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Lord Brougham and Vaux: My Lords, reverting to what the noble Lord said earlier regarding the pharmacist asking for proof, I have now reached the stage where I do not have to pay for my prescription but I do not have any proof that I have reached the age of 60. It is only that those at the pharmacy know me. If I went to another one, how should I be able to prove that I can get my prescription free?
Lord Hunt of Kings Heath: My Lords, there are various ways in which one might offer proof; for example, a driving licence which might have one's date of birth on it. The important point is that if a customer does not have evidence on him or her to prove that, it does not mean that the prescription will not be given to that patient. Indeed it will be. A mark will be made on the form enabling the exemption claim to be checked in a future improved and developed checking system. I hope that I have answered most of the points. I am advised that it is not a criminal offence, as was suggested, and I beg to move.
On Question, amendment agreed to.
7.15 p.m.
Lord Hunt of Kings Heath moved Amendment No. 76B:
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendment No. 76C:
On Question, amendment agreed to.
Clause 33 [Disqualification etc. of Part II practitioners]:
Lord Hunt of Kings Heath moved Amendment No. 76D:
The noble Lord said: My Lords, Clause 33 already provides for new powers for the NHS tribunal to disqualify Family Health Service practitioners who commit fraud against the NHS. These clauses and amendments are put forward as part of the Government's strategy for countering fraud in the National Health Service. I shall be speaking in some detail about the overall purpose of these clauses, as we have not had the opportunity to debate them previously. I want to set the Government amendments in context.
As in our previous debate, there is general agreement that fraud in the NHS is unacceptable. These clauses expand the role of the NHS tribunal to allow it to deal specifically with fraud among the independent family health service practitioners. The NHS tribunal is an independent non-departmental public body with judicial powers. It derives its powers from the National Health Service Act 1977 and, like the Act, covers England and Wales. The tribunal is the ultimate NHS disciplinary body for family health service practitioners on a health authority's medical, dental, pharmaceutical or ophthalmic list. It is a very small minority of practitioners who abuse the NHS in this way. The vast majority are honest and hardworking. I am sure noble Lords will agree that, however small the minority, this activity cannot be tolerated.
Currently the NHS tribunal decides whether the continued inclusion of an FHS practitioner's name on a health authority's list would be prejudicial to the "efficiency" of the service in question. If it does so decide, it must direct that the practitioner is disqualified from providing the service.
This efficiency regime has meant that health authorities have generally sent cases to their tribunal about practitioners' standard of practice rather than any fraud they may have committed. Clause 33, together with these amendments, introduces an explicit power for the tribunal to tackle fraud. The new power is clearer and more wide-ranging than could be achieved through the efficiency regime, and will give health authorities, via the independent NHS tribunal, a clear route to deal
The clause allows a fraud case to be referred to the NHS tribunal where a practitioner has applied to be included on a health authority's list, as well as when they are already on the list. This is important as there are instances currently where health authorities may be obliged to engage a practitioner, even one who has made dishonest claims on the NHS.
The existing sanction of interim suspension under the efficiency regime will also apply to fraud cases where there is a significant risk that a fraud will continue or that the investigation of the case will be prejudiced. This also will be important as we are aware of fraud cases where the investigation may indeed have been prejudiced because, for example, the practitioner has continued to practise while awaiting a criminal trial, enabling him to continue to deal with patients or staff who are potential witnesses.
The existing sanctions of local, national or total disqualification (a declaration of unfitness) which can be applied by the NHS tribunal for cases under the existing efficiency regime are applied in relation to cases for the new fraud regime. Clause 33 also introduces a new sanction, which can in future be applied by the NHS tribunal for both efficiency and fraud cases of "conditional disqualification".
Conditional disqualification gives the tribunal a new flexibility. Under this new sanction a tribunal could disqualify a practitioner but provide that the disqualification shall take effect only if the practitioner fails to comply with conditions imposed by the tribunal. That allows the individual to continue practising within those conditions.
For example, if a dispensing GP had used his or her dispensing activities to commit fraud, the tribunal could insist that the right to dispense be withdrawn. If the practitioner broke the specified terms, the tribunal could reconsider its decision and, for example, allow the original disqualification sanction to take effect.
The Government are determined to root out fraud against the NHS. As a result, the NHS tribunal can rightly take severe measures to deal with it. Nevertheless, we do not wish to treat family health service practitioners unjustly. This clause provides that no sanction should be applied where it would be unjust to do so.
