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National Health Service (Wales) Bill [HL]


National Health Service (Wales) Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities

98

 

153     

Offences relating to disclosure or use of information

(1)   

A person commits an offence if he fails to comply with section 149(2) or (5) or

section 150(2).

(2)   

A person guilty of an offence under subsection (1) is liable—

(a)   

on conviction on indictment, to imprisonment for a term not exceeding

5

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

respect of a disclosure of information to prove that at the time of the alleged

10

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—

(a)   

that the disclosure was lawful,

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(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,

(d)   

that the disclosure was made in a form in which no person to whom the

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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

(b)   

from that information taken with other information obtained by virtue

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of section 145 or 146 and disclosed by or on behalf of the Welsh

Ministers.

154     

Offences by bodies corporate etc

(1)   

If an offence committed by a body corporate is proved—

(a)   

to have been committed with the consent or connivance of an officer, or

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(b)   

to be attributable to any neglect on his part,

   

the officer as well as the body corporate is guilty of the offence and liable to be

proceeded against and punished accordingly.

(2)   

“Officer”, in relation to the body corporate, means a director, manager,

secretary or other similar officer of the body, or a person purporting to act in

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any such capacity.

(3)   

If the affairs of a body corporate are managed by its members, subsection (1)

applies in relation to the acts and defaults of a member in connection with his

functions of management as if he were a director of the body corporate.

(4)   

If an offence committed by a partnership is proved—

40

(a)   

to have been committed with the consent or connivance of a partner, or

(b)   

to be attributable to any neglect on his part,

   

the partner as well as the partnership is guilty of the offence and liable to be

proceeded against and punished accordingly.

 
 

National Health Service (Wales) Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities

99

 

(5)   

“Partner” includes a person purporting to act as a partner.

(6)   

If an offence committed by an unincorporated association (other than a

partnership) is proved—

(a)   

to have been committed with the consent or connivance of an officer of

the association or a member of its governing body, or

5

(b)   

to be attributable to any neglect on the part of such an officer or

member,

   

the officer or member as well as the association is guilty of the offence and

liable to be proceeded against and punished accordingly.

(7)   

“Offence” means an offence under this Part.

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155     

Offences committed by partnerships and other unincorporated associations

(1)   

Proceedings for an offence alleged to have been committed by a partnership

must be brought in the name of the partnership (and not in that of any of the

partners).

(2)   

Proceedings for an offence alleged to have been committed by an

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unincorporated association (other than a partnership) must be brought in the

name of the association (and not in that of any of its members).

(3)   

Rules of court relating to the service of documents have effect as if the

partnership or unincorporated association were a body corporate.

(4)   

In proceedings for an offence brought against a partnership or an

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unincorporated association, section 33 of the Criminal Justice Act 1925 (c. 86)

and Schedule 3 to the Magistrates’ Courts Act 1980 (c. 43) apply as they apply

in relation to a body corporate.

(5)   

A fine imposed on a partnership on its conviction for an offence must be paid

out of the partnership assets.

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(6)   

A fine imposed on an unincorporated association on its conviction for an

offence must be paid out of the funds of the association.

(7)   

Subsections (1) and (2) do not affect any liability of a partner, officer or member

under section 154(4) or (6).

(8)   

“Offence” means an offence under this Part.

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156     

Penalties for offences under this Part: transitional modification

(1)   

In relation to an offence committed before the commencement of section 154(1)

of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates’ courts

power to impose imprisonment), the reference in section 152(6)(b) to a period

of imprisonment of 12 months is a reference to a period of imprisonment of 6

35

months.

(2)   

In relation to an offence committed before the commencement of section 281(5)

of the Criminal Justice Act 2003 (alteration of penalties for summary offences),

the references in sections 152(2)(a) and 153(2)(b) to periods of imprisonment of

51 weeks are references to periods of imprisonment of 3 months.

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National Health Service (Wales) Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities

100

 

Supplementary

157     

Orders and regulations under this Part

(1)   

Any power under this Part to make an order or regulations is exercisable by

statutory instrument.

(2)   

Subject to subsection (3) a statutory instrument made by virtue of this Part is

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subject to annulment in pursuance of a resolution of the National Assembly for

Wales.

(3)   

A statutory instrument containing an order under section 144(6) may not be

made unless a draft of the instrument has been laid before, and approved by a

resolution of, the National Assembly for Wales.

10

(4)   

Any power under this Part to make an order or regulations—

(a)   

may make different provision for different cases or descriptions of case

or different purposes or areas, and

(b)   

may make incidental, supplementary, consequential, transitory,

transitional or saving provision.

