Health and Social Care Bill

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Health and Social Care Bill

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
143

4
After section 35 of the 1983 Act insert—
“35ZA
Fitness to practise findings: guidance
(1)
The General Council may publish guidance about factors which they
consider to indicate that—
(a)
a person (“D”) whose fitness to practise is found to be
5
impaired should or should not have—
(i)
D’s name erased from the register;
(ii)
D’s registration suspended;
(iii)
D’s registration suspended forthwith in accordance
with section 38;
10
(iv)
D’s registration made conditional;
(v)
D’s registration made conditional forthwith in
accordance with section 38;
(b)
a person whose fitness to practise is found not to be impaired
should or should not be given a warning regarding the
15
person’s future conduct or performance;
(c)
a person whose name has been erased from the register
should or should not have the person’s name restored to the
register.
(2)
The General Council may also publish guidance about factors which
20
they consider to indicate—
(a)
that requirements of a particular type should be imposed as
conditions in the case of a person whose registration is to be
made conditional;
(b)
the period of time for which a person’s registration should be
25
suspended or made conditional.
(3)
The Adjudicator must take account of guidance published under
subsection (1) or (2) in exercising its functions under sections 35D, 38
and 41 and under paragraph 5A(3E) of Schedule 4.”
5     (1)
In section 35B of the 1983 Act (notification and disclosure by the General
30
Council), in subsection (4)—
(a)
in paragraphs (a), (b) and (c) for “a Fitness to Practise Panel”
substitute “the Adjudicator”,
(b)
in paragraph (d) for “an Interim Orders Panel or a Fitness to Practise
Panel” substitute “the Adjudicator”,
35
(c)
after paragraph (d) insert—
“(da)
decisions of the Adjudicator to make a direction
under paragraph 5A(3E) of Schedule 4 to this Act and
decisions of the Adjudicator under section 35D below
that relate to such a direction;”, and
40
(d)
in paragraph (e) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
6     (1)
Section 35C of the 1983 Act (functions of the Investigation Committee) is
amended as follows.
      (2)
In subsection (2)(e) after “social care profession” insert “, or by the
45
Adjudicator,”.

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
144

      (3)
In subsection (4) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
      (4)
In subsection (5) for “a Fitness to Practise Panel” (in both places) substitute
“the Adjudicator”.
      (5)
In subsections (6) and (7) for “a Fitness to Practise Panel” substitute “the
5
Adjudicator”.
      (6)
In subsection (8)—
(a)
for “an Interim Orders Panel or a Fitness to Practise Panel should”
substitute “the Adjudicator should”, and
(b)
in paragraph (b) for “an Interim Orders Panel or a Fitness to Practise
10
Panel for the Panel” substitute “the Adjudicator for the Adjudicator”.
7     (1)
Section 35D of the 1983 Act (functions of a Fitness to Practise Panel) is
amended as follows.
      (2)
In the heading for “a Fitness to Practise Panel” substitute “the Adjudicator”.
      (3)
In subsection (1)—
15
(a)
after “section 35C above” insert “(other than under subsection (8) of
that section)”, and
(b)
for “a Fitness to Practise Panel” substitute “the Adjudicator”.
      (4)
In subsection (2)—
(a)
for “Panel find” substitute “Adjudicator finds”,
20
(b)
for “they may, if they think” substitute “the Adjudicator may, if it
thinks”, and
(c)
in paragraph (c) for “Panel think” substitute “Adjudicator thinks”.
      (5)
In subsection (3)—
(a)
for “Panel find” substitute “Adjudicator finds”, and
25
(b)
for “they” substitute “the Adjudicator”.
      (6)
In subsection (4)—
(a)
for “a Fitness to Practise Panel have” substitute “the Adjudicator
has”, and
(b)
in paragraph (c) for “rules made by virtue of paragraph 5A(3)”
30
substitute “paragraph 5A(3E)”.
      (7)
In subsection (5)—
(a)
for “a Fitness to Practise Panel may, if they think” substitute “the
Adjudicator may, if it thinks”,
(b)
in paragraph (c) for “Panel think” substitute “Adjudicator thinks”,
35
and
(c)
for “Panel shall” substitute “Adjudicator shall”.
      (8)
In subsection (6) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
      (9)
In subsection (7)—
40
(a)
for “a Fitness to Practise Panel have” substitute “the Adjudicator
has”,
(b)
for “a Fitness to Practise Panel shall” substitute “the Adjudicator
shall”, and

