Health and Social Care Bill

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Schedule 16 — Part 7: consequential amendments and savings
Part 4 — The Office of the Health Professions Adjudicator
374

      (4)
In paragraph 8(2A) of Schedule 3 (provision under section 60 as to functions
relating to unfitness to practise must provide for functions to be exercised by
relevant regulatory body or OHPA), omit “or the Office of the Health
Professions Adjudicator”.
      (5)
In section 60A(2) (standard of proof in fitness to practise proceedings before
5
OHPA or regulatory bodies), omit paragraph (a) and the “or” following it.
Amendments to the National Health Service Reform and Health Care Professions Act 2002
(c. 17)
67    (1)
In section 29 of the National Health Service Reform and Health Care
Professions Act 2002 (reference of disciplinary cases by the Council for
10
Healthcare Regulatory Excellence to the court), in subsection (1)—
(a)
in paragraph (c), omit “otherwise than by reason of his physical or
mental health”, and
(b)
in paragraph (f), omit the words from “, other than a direction” to the
end.
15
      (2)
In consequence of those repeals, omit section 118(2)(b) and (d), (5) and (6) of
the Health and Social Care Act 2008.
Amendments to the Health Act 2006 (c. 28)
68    (1)
Omit section 60(3)(b) of the Health Act 2006 (Appointments Commission to
exercise functions of Privy Council relating to appointment of members of
20
OHPA) and the “or” immediately preceding it.
      (2)
Omit section 63(6A) and (6B) of that Act (Appointments Commission to
assist OHPA with exercise of appointment functions).
      (3)
In consequence of those repeals, omit paragraph 22 of Schedule 10 to the
Health and Social Care Act 2008.
25
Amendments to the Health and Social Care Act 2008 (c. 14)
69    (1)
The Health and Social Care Act 2008 is amended as follows.
      (2)
In section 128 (interpretation), omit the definition of “the OHPA”.
      (3)
In section 162 (orders and regulations), omit subsections (1)(b) and (c)
and (4).
30
      (4)
In Schedule 10 (amendments relating to Part 2 of that Act), omit paragraphs
7, 9, 14, 15 and 18.
Savings
70    (1)
If abolition is to occur at a time other than immediately after the end of a
financial year within the meaning of paragraphs 19 and 20 of Schedule 6 to
35
the Health and Social Care Act 2008 (annual reports), the period that begins
with the 1 April before abolition and ends with abolition is to be treated as a
financial year for the purposes of those paragraphs.
      (2)
Despite section 228(2), paragraphs 19 and 20 of that Schedule are to continue
to have effect for the purpose of imposing the duties under paragraphs 19(2),
40

Health and Social Care Bill
Schedule 17 — The National Institute for Health and Care Excellence
375

(3)(b) and (4) to (6) and 20(1), (2)(b) and (3) and for the purpose of conferring
the power under paragraph 20(4); and for those purposes—
(a)
the duties under paragraphs 19(2) and 20(1), in so far as they have
not been discharged by the OHPA, must be discharged by the
Secretary of State,
5
(b)
the duties under paragraphs 19(3)(b) and (4) and 20(2)(b) must be
discharged by the Secretary of State, and
(c)
the power conferred by paragraph 20(4) may be exercised by giving
directions of the description in question to the Secretary of State.
      (3)
Subject to that, anything which the OHPA is required to do under an
10
enactment before abolition may, in so far as it has not been done by the
OHPA, be done by the Secretary of State after abolition.
71
A reference in any document to the OHPA is, so far as necessary or
appropriate in consequence of section 228(1), to be read after abolition as a
reference to the Secretary of State.
15
72
In paragraphs 71 and 72—
“abolition” means the commencement of section 228(1);
“enactment” includes an enactment contained in subordinate
legislation (within the meaning of the Interpretation Act 1978);
“the OHPA” means the Office of the Health Professions Adjudicator.
20
Schedule 17
Section 229

The National Institute for Health and Care Excellence
Membership, appointment, etc.
1     (1)
NICE consists of—
(a)
at least six members appointed by the Secretary of State (referred to
25
in this Schedule as the “non-executive members”), and
(b)
at least three but not more than five other members appointed by the
non-executive members (referred to in this Schedule as the
“executive members”).
      (2)
One of the non-executive members must be appointed as the chair.
30
      (3)
One of the executive members must be appointed as the chief executive; but
the appointment may not be made without the approval of the Secretary of
State.
      (4)
The executive members are employees of NICE.
      (5)
Regulations may—
35
(a)
prescribe the number of executive members (subject to paragraph
(1)(b)), and
(b)
provide that all or any of the executive members (other than the chief
executive) must hold posts of descriptions specified in the
regulations.
40

Health and Social Care Bill
Schedule 17 — The National Institute for Health and Care Excellence
376

