continuing pursuant to, an order of the FHSAA, or a suspension
imposed under section 111).
(2)
The practitioner may not request a review before the expiry of the period of—
(a)
three months beginning with the date of the decision of the Local
Health Board to suspend or contingently remove him, or (as
5
appropriate),
(b)
six months beginning with the date of its decision on the previous
review.
(3)
On such a review, the Local Health Board may—
(a)
confirm the contingent removal or the suspension,
10
(b)
in the case of a suspension, terminate it,
(c)
in the case of a contingent removal, vary the conditions, impose
different conditions, revoke the contingent removal, or remove the
practitioner from the list.
114
Appeals
15
(1)
A practitioner may appeal to the FHSAA against a decision of a Local Health
Board mentioned in subsection (2) by giving notice in writing to the FHSAA
within the period of 28 days beginning with the date on which the Local Health
Board gave him notice of the decision.
(2)
The Local Health Board decisions in question are—
20
(a)
to remove the practitioner from a list (under section 107 or 108(3) or
under subsection (5)(b) of this section),
(b)
to remove him contingently (under section 108),
(c)
to impose any particular condition under section 108, or to vary any
condition or to impose any different condition under that section,
25
(d)
to vary his terms of service (under section 108(4)),
(e)
any decision on a review of a contingent removal under section 113.
(3)
The appeal must be by way of redetermination of the decision of the Local
Health Board.
(4)
On an appeal, the FHSAA may make any decision which the Local Health
30
Board could have made.
(5)
If the FHSAA decides to remove the practitioner contingently—
(a)
the Local Health Board and the practitioner may each apply to the
FHSAA for the conditions imposed on the practitioner to be varied, for
different conditions to be imposed, or for the contingent removal to be
35
revoked, and
(b)
the Local Health Board may remove him from its list if it determines
that he has failed to comply with a condition.
(6)
The Local Health Board may not remove a person from a list, or impose a
contingent removal—
40
(a)
until the expiry of the period of 28 days referred to in subsection (1), or
(b)
if the practitioner appeals within that period, until the FHSAA has
disposed of the appeal.

National Health Service (Wales) Bill [HL]
Part 8 — Qualifications to practice
Chapter 2 — Disqualification
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(7)
Regulations may provide for payments by Local Health Boards to practitioners
who are removed from lists pursuant to decisions of the FHSAA under this
section, but whose appeals against those decisions are successful.
(8)
Regulations under subsection (7) may include provision for the amount of the
payments, or the method of calculating the amount, to be determined by the
5
Welsh Ministers or by another person appointed for the purpose by them.
115
National disqualification
(1)
If the FHSAA removes the practitioner from a list, it may also decide to
disqualify him from inclusion in—
(a)
the pharmaceutical lists and ophthalmic lists prepared by each Local
10
Health Board,
(b)
the supplementary lists prepared by each Local Health Board,
(c)
the lists under section 49 or 63 prepared by each Local Health Board,
(d)
the lists corresponding to the lists under section 49 prepared by each
Local Health Board by virtue of regulations made under section 103,
15
(e)
the lists corresponding to the lists mentioned in paragraphs (a) to (d)
prepared by each Primary Care Trust under or by virtue of the National
Health Service Act 2006 (c. 00),

or only from inclusion in one or more descriptions of such lists prepared by
each Local Health Board and each Primary Care Trust, the description being
20
specified by the FHSAA in its decision.
(2)
A decision by the FHSAA to do what is mentioned in subsection (1) is referred
to in this section as the imposition of a national disqualification.
(3)
The FHSAA may also impose a national disqualification on a practitioner if it
dismisses an appeal by him against the refusal by a Local Health Board to
25
include him in such a list.
(4)
The Local Health Board may apply to the FHSAA for a national
disqualification to be imposed on a person after the Local Health Board has—
(a)
removed him from a list prepared by it of any of the kinds referred to
in subsection (1)(a) to (d), or
30
(b)
refused to include him in such a list.
(5)
Any such application must be made before the end of the period of three
months beginning with the date of the removal or of the Local Health Board’s
refusal.
(6)
If the FHSAA imposes a national disqualification on a person—
35
(a)
no Local Health Board or Primary Care Trust may include him in a list
of any of the kinds prepared by it from which he has been disqualified
from inclusion, and
(b)
if he is included in such a list, each Local Health Board and each
Primary Care Trust in whose list he is included must remove him from
40
it.
(7)
The FHSAA may at the request of the person upon whom it has been imposed
review a national disqualification, and on a review may confirm it or revoke it.
(8)
Subject to subsection (9), the person may not request such a review before the
end of the period of—
45

National Health Service (Wales) Bill [HL]
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Chapter 2 — Disqualification
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(a)
two years beginning with the date on which the national
disqualification was imposed, or
(b)
one year beginning with the date of the FHSAA’s decision on the last
such review.
(9)
The Welsh Ministers may provide in regulations for subsection (8) to have
5
effect in prescribed circumstances as if the reference there to “two years” or
“one year” were a reference to a different period specified in the regulations.
116
Notification of decisions
Regulations may require a Local Health Board to notify prescribed persons, or
persons of prescribed descriptions, of any decision it makes under this
10
Chapter, and of any information relevant to the decision which it considers
appropriate to include in the notification.
117
Withdrawal from lists
Regulations may provide for circumstances in which a practitioner—
(a)
whom a Local Health Board is investigating in order to see whether
15
there are grounds for exercising its powers under section 107, 108 or
110,
(b)
whom a Local Health Board has decided to remove from a list under
section 107 or 108, or contingently remove under section 108, but who
has not yet been removed or contingently removed, or
20
(c)
who has been suspended under section 110,
may not withdraw from a list in which he is included.
118
Regulations about decisions under this Chapter
(1)
Any decision by a Local Health Board referred to in this Chapter must be
reached in accordance with regulations about such decisions.
25
(2)
The regulations must include provision—
(a)
requiring the practitioner to be given notice of any allegation against
him,
(b)
giving him the opportunity of putting his case at a hearing before a
Local Health Board makes any decision affecting him under this
30
Chapter,
(c)
requiring him to be given notice of the decision of the Local Health
Board and the reasons for it and of any right of appeal which he may
have.
(3)
The regulations may, in particular, make provision as to criteria which the
35
Local Health Board must apply when making decisions in unsuitability cases.
119
Corresponding provisions in Scotland and Northern Ireland
(1)
This section applies where it appears to the Welsh Ministers that there is
provision in Scotland or Northern Ireland under which a person may be dealt
with in any way which corresponds (whether or not exactly) with a way in
40
which a person may be dealt with under this Chapter.