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Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989

166

 

(2)   

Nothing in subsection (1) prevents the Adjudicator from considering

the matter itself, whether or not it has reached a decision in the

proceedings.”

40    (1)  

Section 23B of the 1989 Act (procedure of Fitness to Practise Committee and

Registration Appeals Committee) is amended as follows.

5

      (2)  

In the heading omit “Fitness to Practise Committee and”.

      (3)  

Omit subsection (1)(a) and the word “or” following it.

41    (1)  

Section 23C of the 1989 Act (powers of the Council to make rules) is

amended as follows.

      (2)  

Omit subsection (1)(a)(i) and the word “and” following it.

10

      (3)  

Omit subsection (2)(e) and (f).

42         

After section 23C of the 1989 Act insert—

“23CA   

Assessments

(1)   

If the Adjudicator considers (on reasonable grounds) that it would be

of assistance to it, in dealing with any proceedings before it, for there

15

to be an assessment of—

(a)   

the standard and quality of the work done or being done by

the person to whom the proceedings relate (“P”); or

(b)   

the health, or specific aspects of the health, of P,

   

the Adjudicator may request the registrar to arrange for an assessor

20

to be appointed to report on the standard and quality of P’s work or

(as the case may be) on P’s health or specific aspects of P’s health.

(2)   

On receipt of a request under subsection (1), the registrar shall

arrange for one or more assessors to be appointed in accordance with

rules made by the Council.

25

(3)   

The Council may make rules about the carrying out of the

assessment and the making of the report.

(4)   

If P fails to submit to, or co-operate with, the assessment the

Adjudicator may draw such inferences from P’s failure as it

considers appropriate.

30

(5)   

This section does not apply if the person to whom the proceedings

relate is a body corporate.”

43         

In section 23D of the 1989 Act (legal advisers) omit subsection (2)(a) and the

word “and” following it.

44         

In section 23E of the 1989 Act (other advisers), in subsections (3) and (4), omit

35

“the Fitness to Practise Committee and”.

45    (1)  

Section 23G of the 1989 Act (appeals from the Registration Appeals

Committee and the Fitness to Practise Committee) is amended as follows.

      (2)  

In the heading for “Fitness to Practise Committee” substitute “Adjudicator”.

      (3)  

In subsection (1)—

40

(a)   

in paragraphs (a) and (b) for “Fitness to Practise Committee”

substitute “Adjudicator”, and

 
 

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989

167

 

(b)   

in paragraph (d) for “Registration Appeals Committee” substitute

“Adjudicator”.

      (4)  

In subsection (6)—

(a)   

for “Fitness to Practise Committee” (where first occurring) substitute

“Adjudicator”,

5

(b)   

in paragraph (b) for “direction or variation or order” substitute

“direction, variation, order or (as the case may be) determination”,

(c)   

in paragraph (c) for “Fitness to Practise Committee” substitute

“Adjudicator”, and

(d)   

in paragraph (d) for “registrar for him to refer it to the Fitness to

10

Practise Committee” substitute “Adjudicator”.

46         

After section 23H of the 1989 Act insert—

“23I    

Reference of cases by Council to court

(1)   

This section applies to—

(a)   

a decision of the Adjudicator under section 13F giving—

15

(i)   

a direction for suspension, including a direction

extending a period of suspension;

(ii)   

a direction for temporary removal of an entry relating

to a speciality or proficiency, including a direction

extending a period of temporary removal;

20

(iii)   

a direction for conditional registration, including a

direction extending a period of conditional

registration;

(iv)   

a direction for conditional inclusion of an entry

relating to a speciality or proficiency, including a

25

direction extending a period of conditional inclusion;

(v)   

a direction varying any of the conditions imposed by

a direction for conditional registration;

(vi)   

a direction varying any of the conditions imposed by

a direction for conditional inclusion; and

30

(b)   

a decision of the Adjudicator under section 13H to impose a

financial penalty order.