Tenure of non-executive office
2     (1)
The chair and other non-executive members—
(a)
hold and vacate office in accordance with the terms of their
appointments, but
(b)
may resign office by giving notice to the Secretary of State.
5
      (2)
The Secretary of State may remove a person from office as the chair or other
non-executive member on any of the following grounds—
(a)
incapacity,
(b)
misbehaviour, or
(c)
failure to carry out his or her duties as a non-executive member.
10
      (3)
The Secretary of State may suspend a person from office as the chair or other
non-executive member if it appears to the Secretary of State that there are or
may be grounds to remove the person from office under sub-paragraph (2).
      (4)
A non-executive member may not be appointed for a period of more than
four years.
15
      (5)
A person who ceases to be the chair or another non-executive member is
eligible for re-appointment.
Suspension from non-executive office
3     (1)
This paragraph applies where a person is suspended under paragraph 2(3).
      (2)
The Secretary of State must give notice of the decision to the person; and the
20
suspension takes effect on receipt by the person of the notice.
      (3)
The notice may be—
(a)
delivered in person (in which case, the person is taken to receive it
when it is delivered), or
(b)
sent by first class post to the person’s last known address (in which
25
case, the person is taken to receive it on the third day after the day on
which it is posted).
      (4)
The initial period of suspension must not exceed six months.
      (5)
The Secretary of State may at any time review the suspension.
      (6)
The Secretary of State—
30
(a)
must review the suspension if requested in writing by the person to
do so, but
(b)
need not review the suspension less than three months after the
beginning of the initial period of suspension.
      (7)
Following a review during a period of suspension, the Secretary of State
35
may—
(a)
revoke the suspension, or
(b)
suspend the person for another period of not more than six months
from the expiry of the current period.
      (8)
The Secretary of State must revoke the suspension if the Secretary of State—
40
(a)
decides that there are no grounds to remove the person from office
under paragraph 2(2), or

Health and Social Care Bill
Schedule 17 — The National Institute for Health and Care Excellence
377

(b)
decides that there are grounds to do so but does not remove the
person from office under that provision.
4     (1)
This paragraph applies where a person is suspended from office as the chair
under paragraph 2(3).
      (2)
The Secretary of State may appoint a non-executive member as the interim
5
chair to exercise the chair’s functions.
      (3)
The interim chair—
(a)
holds and vacates office in accordance with the terms of the
appointment, but
(b)
may resign office by giving notice in writing to the Secretary of State.
10
      (4)
Appointment as interim chair is for a term not exceeding the shorter of—
(a)
the period ending with either—
(i)
the appointment of a new chair, or
(ii)
the revocation or expiry of the existing chair’s suspension,
and
15
(b)
the remainder of the interim chair’s term as a non-executive member.
      (5)
A person who ceases to be the interim chair is eligible for re-appointment.
Remuneration etc. of non-executive members
5     (1)
NICE must pay to the non-executive members such remuneration and
allowances as the Secretary of State may determine.
20
      (2)
NICE must pay or make provision for the payment of such pensions,
allowances or gratuities as the Secretary of State may determine to or in
respect of any person who is or has been a non-executive member.
      (3)
If a person ceases to be a non-executive member and the Secretary of State
decides that there are exceptional circumstances which mean that the person
25
should be compensated, NICE must pay compensation to the person of such
amount as the Secretary of State may determine.
Staff
6     (1)
NICE may appoint such persons to be employees of NICE as it considers
appropriate.
30
      (2)
Employees of NICE are to be paid such remuneration and allowances as
NICE may determine.
      (3)
Employees of NICE are to be appointed on such other terms and conditions
as NICE may determine.
      (4)
NICE may pay or make provision for the payment of such pensions,
35
allowances or gratuities as it may determine to or in respect of any person
who is or has been an employee of NICE.
      (5)
Before making a determination as to remuneration, pensions, allowances or
gratuities for the purposes of sub-paragraph (2) or (4), NICE must obtain the
approval of the Secretary of State to its policy on that matter.
40

Health and Social Care Bill
Schedule 17 — The National Institute for Health and Care Excellence
378

