Health and Social Care Bill

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Session 2007 - 08
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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 2 — Amendments of Opticians Act 1989
157

(ii)
for “his or its interests” substitute “the registrant’s interests”.
     (13)
In subsection (13)—
(a)
for the words from “Fitness to Practise Committee” to “they think”
substitute “Adjudicator may (whether or not of its own motion), if it
thinks”, and
5
(b)
for “Committee must” substitute “Adjudicator must”.
33    (1)
Section 13G of the 1989 Act (provisions supplementary to section 13F) is
amended as follows.
      (2)
In subsection (1)—
(a)
for “Fitness to Practise Committee” substitute “Adjudicator”,
10
(b)
in paragraph (a) for “give” substitute “gives”, and
(c)
in paragraph (b) for “vary” substitute “varies”.
      (3)
In subsection (6) for “Fitness to Practise Committee” substitute
“Adjudicator”.
34
In section 13H of the 1989 Act (financial penalty order), in subsection (1)—
15
(a)
for “Fitness to Practise Committee have” substitute “Adjudicator
has”, and
(b)
for “they” substitute “the Adjudicator”.
35    (1)
Section 13I of the 1989 Act (power to order immediate suspension etc after a
finding of impairment of fitness to practise) is amended as follows.
20
      (2)
In subsections (1) and (2) for “Fitness to Practise Committee” substitute
“Adjudicator”.
      (3)
In subsection (4) for “Fitness to Practise Committee make” substitute
“Adjudicator makes”.
36    (1)
Section 13J of the 1989 Act (removal from a register on grounds of fraud or
25
error) is amended as follows.
      (2)
In subsection (1)—
(a)
for “Fitness to Practise Committee” substitute “Adjudicator”, and
(b)
for “Committee may, if they think” substitute “Adjudicator may, if it
thinks”.
30
      (3)
In subsection (2) for “Fitness to Practise Committee direct” substitute
“Adjudicator directs”.
37    (1)
Section 13K of the 1989 Act (restoration of names to a register) is amended
as follows.
      (2)
In subsections (2) and (3) for “Registration Appeals Committee” substitute
35
“Adjudicator”.
      (3)
In subsection (6)—
(a)
for “Registration Appeals Committee may, if they think” substitute
“Adjudicator may, if it thinks”,
(b)
for “direct the registrar to restore” substitute “direct that”, and
40
(c)
after “proficiency,” insert “be restored”.
      (4)
In subsection (7)—
(a)
for “Registration Appeals Committee” substitute “Adjudicator”,

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
158

(b)
for “they consider” substitute “the Adjudicator considers”,
(c)
for “they must” substitute “the Adjudicator must”, and
(d)
for “them” substitute “it”.
      (5)
In subsection (8) for “Registration Appeals Committee” substitute
“Adjudicator”.
5
      (6)
In subsection (9) for “Registration Appeals Committee give” substitute
“Adjudicator gives”.
      (7)
In subsection (10) for “Registration Appeals Committee” substitute
“Adjudicator”.
38    (1)
Section 13L of the 1989 Act (interim orders) is amended as follows.
10
      (2)
In subsection (1)—
(a)
for “Fitness to Practise Committee are” substitute “Adjudicator is”,
and
(b)
for “the Committee” substitute “the Adjudicator”.
      (3)
In subsection (2)(b) for “Committee think” substitute “Adjudicator thinks”.
15
      (4)
In subsection (3)—
(a)
for “Fitness to Practise Committee make” substitute “Adjudicator
makes”, and
(b)
for “the Committee” substitute “the Adjudicator”.
      (5)
In subsections (4) and (6) for “Fitness to Practise Committee” substitute
20
“Adjudicator”.
      (6)
In subsection (9) for “Fitness to Practise Committee” (in both places)
substitute “Adjudicator”.
      (7)
In subsection (11)—
(a)
for “Fitness to Practise Committee” substitute “Adjudicator”,
25
(b)
for “the Committee” substitute “the Adjudicator”, and
(c)
omit “and rules made under section 23C below”.
39
After section 23A of the 1989 Act insert—
“23AA
References to Investigation Committee
(1)
Where, in the course of any proceedings before the Adjudicator, the
30
Adjudicator forms the opinion (on reasonable grounds) that there is
a matter which ought to be investigated by the Investigation
Committee—
(a)
the Adjudicator may notify the registrar of that matter; and
(b)
on being so notified, the registrar shall refer the matter to the
35
Investigation Committee and the Investigation Committee
shall investigate the matter.
(2)
Nothing in subsection (1) prevents the Adjudicator from considering
the matter itself, whether or not it has reached a decision in the
proceedings.”
40
40    (1)
Section 23B of the 1989 Act (procedure of Fitness to Practise Committee and
Registration Appeals Committee) is amended as follows.
      (2)
In the heading omit “Fitness to Practise Committee and”.

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
159

      (3)
Omit subsection (1)(a) and the word “or” following it.
41    (1)
Section 23C of the 1989 Act (powers of the Council to make rules) is
amended as follows.
      (2)
Omit subsection (1)(a)(i) and the word “and” following it.
      (3)
Omit subsection (2)(e) and (f).
5
42
After section 23C of the 1989 Act insert—
“23CA
Assessments
(1)
If the Adjudicator considers (on reasonable grounds) that it would be
of assistance to it, in dealing with any proceedings before it, for there
to be an assessment of—
10
(a)
the standard and quality of the work done or being done by
the person to whom the proceedings relate (“P”); or
(b)
the health, or specific aspects of the health, of P,

