Clause 20: Abolition of Community Health Councils in England

115.     Subsections (1) and (2) provide for the abolition of Community Health Councils in England.

116.     Paragraph 5 of Schedule 7 to the 1977 Act provides that the Secretary of State may by regulations provide for the establishment of a body to advise and assist Community Health Councils. The National Health Service (Association of Community Health Councils) Regulations (S.I.1977/874), made under that paragraph, established the Association of Community Health Councils for England and Wales. Subsection (3) provides for the abolition of that body, but subsection (4) ensures that the National Assembly for Wales may

continue to exercise the power in paragraph 5 and establish a new body to advise and assist CHCs in Wales.

117.     Subsection (5) provides for the transfer of rights and liabilities of Community Health Councils and of ACHCEW. Any such transfer must be to a person listed in subsection (6). In the case of the Association a transfer may also be made to the National Assembly for Wales. Under subsection (7), transfers from ACHCEW require consultation with the Assembly.

Clause 21: Joint working with the prison service

118.     This clause make provision for the NHS and the prison service to work together to fulfil their functions more effectively. It will enable regulations to be made to enable them to pool their resources and to delegate functions and resources from one party to another. It also introduces an explicit duty of co-operation between the NHS and the prison service to secure and maintain the health of prisoners. Responsibility for the health of prisoners is shared between the prison service and the NHS. The Government has already established a formal partnership between the prison service and the NHS to improve and modernise health services for prisoners in England and Wales, following publication in 1999 of the report The Future Organisation of Prison Health Care. The overall aim of this partnership is to ensure that prisoners have access to health services which are as far as possible equivalent to those available to the general population from the NHS.

119.     Clause 21 removes existing legal barriers to joint working between the NHS and the prison service. The measures set out in this section are intended to allow NHS bodies and the prison service to agree jointly who is best placed to carry out certain of their functions, and to agree how resources might be used in joint working arrangements. They parallel the provisions that exist to allow closer working between the NHS and local authorities under Section 31 of the Health Act 1999. This clause removes some of these barriers by allowing NHS bodies and the prison service to:

-     pool resources, which will mean that the agreed resources contributed to the pool can be used on any of the functions agreed by the partner agencies when the pool is established - the use of the money becomes more flexible. This is intended to allow staff from either agency to develop packages of care suited to the needs of prisoners irrespective of whether health or prison service money is used; and

-     delegate functions to one another. This will allow, for example, one of the partner bodies to commission or provide all mental health services for a group of prisoners. It is expected that this will improve the integration of the services commissioned or provided.

120.     These joint working arrangements need to be able to respond to local needs and will not necessarily be appropriate in all areas, or for all prisoners. The powers are therefore discretionary, not mandatory.

121.     Subsection (1) introduces an explicit duty of co-operation between the NHS and the prison service to secure and maintain the health of prisoners, making clear the intention that NHS bodies and the prison service are expected to work together.

122.     Subsection (2) provides for the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales to make regulations setting out the details of the joint working arrangements. These arrangements can only be used if doing so leads to an improvement in the way in which the bodies' functions are exercised, which might, for example, include better outcomes for service users.

123.     Subsection (3) sets out examples of the new operational working arrangements.

124.     Subsection (3)(a) enables the creation of pooled budgets made up of contributions from the NHS and the prison service. The resources contributed by each body will lose their identity as health or prison service money, and will be used to carry out the functions agreed by the partner agencies when the pool is established. The pool will be able to fund both health and prison service activity as set out in regulations.

125.     Subsections (3)(b) and (3)(c) allow both NHS bodies and the prison service to delegate some of their functions to the other partner. These functions will be prescribed in regulations. In relation to health services for prisoners, the effect of these subsections will be to allow in particular:

-     the prison service to delegate specified commissioning functions to NHS commissioning bodies, and vice versa; and

-     the prison service to delegate specified provider functions to NHS bodies and vice versa.

126.     Subsections (3)(c) to (3)(f) provide for practical arrangements to support the exercise of these provisions for budget pooling and delegation.

