Health and Social Care Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
149

(iii)
a direction for conditional registration, including a
direction extending a period of conditional
registration;
(iv)
a direction for conditional inclusion of an entry
relating to a speciality or proficiency, including a
5
direction extending a period of conditional inclusion;
(v)
a direction varying any of the conditions imposed by
a direction for conditional registration;
(vi)
a direction varying any of the conditions imposed by
a direction for conditional inclusion; and
10
(b)
a decision of the Adjudicator under section 13H to impose a
financial penalty order.
(2)
This section also applies to—
(a)
a decision of the Adjudicator under section 13F not to give—
(i)
a direction falling within subsection (1)(a);
15
(ii)
a direction for erasure;
(iii)
a direction for removal (other than temporarily) of an
entry relating to a speciality or proficiency;
(iv)
a direction for indefinite suspension,

(whether because of a finding that the registrant’s fitness to
20
practise, fitness to carry on business or (as the case may be)
fitness to undertake training is not impaired or otherwise);
(b)
a decision of the Adjudicator under section 13F—
(i)
giving a direction that a suspension be terminated;
(ii)
giving a direction that a temporary removal of an
25
entry relating to a speciality or proficiency be
terminated;
(iii)
revoking a direction for conditional registration or a
condition imposed by such a direction;
(iv)
revoking a direction for conditional inclusion or a
30
condition imposed by such a direction;
(c)
a decision of the Adjudicator under section 13H not to
impose a financial penalty order;
(d)
a decision of the Adjudicator under section 13J not to give a
direction that a person’s name or an entry relating to a
35
speciality or proficiency be removed; and
(e)
a decision of the Adjudicator under section 13K giving a
direction that a person’s name or an entry relating to a
speciality or proficiency be restored to the appropriate
register.
40
(3)
The decisions to which this section applies are referred to below as
“relevant decisions”.
(4)
If the Council consider that—
(a)
a relevant decision falling within subsection (1) is unduly
lenient, whether because the findings relating to fitness to
45
practise, fitness to carry on business or (as the case may be)
fitness to carry on training are inadequate, or because the
direction given or financial penalty order imposed does not
adequately reflect the findings that have been made, or both;
or
50

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
150

(b)
a relevant decision falling within subsection (2) should not
have been made,

and that it would be desirable for the protection of members of the
public for the Council to take action under this section, the Council
may refer the case to the relevant court.
5
(5)
In the case of a relevant decision falling within subsection (1), the
Council may not refer a case after the end of the period of 40 days
beginning with the day which is the last day on which the person to
whom the relevant decision relates can appeal against it.
(6)
In the case of a relevant decision falling within subsection (2), the
10
Council may not refer a case after the end of the period of 40 days
beginning with the day on which the Council receives notice of the
relevant decision in accordance with rules made by the Adjudicator
under section 98(4)(a)(ii) of the Health and Social Care Act 2008.
(7)
If the Council do refer a case—
15
(a)
the case is to be treated by the court to which it has been
referred as an appeal by the Council against the relevant
decision; and
(b)
the Adjudicator is to be a respondent.
(8)
The court may—
20
(a)
dismiss the appeal;
(b)
allow the appeal and quash the relevant decision;
(c)
substitute for the relevant decision any other decision which
could have been made by the Adjudicator; or
(d)
remit the case to the Adjudicator to dispose of the case in
25
accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it
thinks fit.
(9)
If the Council do refer a case, the registrar must without delay serve
on the person to whom the relevant decision relates notification of
30
the reference of the case to the court.
(10)
In subsection (4) “relevant court” has the same meaning as in section
23G(4)(a) except that where the reference is of a relevant decision
falling within subsection (2)(d) or (e) “relevant court” has the same
meaning as in section 23G(4)(b) and (c).”
35
45
In section 29 of the 1989 Act (provision as to death or bankruptcy of
registered optician), in subsection (3), for “Fitness to Practise Committee
may, if they think” substitute “Adjudicator may, on the matter being
referred to it by the registrar, if it thinks”.
46
In section 36 of the 1989 Act (interpretation), in subsection (1), before the
40
definition of “approved training establishment” insert—
“ “the Adjudicator” means the Office of the Health Professions
Adjudicator;”.
47
In Schedule 1 to the 1989 Act (constitution etc of General Optical Council),
in paragraph 12, for “, the Registration Appeals Committee and the Fitness
45
to Practise Committee” substitute “and the Registration Appeals
Committee”.

