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 2 — Regulation of health professions and health and social care workforce
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95
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—
5
(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
10
(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 96(1)(a);
“professionally qualified members list” means the list of persons eligible
to serve as professionally qualified members provided for by section
96(1)(b);
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“rules” means rules made by the OHPA.
96
Lists of persons eligible for membership of fitness to practise panels
(1)
For the purposes of section 95, the OHPA must appoint, or arrange for the
appointment of, persons to lists of—
(a)
persons eligible to serve as lay members, and
25
(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.
97
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 96(1).
5
98
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
15
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.
99
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.
100
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.
101
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
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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—
25
(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.
102
Duty to inform the public
(1)
For the purpose of ensuring that members of the public are informed about the
35
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
40
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
103
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
10
(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.
104
OHPA rules: supplementary
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(1)
This section applies to the power of the OHPA to make rules under any of
sections 95, 96, 98, 99, 100 and 102.
(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
20
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
25
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
30
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—
40
(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—

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(a)
notify the OHPA of the modifications they propose to make, and
(b)
consider any observations which the OHPA may make on the
modifications.
105
Fees payable by General Medical Council and General Optical Council
(1)
The Secretary of State must with the approval of the Treasury make regulations
5
requiring each of the regulatory bodies to pay to the OHPA periodic fees in
respect of the discharge by the OHPA of its functions.
(2)
The regulations must provide for the amount of the fees to be determined by
the OHPA in accordance with the regulations.
(3)
The regulations must require the OHPA to exercise its powers under the
10
regulations with a view to ensuring that its chargeable costs are met by fees
payable under the regulations and, accordingly, that the fees payable by each
regulatory body cover—
(a)
so much of the OHPA’s chargeable costs as are treated by the
regulations as being attributable to the OHPA’s functions under the
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relevant regulatory Act, and
(b)
an apportionment between the regulatory bodies of so much of the
OHPA’s chargeable costs as are not treated by the regulations as being
attributable to the OHPA’s functions under that Act or the other
relevant regulatory Act.
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(4)
For the purposes of subsection (3), the OHPA’s “chargeable costs” are the costs
incurred by the OHPA under or for the purposes of this Act or any other
enactment, other than costs—
(a)
incurred before such day as may be specified in the regulations, or
(b)
incurred for a purpose specified in the regulations.
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(5)
The regulations must provide that no fee is to be payable unless the OHPA
has—
(a)
notified the regulatory bodies of its proposed determination as to the
amount of the fees payable by them,
(b)
considered any representations made by the regulatory bodies in
30
relation to the proposed determination, and
(c)
notified each of the regulatory bodies of the OHPA’s determination of
the amount payable by that body (which may be more or less than the
amount proposed).
(6)
The regulations may require the OHPA to obtain the approval of the Treasury
35
in relation to the amount of any fee.
(7)
The regulations may—
(a)
make provision as to the times at which fees are to be paid;
(b)
enable a determination to be varied, replaced or revoked;
(c)
provide that if the whole or any part of a fee payable under the
40
regulations is not paid by the time when it is required to be paid under
the regulations, the unpaid balance from that time carries interest at the
rate determined by or in accordance with the regulations;
(d)
make provision as to the recovery of fees.

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(8)
Before making regulations under this section, the Secretary of State must
consult the regulatory bodies and such other persons as the Secretary of State
considers appropriate.
(9)
In this section—
“regulatory body” means the General Medical Council or the General
5
Optical Council;
“relevant regulatory Act” means—
(a)
in relation to the General Medical Council, the Medical Act 1983
(c. 54), and
(b)
in relation to the General Optical Council, the Opticians Act
10
1989 (c. 44).
Amendments of Part 3 of Health Act 1999
106
Extension of powers under s. 60 of Health Act 1999
Schedule 8 (which contains amendments of section 60 of, and Schedule 3 to, the
1999 Act) has effect.
15
107
Standard of proof in fitness to practise proceedings
After section 60 of the 1999 Act insert—
“60A
Standard of proof in fitness to practise proceedings
(1)
The standard of proof applicable to any proceedings to which this
subsection applies is that applicable to civil proceedings.
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(2)
Subsection (1) applies to any proceedings before—
(a)
the Office of the Health Professions Adjudicator, or
(b)
a committee of a regulatory body, a regulatory body itself or
any officer of a regulatory body,

which relate to a person’s fitness to practise a profession to which
25
section 60(2) applies.
(3)
In subsection (2) “regulatory body” means the body (or main body)
responsible for the regulation of a profession to which section 60(2)
applies.
(4)
An Order in Council under section 60 may not—
30
(a)
amend this section, or
(b)
make any provision that is inconsistent with subsection (1).”
The Council for Healthcare Regulatory Excellence
108
The Council for Healthcare Regulatory Excellence
(1)
The Council for the Regulation of Health Care Professionals is to be known
35
instead as the Council for Healthcare Regulatory Excellence.
(2)
Accordingly, in section 25 of the 2002 Act (which establishes the Council), in
subsection (1), for “the Council for the Regulation of Health Care
Professionals” substitute “the Council for Healthcare Regulatory Excellence”.