127.     Subsection (4) makes it clear that, where an NHS body or the prison service delegates its functions under the arrangements in this section, that body will remain liable for the exercise of those functions.

128.     Subsection (5) defines various terms, in particular "the prison service".

Clause 22: Health and well-being strategies in Wales

129.     Clause 22 is intended to give effect to the National Assembly for Wales' ("the Assembly's") commitment to ensure joint working in the development and implementation of local strategies for health and well-being.

130.     Subsection (1) places a duty on each newly created Local Health Board (LHB) and each Local Authority (LA) in Wales to formulate and implement a health and well-being strategy for the area. (LHBs and LAs will be co-terminous).

131.     Subsection (3) requires the LHBs and LAs to have regard to their strategy in the exercise of their functions.

132.     Subsection (4) empowers the Assembly, by regulations, to set the time period to which the strategy will apply. Under subsections (5) and (6) further provision about such strategies may be made by the Assembly by Regulations. Such Regulations may in particular require LHBs and LAs to co-operate with other prescribed bodies such as NHS trusts, voluntary bodies and local businesses in formulating their strategy (subsection (6)(a)) The Regulations may also cover such issues as steps to be taken before formulation of the strategy (subsection (6)(b)) and measures to avoid duplication between health and well-being strategies and other strategies prescribed in the Regulations (subsection (6)(g)). This might include, for example, the Community Care Plan under section 46 of the National Health Service and Community Care Act 1990. Finally, under subsection (7), the Assembly may give directions to LAs, LHBs and NHS trusts in connection with the strategies. It may also issue guidance about them to both LHBs and LAs.

Part 2: Health care professions

The Council for the Regulation of Health Care Professionals

Clauses 23 to 27: The Council for the Regulation of Health Care Professionals

133.     Parliament has established statutory frameworks for a number of health care professions within which the professions regulate themselves. For the most part there are separate enactments for each professional group (doctors; dentists; nurses, midwives and health visitors; opticians; pharmacists; osteopaths; chiropractors and the twelve professions coming within the remit of the Council for Professions Supplementary to Medicine). Each of these groups has its own regulatory body operating within its own legal framework:

-     The General Medical Council - Medical Act 1983

-     The General Dental Council - Dentists Act 1984

-     The UK Central Council for Nursing, Midwifery and Health Visiting - Nurses, Midwives and Health Visitors Act 1997

-     The General Optical Council - Opticians Act 1989

-     The Royal Pharmaceutical Society of Great Britain - Pharmacy Act 1954; Medicines Act 1968 (and in Northern Ireland, The Pharmaceutical Society of Northern Ireland - Pharmacy (Northern Ireland) Order 1976

-     The General Osteopaths Council - Osteopaths Act 1993

-     The General Chiropractic Council - Chiropractors Act 1994

-     The Council for Professions Supplementary to Medicine - Professions Supplementary to Medicine Act 1960

134.     The different enactments make provisions which, with very few exceptions, could until recently only be changed by means of primary legislation. Section 60 and Schedule 3 of the Health Act 1999, therefore provided a framework within which Her Majesty by Order in Council can modify the enactments affecting professional regulation and regulate any other health care profession.

Clause 23: The Council for the Regulation of Health Care Professionals

135.     Clause 23 provides for the establishment of a Council for the Regulation of Health Care Professionals. It gives the Council the functions of promoting the interests of patients and other members of the public in the way that the existing (and any future) statutory regulatory bodies carry out their work, and promoting co-operation between them.

136.     The Health Act 1999 allows for the UK Central Council for Nursing, Midwifery and Health Visiting and the Council for Professions Supplementary to Medicine to be replaced by new bodies. (See section 60(3), which provides for the repeal of the Acts under which these bodies exist. The section is not yet in force, except in so far as it allows for a few changes in relation to the constitution of existing committees). Two Orders which establish successor bodies, to be known as the Nursing and Midwifery Council and the Health Professions Council, have been approved by Parliament and are expected to secure the Privy Council's approval at its meeting on 12 February. Subsection (3)(j) of the Bill provides that if in future other health care professions are regulated by a new body set up by an Order under section 60 of the 1999 Act, they would also be covered by the Council.

