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
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
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Interpretation
90
General interpretation of Part 1
(1)
In this Part—
“adult social services” means—
(a)
services which are provided by or pursuant to arrangements
5
made by an English local authority in the exercise of its adult
social services functions, and
(b)
services which are provided by or pursuant to arrangements
made by an English local authority under section 2(1)(b) of the
Local Government Act 2000 (c. 22) and which are similar in
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nature to a service which could be provided by the authority in
the exercise of any of its adult social services functions;
“adult social services functions” means social services functions (within
the meaning of the Local Authority Social Services Act 1970 (c. 42)) so
far as relating to persons aged 18 or over, excluding any function to
15
which Chapter 4 of Part 8 of the Education and Inspections Act 2006
(c. 40) applies;
“the Commission” means the Care Quality Commission;
“cross-border Special Health Authority” means a Special Health
Authority not performing functions only or mainly in respect of
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England or only or mainly in respect of Wales;
“enactment” includes an enactment comprised in subordinate legislation
(within the meaning of the Interpretation Act 1978 (c. 30));
“English local authority” means—
(a)
a county council in England,
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(b)
a metropolitan district council,
(c)
a non-metropolitan district council for an area for which there is
no county council,
(d)
a London borough council,
(e)
the Common Council of the City of London, or
30
(f)
the Council of the Isles of Scilly;
“English NHS body” means—
(a)
a Primary Care Trust,
(b)
a Strategic Health Authority,
(c)
a National Health Service trust all or most of whose hospitals,
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establishments and facilities are situated in England,
(d)
an NHS foundation trust, or
(e)
a Special Health Authority performing functions only or mainly
in respect of England;
“English NHS provider” means—
40
(a)
a Primary Care Trust,
(b)
a National Health Service trust all or most of whose hospitals,
establishments and facilities are situated in England, or
(c)
an NHS foundation trust;
“health care” has the meaning given by section 5(2) (but see subsection (2)
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below);
“health or social care” has the meaning given by section 5(4);

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“Minister of the Crown” has the same meaning as in the Ministers of the
Crown Act 1975 (c. 26);
“NHS care” means health care provided by Primary Care Trusts or by
other persons (whether other English NHS providers or not) pursuant
to arrangements made by Primary Care Trusts;
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“Part 1 offence” means an offence under this Part or under regulations
under this Part;
“prescribed” means prescribed by regulations;
“regulated activity” has the meaning given by section 4;
“regulations” means regulations made by the Secretary of State;
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“regulatory functions”, in relation to the Commission, is to be read in
accordance with section 56(2);
“social care” has the meaning given by section 5(3).
(2)
Except in Chapter 2, any reference in this Part to the provision of health care
includes a reference to—
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(a)
the provision of services connected with the provision of health care,
and
(b)
the promotion and protection of public health.
(3)
Any reference in this Part to a person who carries on a regulated activity
includes a reference to a person who carries it on otherwise than for profit.
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(4)
Any reference in this Part to the provision of health care, or adult social
services, by a person includes a reference to the provision of that care, or those
services, by that person’s agent or sub-contractor.
(5)
In its application to a function conferred on the Commission by regulations
under section 55(1)(b), Chapter 6 has effect as if any reference in Chapter 6 to
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an English NHS body included a reference to a cross-border Special Health
Authority.
Part 2
Regulation of health professions and health and social care workforce
The Office of the Health Professions Adjudicator
30
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The Office of the Health Professions Adjudicator
(1)
There is to be a body corporate known as the Office of the Health Professions
Adjudicator (referred to in this Part as “the OHPA”).
(2)
The OHPA is to have functions in relation to the professions regulated by—
(a)
the Medical Act 1983 (c. 54), and
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(b)
the Opticians Act 1989 (c. 44).
(3)
Schedule 6 (which makes further provision about the OHPA) has effect.
92
Functions under Medical Act 1983 and Opticians Act 1989
Schedule 7 (which contains amendments of the Medical Act 1983 and the
Opticians Act 1989 providing for certain functions under those Acts relating to
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adjudication to be exercisable by the OHPA) has effect.

