National Health Service (Wales) Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

National Health Service (Wales) Bill [HL]

National Health Service (Wales) Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities
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(a)
make such amendments of any of subsections (2) to (5) as they consider
appropriate,
(b)
make such consequential amendments of this Part as they consider
appropriate.
Disclosure notices
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145
Notice requiring production of documents
(1)
This section applies if it appears to the Welsh Ministers that there are
reasonable grounds for suspecting—
(a)
that any documents containing information relevant to the exercise of
any of their functions to which this Part applies are in the possession or
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under the control of any NHS body, statutory health body, health
service provider or NHS contractor (“the relevant organisation”), and
(b)
that a person within subsection (3) is accountable for the documents.
(2)
The Welsh Ministers may serve on that person a notice requiring him to
produce the documents to an authorised officer.
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(3)
The persons within this subsection are—
(a)
any member, officer or director of the relevant organisation,
(b)
any other person who takes part in the management of the affairs of
that organisation,
(c)
any person employed by that organisation, and
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(d)
(in the case of a health service provider or NHS contractor who is an
individual) that individual.
(4)
A notice under this section must specify or describe the documents to which it
relates.
(5)
Subject to subsections (6) and (7), the notice may require those documents to be
25
produced—
(a)
at or by such time as is specified in the notice, or at once, and
(b)
at such place, and in such manner, as is so specified.
(6)
When specifying a time at or by which the documents must be produced, the
notice must not require them to be produced otherwise than at a reasonable
30
hour.
(7)
If the notice requires documents to be produced at once, it may only be served
at a reasonable hour.
(8)
An authorised officer may, by agreement with the person served with a notice
within subsection (6) or (7), vary the notice so as to extend the time for
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compliance with it.
(9)
Any notice under this section, and any variation of such a notice under
subsection (8), must be in writing.
(10)
An individual is “accountable” for any documents if he has either day-to-day,
or an overall, responsibility for the custody or control of the documents.
40
146
Production of documents
(1)
This section applies where a notice has been served under section 145.

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(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,
(c)
require the person producing any such documents to provide an
explanation of any of them.
5
(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
of it, and
(c)
the request appears to the officer to be reasonable in the circumstances,
10

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 145 may be
retained for so long as the Welsh Ministers consider that it is necessary to retain
them (rather than copies of them) in connection with the exercise of any of their
15
functions to which this Part applies.
(5)
If the Welsh Ministers have reasonable grounds for believing—
(a)
that any such documents may have to be produced for the purposes of
any legal proceedings, and
(b)
that they might otherwise be unavailable for those purposes,
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they may be retained until the proceedings are concluded.
(6)
If a person who is required by a notice under section 145 to produce any
documents does not produce the documents in compliance with the notice, an
authorised officer may require that person to state, to the best of his knowledge
and belief, where they are.
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(7)
A person is not bound to comply with any requirement imposed by a notice
under section 145 or any requirement under subsection (6) unless evidence of
authority is given—
(a)
at the time when the notice is served, or
(b)
at the time when the requirement is imposed under subsection (6).
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(8)
In addition, a person may not be required under section 145 or subsection (6)
to produce any document or disclose any information which he would be
entitled to refuse to produce or disclose in proceedings in the High Court on
grounds of legal professional privilege.
147
Delegation of functions
35
(1)
This section applies if the Welsh Ministers give a direction under section 24
directing a Special Health Authority to exercise so much of their functions
under sections 145 and 146 as is specified in the directions (“the delegated
functions”).
(2)
The Welsh Ministers may give directions providing for senior officers of the
40
Special Health Authority to exercise the delegated functions on behalf of the
Special Health Authority.
(3)
“Senior officer” means an officer of or above a level specified in the directions.
(4)
The Welsh Ministers may by regulations make such provision as they consider
appropriate in connection with the exercise of the delegated functions.
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National Health Service (Wales) Bill [HL]
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(5)
The regulations may, in particular, make provision—
(a)
specifying conditions as to training that must be satisfied in relation to
officers of the Special Health Authority involved in the exercise of the
delegated functions,
(b)
for requiring officers to obtain specific authorisation before the
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delegated functions are exercised in relation to personal records,
(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.
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148
Code of practice relating to delegated functions
(1)
The Welsh Ministers may issue a code of practice relating to—
(a)
the exercise of functions under section 145 or 146 by or on behalf of a
Special Health Authority,
(b)
procedures to be followed in relation to the disclosure (in accordance
15
with sections 149 and 150) of information obtained by or on behalf of a
Special Health Authority in the exercise of such functions.
(2)
The Welsh Ministers must keep the code under review and may from time to
time—
(a)
revise the whole or any part of the code, and
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(b)
issue a revised code.
(3)
Where the Welsh Ministers propose to issue a code of practice under this
section they must—
(a)
prepare a draft of the code, and
(b)
consult such persons as they consider appropriate about the draft.
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(4)
Where the Welsh Ministers propose to issue a revised code under this section
which in their opinion would result in a substantial change in the code, they
must—
(a)
prepare a draft of the revised code, and
(b)
consult such persons as they consider appropriate about the change.
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(5)
Where, following consultation under subsection (3) or (4), the Welsh Ministers
issue the code or revised code (whether in the form of the draft or with such
modifications as they consider appropriate), it comes into force at the time
when it is issued by the Welsh Ministers.
(6)
A failure to observe any provision of a code or revised code issued under this
35
section does not of itself make a person liable to any criminal or civil
proceedings.
(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 Welsh Ministers before the commencement of
40
this section is as effective for the purposes of this section as consultation
undertaken after that time.
149
Disclosure of information
(1)
This section applies to information which—