137.     Schedule 7 makes more detailed provisions about the constitution of the Council. The constitution given to the Council is designed to enable it to operate independently from the Government, amongst other standard provisions.

138.     Paragraph 4 sets out the membership of the Council which will consist of one appointee each from the regulatory bodies and the relevant authorities in Scotland, Wales and Northern Ireland; and a number appointed by the Secretary of State (but see paragraph 5 of the Schedule). The combined number of members appointed by the Secretary of State and the devolved administrations will exceed the number of regulatory body members by one. Some of the members appointed by the regulatory bodies might also come from Scotland, Wales and Northern Ireland.

139.     Paragraph 4 also deals with the appointment of the Chairman. The Secretary of State will appoint the first chairman, in order to allow the new body to begin establishing itself more rapidly, for example by finding premises. Similar arrangements have been made in the past on the establishment of other new bodies. Subsequent chairmen will be appointed by the Council from among their own number.

140.     Paragraph 5 allows the Secretary of State to delegate his power of appointment to a Special Health Authority. The Government gave a commitment in the Commons that this power will be delegated to the NHS Appointments Commission. The intention is for the Commission to appoint two kinds of members; a small number who will speak for the interests of health care providers and a larger number who will speak for the interests of patients and the wider public

141.     Paragraph 6 provides for the Secretary of State to make regulations providing for the appointment of the chairman and other members of the Council. The intention is that these should ensure the independence of the Council from Government, for example in the provision they make for tenure of office and removal from office.

142.     Paragraphs, 7, 8, 9, 10, 12, 13, 16, 17 and 18 are routine provisions relating to the establishment of a new public body which provide the Council with the necessary legal structure for its effective operation including the power to take its own decisions about its internal procedures.

143.     Paragraph 11 provides for the Council to appoint its employees. It is intended that the Council will appoint the Director as well as the other employees.

144.     Paragraph 14 makes provisions for the financing of the Council. It is the intention that the Council's work should be financed out of money provided by Parliament and paid to it by the Secretary of State. The paragraph also allows for the future possibility that money provided by Parliament might be loaned to the Council, and that authorities in Scotland, Wales and Northern Ireland might, if they so decide, provide grants or loans to the Council. Consent has been received from the Scottish Parliament by means of a Sewel Motion to extend Scottish Ministers' executive powers to include the making of such grants or loans.

145.     Paragraphs 14(7) and 14(8) give the Secretary of State, and, if they make grants or loans, the National Assembly for Wales, Scottish Ministers or the Department of Health, Social Services and Public Safety in Northern Ireland, a power to direct the Council on matters which have a bearing on the way it secures value for money in its expenditure. The Council will be financed by monies voted by Parliament for the Health Vote, and the Secretary of State and the Department of Health's Accounting Officer are therefore accountable to Parliament for this. These sub-paragraphs therefore allow the Secretary of State to fulfil his financial responsibilities to Parliament. They do not confer a wider power on

him to direct the Council more generally as to how it should exercise its business. He cannot for example direct it to direct a regulatory body using its powers under clause 25.

146.     Paragraph 15 makes provision for annual accounts and requires that they be laid before (or published) by Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

147.     Paragraph 16 provides for the Council to make an annual report to Parliament on its work. This report will also be laid before the devolved assemblies. The Council will be accountable to Parliament rather than to the Secretary of State. The Council will also be accountable to the Scottish Parliament and the Northern Ireland Assembly in so far as its activities relate to devolved matters.

148.     Paragraph 19 provides that if the Council holds a meeting in Northern Ireland, it will be open to the public on the same basis as District Council meetings are there at present. This is mirrored for Great Britain by paragraph 21, which applies the provisions of the Public Bodies (Admission to Meetings) Act, 1960, to the Council. That Act is a Great Britain (covering England; Wales and Scotland) enactment, hence the need for this Bill to have a separate reference to Northern Ireland on this subject.

149.     The effect of paragraph 20 is that the records of the Council are public records for the purposes of the Public Records Act 1958.