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93
Fitness to practise panels
(1)
The functions which the OHPA has under the Medical Act 1983 (c. 54) and the
Opticians Act 1989 (c. 44) are to be discharged by fitness to practise panels
constituted in accordance with this section.
(2)
A fitness to practise panel is to consist of—
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(a)
a chair selected from the lay members list or the professionally
qualified members list,
(b)
a lay member selected from the lay members list,
(c)
a professionally qualified member selected from the professionally
qualified members list, and
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(d)
such additional members (if any) selected from the lay members list or
the professionally qualified members list as may be required by rules.
(3)
Rules may make further provision about the selection of fitness to practise
panels in relation to any proceedings.
(4)
In this section—
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“lay members list” means the list of persons eligible to serve as lay
members provided for by section 94(1)(a);
“professionally qualified members list” means the list of persons eligible
to serve as professionally qualified members provided for by section
94(1)(b);
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“rules” means rules made by the OHPA.
94
Lists of persons eligible for membership of fitness to practise panels
(1)
For the purposes of section 93, the OHPA must appoint, or arrange for the
appointment of, persons to lists of—
(a)
persons eligible to serve as lay members, and
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(b)
persons eligible to serve as professionally qualified members.
(2)
Rules may make provision about the keeping of the lists including provision
about—
(a)
the division of a list into parts, and
(b)
the information which is to appear on a list in relation to a person
30
appointed to that list.
(3)
No person may be appointed to a list unless the person satisfies such
requirements as may be prescribed by rules.
(4)
A member of the OHPA may not be appointed to a list.
(5)
A person appointed to a list holds and vacates office in accordance with the
35
terms of the person’s appointment.
(6)
In this section “rules” means rules made by the OHPA.
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Further provisions about listed persons
(1)
The OHPA may pay to any person included on a list such fees, allowances and
expenses as it may determine.
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(2)
The OHPA must provide, or arrange for the provision of, such training for
persons included on a list as it may determine.

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(3)
The OHPA must—
(a)
establish and maintain a system for the declaration and registration of
private interests of persons included on a list, and
(b)
publish entries recorded in that register of interests.
(4)
In this section “list” means either of the lists kept under section 94(1).
5
96
Legal assessors
(1)
The OHPA must appoint, or arrange for the appointment of, persons to be legal
assessors.
(2)
The legal assessors are appointed for the purpose of giving advice to the
OHPA’s fitness to practise panels on questions of law arising in proceedings
10
before them.
(3)
To be eligible for appointment as a legal assessor a person must have such
qualifications and satisfy such other conditions as are specified by rules.
(4)
A legal assessor appointed under this section—
(a)
may be appointed either generally or for any particular proceedings or
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class of proceedings, and
(b)
holds and vacates office in accordance with the terms of the assessor’s
appointment.
(5)
The OHPA may pay such fees, allowances and expenses to a legal assessor
appointed under this section as it may determine.
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(6)
Rules may make provision about the functions of legal assessors appointed
under this section.
(7)
In this section “rules” means rules made by the OHPA.
97
Clinical and other specialist advisers
(1)
The OHPA may appoint, or arrange for the appointment of, persons to be
25
clinical advisers.
(2)
Any clinical advisers are appointed for the purpose of giving advice to the
OHPA’s fitness to practise panels on issues relating to health that arise in
proceedings before them.
(3)
The OHPA may also appoint, or arrange for the appointment of, persons to act
30
as specialist advisers on issues on which the OHPA considers that specialist
knowledge is required.
(4)
Any specialist advisers are appointed for the purpose of giving advice to the
OHPA’s fitness to practise panels on issues falling within the advisers’
speciality arising in proceedings before them.
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(5)
To be eligible for appointment as a clinical adviser or specialist adviser a
person must have such qualifications and satisfy such other conditions as are
specified by rules.
(6)
An adviser appointed under subsection (1) or (3)—
(a)
may be appointed either generally or for any particular proceedings or
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class of proceedings, and

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(b)
holds and vacates office in accordance with the terms of the adviser’s
appointment.
(7)
The OHPA may pay such fees, allowances and expenses to an adviser
appointed under subsection (1) or (3) as it may determine.
(8)
Rules may make provision about the functions of advisers appointed under
5
subsection (1) or (3).
(9)
In this section “rules” means rules made by the OHPA.
98
Procedural rules
(1)
The OHPA must make rules about—
(a)
the procedure to be followed in connection with the making of referrals
10
to the OHPA under the Medical Act 1983 (c. 54) or the Opticians Act
1989 (c. 44), and
(b)
the procedure to be followed, and the rules of evidence to be observed,
in proceedings before the OHPA’s fitness to practise panels.
(2)
Subject to subsection (4), rules under this section may make such provision as
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the OHPA considers appropriate including provision about—
(a)
preliminary hearings,
(b)
the giving of directions to parties as to the conduct of proceedings and
the consequences of failure to comply with such directions,
(c)
a fitness to practise panel taking account of undertakings given by the
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person to whom the proceedings relate,
(d)
voting by fitness to practise panels, including the taking of decisions by
majority and the conferral of a casting vote on the chair,
(e)
the award and assessment of costs and expenses, and
(f)
the circumstances in which fitness to practise panels may review their
25
own decisions.
(3)
Rules about the award and assessment of costs and expenses may—
(a)
require that regard be had to a person’s ability to pay when considering
the making of an award against that person,
(b)
include provision for all or part of the costs or expenses of the
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representative of a party to proceedings to be disallowed by reason of
that representative’s conduct of the proceedings, and
(c)
provide for an award in respect of costs and expenses to be recoverable
as if it had been adjudged to be paid by court order.
(4)
Rules under this section must make—
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(a)
provision for securing that—
(i)
notice that proceedings are to be brought is given to the person
to whom the proceedings relate, and
(ii)
notice of any decision of a fitness to practise panel is given to the
parties to the proceedings and to the registrar of the regulatory
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body which regulates the profession of which the person to
whom the proceedings relate is a member,