Perhaps I may briefly explain some of the main points that the amendments deliver. Noble Lords will note that the majority of the amendments are textual changes which are consequential to the larger changes. Amendment No. 76J allows the NHS tribunal to disqualify bodies corporate which commit fraud from providing general ophthalmic or pharmaceutical services in the family health services. The amendments provide that disqualification will apply if any director or any person controlling the body corporate or ophthalmic and pharmacy business respectively meets the condition for disqualification, whether or not he was a director or person controlling the body corporate when he first met the condition. It is clearly necessary, for example, to
Amendment No. 76J also provides for liability to fall on the practitioner for the conduct of employees or deputies in fraud cases, where the practitioner has failed to take reasonable steps to prevent this. We believe that these powers are necessary for the prevention of fraud.
Amendment No. 76F makes changes to the definition of fraudulent conduct by the practitioner which would lead to disqualification. This still includes a "mental element", but this is now "knowledge". The amended condition for disqualification would be that the practitioner knew that he was not entitled to the benefit, which he secured or tried to secure. His knowledge would have to be proved to the satisfaction of either tribunal. The definition in the current clause,
This and the following amendment, Amendment No. 76G, also clarify the kinds of acts which might constitute fraud against the NHS or another publicly funded health service. These acts could include securing a benefit for another person or attempting fraud.
The phrase "detriment to a health scheme" (in new subsection (5B) of Amendment No. 76G) is now defined as including detriment, not only to a patient, but also, as amended, to another person working in that scheme. This provision is to capture a particular type of fraud. Some general medical services, such as capitation fees, are funded on a "pool" arrangement--there is a fixed overall budget and GPs in effect defraud their colleagues if they register non-existent patients. We believe that that is also unacceptable, even though there is no net loss to the NHS, and so it would be caught by the amended clause.
Amendment No. 102A provides procedures for the application to England and Wales of decisions of the NHS tribunals for Scotland and Northern Ireland. Decisions by any of the NHS tribunals for national disqualification already apply automatically in each country. The amendment would provide for a decision for total disqualification by the NHS tribunals for Scotland and Northern Ireland to be recognised similarly. The amendment also allows for the conditions specified in a conditional disqualification given by the NHS tribunal in Scotland or Northern Ireland to be translated for equivalent effect in England and Wales.
There are a number of more technical amendments, including those on procedures of the NHS tribunals. For example, Amendment No. 76ZC, which provides for the conditions for a health authority to request a review of a conditional disqualification, are now set out in detail. Amendment No. 102A to Schedule 4 allows the tribunal to make appropriate arrangements to manage two inquiries about the same practitioner when they are running concurrently.
Noble Lords will be aware that Clause 46 delivers the same new powers to tackle fraud to the NHS tribunal in Scotland as Clause 33 gives to the tribunal in England and Wales. I should like to take this opportunity to inform the House on behalf of my noble friend Lord Macdonald of Tradeston that he is looking to bring forward similar amendments to the Scottish tribunal at Third Reading to those I am bringing forward today.
These amendments are an essential part of the Government's programme to deal with those practitioners in the family health services who defraud the NHS. It is important, if we are to tackle fraud in the round, that we must also tackle fraud committed by practitioners. These amendments do not change the fundamental purpose or impact of Clause 33, but they are needed for clarity and to ensure that the clauses work as intended.
I apologise for taking up so much time in explaining these amendments. I beg to move.
Page 24, line 43, at end insert--
("(7) Where, in respect of any charge or payment under this Act--
(a) a person is convicted of an offence under this section, or
(b) a person pays any penalty charge, and any further sum by way of penalty, recoverable from him under section 122B above,
he shall not, in a case within paragraph (a) above, be liable to pay any such penalty charge or further sum by way of penalty or, in a case within paragraph (b) above, be convicted of such an offence."").
Page 25, line 3, at end insert--
("(3) Sections 122A to 122C of the 1977 Act apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under the 1977 Act which may be recovered under section 122(1) of that Act; and the reference in section 122A(7)(a) to the 1977 Act includes a reference to a pilot scheme (within the meaning of the 1997 Act).").
Page 25, line 10, leave out from ("receive") to end of line 18 and insert ("from a Health Authority representations that--
(a) a person who is included in any list meets either of the conditions for disqualification, or
(b) a person who has applied to be included in any list meets the second condition for disqualification,").
"that a person ... has fraudulently acted in a way detrimental to any health service",
is not commonly used in legislation and could, in our judgment, make it difficult for the tribunals to decide whether the test had been met. The amendment provides a clearer definition against which the NHS tribunals would test the conduct of practitioners.
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