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Health and Social Care Bill


Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

45

 

Further amendments

91      

Further amendments relating to Part 1

Schedule 5 (which contains further amendments relating to the provisions of

this Part) has effect.

Interpretation

5

92      

General interpretation of Part 1

(1)   

In this Part—

“adult social services” means—

(a)   

services which are provided by or pursuant to arrangements

made by an English local authority in the exercise of its adult

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social services functions, and

(b)   

services which are provided by or pursuant to arrangements

made by an English local authority under section 2(1)(b) of the

Local Government Act 2000 (c. 22) and which are similar in

nature to a service which could be provided by the authority in

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the exercise of any of its adult social services functions;

“adult social services functions” means social services functions (within

the meaning of the Local Authority Social Services Act 1970 (c. 42)) so

far as relating to persons aged 18 or over, excluding any function to

which Chapter 4 of Part 8 of the Education and Inspections Act 2006

20

(c. 40) applies;

“the Commission” means the Care Quality Commission;

“cross-border Special Health Authority” means a Special Health

Authority not performing functions only or mainly in respect of

England or only or mainly in respect of Wales;

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“enactment” includes an enactment comprised in subordinate legislation

(within the meaning of the Interpretation Act 1978 (c. 30));

“English local authority” means—

(a)   

a county council in England,

(b)   

a metropolitan district council,

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(c)   

a non-metropolitan district council for an area for which there is

no county council,

(d)   

a London borough council,

(e)   

the Common Council of the City of London, or

(f)   

the Council of the Isles of Scilly;

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“English NHS body” means—

(a)   

a Primary Care Trust,

(b)   

a Strategic Health Authority,

(c)   

a National Health Service trust all or most of whose hospitals,

establishments and facilities are situated in England,

40

(d)   

an NHS foundation trust, or

(e)   

a Special Health Authority performing functions only or mainly

in respect of England;

“English NHS provider” means—

(a)   

a Primary Care Trust,

45

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

46

 

(b)   

a National Health Service trust all or most of whose hospitals,

establishments and facilities are situated in England, or

(c)   

an NHS foundation trust;

“health care” has the meaning given by section 5(2) (but see subsection (2)

below);

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“health or social care” has the meaning given by section 5(4);

“Minister of the Crown” has the same meaning as in the Ministers of the

Crown Act 1975 (c. 26);

“NHS care” means health care provided by Primary Care Trusts or by

other persons (whether other English NHS providers or not) pursuant

10

to arrangements made by Primary Care Trusts;

“Part 1 offence” means an offence under this Part or under regulations

under this Part;

“prescribed” means prescribed by regulations;

“regulated activity” has the meaning given by section 4;

15

“regulations” means regulations made by the Secretary of State;

“regulatory functions”, in relation to the Commission, is to be read in

accordance with section 56(2);

“social care” has the meaning given by section 5(3).

(2)   

Except in Chapter 2, any reference in this Part to the provision of health care

20

includes a reference to—

(a)   

the provision of services connected with the provision of health care,

and

(b)   

the promotion and protection of public health.

(3)   

Any reference in this Part to a person who carries on a regulated activity

25

includes a reference to a person who carries it on otherwise than for profit.

(4)   

Any reference in this Part to the provision of health care, or adult social

services, by a person includes a reference to the provision of that care, or those

services, by that person’s agent or sub-contractor.

(5)   

In its application to a function conferred on the Commission by regulations

30

under section 55(1)(b), Chapter 6 has effect as if any reference in Chapter 6 to

an English NHS body included a reference to a cross-border Special Health

Authority.

Part 2

Regulation of health professions and health and social care workforce

35

The Office of the Health Professions Adjudicator

93      

The Office of the Health Professions Adjudicator

(1)   

There is to be a body corporate known as the Office of the Health Professions

Adjudicator (referred to in this Part as “the OHPA”).

(2)   

The OHPA is to have functions in relation to the professions regulated by—

40

(a)   

the Medical Act 1983 (c. 54), and

(b)   

the Opticians Act 1989 (c. 44).

(3)   

Schedule 6 (which makes further provision about the OHPA) has effect.

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

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94      

Functions under Medical Act 1983 and Opticians Act 1989

Schedule 7 (which contains amendments of the Medical Act 1983 (c. 54) and the

Opticians Act 1989 (c. 44) providing for certain functions under those Acts

relating to adjudication to be exercisable by the OHPA) has effect.

95      

Fitness to practise panels

5

(1)   

The functions which the OHPA has under the Medical Act 1983 and the

Opticians Act 1989 are to be discharged by fitness to practise panels constituted

in accordance with this section.

(2)   

A fitness to practise panel is to consist of—

(a)   

a chair selected from the list of persons eligible to serve as chairs

10

provided for by section 96(1)(a),

(b)   

a lay member selected from the list of persons eligible to serve as lay

members provided for by section 96(1)(b) (the “lay members list”),

(c)   

a professionally qualified member selected from the list of persons

eligible to serve as professionally qualified members provided for by

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section 96(1)(c) (the “professionally qualified members list”), and

(d)   

such additional members (if any) selected from the lay members list or

the professionally qualified members list as may be required by rules.