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
145

(c)
in paragraph (a) for “them” substitute “the Adjudicator”.
     (10)
In subsection (8)—
(a)
for “Panel” (where first occurring) substitute “Adjudicator”, and
(b)
in paragraph (c) for “Panel think” substitute “Adjudicator thinks”.
     (11)
In subsection (9)—
5
(a)
in paragraph (a)(iii) for “rules made by virtue of paragraph 5A(3)”
substitute “paragraph 5A(3E)”, and
(b)
in paragraph (b) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
     (12)
In subsection (10) for “Panel may, if they think” substitute “Adjudicator
10
may, if it thinks”.
     (13)
In subsection (11)(b) for “rules made by virtue of paragraph 5A(3)”
substitute “paragraph 5A(3E)”.
     (14)
In subsection (12)—
(a)
for “a Fitness to Practise Panel may, if they think” substitute “the
15
Adjudicator may, if it thinks”, and
(b)
for “Panel shall” substitute “Adjudicator shall”.
8     (1)
Section 35E of the 1983 Act (provisions supplementary to section 35D) is
amended as follows.
      (2)
In subsection (1)—
20
(a)
for “a Fitness to Practise Panel” substitute “the Adjudicator”,
(b)
in paragraphs (a), (b) and (c) for “give” substitute “gives”, and
(c)
in paragraph (d) for “vary” substitute “varies”.
      (3)
In subsection (4) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
25
9     (1)
Section 38 of the 1983 Act (power to order immediate suspension etc after a
finding of impairment of fitness to practise) is amended as follows.
      (2)
In subsections (1) and (2)—
(a)
for “rules made by virtue of paragraph 5A(3)” substitute “paragraph
5A(3E)”, and
30
(b)
for “Fitness to Practise Panel” substitute “Adjudicator”.
      (3)
In subsection (3)—
(a)
in paragraph (a)—
(i)
in sub-paragraph (i) after “10” insert “or 10A”, and
(ii)
omit sub-paragraph (ii), and
35
(b)
in paragraph (b) for “paragraph 5A(4) of that Schedule” substitute
“paragraph 5A(5) of Schedule 4 to this Act”.
      (4)
In subsection (4) for “a Fitness to Practise Panel make” substitute “the
Adjudicator makes”.
10    (1)
Section 40 of the 1983 Act (appeals) is amended as follows.
40
      (2)
In subsection (1)(a) and (b) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
      (3)
In subsection (7)—

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
146

(a)
for “a Fitness to Practise Panel” (where first occurring) substitute
“the Adjudicator”,
(b)
in paragraph (c) for “a Fitness to Practise Panel” substitute “the
Adjudicator”, and
(c)
in paragraph (d) for “Registrar for him to refer it to a Fitness to
5
Practise Panel” substitute “Adjudicator”.
      (4)
In subsection (9) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
11
After section 40 of the 1983 Act insert—
“40A
Reference of cases by General Council to court
10
(1)
This section applies to—
(a)
a decision of the Adjudicator under section 35D giving—
(i)
a direction for suspension, including a direction
extending a period of suspension;
(ii)
a direction for conditional registration, including a
15
direction extending a period of conditional
registration;
(iii)
a direction varying any of the conditions imposed by
a direction for conditional registration; and
(b)
a decision of the Adjudicator under paragraph 5A(3E) of
20
Schedule 4 giving—
(i)
a direction for suspension;
(ii)
a direction for conditional registration.
(2)
This section also applies to—
(a)
a decision of the Adjudicator under section 35D not to give a
25
direction falling within subsection (1)(a) or a direction for
erasure (whether because of a finding that the person’s
fitness to practise is not impaired or otherwise);
(b)
a decision of the Adjudicator under section 35D—
(i)
giving a direction that a suspension be terminated;
30
(ii)
revoking a direction for conditional registration or a
condition imposed by such a direction;
(c)
a decision of the Adjudicator under section 41 giving a
direction that a person’s name be restored to the register; and
(d)
a decision of the Adjudicator under paragraph 5A(3E) of
35
Schedule 4 not to give a direction falling within subsection
(1)(b).
(3)
The decisions to which this section applies are referred to below as
“relevant decisions”.
(4)
If the General Council consider that—
40
(a)
a relevant decision falling within subsection (1) is unduly
lenient, whether because the findings relating to fitness to
practise are inadequate, or because the direction given does
not adequately reflect the findings that have been made, or
both; or
45
(b)
a relevant decision falling within subsection (2) should not
have been made,