(2)   

This section also applies to—

(a)   

a decision of the Adjudicator under section 13F not to give—

(i)   

a direction falling within subsection (1)(a);

35

(ii)   

a direction for erasure;

(iii)   

a direction for removal (other than temporarily) of an

entry relating to a speciality or proficiency;

(iv)   

a direction for indefinite suspension,

   

(whether because of a finding that the registrant’s fitness to

40

practise, fitness to carry on business or (as the case may be)

fitness to undertake training is not impaired or otherwise);

(b)   

a decision of the Adjudicator under section 13F—

(i)   

giving a direction that a suspension be terminated;

(ii)   

giving a direction that a temporary removal of an

45

entry relating to a speciality or proficiency be

terminated;

 
 

Health and Social Care Bill
Schedule 7 — Adjudication functions under Medical Act 1983 and Opticians Act 1989
Part 2 — Amendments of Opticians Act 1989

168

 

(iii)   

revoking a direction for conditional registration or a

condition imposed by such a direction;

(iv)   

revoking a direction for conditional inclusion or a

condition imposed by such a direction;

(c)   

a decision of the Adjudicator under section 13H not to

5

impose a financial penalty order;

(d)   

a decision of the Adjudicator under section 13J not to give a

direction that a person’s name or an entry relating to a

speciality or proficiency be removed; and

(e)   

a decision of the Adjudicator under section 13K giving a

10

direction that a person’s name or an entry relating to a

speciality or proficiency be restored to the appropriate

register.

(3)   

The decisions to which this section applies are referred to below as

“relevant decisions”.

15

(4)   

If the Council consider that—

(a)   

a relevant decision falling within subsection (1) is unduly

lenient, whether because the findings relating to fitness to

practise, fitness to carry on business or (as the case may be)

fitness to carry on training are inadequate, or because the

20

direction given or financial penalty order imposed does not

adequately reflect the findings that have been made, or both;

or

(b)   

a relevant decision falling within subsection (2) should not

have been made,

25

   

and that it would be desirable for the protection of members of the

public for the Council to take action under this section, the Council

may refer the case to the relevant court.

(5)   

In the case of a relevant decision falling within subsection (1), the

Council may not refer a case after the end of the period of 40 days

30

beginning with the day which is the last day on which the person to

whom the relevant decision relates can appeal against it.

(6)   

In the case of a relevant decision falling within subsection (2), the

Council may not refer a case after the end of the period of 40 days

beginning with the day on which the Council receives notice of the

35

relevant decision in accordance with rules made by the Adjudicator

under section 100(4)(a)(ii) of the Health and Social Care Act 2008.

(7)   

If the Council do refer a case—

(a)   

the case is to be treated by the court to which it has been

referred as an appeal by the Council against the relevant

40

decision; and

(b)   

the Adjudicator is to be a respondent.

(8)   

The court may—

(a)   

dismiss the appeal;

(b)   

allow the appeal and quash the relevant decision;

45

(c)   

substitute for the relevant decision any other decision which

could have been made by the Adjudicator; or

(d)   

remit the case to the Adjudicator to dispose of the case in

accordance with the directions of the court,

 
 

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999

169

 

   

and may make such order as to costs (or, in Scotland, expenses) as it

thinks fit.

(9)   

If the Council do refer a case, the registrar must without delay serve

on the person to whom the relevant decision relates notification of

the reference of the case to the court.

5

(10)   

In subsection (4) “relevant court” has the same meaning as in section

23G(4)(a) except that where the reference is of a relevant decision

falling within subsection (2)(d) or (e) “relevant court” has the same

meaning as in section 23G(4)(b) and (c).”

47         

In section 29 of the 1989 Act (provision as to death or bankruptcy of

10

registered optician), in subsection (3), for “Fitness to Practise Committee

may, if they think” substitute “Adjudicator may, on the matter being

referred to it by the registrar, if it thinks”.

48         

In section 33 of the 1989 Act (default powers of Privy Council), in subsection

(3)(b), after “23C,” insert “23CA,”.

15

49         

In section 34 of the 1989 Act (subordinate legislation procedure), in

subsection (2), after “23C” insert “or 23CA”.

50         

In section 36 of the 1989 Act (interpretation), in subsection (1), before the

definition of “approved training establishment” insert—

“ “the Adjudicator” means the Office of the Health Professions

20

Adjudicator;”.