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999
151

Schedule 8
Section 103

Extension of powers under s. 60 of Health Act 1999
1     (1)
Section 60 of the 1999 Act (regulation of health care and associated
professions) is amended as follows.
      (2)
In subsection (1), after paragraph (e) insert—
5
“(f)
modifying the constitution, functions, powers or duties of the
Office of the Health Professions Adjudicator.”.
      (3)
In subsection (2)—
(a)
in paragraph (a), omit “the Pharmacy Act 1954,”, and
(b)
after that paragraph insert—
10
“(aa)
the professions regulated by the Pharmacists and
Pharmacy Technicians Order 2007 and the Pharmacy
(Northern Ireland) Order 1976,”.
      (4)
After subsection (2) insert—
“(2A)
Her Majesty may also by Order in Council make provision relating
15
to, or connected with, the functions of the relevant regulatory body
in relation to—
(a)
the registration of premises under Part 4 of the Medicines Act
1968 (pharmacies),
(b)
the regulation of the use of premises for the purposes of a
20
retail pharmacy business, within the meaning of the
Medicines Act 1968,
(c)
compliance with the provisions of that Act,
(d)
compliance with the provisions of the Poisons Act 1972 or the
Poisons (Northern Ireland) Order 1976 by persons admitted
25
to practice and persons carrying on a retail pharmacy
business, and
(e)
the grant of authorisations under section 28 of the Regulation
of Investigatory Powers Act 2000 (authorisation of directed
surveillance).
30
(2B)
In subsection (2A) “the relevant regulatory body” means the body (or
main body) responsible for the regulation of the professions referred
to in subsection (2)(aa).”
2
In section 62 of the 1999 Act (regulations and orders), in subsection (10), after
“that Parliament” insert “and is not merely incidental to, or consequential
35
on, provision that (if so included) would be outside that competence”.
3
Schedule 3 to the 1999 Act (which relates to the power in section 60 of the
Act) is amended as follows.
4     (1)
Paragraph 7 (matters outside the scope of the Orders) is amended as follows.
      (2)
For sub-paragraph (1) substitute—
40
    “(1)
An Order may not abolish—
(a)
the regulatory body of any profession to which section
60(2)(a) applies,
(b)
the Royal Pharmaceutical Society of Great Britain or the
Pharmaceutical Society of Northern Ireland,
45

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999
152

(c)
the Health Professions Council,
(d)
the Nursing and Midwifery Council, or
(e)
any other regulatory body established by an Order.
     (1A)
Sub-paragraph (1)(b) does not prevent an Order in Council from
establishing a new regulatory body for the professions mentioned
5
in section 60(2)(aa) and transferring to it any of the functions of the
the Royal Pharmaceutical Society of Great Britain or the
Pharmaceutical Society of Northern Ireland.”
      (3)
Omit sub-paragraph (2) (which prevents an Order in Council under section
60 of the 1999 Act from imposing a requirement which would have the effect
10
that a majority of the members of the regulatory body of a profession would
be persons not included in the register of members admitted to practice).
      (4)
Omit sub-paragraph (3) (which prevents an Order in Council under section
60 of the 1999 Act from providing for a function conferred on the Privy
Council, in relation to any profession to which subsection (2)(a) of that
15
section applies, to be exercised by a different person).
5     (1)
Paragraph 8 (other matters outside the scope of the Orders) is amended as
follows.
      (2)
In sub-paragraph (2) omit paragraph (d).
      (3)
After that sub-paragraph insert—
20
   “(2A)
Where an enactment provides, in relation to any profession, for
any function of administering procedures (including making
rules) relating to misconduct, unfitness to practise and similar
matters to be exercised by the regulatory body or any of its
committees or officers, an Order may not provide for any person
25
other than that regulatory body or any of its committees or officers
or the Office of the Health Professions Adjudicator to exercise that
function.
     (2B)
In sub-paragraphs (1) and (2A) references to a regulatory body do
not include references to the Royal Pharmaceutical Society of
30
Great Britain or the Pharmaceutical Society of Northern Ireland.”
6     (1)
Paragraph 9 (preliminary procedure for making Orders) is amended as
follows.
      (2)
In sub-paragraph (1)(b)—
(a)
for “the profession”, where it first occurs, substitute “any
35
profession”, and
(b)
for “by the profession” substitute “by any profession to be
regulated”.
      (3)
After sub-paragraph (1) insert—
   “(1A)
In the case of a draft Order which amends or repeals—
40
(a)
an enactment contained in an Act of the Scottish
Parliament or in an instrument made under such an Act, or
(b)
any other enactment that extends to Scotland and relates to
matters falling within the legislative competence of the
Scottish Parliament,
45

Health and Social Care Bill
Schedule 9 — Regulation of social care workers
153


but does not contain provision of the kind mentioned in sub-
paragraph (3), the persons consulted by the Secretary of State
under sub-paragraph (1)(b) must include the Scottish Ministers.”
      (4)
In sub-paragraph (3) after “that Parliament” insert “and is not merely
incidental to, or consequential on, provision that (if so included) would be
5
outside that competence”.
7
In paragraph 10 (interpretation of the Schedule)—
(a)
before the definition of “Order” insert—
“ “dental practitioner” means a person registered in the
dentists register under the Dentists Act 1984,
10
“enactment” means an enactment contained in, or in an
instrument made under—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for
15
Wales, or
(d)
Northern Ireland legislation,
“functions” includes powers and duties,
“medical practitioner” means a registered medical
practitioner as defined by Schedule 1 to the
20
Interpretation Act 1978,”, and
(b)
omit the words from “and other expressions” to the end.
8
In paragraph 11 (which contains further interpretative provisions), in sub-
paragraph (2)—
(a)
in paragraph (c), for “Part 1 of the 1977 Act” substitute “Part 4 of the
25
National Health Service Act 2006 or Part 4 of the National Health
Service (Wales) Act 2006”, and
(b)
in paragraph (d), for “Part 1 of the 1977 Act” substitute “Part 5 of the
National Health Service Act 2006 or Part 5 of the National Health
Service (Wales) Act 2006”.
30
9
Omit paragraph 12 (which confers limited powers in relation to the
profession regulated by the Pharmacy (Northern Ireland) Order 1976 (S. I.
1976/1213 (N. I. 22))).
Schedule 9
Section 114