Committees
7     (1)
NICE may appoint such committees and sub-committees as it considers
appropriate.
      (2)
A committee or sub-committee may consist of or include persons who are
not members or employees of NICE.
5
      (3)
NICE may pay such remuneration and allowances as it may determine to
any person who—
(a)
is a member of a committee or sub-committee, but
(b)
is not an employee of NICE,

whether or not that person is a non-executive member of NICE.
10
Procedure
8     (1)
NICE may regulate its own procedure.
      (2)
But regulations may make provision about procedures to be adopted by
NICE for dealing with conflicts of interest of members of NICE or members
of a committee or sub-committee.
15
      (3)
The validity of any act of NICE is not affected by any vacancy among the
members or by any defect in the appointment of a member.
Exercise of functions
9
NICE may arrange for the exercise of its functions on its behalf by—
(a)
a non-executive member;
20
(b)
an employee (including an executive member);
(c)
a committee or sub-committee.
General powers
10    (1)
NICE may do anything which appears to it to be necessary or expedient for
the purposes of, or in connection with, the exercise of its functions.
25
      (2)
But, except as provided by paragraph 11(3), NICE has no power to borrow
money.
      (3)
NICE may do any of the following only with the approval of the Secretary
of State—
(a)
form, or participate in the forming of, companies,
30
(b)
invest in companies (whether by acquiring assets, securities or rights
or otherwise), and
(c)
provide loans and guarantees and make other kinds of financial
provision to or in respect of companies.
      (4)
The approval of the Secretary of State may be given for the purposes of sub-
35
paragraph (3) subject to such conditions as the Secretary of State thinks
appropriate.
      (5)
In this paragraph “company” has the same meaning as in the Companies
Acts (see section 1(1) of the Companies Act 2006).

Health and Social Care Bill
Schedule 17 — The National Institute for Health and Care Excellence
379

Finance
11    (1)
The Secretary of State may make payments to NICE out of money provided
by Parliament of such amounts as the Secretary of State thinks appropriate.
      (2)
Payments made under sub-paragraph (1) may be made at such times and on
such conditions (if any) as the Secretary of State thinks appropriate.
5
      (3)
The Secretary of State may lend money to NICE on such terms (including as
to repayment and interest) as the Secretary of State may determine.
Reports
12    (1)
As soon as practicable after the end of each financial year, NICE must
prepare an annual report on how it has exercised its functions during the
10
year.
      (2)
NICE must—
(a)
lay a copy of the report before Parliament, and
(b)
once it has done so, send a copy of it to the Secretary of State.
      (3)
NICE must provide the Secretary of State with such other reports and
15
information relating to the exercise of NICE’s functions as the Secretary of
State may require.
      (4)
In this paragraph and paragraph 14 “financial year” means—
(a)
the period beginning on the day on which section 229 comes into
force and ending on the following 31 March;
20
(b)
each successive period of 12 months.
Accounts
13    (1)
NICE must keep proper accounts and proper records in relation to the
accounts.
      (2)
The Secretary of State may, with the approval of the Treasury, give
25
directions to NICE as to—
(a)
the content and form of its accounts, and
(b)
the methods and principles to be applied in the preparation of its
accounts.
      (3)
In sub-paragraph (2) a reference to accounts includes NICE’s annual
30
accounts prepared under paragraph 14 and any interim accounts prepared
by virtue of paragraph 15.
14    (1)
NICE must prepare annual accounts in respect of each financial year.
      (2)
NICE must send copies of the annual accounts to the Secretary of State and
the Comptroller and Auditor General within such period after the end of the
35
financial year to which the accounts relate as the Secretary of State may
direct.
      (3)
The Comptroller and Auditor General must—
(a)
examine, certify and report on the annual accounts, and
(b)
lay copies of them and the report before Parliament.
40

Health and Social Care Bill
Schedule 18 — Part 8: consequential amendments
380

15    (1)
The Secretary of State may, with the approval of the Treasury, direct NICE
to prepare accounts in respect of such period or periods as may be specified
in the direction (“interim accounts”).
      (2)
NICE must send copies of any interim accounts to the Secretary of State and
the Comptroller and Auditor General within such period as the Secretary of
5
State may direct.
      (3)
The Comptroller and Auditor General must—
(a)
examine, certify and report on any interim accounts sent by virtue of
sub-paragraph (2), and
(b)
if the Secretary of State so directs—
10
(i)
send a copy of the report on the accounts to the Secretary of
State, and
(ii)
lay copies of them and the report before Parliament.
Seal and evidence
16    (1)
The application of NICE’s seal must be authenticated by the signature of the
15
chair or of any employee who has been authorised (generally or specifically)
for that purpose.
      (2)
A document purporting to be duly executed under NICE’s seal or to be
signed on its behalf must be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.
20
Status
17    (1)
NICE must not be regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown.
      (2)
NICE’s property must not be regarded as property of, or property held on
behalf of, the Crown.
25
Schedule 18
Section 246

Part 8: consequential amendments
Public Bodies (Admission to Meetings) Act 1960 (c. 67)
1
In the Schedule to the Public Bodies (Admission to Meetings) Act 1960
30
(bodies to which that Act applies) in paragraph 1, after paragraph (m)
insert—
“(n)
the National Institute for Health and Care Excellence;”.
Parliamentary Commissioner Act 1967 (c. 13)
2
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
35
subject to investigation) at the appropriate place insert—
“National Institute for Health and Care Excellence.”