150.     The effect of paragraph 24 is that the Council is a public authority for the purposes of the Freedom of Information Act 2000.

Clause 24: Powers and duties of the Council: general

151.     Clause 24 sets out the powers and duties to be exercised by the Council in carrying out the functions given to it by clause 23. The Council is given the power to do what is necessary or expedient in carrying out its functions. It can investigate and report on the performance of a regulatory body and make recommendations to a regulatory body about they way the regulatory body performs its functions.

152.     Subsections (3) and (4) provide that the Council may not intervene in the determination of 'fitness to practise' cases or allegations made to regulatory bodies which could become fitness to practise cases. An exception to this rule is provided by clause 26, which deals with complaints about regulatory bodies. At the conclusion of a fitness to practise case, the Council would only be able to intervene by referring the case to the High Court (or its Scottish or Northern Irish equivalent) if it felt that this was desirable for the protection of members of the public (this is provided for in clause 27(4)).

153.     Subsection (5) limits the range of the functions of the Royal Pharmaceutical Society of Great Britain in which the Council can take an interest to those which have to do with

professional regulation. This reflects the unique nature of the RPSGB, which is the professional body for pharmacists as well as their regulator. Subsection (6) reflects the parallel situation in Northern Ireland with the Pharmaceutical Society of Northern Ireland.

154.     Subsection (9) amends section 60(1) of the Health Act 1999, to include the Council within the scope of this section so that the Council's legal framework, like that of the regulatory bodies themselves, can be updated if changed circumstances call for this in the future.

155.     In particular this subsection would allow an Order under section 60 of the 1999 Act to modify the Council's functions, powers and duties, to modify the list of RBs which fall within the scope of the Council and to alter the range of functions of a particular regulatory body which were covered.

156.     The power to modify the legal framework of professional self-regulation under section 60 of the 1999 Act is circumscribed by paragraphs (7) and (8) of Schedule 3 to the 1999 Act, which provide for example that existing regulatory bodies cannot be abolished, have a lay majority imposed on them or have any of the key functions of a regulator (which are defined in paragraph (8)) taken away from them. In addition, subsection (10) further restricts the provision which a future section 60 Order can make. Subsection (10) provides that a future section 60 Order cannot give the Secretary of State more powers of direction over the Council. This is intended as a safeguard to the Council's independence from Government.

Clause 25: Regulatory bodies and the Council

157.     Clause 25 provides underpinning powers for the Council and places duties on the regulatory bodies, in order to ensure that the Council can do its work effectively. Sub-section (1) requires each regulatory body to co-operate with the Council.

158.     Subsection (2) provides the Council with a reserve power to direct a regulatory body to make rules for a particular purpose. One situation in which it is envisaged that this power might be used is where the Council felt that consistency between the fitness to practise rules of all regulators was essential for the protection of members of the public.

159.     Subsection (3) limits the effect of this clause to the more important types of Rules which regulatory bodies can make, those where the rule-making powers created in their different enactments require the permission of the Privy Council before they come into force (or in the case of the Pharmaceutical Society of Northern Ireland, require the permission of the Department of Health, Social Services and Public Safety in Northern Ireland). These mostly have to do with the maintenance of the professional register and fitness to practise issues.

160.     Subsections (6) and (7) require the Secretary of State to make regulations providing that a direction may only be made after consultation with the regulatory body in question.

161.     If a regulator refused to comply with a direction made under this clause, it would be open to the Council to seek, by way of judicial review, an appropriate declaration or order from the Court.

Clause 26: Complaints about regulatory bodies

162.     This clause provides for the Secretary of State to set up in Regulations a complaints scheme under which the Council would acquire powers to investigate complaints about the regulatory bodies. The intention is that this should be used as a power to investigate maladministration, not a means of overturning the decisions of 'fitness to practise' committees. These Regulations are to be made by the affirmative resolution procedure.