51         

In Schedule 1 to the 1989 Act (constitution etc of General Optical Council),

in paragraph 12, for “, the Registration Appeals Committee and the Fitness

to Practise Committee” substitute “and the Registration Appeals

Committee”.

25

Schedule 8

Section 106

 

Extension of powers under s. 60 of Health Act 1999

1     (1)  

Section 60 of the 1999 Act (regulation of health care and associated

professions) is amended as follows.

      (2)  

In subsection (1), after paragraph (e) insert—

30

“(f)   

modifying the constitution, functions, powers or duties of the

Office of the Health Professions Adjudicator.”.

      (3)  

In subsection (2)—

(a)   

in paragraph (a), omit “the Pharmacy Act 1954,”,

(b)   

after that paragraph insert—

35

“(aa)   

the professions regulated by the Pharmacists and

Pharmacy Technicians Order 2007 and the Pharmacy

(Northern Ireland) Order 1976,”, and

(c)   

after paragraph (c) insert—

“(ca)   

the profession regulated by so much of the Hearing

40

Aid Council Act 1968 as relates to dispensers of

hearing aids,”.

 
 

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999

170

 

      (4)  

After subsection (2) insert—

“(2A)   

Her Majesty may also by Order in Council make provision relating

to, or connected with, the functions of the relevant regulatory body

in relation to—

(a)   

the registration of premises under Part 4 of the Medicines Act

5

1968 (pharmacies),

(b)   

the regulation of the use of premises for the purposes of a

retail pharmacy business, within the meaning of the

Medicines Act 1968,

(c)   

compliance with the provisions of that Act,

10

(d)   

compliance with the provisions of the Poisons Act 1972 or the

Poisons (Northern Ireland) Order 1976 by persons admitted

to practice and persons carrying on a retail pharmacy

business, and

(e)   

the grant of authorisations under section 28 of the Regulation

15

of Investigatory Powers Act 2000 (authorisation of directed

surveillance).

(2B)   

In subsection (2A) “the relevant regulatory body” means the body (or

main body) responsible for the regulation of the professions referred

to in subsection (2)(aa).”

20

2          

In section 62 of the 1999 Act (regulations and orders), in subsection (10), after

“that Parliament” insert “and is not merely incidental to, or consequential

on, provision that (if so included) would be outside that competence”.

3          

Schedule 3 to the 1999 Act (which relates to the power in section 60 of the

Act) is amended as follows.

25

4          

In paragraph 5 (exercise of power so as to confer and modify functions), in

paragraph (a), after “the Scottish Ministers” insert “, a Northern Ireland

department”.

5     (1)  

Paragraph 7 (matters outside the scope of the Orders) is amended as follows.

      (2)  

For sub-paragraph (1) substitute—

30

    “(1)  

An Order may not abolish—

(a)   

the regulatory body of any profession to which section

60(2)(a) applies,

(b)   

the Royal Pharmaceutical Society of Great Britain or the

Pharmaceutical Society of Northern Ireland,

35

(c)   

the Health Professions Council,

(d)   

the Nursing and Midwifery Council, or

(e)   

any other regulatory body established by an Order.

     (1A)  

Sub-paragraph (1)(b) does not prevent an Order in Council from

establishing a new regulatory body for the professions mentioned

40

in section 60(2)(aa) and transferring to it any of the functions of the

the Royal Pharmaceutical Society of Great Britain or the

Pharmaceutical Society of Northern Ireland.”

      (3)  

Omit sub-paragraph (2) (which prevents an Order in Council under section

60 of the 1999 Act from imposing a requirement which would have the effect

45

that a majority of the members of the regulatory body of a profession would

be persons not included in the register of members admitted to practice).

 
 

Health and Social Care Bill
Schedule 8 — Extension of powers under s. 60 of Health Act 1999

171

 

      (4)  

Omit sub-paragraph (3) (which prevents an Order in Council under section

60 of the 1999 Act from providing for a function conferred on the Privy

Council, in relation to any profession to which subsection (2)(a) of that

section applies, to be exercised by a different person).