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(a)
is held by or on behalf of the Welsh Ministers, and
(b)
was obtained by virtue of section 145 or 146.
(2)
The information must not be disclosed except in accordance with subsection
(3).
(3)
A disclosure is made in accordance with this subsection if it is made—
5
(a)
for the purposes of the exercise of any of the Welsh Ministers’ functions
in relation to the health service in Wales,
(b)
for the purposes of the exercise of any of the Secretary of State’s
functions in relation to the health service in England,
(c)
for the purposes of any civil proceedings brought in the exercise of any
10
of the functions mentioned in paragraph (a) or (b),
(d)
for the purposes of any criminal investigation or proceedings,
(e)
for the purposes of any relevant disciplinary proceedings, or
(f)
in accordance with an enactment or order of a court or tribunal.
(4)
In subsection (3)—
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“relevant disciplinary proceedings” means disciplinary proceedings
conducted in relation to an individual by—
(a)
an NHS body, statutory health body or health service provider,
or
(b)
any of the regulatory bodies mentioned in section 25(3) of the
20
National Health Service Reform and Health Care Professions
Act 2002 (c. 17) (bodies within remit of Council for the
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
25
disclosed except—
(a)
for a purpose connected with the functions, investigation or
proceedings for the purposes of which it was so disclosed, or
(b)
in accordance with an enactment or order of a court or tribunal.
(6)
Information to which this section applies may be disclosed in accordance with
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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.
150
Protection of personal information disclosed for purposes of proceedings
35
(1)
Information obtained from personal records produced in compliance with a
notice under section 145 is “protected information” for the purposes of this
section if—
(a)
a person (“the discloser”), in accordance with section 149(3), discloses
the information for the purposes of any proceedings, and
40
(b)
either—
(i)
the identity of the individual in question can be ascertained
from the information itself, or
(ii)
the discloser has reasonable cause to believe that it will be
possible for a person who obtains the information as a direct or
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indirect consequence of the disclosure to ascertain the

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individual’s identity from that information taken with other
information obtained by virtue of section 145 or 146 and
disclosed by or on behalf of the Welsh Ministers.
(2)
The discloser must take all reasonable steps to ensure that, once disclosed by
him in accordance with section 149(3), the protected information is not further
5
disclosed to any person who is not someone to whom it is necessary to disclose
the information for any purpose connected with the proceedings mentioned in
subsection (1)(a).
(3)
In subsection (2) the reference to further disclosure of the information does not
include any such disclosure—
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(a)
by way of evidence in any proceedings, or
(b)
in accordance with an enactment or order of a court or tribunal.
(4)
The Welsh Ministers must make provision, whether in a code of practice issued
under section 148 or otherwise, for requiring any person disclosing protected
information in accordance with section 149(3) to ensure, by the use of a
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distinguishing mark or in some other way, that the information is clearly
identified as protected information for the purposes of this section.
(5)
Information that appears to be protected information must not be disclosed by
way of evidence in any proceedings unless—
(a)
the whole of the proceedings are held in private, or
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(b)
in any other case, the information is disclosed in accordance with
permission given by the court or tribunal on an application under
subsection (6).
(6)
If, on an application by a party to—
(a)
proceedings before a court, or
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(b)
proceedings of any description before a tribunal that sits, or may sit, in
public during the whole or part of proceedings of that description,

the court or tribunal is satisfied that it is in the interests of justice for any
information that appears to be protected information to be disclosed by way of
evidence in the proceedings, it may give permission for the information to be
30
so disclosed, on such terms as it thinks fit.
(7)
When determining such an application, the court or tribunal must consider
whether, in the interests of protecting the identity of the individual to whom
the information relates, the whole or part of the proceedings should be held in
private.
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(8)
If the court or tribunal is satisfied that the whole or part of the proceedings
should be held in private, it must give such directions, or take such other steps,
as appear to it to be appropriate.
(9)
In this section “proceedings” means—
(a)
criminal or civil proceedings, or
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(b)
relevant disciplinary proceedings (as defined by section 149(4)).
151
Manner in which disclosure notice may be served
(1)
This section provides for the manner in which a notice may be served under
section 145.
(2)
The notice may be served on a person by—
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National Health Service (Wales) Bill [HL]
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(a)
delivering it to him,
(b)
leaving it at his proper address,
(c)
sending it by post to him at that address.
(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
5
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
officer of a body corporate, it is the address of the registered office of
that body or its principal office in the United Kingdom,
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(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
(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
15
office of the association in the United Kingdom.
Offences under this Part
152
Offences in connection with production of documents
(1)
A person commits an offence if, without reasonable excuse, he fails to comply
with any requirement imposed on him under section 145 or 146.
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(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
(b)
to a fine not exceeding level 3 on the standard scale,

or to both.
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(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—
(a)
commits a further offence, and
(b)
is liable on summary conviction to a fine not exceeding 2% of level 3 on
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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 146—
(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
35
it is false or misleading.
(5)
“False or misleading” means false or misleading in a material particular.
(6)
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,
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(b)
on summary conviction, to imprisonment for a term not exceeding 12
months or to a fine not exceeding the statutory maximum, or to both.