the Adjudicator may request the registrar to arrange for an assessor
to be appointed to report on the standard and quality of P’s work or
15
(as the case may be) on P’s health or specific aspects of P’s health.
(2)
On receipt of a request under subsection (1), the registrar shall
arrange for one or more assessors to be appointed in accordance with
rules made by the Council.
(3)
The Council may make rules about the carrying out of the
20
assessment and the making of the report.
(4)
If P fails to submit to, or co-operate with, the assessment the
Adjudicator may draw such inferences from P’s failure as it
considers appropriate.
(5)
This section does not apply if the person to whom the proceedings
25
relate is a body corporate.”
43
In section 23D of the 1989 Act (legal advisers) omit subsection (2)(a) and the
word “and” following it.
44
In section 23E of the 1989 Act (other advisers), in subsections (3) and (4), omit
“the Fitness to Practise Committee and”.
30
45    (1)
Section 23G of the 1989 Act (appeals from the Registration Appeals
Committee and the Fitness to Practise Committee) is amended as follows.
      (2)
In the heading for “Fitness to Practise Committee” substitute “Adjudicator”.
      (3)
In subsection (1)—
(a)
in paragraphs (a) and (b) for “Fitness to Practise Committee”
35
substitute “Adjudicator”, and
(b)
in paragraph (d) for “Registration Appeals Committee” substitute
“Adjudicator”.
      (4)
In subsection (6)—
(a)
for “Fitness to Practise Committee” (where first occurring) substitute
40
“Adjudicator”,
(b)
in paragraph (b) for “direction or variation or order” substitute
“direction, variation, order or (as the case may be) determination”,

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
160

(c)
in paragraph (c) for “Fitness to Practise Committee” substitute
“Adjudicator”, and
(d)
in paragraph (d) for “registrar for him to refer it to the Fitness to
Practise Committee” substitute “Adjudicator”.
46
After section 23H of the 1989 Act insert—
5
“23I
Reference of cases by Council to court
(1)
This section applies to—
(a)
a decision of the Adjudicator under section 13F giving—
(i)
a direction for suspension, including a direction
extending a period of suspension;
10
(ii)
a direction for temporary removal of an entry relating
to a speciality or proficiency, including a direction
extending a period of temporary removal;
(iii)
a direction for conditional registration, including a
direction extending a period of conditional
15
registration;
(iv)
a direction for conditional inclusion of an entry
relating to a speciality or proficiency, including a
direction extending a period of conditional inclusion;
(v)
a direction varying any of the conditions imposed by
20
a direction for conditional registration;
(vi)
a direction varying any of the conditions imposed by
a direction for conditional inclusion; and
(b)
a decision of the Adjudicator under section 13H to impose a
financial penalty order.
25
(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);
(ii)
a direction for erasure;
(iii)
a direction for removal (other than temporarily) of an
30
entry relating to a speciality or proficiency;
(iv)
a direction for indefinite suspension,

(whether because of a finding that the registrant’s fitness to
practise, fitness to carry on business or (as the case may be)
fitness to undertake training is not impaired or otherwise);
35
(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
entry relating to a speciality or proficiency be
terminated;
40
(iii)
revoking a direction for conditional registration or a
condition imposed by such a direction;
(iv)
revoking a direction for conditional inclusion or a
condition imposed by such a direction;
(c)
a decision of the Adjudicator under section 13H not to
45
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
speciality or proficiency be removed; and

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989
161

(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.
(3)
The decisions to which this section applies are referred to below as
5
“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
practise, fitness to carry on business or (as the case may be)
10
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
(b)
a relevant decision falling within subsection (2) should not
15
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)
In the case of a relevant decision falling within subsection (1), the
20
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
Council may not refer a case after the end of the period of 40 days
25
beginning with the day on which the Council receives 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 Council do refer a case—
(a)
the case is to be treated by the court to which it has been
30
referred as an appeal by the Council against the relevant
decision; and
(b)
the Adjudicator is to be a respondent.
(8)
The court may—
(a)
dismiss the appeal;
35
(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,
40

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
the reference of the case to the court.
45
(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

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999
162

falling within subsection (2)(d) or (e) “relevant court” has the same
meaning as in section 23G(4)(b) and (c).”
47
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
5
referred to it by the registrar, if it thinks”.
48
In section 33 of the 1989 Act (default powers of Privy Council), in subsection
(3)(b), after “23C,” insert “23CA,”.
49
In section 34 of the 1989 Act (subordinate legislation procedure), in
subsection (2), after “23C” insert “or 23CA”.
10
50
In section 36 of the 1989 Act (interpretation), in subsection (1), before the
definition of “approved training establishment” insert—
“ “the Adjudicator” means the Office of the Health Professions
Adjudicator;”.
51
In Schedule 1 to the 1989 Act (constitution etc of General Optical Council),
15
in paragraph 12, for “, the Registration Appeals Committee and the Fitness
to Practise Committee” substitute “and the Registration Appeals
Committee”.
Schedule 8
Section 106

Extension of powers under s. 60 of Health Act 1999
20
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—
“(f)
modifying the constitution, functions, powers or duties of the
Office of the Health Professions Adjudicator.”.
25
      (3)
In subsection (2)—
(a)
in paragraph (a), omit “the Pharmacy Act 1954,”, and
(b)
after that paragraph insert—
“(aa)
the professions regulated by the Pharmacists and
Pharmacy Technicians Order 2007 and the Pharmacy
30
(Northern Ireland) Order 1976,”.
      (4)
After subsection (2) insert—
“(2A)
Her Majesty may also by Order in Council make provision relating
to, or connected with, the functions of the relevant regulatory body
in relation to—
35
(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
retail pharmacy business, within the meaning of the
Medicines Act 1968,
40
(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

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999
163

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).
5
(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
10
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—
15
    “(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,
20
(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
25
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
30
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
35
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—
40
   “(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
45