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
147


and that it would be desirable for the protection of members of the
public for the General Council to take action under this section, the
General Council may refer the case to the relevant court.
(5)
In the case of a relevant decision falling within subsection (1), the
General Council may not refer a case after the end of the period of 40
5
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
General Council may not refer a case after the end of the period of 40
days beginning with the day on which the General Council receives
10
notice of the relevant decision in accordance with rules made by the
Adjudicator under section 100(4)(a)(ii) of the Health and Social Care
Act 2008.
(7)
If the General Council do refer a case—
(a)
the case is to be treated by the court to which it has been
15
referred as an appeal by the General Council against the
relevant decision; and
(b)
the Adjudicator is to be a respondent.
(8)
The court may—
(a)
dismiss the appeal;
20
(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
accordance with the directions of the court,
25

and may make such order as to costs (or, in Scotland, expenses) as it
thinks fit.
(9)
If the General Council do refer a case, the Registrar must without
delay serve on the person to whom the relevant decision relates
notification of the reference of the case to the court.
30
(10)
In subsection (4) “relevant court” has the meaning given by section
40(5).”
12    (1)
Section 41 of the 1983 Act (restoration of names to the register) is amended
as follows.
      (2)
In subsection (1) for “a Fitness to Practise Panel may, if they think” substitute
35
“the Adjudicator may, if it thinks”.
      (3)
In subsections (2) and (3) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
      (4)
In subsection (6)—
(a)
for “a Fitness to Practise Panel” substitute “the Adjudicator”,
40
(b)
for “they direct” substitute “the Adjudicator directs”,
(c)
for “they shall” substitute “the Adjudicator shall”, and
(d)
for “them” substitute “it”.
      (5)
In subsection (7)—
(a)
for “A Fitness to Practise Panel” substitute “The Adjudicator”,
45

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
148

(b)
omit “in accordance with regulations made by the General Council
under this subsection,”, and
(c)
for the words from “they direct” to the end substitute “the
Adjudicator directs that the practitioner’s licence to practise be
restored.”.
5
      (6)
In subsection (9) for “a Fitness to Practise Panel” substitute “the
Adjudicator”.
      (7)
In subsection (10) for “a Fitness to Practise Panel give” substitute “the
Adjudicator gives”.
      (8)
In subsection (11) for “a Fitness to Practise Panel” substitute “the
10
Adjudicator”.
13    (1)
Section 41A of the 1983 Act (interim orders) is amended as follows.
      (2)
In subsection (1)—
(a)
for “an Interim Orders Panel or a Fitness to Practise Panel are”
substitute “the Adjudicator is”,
15
(b)
for “Panel may” substitute “Adjudicator may”, and
(c)
in paragraph (b) for “Panel think” substitute “Adjudicator thinks”.
      (3)
In subsection (2)—
(a)
for “an Interim Orders Panel or a Fitness to Practise Panel have”
substitute “the Adjudicator has”, and
20
(b)
for “an Interim Orders Panel or a Fitness to Practise Panel—”
substitute “the Adjudicator—”.
      (4)
In subsection (3) for “an Interim Orders Panel or a Fitness to Practise Panel”
substitute “the Adjudicator”.
      (5)
In subsection (4)—
25
(a)
for “any Panel” substitute “the Adjudicator”,
(b)
for “before the Panel” substitute “before the Adjudicator”, and
(c)
omit the words from “; and for the purposes” to the end.
      (6)
In subsection (6) for “an Interim Orders Panel or a Fitness to Practise Panel”
substitute “the Adjudicator”.
30
      (7)
In subsection (9) for “an Interim Orders Panel or a Fitness to Practise Panel”
(in both places) substitute “the Adjudicator”.
14
In section 41C of the 1983 Act (effect of directions or orders on a licence to
practise), in subsection (1), for “rules made by virtue of paragraph 5A(3)”
substitute “paragraph 5A(3E)”.
35
15
In section 43 of the 1983 Act (proceedings before the Investigation
Committee, Interim Orders Panels and Fitness to Practise Panels), and in the
heading, for “, Interim Orders Panels and Fitness to Practise Panels”
substitute “and the Adjudicator”.
16
In section 44 of the 1983 Act (effect of disqualification in another member
40
State on registration in the United Kingdom), in subsection (5)—
(a)
in paragraph (a)—
(i)
for “a Fitness to Practise Panel may direct that his” substitute
“the Adjudicator may, if the matter is referred to it by the
Registrar, direct that the person’s”,
45

