House of Commons - Explanatory Note
National Health Service Reform And Health Care Professions Bill - continued          House of Commons

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Clause 22: Health and well-being strategies in Wales

124.     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.

125.     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).

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

127.     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 (5)(a)) The Regulations may also cover such issues as steps to be taken before formulation of the strategy (subsection (5)(b)) and measures to avoid duplication between health and well-being strategies and other strategies prescribed in the Regulations (subsection (5)(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

128.     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

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

129.     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

130.     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.

131.     The Health Act, 1999 provides 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 is not yet in force). Subsections (3)(g) and (h) of this clause make allowance for this. It is intended that Orders will be laid before Parliament, which, subject to Parliament's approval will establish successor bodies to be known as the Nursing and Midwifery Council and the Health Professions Council in April 2002. Subsection (3)(i) 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.

132.     Schedule 7 makes more detailed provisions about the nature of the Council. The Council is to be a non-Ministerial Government Department, similar in constitutional status to, for example, the Food Standards Authority and the Financial Services Authority.

133.     Paragraph 3 sets out the membership of the Council which is to consist of members appointed by the regulatory bodies and "Government appointees". The latter will be in a majority of one. The intention is for the Secretary of State's appointees to be of two kinds; 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. Of the Government appointees one will be appointed by each of the relevant authorities in Scotland, Wales and Northern Ireland. Some of the members appointed by the regulatory bodies might also come from Scotland, Wales and Northern Ireland.

134.     Paragraph 3 also deals with the appointment of the Chairman. The Secretary of State will appoint the first chairman, as was the case with the shadow Nursing and Midwifery Council and shadow Health Professions Council. These two bodies have been set up in advance of the establishment of the two new bodies mentioned in paragraph 134, in order to prepare for their work. This is to allow the new body to begin establishing itself more rapidly, for example finding premises. Subsequent chairmen will be appointed by the Council from among their own number.

135.     Paragraph 4 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. Paragraph 5 leaves decisions about the Council's procedure for it to make itself.

136.     Paragraphs 6, 7, 8, 10, 11, 13, 15 and 16 are routine provisions relating to the establishment of a new public body which provide it with the necessary legal structure for its effective operation. Paragraph 13 makes provision for annual accounts and requires that they be laid (or published) by Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

137.     Paragraph 9 provides for the Council to appoint its employees. It is intended that the Council will appoint the Director as well as the other employees.

138.     Paragraph 12 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 is being sought 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.

139.     Paragraphs 12 (7) and 12 (8) give the Secretary of State, and, if they make grants or loans, the National Assembly for Wales, Scottish Ministers or the Department of Finance and Personnel for 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 26.

140.     Paragraph 14 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.

141.     Paragraph 17 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 19, which applies the provisions of the Public Bodies (Admission to Meetings) Act, 1960, to the Council. That Act is a GB enactment, hence the need for this Bill to have a separate reference to Northern Ireland on this subject.

142.     The effect of paragraph 18 is that the records of the Council are public records for the purposes of the Public Records Act 1958 .

143.     The effect of paragraph 22 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

144.     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 (referred to in paragraph 133 above). 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.

145.     Subsections (3) and (4) provides 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. This is because it is considered that individual cases are most appropriately dealt with by the relevant regulatory body. An exception to this rule is provided by clause 26, which deals with complaints of maladministration rather than complaints about the actual decision taken by a regulator. 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 if it felt that this was desirable for the protection of members of the public (this is provided for in clause 28(4)).

146.     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.

147.     Subsection (8) 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.

148.     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 add new regulatory bodies to its scope and to alter the range of functions of a particular regulatory body which were covered.

149.     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 (9) further restricts the ways in which a future section 60 Order could change this framework. Subsection (9) provides that a future section 60 Order could not 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

150.     Clause 25 provides underpinning powers for the Council and duties on the regulatory bodies, in order to ensure that the Council can do its work effectively. Regulations made under this section will set out more precisely how the power would be used. The intention is to use these to provide safeguards against unwarranted interference in regulatory bodies' activities, such as a requirement that CRHP would first draw a matter to a regulator's attention and seek its observations, and only proceed to use the powers provided here if the response was unsatisfactory.

151.     Subsection (2) provides the Council with a reserve power to direct a regulatory body to make rules for a particular purpose. The sort of situation in which it is envisaged that this power might be used could be an area of fitness to practise rules where the Council felt that consistency between the rules of all regulators was essential in the interests of fairness to different professionals and the public.

152.     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. These mostly have to do with the maintenance of the professional register and fitness to practise issues.

153.     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

154.     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.

Clause 27: Reference of disciplinary cases by Council to court

155.     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

156.     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.

157.     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 a county court.

158.     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

159.     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.

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

Clause 29: Dentists

161.     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.

162.     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 practice as a body corporate. The relevant court is dependent on the registered office address of the body corporate.