(3)   

Rules may make further provision about the selection of fitness to practise

panels in relation to any proceedings.

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(4)   

Rules under subsection (3) may in particular make provision requiring the

selection in specified circumstances of a chair who is legally qualified for the

purposes of section 96(2)(a), and may provide for pilot schemes under which

chairs who are legally qualified for those purposes are, or are not, selected for

such proceedings as may be determined in accordance with the rules.

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(5)   

In this section “rules” means rules made by the OHPA.

96      

Lists of persons eligible for membership of fitness to practise panels

(1)   

For the purposes of section 95, the OHPA must appoint, or arrange for the

appointment of, persons to lists of—

(a)   

persons eligible to serve as chairs,

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(b)   

persons eligible to serve as lay members, and

(c)   

persons eligible to serve as professionally qualified members.

(2)   

The list of persons eligible to serve as chairs is to consist of—

(a)   

persons who are legally qualified,

(b)   

persons who are also included on the list of persons eligible to serve as

35

lay members, and

(c)   

persons who are also included on the list of persons eligible to serve as

professionally qualified members.

(3)   

Rules may make provision about the keeping of the lists including provision

about—

40

(a)   

the division of a list into parts, and

(b)   

the information which is to appear on a list in relation to a person

appointed to that list.

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

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(4)   

No person may be appointed to a list unless the person satisfies such

requirements as may be prescribed by rules.

(5)   

Rules made by virtue of subsection (4) must make provision about—

(a)   

the qualifications which a person must have in order to be “legally

qualified” for the purposes of subsection (2)(a), and

5

(b)   

the experience which a person must have and the training which a

person must have undertaken in order to be eligible for appointment to

the list of persons eligible to serve as chairs by virtue of subsection

(2)(b) or (c).

(6)   

A member of the OHPA may not be appointed to a list.

10

(7)   

A person appointed to a list holds and vacates office in accordance with the

terms of the person’s appointment.

(8)   

In this section “rules” means rules made by the OHPA.

97      

Further provisions about listed persons

(1)   

The OHPA—

15

(a)   

may pay to any person included on a list such fees, allowances and

expenses as it may determine, and

(b)   

may pay to any person whom it proposes to include on a list such

allowances and expenses as it may determine in connection with the

provision of training for the person by virtue of subsection (2)(b).

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(2)   

The OHPA—

(a)   

must provide, or arrange for the provision of, such training for persons

included on a list as it may determine, and

(b)   

may provide, or arrange for the provision of, such training for persons

whom it proposes to include on a list as it may determine.

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(3)   

The OHPA must—

(a)   

establish and maintain a system for the declaration and registration of

private interests of persons included on a list, and

(b)   

publish entries recorded in that register of interests.

(4)   

In this section “list” means any of the lists kept under section 96(1).

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98      

Legal assessors

(1)   

The OHPA must appoint, or arrange for the appointment of, persons to be legal

assessors.

(2)   

The legal assessors are appointed for the purpose of giving advice to the

OHPA’s fitness to practise panels on questions of law arising in proceedings

35

before them.

(3)   

To be eligible for appointment as a legal assessor a person must have such

qualifications and satisfy such other conditions as are specified by rules.

(4)   

A legal assessor appointed under this section—

(a)   

may be appointed either generally or for any particular proceedings or

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class of proceedings, and

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

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(b)   

holds and vacates office in accordance with the terms of the assessor’s

appointment.

(5)   

The OHPA may pay such fees, allowances and expenses to a legal assessor

appointed under this section as it may determine.

(6)   

Rules may make—

5

(a)   

provision about the functions of legal assessors appointed under this

section, and

(b)   

provision for a fitness to practise panel not to be advised by a legal

assessor if the chair of the panel is legally qualified for the purposes of

section 96(2)(a).

10

(7)   

In this section “rules” means rules made by the OHPA.

99      

Clinical and other specialist advisers

(1)   

The OHPA may appoint, or arrange for the appointment of, persons to be

clinical advisers.

(2)   

Any clinical advisers are appointed for the purpose of giving advice to the

15

OHPA’s fitness to practise panels on issues relating to health that arise in

proceedings before them.

(3)   

The OHPA may also appoint, or arrange for the appointment of, persons to act

as specialist advisers on issues on which the OHPA considers that specialist

knowledge is required.

20

(4)   

Any specialist advisers are appointed for the purpose of giving advice to the

OHPA’s fitness to practise panels on issues falling within the advisers’

speciality arising in proceedings before them.

(5)   

To be eligible for appointment as a clinical adviser or specialist adviser a

person must have such qualifications and satisfy such other conditions as are

25

specified by rules.

(6)   

An adviser appointed under subsection (1) or (3)—

(a)   

may be appointed either generally or for any particular proceedings or

class of proceedings, and

(b)   

holds and vacates office in accordance with the terms of the adviser’s

30

appointment.

(7)   

The OHPA may pay such fees, allowances and expenses to an adviser

appointed under subsection (1) or (3) as it may determine.

(8)   

Rules may make provision about the functions of advisers appointed under

subsection (1) or (3).