Clause 27: Reference of disciplinary cases by Council to court

163.     Clause 27 gives the Council the power to refer a fitness to practise decision by a regulatory body to the High Court where this seems to it to be necessary for the protection of the public. It is envisaged that the Council would do this in extreme cases where the public interest in having a clearly perverse decision reviewed by a Court outweighs the public interest in the independent operation of self-regulation. Where such a case was referred to the High Court, the Court would have the power to substitute its own decision for the one referred to it, or if it preferred to refer the case back to the regulatory body for re-hearing. Existing Court Rules protect the rights of the professional whose case was being heard by ensuring that he or she becomes a "respondent" in the appeal, that is, has a right to be represented at the appeal hearing.

Appeals

Clauses 28 to 32: Appeals

164.     A professional has a right of appeal against the decisions of regulatory bodies on fitness to practise cases. Under current law, some professions appeal to the Judicial Committee of the Privy Council, and some appeal to the High Court. The purpose of these clauses is to introduce consistency across the professions. The main effect of these five clauses is to redirect appeals from doctors, dentists, opticians, osteopaths and chiropractors to the High Court.

165.     In addition to dealing with appeals against fitness to practise decisions, these clauses bring consistency to the route taken by appeals against registration decisions. At present the Osteopaths Act, the Chiropractors Act, the Medical Act and the Opticians Act provide for an appeal from decisions to remove registration on grounds of fraud or error to the Judicial Committee of the Privy Council. These clauses move this appeal to, in England and Wales, and in Northern Ireland, a county court and in Scotland to a sheriff court.

166.     The Osteopaths Act and the Chiropractors Act currently provide for an appeal on points of law from decisions to refuse registration on more general grounds (section 29 of each Act) to a county court or the High Court at the appellant's choice. These clauses remove

this option to appeal to the High Court and restrict such appeals to a county court. At the same time the basis of appeal is widened so that it can be on issues of fact and law, rather than solely on points of law as currently.

Clause 28: Medical practitioners

167.     Clause 28 amends the Medical Act 1983. Subsection (2) provides for appeals against decisions in 'fitness to practise' cases to be directed to the High Court or Court of Session in Scotland. The relevant court is dependent on the address which the appellant has (or would have if he was registered) as his registered address with the regulatory body. If an appellant's registered address is outside the United Kingdom the appeal will be to the High Court in England and Wales. This subsection also provides for appeals on decisions to remove registration on grounds of fraud or error to be directed to a county court, or in Scotland, to the sheriff. This subsection also sets out the appeal court's order making powers.

168.     Subsection (3) deals with consequential amendments to the Medical Act.

Clause 29: Dentists

169.     Clause 29 amends the Dentists Act 1984. Subsection (2) provides for appeals against decisions in 'fitness to practise' cases to be directed to the High Court or in Scotland, the Court of Session. The relevant court is dependent on the address which the appellant has as his registered address with the regulatory body. If an appellant's registered address is outside the United Kingdom, the appeal will be to the High Court in England and Wales. This subsection also sets out the appeal court's order making powers.

170.     Subsection (3) amends section 44 of the Dentists Act to provide for a body corporate to appeal to the High Court (or Court of Session in Scotland) against decisions to withdraw their privilege to practise as a body corporate. The relevant court is dependent on the registered office address of the body corporate.

171.     Subsections (5-8) make some consequential changes to the Dentists Act 1984, made necessary by the making of the Dentists Act 1984 (Amendment) Order 2001 ("the 2001 Order") on 11 December 2001. That Order made provisions for new requirements for continuing professional development for dentists. Failure to comply with continuing professional development requirements can lead to the dentist's name being erased from the register. The 2001 Order provides for an appeal against erasure to the new Continuing Professional Development Committee and thereafter to the Privy Council. The new Order amends section 29 of the 1984 Act, which the present Bill will itself amend. These consequential changes are therefore now necessary to take account of the changes brought about by the 2001 Order. The main effect is to substitute the High Court (and its equivalents throughout the UK) for the Judicial Committee of the Privy Council. The date of coming into force of the relevant provisions of the 2001 Order has not yet been determined, so subsections (6 - 8) cater for the relevant provisions of the 2001 Order coming into force prior to the

coming into force of this clause in the Bill, or alternatively, for this clause in the Bill coming into force prior to the relevant provisions in the 2001 Order.