within such time and in such manner as is specified in the rules,
(b)
provision giving each party to proceedings the opportunity, if the party
so requests, to put the party’s case at a hearing,
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(c)
provision entitling each party to be represented at any hearing by a
person falling within a description of persons specified in the rules, and
(d)
provision for proceedings to be held in public except and to the extent
that the rules provide otherwise.
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Administration of oaths and issuing of witness summonses etc.
5
(1)
For the purpose of proceedings before a fitness to practise panel of the OHPA
in England and Wales or in Northern Ireland—
(a)
the panel may administer oaths, and
(b)
any party to the proceedings may apply for the issue of a witness
summons directing a person to attend the panel in order to give
10
evidence or to produce a document.
(2)
No person shall be compelled under any such summons to give any evidence
or produce any document which that person could not be compelled to give or
produce on the trial of an action.
(3)
Section 36 of the Supreme Court Act 1981 (c. 54) and section 67 of the
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Judicature (Northern Ireland) Act 1978 (c. 23) (which provide a special
procedure for the issue of such a summons so as to be in force throughout the
United Kingdom) apply in relation to proceedings before a fitness to practise
panel in England and Wales or, as the case may be, in Northern Ireland as those
provisions apply in relation to causes or matters in the High Court.
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(4)
For the purpose of proceedings before a fitness to practise panel of the OHPA
in Scotland—
(a)
the panel may administer oaths, and
(b)
the Court of Session, on the application of any party to the proceedings,
has the like power as in any action in that court—
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(i)
to grant warrant for the citation of witnesses and havers to give
evidence or to produce documents before the panel and for the
issue of letters of second diligence against any witness or haver
failing to appear after due citation,
(ii)
to grant warrant for the recovery of documents, and
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(iii)
to grant commissions to persons to take the evidence of
witnesses or to examine havers and receive their exhibits and
productions.
100
Duty to inform the public
(1)
For the purpose of ensuring that members of the public are informed about the
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OHPA and the exercise by it of its functions, the OHPA must publish or
provide in such manner as it thinks fit information about the OHPA and the
exercise of its functions.
(2)
Without prejudice to the generality of subsection (1), the OHPA must publish
in such manner as it thinks fit, and within such time as may be specified in
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rules, decisions of its fitness to practise panels.
(3)
But the OHPA may withhold from publication—
(a)
information concerning the physical or mental health of a person which
the OHPA considers to be confidential, and
(b)
other information which is of a description specified in rules.
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(4)
Nothing in subsection (1) or (2) authorises or requires the publication or
provision of information if the publication or provision of that information—
(a)
is prohibited by any enactment, or
(b)
would constitute or be punishable as a contempt of court.
(5)
In this section “rules” means rules made by the OHPA.
5
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Duty to consult
The OHPA must from time to time seek the views of—
(a)
members of the public,
(b)
bodies which appear to the OHPA to represent the interests of patients,
(c)
the General Medical Council and the General Optical Council, and
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(d)
any other bodies which appear to the OHPA to represent the
professions regulated by the Medical Act 1983 (c. 54) or the Opticians
Act 1989 (c. 44),
on matters relevant to the exercise by it of its functions.
102
OHPA rules: supplementary
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(1)
This section applies to the power of the OHPA to make rules under any of
sections 93, 94, 96, 97, 98 and 100.
(2)
The power may be exercised—
(a)
so as to make different provision for different cases or different classes
of case or different provision in respect of the same case or class of case
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for different purposes of this Act,
(b)
either in relation to all cases to which the power extends, or in relation
to all those cases subject to specified exceptions, or
(c)
so as to make any supplementary, incidental, consequential,
transitional, transitory or saving provision which the OHPA considers
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necessary or expedient.
(3)
Before making rules the OHPA must consult—
(a)
the Council for Healthcare Regulatory Excellence,
(b)
if the rules affect the profession regulated by the Medical Act 1983, the
General Medical Council and any other bodies which appear to the
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OHPA to represent that profession,
(c)
if the rules affect the professions regulated by the Opticians Act 1989,
the General Optical Council and any other bodies which appear to the
OHPA to represent those professions,
(d)
bodies which appear to the OHPA to represent the interests of patients,
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and
(e)
such other persons as the OHPA considers appropriate.
(4)
Rules do not come into force until they have been approved by order of the
Privy Council.
(5)
The Privy Council may approve rules—
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(a)
as submitted to them, or
(b)
subject to such modifications as appear to them to be necessary.
(6)
Where the Privy Council propose to approve rules subject to modifications,
they must—