15

158     

Interpretation of this Part

(1)   

In this Part—

“authorised officer”, in relation to any function, means (subject to

subsection (5)) an officer of the Welsh Ministers authorised by them to

act in exercise of the function,

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“document” means anything in which information of any description is

recorded,

“enactment” includes any provision of subordinate legislation (within the

meaning of the Interpretation Act 1978 (c. 30)), and references to

enactments include enactments passed or made after the passing of this

25

Act,

“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 Part applies” has the meaning given by section

143(3),

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“health service provider” and “NHS contractor” have the meaning given

by section 144,

“NHS body” must be construed in accordance with section 144,

“personal records” has the meaning given by section 12 of the Police and

Criminal Evidence Act 1984 (c. 60),

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“statutory health body” has the meaning given by section 144.

(2)   

References in this Part 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

40

(b)   

include references to the provision of services (or goods or facilities)

wherever that takes place.

(3)   

References in this Part to the health service are references to the health service

in Wales.

 
 

National Health Service (Wales) Bill [HL]
Part 11 — Property and finance
Chapter 1 — Land and other Property

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(4)   

In relation to information recorded otherwise than in legible form, any

reference in this Part to the production of documents is a reference to the

production of a copy of the information in legible form.

(5)   

Where functions of the Welsh Ministers are exercisable by a Special Health

Authority—

5

(a)   

references in this Part to authorised officers include officers of the

Special Health Authority authorised by or on behalf of the Special

Health Authority to act in exercise of the functions, and

(b)   

references in this Part to information held or disclosed by or on behalf

of the Welsh Ministers include information held or disclosed by or on

10

behalf of the Special Health Authority.

Part 11

Property and finance

Chapter 1

Land and other Property

15

159     

Acquisition, use and maintenance of property

(1)   

The Welsh Ministers may acquire—

(a)   

any land, either by agreement or compulsorily,

(b)   

any other property,

   

required by them for the purposes of this Act.

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(2)   

In particular, land may be so acquired to provide residential accommodation

for persons employed for any of those purposes.

(3)   

The Welsh Ministers may use for the purposes of any of the functions

conferred on them by this Act any property belonging to them by virtue of this

Act, and they have power to maintain all such property.

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(4)   

A local social services authority may be authorised to purchase land

compulsorily for the purposes of this Act by means of an order made by the

authority and confirmed by the Welsh Ministers.

(5)   

The Acquisition of Land Act 1981 (c. 67) applies to the compulsory purchase of

land under this section.

30

(6)   

Section 120(3) of the Local Government Act 1972 (c. 70) (which relates to the

application of Part 1 of the Compulsory Purchase Act 1965 (c. 56) where a

council is authorised to acquire land by agreement) applies to the acquisition

of land by the Welsh Ministers under this section as it applies to such

acquisition by a council under that section.

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(7)   

Sections 238 and 239 of the Town and Country Planning Act 1990 (c. 8) (use and

development of consecrated land and burial grounds) apply to consecrated

land or land comprised in a burial ground (within the meaning of section 240

of that Act) which—

(a)   

the Welsh Ministers hold for the purposes of the health service, and

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(b)   

has not been the subject of a relevant acquisition (within the meaning

of that section) by them,

 
 

National Health Service (Wales) Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts

102

 

   

as if that land had been the subject of such an acquisition by them for those

purposes.

Chapter 2

Trusts

160     

Special trustees for a university or teaching hospital

5

(1)   

In this Act “special trustees” are trustees appointed in relation to Wales—

(a)   

by the Secretary of State under section 29 of the National Health Service

Reorganisation Act 1973 (c. 32),

(b)   

by the Secretary of State or the National Assembly for Wales under

section 95 of the National Health Service Act 1977 (c. 49), and

10

(c)   

by the Welsh Ministers under this section,

   

for any hospital falling within subsection (2).

(2)   

A hospital falls within this subsection if, immediately before the day appointed

for the purposes of section 29 of the National Health Service Reorganisation

Act 1973, it was controlled and managed by a University Hospital

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Management Committee or a Board of Governors, other than—

(a)   

a body on whose request an order was made under section 24(2) of that

Act, or

(b)   

a preserved Board within the meaning of section 15(6) of that Act.

(3)   

Special trustees must hold and administer the property transferred under the

20

National Health Service Reorganisation Act 1973.

(4)   

The number of special trustees appointed under this section is such as the

Welsh Ministers may from time to time determine after consultation with such

persons as they consider appropriate.

(5)   

Special trustees have power to accept, hold and administer any property on

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trust, being a trust which is wholly or mainly for hospitals for which they are

appointed, for all or any purposes relating to—

(a)   

hospital services (including research), or

(b)   

any other part of the health service associated with hospitals.

(6)   

The term of office of any special trustee appointed under this section is to be

30

fixed by the Welsh Ministers, but a special trustee may be removed by the

Welsh Ministers at any time during the special trustee’s term of office.

(7)   

Subsection (3) is subject to sections 161 and 162.

161     

Transfers of trust property

(1)   

The Welsh Ministers may, having regard to any change or proposed change—

35

(a)   

in the arrangements for the administration of a hospital or other

establishment or facility, or

(b)   

in the area or functions of any NHS body other than an NHS foundation

trust,

   

by order provide for the transfer of any trust property from any relevant health

40

service body to any other relevant health service body.

