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Health and Social Care Bill


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

170

 

(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 105(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

171

 

   

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 111

 

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

172

 

      (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

173

 

      (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

174

 

“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 124

 

Regulation of social care workers

25

Interpretation

1          

In this Schedule—

“functions” includes powers and duties;

“regulations” means regulations under section 124;

“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

 
 

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

175

 

functions of an approved mental health professional within the

meaning of section 114 of the Mental Health Act 1983 (c. 20));

(f)   

discipline;

(g)   

removal or suspension from registration or the imposition of

conditions on registration;

5

(h)   

investigation and enforcement by or on behalf of the appropriate

Council;

(i)   

appeals;

(j)   

codes of practice or guidance for persons employing or seeking to

employ social care workers.

10

Manner of exercise of power

3          

The power to make regulations may be exercised by amending or repealing

any provision (other than section 55) of the Care Standards Act 2000 (c. 14)

and any other enactment and any other instrument or document.

4          

The power may be exercised so as to make provision for the delegation of

15

functions, including provision conferring power to make, confirm or

approve subordinate legislation.

5          

The power may be exercised so as to make provision—

(a)   

for the charging of fees, and

(b)   

for the making of payments by the appropriate Council.

20

6          

The power may be exercised so as to—

(a)   

confer functions (including power to pay grants) on Ministers of the

Crown or, in the case of regulations made by the Welsh Ministers, on

the Welsh Ministers, or

(b)   

modify their functions.

25

7          

The power may not be exercised so as to create any criminal offence, except

an offence punishable on summary conviction with a fine not exceeding the

amount specified as level 5 on the standard scale.

Matters outside the scope of regulations

8     (1)  

Regulations may not abolish the General Social Care Council or the Care

30

Council for Wales.

      (2)  

Where the Care Standards Act 2000 provides for any function mentioned in

sub-paragraph (3) to be exercised by either of those Councils or any of its

committees or officers, regulations may not provide for any person other

than that Council or any of its committees or officers to exercise that

35

function.

      (3)  

Those functions are—

(a)   

keeping the register of social care workers of any description,

(b)   

determining standards of education and training required as a

condition of registration,

40

(c)   

giving advice about standards of conduct and performance, and

(d)   

administering procedures (including making rules) relating to

misconduct, removal from registration and similar matters.

 
 

Health and Social Care Bill
Schedule 10 — Further amendments relating to Part 2

176

 

Preliminary procedure for making regulations: England

9     (1)  

If the Secretary of State proposes to lay a draft of regulations before

Parliament, the Secretary of State must first—

(a)   

publish a draft of the regulations, and

(b)   

invite representations to be made to the Secretary of State about the

5

draft by—

(i)   

persons appearing to the Secretary of State appropriate to

represent social care workers affected by the regulations,

(ii)   

persons appearing to the Secretary of State appropriate to

represent those provided with services by such social care

10

workers, and

(iii)   

any other persons appearing to the Secretary of State

appropriate to consult about the draft.

      (2)  

After the end of the period of 3 months beginning with the publication of the

draft, the Secretary of State may lay the draft as published, or that draft with

15

any modifications the Secretary of State considers appropriate, together

with a report about the consultation, before Parliament.

Preliminary procedure for making regulations: Wales

10    (1)  

If the Welsh Ministers propose to lay a draft of regulations before the

National Assembly for Wales, the Welsh Ministers must first—

20

(a)   

publish a draft of the regulations, and

(b)   

invite representations to be made to the Welsh Ministers about the

draft by—

(i)   

persons appearing to the Welsh Ministers appropriate to

represent social care workers affected by the regulations,

25

(ii)   

persons appearing to the Welsh Ministers appropriate to

represent those provided with services by such social care

workers, and

(iii)   

any other persons appearing to the Welsh Ministers

appropriate to consult about the draft.

30

      (2)  

After the end of the period of 3 months beginning with the publication of the

draft, the Welsh Ministers may lay the draft as published, or that draft with

any modifications they consider appropriate, together with a report about

the consultation, before the National Assembly for Wales.

Schedule 10

35

Section 127

 

Further amendments relating to Part 2

Provision consequential on section 113(1)

1     (1)  

Any reference in any instrument or document to the Council for the

Regulation of Health Care Professionals is to be read, in relation to any time

after the commencement of section 113(1), as a reference to the Council for

40

Healthcare Regulatory Excellence.

 
 

 
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