Regulation of social care workers
35
Interpretation
1
In this Schedule—
“functions” includes powers and duties;
“regulations” means regulations under section 114;
“the appropriate Council” means—
40
(a)
in relation to regulations made by the Secretary of State, the
General Social Care Council, and
(b)
in relation to regulations made by the Welsh Ministers, the
Care Council for Wales.

Health and Social Care Bill
Schedule 9 — Regulation of social care workers
154

Matters generally within the scope of the regulations
2
Regulations may make provision for the following matters (among others)—
(a)
the functions of the appropriate Council;
(b)
the keeping of registers of any description of social care worker;
(c)
education and training;
5
(d)
privileges of registered persons;
(e)
standards of conduct and performance (including standards of
conduct and performance of social care workers carrying out the
functions of an approved mental health professional within the
meaning of section 114 of the Mental Health Act 1983 (c. 20));
10
(f)
discipline;
(g)
removal or suspension from registration or the imposition of
conditions on registration;
(h)
investigation and enforcement by or on behalf of the appropriate
Council;
15
(i)
appeals;
(j)
codes of practice or guidance for persons employing or seeking to
employ social care workers.
Manner of exercise of power
3
The power to make regulations may be exercised by amending or repealing
20
any provision (other than section 55) of the Care Standards Act 2000 (c. 14)
and any other enactment and any other instrument or document.
4
The power may be exercised so as to make provision for the delegation of
functions, including provision conferring power to make, confirm or
approve subordinate legislation.
25
5
The power may be exercised so as to make provision—
(a)
for the charging of fees, and
(b)
for the making of payments by the appropriate Council.
6
The power may be exercised so as to—
(a)
confer functions (including power to pay grants) on Ministers of the Crown
30
or, in the case of regulations made by the Welsh Ministers, on the
Welsh Ministers, or
(b)
modify their functions.
7
The power may not be exercised so as to create any criminal offence, except
an offence punishable on summary conviction with a fine not exceeding the
35
amount specified as level 5 on the standard scale.
Matters outside the scope of regulations
8     (1)
Regulations may not abolish the General Social Care Council or the Care
Council for Wales.
      (2)
Where the Care Standards Act 2000 provides for any function mentioned in
40
sub-paragraph (3) to be exercised by either of those Councils or any of its
committees or officers, regulations may not provide for any person other
than that Council or any of its committees or officers to exercise that
function.

Health and Social Care Bill
Schedule 9 — Regulation of social care workers
155

      (3)
Those functions are—
(a)
keeping the register of social care workers of any description,
(b)
determining standards of education and training required as a
condition of registration,
(c)
giving advice about standards of conduct and performance, and
5
(d)
administering procedures (including making rules) relating to
misconduct, removal from registration and similar matters.
Preliminary procedure for making regulations: England
9     (1)
If the Secretary of State proposes to lay a draft of regulations before
Parliament, the Secretary of State must first—
10
(a)
publish a draft of the regulations, and
(b)
invite representations to be made to the Secretary of State about the
draft by—
(i)
persons appearing to the Secretary of State to represent social
care workers affected by the regulations,
15
(ii)
persons appearing to the Secretary of State appropriate to
represent those provided with services by such social care
workers, and
(iii)
any other persons appearing to the Secretary of State
appropriate to consult about the draft.
20
      (2)
After the end of the period of 3 months beginning with the publication of the
draft, the Secretary of State may lay the draft as published, or that draft with
any modifications the Secretary of State considers appropriate, together
with a report about the consultation, before Parliament.
Preliminary procedure for making regulations: Wales
25
10    (1)
If the Welsh Ministers propose to lay a draft of regulations before the
National Assembly for Wales, the Welsh Ministers must first—
(a)
publish a draft of the regulations, and
(b)
invite representations to be made to the Welsh Ministers about the
draft by—
30
(i)
persons appearing to the Welsh Ministers to represent social
care workers affected by the regulations,
(ii)
persons appearing to the Welsh Ministers appropriate to
represent those provided with services by such social care
workers, and
35
(iii)
any other persons appearing to the Welsh Ministers
appropriate to consult about the draft.
      (2)
After the end of the period of 3 months beginning with the publication of the
draft, the Welsh Ministers may lay the draft as published, or that draft with
any modifications they consider appropriate, together with a report about
40
the consultation, before the National Assembly for Wales.