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(9)   

In this section “rules” means rules made by the OHPA.

100     

Procedural rules

(1)   

The OHPA must make rules about—

(a)   

the procedure to be followed in connection with the making of referrals

to the OHPA under the Medical Act 1983 (c. 54) or the Opticians Act

40

1989 (c. 44), and

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

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(b)   

the procedure to be followed, and the rules of evidence to be observed,

in proceedings before the OHPA’s fitness to practise panels.

(2)   

Subject to subsection (4), rules under this section may make such provision as

the OHPA considers appropriate including provision about—

(a)   

preliminary hearings,

5

(b)   

the giving of directions to parties as to the conduct of proceedings and

the consequences of failure to comply with such directions,

(c)   

a fitness to practise panel taking account of undertakings given by the

person to whom the proceedings relate,

(d)   

voting by fitness to practise panels, including the taking of decisions by

10

majority and the conferral of a casting vote on the chair,

(e)   

the award and assessment of costs and expenses, and

(f)   

the circumstances in which fitness to practise panels may review their

own decisions.

(3)   

Rules about the award and assessment of costs and expenses may—

15

(a)   

require that regard be had to a person’s ability to pay when considering

the making of an award against that person,

(b)   

include provision for all or part of the costs or expenses of the

representative of a party to proceedings to be disallowed by reason of

that representative’s conduct of the proceedings, and

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(c)   

provide for an award in respect of costs and expenses to be recoverable

as if it had been adjudged to be paid by court order.

(4)   

Rules under this section must make—

(a)   

provision for securing that—

(i)   

notice that proceedings are to be brought is given to the person

25

to whom the proceedings relate, and

(ii)   

notice of any decision of a fitness to practise panel is given to the

parties to the proceedings and to the registrar of the regulatory

body which regulates the profession of which the person to

whom the proceedings relate is a member,

30

   

within such time and in such manner as is specified in the rules,

(b)   

provision giving each party to proceedings the opportunity, if the party

so requests, to put the party’s case at a hearing,

(c)   

provision entitling each party to be represented at any hearing by a

person falling within a description of persons specified in the rules, and

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(d)   

provision for proceedings to be held in public except and to the extent

that the rules provide otherwise.

101     

Administration of oaths and issuing of witness summonses etc.

(1)   

For the purpose of proceedings before a fitness to practise panel of the OHPA

in England and Wales or in Northern Ireland—

40

(a)   

the panel may administer oaths, and

(b)   

any party to the proceedings may apply for the issue of a witness

summons directing a person to attend the panel in order to give

evidence or to produce a document.

(2)   

No person shall be compelled under any such summons to give any evidence

45

or produce any document which that person could not be compelled to give or

produce on the trial of an action.

 
 

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce

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(3)   

Section 36 of the Supreme Court Act 1981 (c. 54) and section 67 of the

Judicature (Northern Ireland) Act 1978 (c. 23) (which provide a special

procedure for the issue of such a summons so as to be in force throughout the

United Kingdom) apply in relation to proceedings before a fitness to practise

panel in England and Wales or, as the case may be, in Northern Ireland as those

5

provisions apply in relation to causes or matters in the High Court.

(4)   

For the purpose of proceedings before a fitness to practise panel of the OHPA

in Scotland—

(a)   

the panel may administer oaths, and

(b)   

the Court of Session, on the application of any party to the proceedings,

10

has the like power as in any action in that court—

(i)   

to grant warrant for the citation of witnesses and havers to give

evidence or to produce documents before the panel and for the

issue of letters of second diligence against any witness or haver

failing to appear after due citation,

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(ii)   

to grant warrant for the recovery of documents, and

(iii)   

to grant commissions to persons to take the evidence of

witnesses or to examine havers and receive their exhibits and

productions.

102     

Duty to inform the public

20

(1)   

For the purpose of ensuring that members of the public are informed about the

OHPA and the exercise by it of its functions, the OHPA must publish or

provide in such manner as it thinks fit information about the OHPA and the

exercise of its functions.

(2)   

Without prejudice to the generality of subsection (1), the OHPA must publish

25

in such manner as it thinks fit, and within such time as may be specified in

rules, decisions of its fitness to practise panels.

(3)   

But the OHPA may withhold from publication—

(a)   

information concerning the physical or mental health of a person which

the OHPA considers to be confidential, and

30

(b)   

other information which is of a description specified in rules.

(4)   

Nothing in subsection (1) or (2) authorises or requires the publication or

provision of information if the publication or provision of that information—

(a)   

is prohibited by any enactment, or

(b)   

would constitute or be punishable as a contempt of court.

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(5)   

In this section “rules” means rules made by the OHPA.

103     

Duty to consult

The OHPA must from time to time seek the views of—

(a)   

members of the public,

(b)   

bodies which appear to the OHPA to represent the interests of patients,

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(c)   

the General Medical Council and the General Optical Council, and

(d)   

any other bodies which appear to the OHPA to represent the

professions regulated by the Medical Act 1983 (c. 54) or the Opticians

Act 1989 (c. 44),

on matters relevant to the exercise by it of its functions.

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