(2)   

In this section “relevant health service body” means—

 
 

National Health Service (Wales) Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts

103

 

(a)   

an NHS body,

(b)   

special trustees, or

(c)   

trustees for a Primary Care Trust, an NHS trust or an NHS foundation

trust.

(3)   

Where property is transferred by an order under this section to two or more

5

bodies, it must be apportioned by them in such proportions as they may agree,

or as may in default of agreement be determined by the Welsh Ministers, and

the order may provide for the way in which the property must be apportioned.

(4)   

Where property is so apportioned, the Welsh Ministers may by order make any

consequential amendments of the trust instrument relating to the property.

10

(5)   

In this section “special trustees” includes special trustees within the meaning

of section 212 of the National Health Service Act 2006 (c. 00).

162     

Transfer of functions and property to or from special trustees

(1)   

If it appears to the Welsh Ministers at any time that all the functions of any

special trustees should be discharged by a Primary Care Trust, an NHS trust, a

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Special Health Authority or an NHS foundation trust, they may by order

provide for the transfer of all trust property from the special trustees to the

body or, in such proportions as may be specified in the order, to those bodies.

(2)   

Before acting under subsection (1) the Welsh Ministers must consult the special

trustees and other bodies concerned.

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(3)   

If it appears to the Welsh Ministers at any time that—

(a)   

the functions of any special trustees should be discharged by the

trustees for a Primary Care Trust, an NHS trust or an NHS foundation

trust (“the trustees of the body”), or

(b)   

the functions of the trustees of the body should be discharged by

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special trustees,

   

they may, after consulting the special trustees and the trustees of the body, by

order provide for the transfer of all trust property from the special trustees to

to the trustees of the body, or from the trustees of the body to the special

trustees.

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(4)   

Where property is transferred by an order under this section to two or more

bodies, it must be apportioned by them in such proportions as they may agree,

or as may in default of agreement be determined by the Welsh Ministers, and

the order may provide for the way in which the property must be apportioned.

(5)   

Where property is so apportioned, the Welsh Ministers may by order make any

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consequential amendments of the trust instrument relating to the property.

(6)   

“Special trustees” includes special trustees within the meaning of section 212 of

the National Health Service Act 2006.

163     

Trustees and property under section 169

(1)   

Where property is given in pursuance of section 169 (power of NHS bodies to

40

raise money) to or on trust for any purposes of a hospital for which special

trustees have been appointed, the property may be held, administered and

applied by the special trustees instead of by the body responsible for the

hospital if that body and the special trustees agree.

 
 

National Health Service (Wales) Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts

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(2)   

The body responsible for a hospital is—

(a)   

in the case of a hospital vested in an NHS trust, that trust, and

(b)   

in any other case, the Local Health Board exercising functions of the

Welsh Ministers in respect of the hospital.

(3)   

Subsection (4) applies where property is given in pursuance of section 169 on

5

trust for any purposes of an NHS trust for which trustees have been appointed

under paragraph 10 of Schedule 3, or paragraph 10 of Schedule 4 to the

National Health Service Act 2006 (c. 00).

(4)   

Where this subsection applies and the trustees and the NHS trust agree, the

property may be held, administered and applied by the trustees instead of by

10

the NHS trust.

(5)   

Property given in pursuance of section 169 on trust may be transferred by

order of the Welsh Ministers under section 161 or 162 in the same

circumstances as other trust property may be transferred under either of those

sections.

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164     

Application of trust property: further provisions

(1)   

Any discretion given by a trust instrument to the trustees of property

transferred under section 161 or 162 is exercisable by the person to whom the

property is so transferred and, subject to this section, the transfer does not

affect the trusts on which the property is held.

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(2)   

Where—

(a)   

property has been transferred under section 24 of the National Health

Service Reorganisation Act 1973 (c. 32), or section 92 of the National

Health Service Act 1977 (c. 49), and

(b)   

any discretion is given by a trust instrument to the trustees to apply the

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property, or income arising from the property, to such hospital

services (including research) as the trustees consider appropriate

without any restriction on the kinds of hospital services and without

any restriction to one or more specified hospitals,

   

the discretion is enlarged so as to allow the application of the property or of the

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income arising from the property, to such extent as the trustees consider

appropriate, for any other part of the health service associated with any

hospital.

(3)   

Subsection (2) applies on any subsequent transfer of the property under section

161 or 162.

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165     

Trusts: supplementary provisions

(1)   

This section applies in relation to—

(a)   

sections 160 to 162,

(b)   

section 164,

(c)   

section 167,

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(d)   

paragraph 10 of Schedule 3, and

(e)   

paragraphs 8 and 9 of Schedule 5.

(2)   

A provision—

(a)   

contained in a provision to which this section applies,

(b)   

for the transfer of any property,

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