Clause 30: Opticians

    163.     Clause 30 amends section 23 of the Opticians Act 1989. Subsection (2) provides for appeals against decisions in 'fitness to practise' cases in respect of individuals or a body corporate, to be directed to the High Court or in Scotland, the Court of Session. For individual appellants the relevant court is dependent on the address which the appellant has as his registered address with the regulatory body. For a body corporate the relevant court is dependent on the registered office address.

164.     New section (1B) provides for a practitioner or body corporate to appeal against decisions to remove registration on grounds of fraud or error to a county court, or in Scotland to the sheriff.

165.     Subsection (2) also sets out the appeal court's order making powers.

Clause 31: Osteopaths

    166.     Clause 31 amends the Osteopaths Act 1993. Subsection (2) 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 provides that time for serving notice of appeal runs from 28 days after notification of the order to remove was "served". Subsection (2) also sets out the appeal court's order making powers.

167.     Subsections (3) and (4) deal with consequential amendments to sections 22 and 23 of the Osteopaths Act.

168.     Subsection (5) amends section 29 of the Osteopaths Act to provide that appeals against refusal of registration on more general grounds are to be to a county court or in Scotland, the sheriff. This removes the previous right of the appellant to choose whether to appeal to a county court or the High Court. This subsection also extends the basis of appeals to issues of fact as well as issues of law and sets out the appeal court's order making powers.

169.     Subsection (6) 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.

Clause 32: Chiropractors

170.     Clause 32 amends the Chiropractors Act 1994. Subsection (2) 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 provides that time for serving notice of appeal runs from 28 days after notification of the order to remove was "served". Subsection (2) also sets out the appeal court's order making powers.

171.     Subsections (3) and (4) deal with consequential amendments to sections 22 and 23 of the Chiropractors Act.

172.     Subsection (5) amends section 29 of the Chiropractors Act to provide that appeals against refusal of registration on more general grounds are to be to a county court or in Scotland, the sheriff. This removes the previous right of the appellant to choose whether to appeal to a county court or the High Court. This subsection also extends the basis of appeals to issues of fact as well as issues of law and sets out the appeal court's order making powers.

173.     Subsection (6) 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.

The pharmacy profession

Clause 33: Regulation of the profession of pharmacy

174.     Clause 33 amends Schedule 3 of the Health Act 1999, and by doing so extends the powers in section 60 of that Act for Her Majesty by Order in Council to modify the regulation of the health professions to bring their scope in respect of the pharmacy profession more into line with that for other professions.

175.     Orders under section 60 may be used to modify the statutory regulation of health care professions and to regulate other health care professions which are not yet subject to such regulation. Subject to certain limitations, an Order may repeal or revoke any enactment, amend it, or replace it. One such limitation relates to the Medicines Act 1968, which is one of two main Acts (the other being the Pharmacy Act 1954) which contain provisions relevant to the regulation of the pharmacy profession. At present, an Order may (except for certain associated purposes) only amend sections 80 to 83 of the Medicines Act. Those sections deal with the disciplinary action which may be taken against bodies corporate and certain other persons lawfully conducting retail pharmacy businesses.

176.     This clause will permit an Order to amend any other provision of the Medicines Act insofar as it relates to the regulation of the profession of pharmacy in Great Britain. This might, for example, include section 79 of the Medicines Act which restricts the use of "pharmacist" and various other titles to people with particular qualifications. Equivalent provisions for other professions are already within the scope of the order making power.

Part 3: Miscellaneous

Clause 34: Amendments of health service legislation in connection with consolidation

177.     Clause 34 enables the Secretary of State to amend legislation relating to the health service in England and Wales by order if he thinks that such amendment will assist the consolidation of that legislation. Under subsection (2) amendments made under the Order will form part of consolidating legislation. Clause 36(3) provides for such orders to be subject to affirmative resolution.

Clause 36: Regulations and orders

178.     Clause 36 makes provision about the making of orders and regulations under the Act. It provides that all such powers (except those under clause 20(5)) shall be exercised by statutory instrument, sets out the parliamentary procedures relating to statutory instruments and how the powers in question may be exercised.

Clause 37: Supplementary and consequential provision etc

179.     Clause 37(1) and (2) enable the Secretary of State by regulations to make such supplementary, incidental or consequential provision, or such transitory, transitional or saving provision, as he considers necessary to give full effect to the Act. This includes power to amend or repeal any enactment, instrument or document. This would enable regulations to be made to, for instance, ensure a smooth transition from Health Authorities to Strategic Health Authorities in England.

180.     Subsection (3) provides that such regulations may also be made by the National Assembly for Wales in respect of devolved matters.

Clause 38: Wales

181.     Clause 38 provides that in the National Assembly for Wales (Transfer of Functions) Order 1999 any reference to an Act amended by this Act is to be treated as a reference to that Act as amended.

Clause 39: Financial Provisions

182.     Clause 39 provides for expenditure relating to the Act to be paid out of money provided by Parliament.

 
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Prepared: 9 November 2001