6     (1)  

Paragraph 8 (other matters outside the scope of the Orders) is amended as

5

follows.

      (2)  

In sub-paragraph (2) omit paragraph (d).

      (3)  

After that sub-paragraph insert—

   “(2A)  

Where an enactment provides, in relation to any profession, for

any function of administering procedures (including making

10

rules) relating to misconduct, unfitness to practise and similar

matters to be exercised by the regulatory body or any of its

committees or officers, an Order may not provide for any person

other than that regulatory body or any of its committees or officers

or the Office of the Health Professions Adjudicator to exercise that

15

function.

     (2B)  

In sub-paragraphs (1) and (2A) references to a regulatory body do

not include references to any of the following—

(a)   

the Royal Pharmaceutical Society of Great Britain,

(b)   

the Pharmaceutical Society of Northern Ireland, and

20

(c)   

the Hearing Aid Council.”

7     (1)  

Paragraph 9 (preliminary procedure for making Orders) is amended as

follows.

      (2)  

In sub-paragraph (1)(b)—

(a)   

for “the profession”, where it first occurs, substitute “any

25

profession”, and

(b)   

for “by the profession” substitute “by any profession to be

regulated”.

      (3)  

After sub-paragraph (1) insert—

   “(1A)  

In the case of a draft Order which amends or repeals—

30

(a)   

an enactment contained in an Act of the Scottish

Parliament or in an instrument made under such an Act, or

(b)   

any other enactment that extends to Scotland and relates to

matters falling within the legislative competence of the

Scottish Parliament,

35

           

but does not contain provision of the kind mentioned in sub-

paragraph (3), the persons consulted by the Secretary of State

under sub-paragraph (1)(b) must include the Scottish Ministers.”

      (4)  

In sub-paragraph (3) after “that Parliament” insert “and is not merely

incidental to, or consequential on, provision that (if so included) would be

40

outside that competence”.

8          

In paragraph 10 (interpretation of the Schedule)—

(a)   

before the definition of “Order” insert—

“ “dental practitioner” means a person registered in the

dentists register under the Dentists Act 1984,

45

 
 

Health and Social Care Bill
Schedule 9 — Regulation of social care workers

172

 

“enactment” means an enactment contained in, or in an

instrument made under—

(a)   

an Act of Parliament,

(b)   

an Act of the Scottish Parliament,

(c)   

a Measure or Act of the National Assembly for

5

Wales, or

(d)   

Northern Ireland legislation,

“functions” includes powers and duties,

“medical practitioner” means a registered medical

practitioner as defined by Schedule 1 to the

10

Interpretation Act 1978,”, and

(b)   

omit the words from “and other expressions” to the end.

9          

In paragraph 11 (which contains further interpretative provisions), in sub-

paragraph (2)—

(a)   

in paragraph (c), for “Part 1 of the 1977 Act” substitute “Part 4 of the

15

National Health Service Act 2006 or Part 4 of the National Health

Service (Wales) Act 2006”, and

(b)   

in paragraph (d), for “Part 1 of the 1977 Act” substitute “Part 5 of the

National Health Service Act 2006 or Part 5 of the National Health

Service (Wales) Act 2006”.

20

10         

Omit paragraph 12 (which confers limited powers in relation to the

profession regulated by the Pharmacy (Northern Ireland) Order 1976 (S.I.

1976/1213 (N.I. 22))).

Schedule 9

Section 119

 

Regulation of social care workers

25

Interpretation

1          

In this Schedule—

“functions” includes powers and duties;

“regulations” means regulations under section 119;

“the appropriate Council” means—

30

(a)   

in relation to regulations made by the Secretary of State, the

General Social Care Council, and

(b)   

in relation to regulations made by the Welsh Ministers, the

Care Council for Wales.

Matters generally within the scope of regulations

35

2          

Regulations may make provision for the following matters (among others)—

(a)   

the functions of the appropriate Council;

(b)   

the keeping of registers of social care workers of any description;

(c)   

education and training;

(d)   

privileges of registered persons;

40

(e)   

standards of conduct and performance (including standards of

conduct and performance of social care workers carrying out the

 
 

 
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