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Lord Clement-Jones: My Lords, I thank the noble Lord for that lucid explanation which has made this set of amendments easier to understand. I thank the Minister also for the benefit of the newly "re-jigged" clause as a result of previous amendments. It is extremely helpful.
The newly amended subsection (4C) is particularly welcome, in that "knowledge" is now a requirement. That brings the provision much more closely into line with commonly accepted concepts of criminal law. That is particularly helpful. We strongly support the amendment.
Lord Hunt of Kings Heath: My Lords, I thank the noble Lord for those comments. I commend this amendment to the House.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 76E to 76ZF:
On Question, amendments agreed to.
Clause 41 [Duty of quality]:
Page 25, line 20, leave out ("representations within subsection (2)(a) above") and insert ("such representations").
Page 25, line 25, leave out from beginning to ("a") in line 30 and insert--
("where the representations are that the second condition for disqualification is met and regulations prescribe the time within which such representations are to be made, within that time.
(4A) Subsections (4B) to (5C) below apply for the purposes of this group of sections.
(4B) The first condition for disqualification is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide.
(4C) The second condition for disqualification is that the person concerned--
(a) has (whether on his own or together with another) by an act or omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for himself or another any financial or other benefit, and
(b) knew that he or (as the case may be) the other was not entitled to the benefit.
(5)").
Page 25, line 41, at end insert--
("(5A) "Health scheme" means--
(a) any of the health services under section 1(1) above or any corresponding enactment extending to Scotland or Northern Ireland, and
(b) any prescribed scheme;
and regulations may prescribe any scheme for the purposes of this subsection which appears to the Secretary of State to be a health or medical scheme paid for out of public funds.
(5B) Detriment to a health scheme includes detriment to any patient of, or person working in, that scheme or any person liable to pay charges for services provided under that scheme.
(5C) Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; and cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases.").
Page 25, line 44, after ("sections") insert ("and Schedule 9 to this Act").
Page 26, leave out lines 1 to 41 and insert--
("The NHS Tribunal: supplementary.
46A.--(1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).
(2) Where a body corporate carries on a retail pharmacy business, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any one of the body of persons controlling the body corporate meets that condition (whether or not he first met that condition when he was one of them).
(3) A person who is included in any list ("the practitioner") is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if--
(a) another person, because of an act or omission of his occurring in the course of providing any services mentioned in section 46(5) above on the practitioner's behalf, meets that condition, and
(b) the practitioner failed to take all such steps as were reasonable to prevent acts or omissions within section 46(4C)(a) above occurring in the course of the provision of those services on his behalf.
(4) The Tribunal is not required to inquire into a fraud case if they have previously inquired into representations in respect of the person concerned and the same acts or omissions.
(5) In a fraud case, regulations may make provision (including provision modifying the effect of this Part of this Act) for the purpose of securing that the person subject to the inquiry is not added to any list until proceedings in that case are finally concluded.
(6) For the purposes of this group of sections, in a fraud or efficiency case proceedings are finally concluded--
(a) if the Tribunal determine not to exercise their power under section 46B(2) below, when they make that determination,
(b) if they determine to exercise that power and no appeal is brought against the determination, at the end of the period for bringing an appeal,
(c) if they determine to exercise that power and an appeal is brought against the determination, when the appeal process is exhausted.
(7) An inquiry under section 46 above is not affected by the person subject to the inquiry withdrawing from, withdrawing any application to be included in or being removed from the list to which the case relates.
Powers of NHS Tribunal.
46B.--(1) Subsection (2) below applies where the Tribunal are of the opinion--
(a) on inquiring into an efficiency case, that the person meets the first condition for disqualification,
(b) on inquiring into a fraud case, that the person meets the second condition for disqualification.
(2) The Tribunal--
(a) shall disqualify him for inclusion in the list to which the case relates, and
(b) may disqualify him for inclusion in all lists within the same paragraph of section 46(5) above as that list.").
Page 26, line 43, leave out from beginning to ("they") and insert ("(2)(b) above").
Page 26, line 45, leave out ("in question") and insert ("to which the lists in question relate").
Page 27, line 1, leave out from ("section") to end of line 8 and insert ("shall have effect when proceedings in the case are finally concluded").
Page 27, line 9, leave out from ("disqualified") to end of line and insert ("for").
Page 27, line 13, leave out from ("The") to ("that") in line 14 and insert ("power to disqualify under section 46B above includes power to make a conditional disqualification,").
Page 27, line 15, leave out ("they") and insert ("the Tribunal").
Page 27, line 23, leave out from ("any") to end of line 24 and insert ("acts or omissions within section 46(4C)(a) above,").
Page 27, line 25, at end insert--
("( ) Conditions so imposed shall have effect when proceedings in the case are finally concluded.
( ) Section 46B(5) above applies to a conditional disqualification as it applies to a disqualification.").
Page 27, line 26, leave out ("in writing").
Page 27, line 29, leave out ("or").
Page 27, line 33, leave out from ("References") to ("do") in line 34 and insert ("in any enactment to a disqualification by the Tribunal").
Page 27, line 39, leave out ("(whether or not conditional)") and insert (", conditional disqualification").
Page 27, line 40, after ("disqualified") insert ("or conditionally disqualified").
Page 28, line 5, leave out ("46B(2)") and insert ("46B(2)(a) above").
Page 28, line 7, leave out ("46B(3)") and insert ("46B(2)(b) above").
Page 28, line 9, leave out ("46B(3)") and insert ("46B(2)(b) above").
Page 28, line 11, leave out ("46B(3)") and insert ("46B(2)(b) above").
Page 28, leave out lines 13 and 14 and insert--
("(3) If any Health Authority request a review of a conditional disqualification on the ground that--
(a) there has been a change in the circumstances by reference to which the conditions were imposed,
(b) the person concerned has failed to comply with the conditions, or
(c) in a fraud case, the person concerned has since the Tribunal imposed the conditions (or made the disqualification conditional) again satisfied the second condition for disqualification,
the Tribunal shall review the conditional disqualification.
( ) In the case of a person who is providing services in Scotland or Northern Ireland, the reference in subsection (3) above to a Health Authority includes any corresponding authority under the provisions in force in Scotland or Northern Ireland corresponding to this Part of this Act.").
Page 28, line 20, leave out ("46B(2)") and insert ("46B(2)(a) above").
Page 28, line 22, leave out ("46B(3)") and insert ("46B(2)(b) above").
Page 28, line 25, leave out ("46B(3)") and insert ("46B(2)(b) above").
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