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 1 — Amendments of Medical Act 1983
149

(ii)
for “Panel think” substitute “Adjudicator thinks”, and
(iii)
for “Panel’s” substitute “Adjudicator’s”, and
(b)
in paragraph (b) for “1, 2, 8, 9, 10, 12 and 13” substitute “8, 9, 10 and
12”.
17
In section 47 of the 1983 Act (appointments not to be held except by fully
5
registered medical practitioners who hold licences to practise), in subsection
(4)—
(a)
in paragraph (a)—
(i)
for “a Fitness to Practise Panel” substitute “the Adjudicator”,
and
10
(ii)
in sub-paragraph (ii) for “rules made by virtue of paragraph
5A(3)” substitute “paragraph 5A(3E)”,
(b)
in paragraph (b) for “a Fitness to Practise Panel” substitute “the
Adjudicator”, and
(c)
in paragraph (c) for “an Interim Orders Panel or a Fitness to Practise
15
Panel” substitute “the Adjudicator”.
18
In section 53 of the 1983 Act (proof of certain instruments), omit subsection
(2)(c).
19
In section 55 of the 1983 Act (interpretation), in subsection (1), after the
definition of “additional qualification” insert—
20
“ “the Adjudicator” means the Office of the Health Professions
Adjudicator;”.
20    (1)
Part 3 of Schedule 1 to the 1983 Act (committees of the General Medical
Council) is amended as follows.
      (2)
Omit paragraph 19A and the heading before it.
25
      (3)
Omit paragraph 19E and the heading before it.
      (4)
In paragraph 23—
(a)
for “paragraphs 19A, 19C and 19E” substitute “paragraph 19C”,
(b)
in paragraph (a) for “an Interim Orders Panel, a Registration Appeals
Panel or a Fitness to Practise Panel” substitute “a Registration
30
Appeals Panel”,
(c)
omit paragraph (b), and
(d)
in paragraph (c) for “an Interim Orders Panel, a Registration Appeals
Panel or a Fitness to Practise Panel” substitute “a Registration
Appeals Panel”.
35
      (5)
In paragraphs 23B and 24 for “19A, 19B, 19C, 19D or 19E” substitute “19B,
19C or 19D”.
21
In Schedule 3A to the 1983 Act (registration appeals), in paragraph 4(7), for
“a Fitness to Practise Panel” substitute “the Investigation Committee (where,
in the case of paragraph 7, the Committee is considering giving a warning to
40
a person)”.
22
In Schedule 3B to the 1983 Act (licence to practise and revalidation: appeals),
in paragraph 3(4), for “a Fitness to Practise Panel” substitute “the
Investigation Committee (where, in the case of paragraph 7, the Committee
is considering giving a warning to a person)”.
45